Our Water Must Never be for Sale – Explaining Public Trust and Why it Matters

Lake Superior in the Winter

What is the Public Trust Doctrine?

In Michigan, we understand that our fresh water is our most precious natural resource. Our state is literally defined by water, and in Michigan our water belongs to all of us.

Since long before Michigan even became a state, water resources were protected by the “Public Trust Doctrine.” In short, Public Trust means that the people of Michigan own our water resources, and the State has a solemn responsibility to protect our water for the use and enjoyment of Michigan residents. This is an important yet often overlooked piece of our bundle of rights in a democratic society.

Our water is commonly owned by all of us, and the trustees (Michigan’s elected officials) are responsible for ensuring that our water is protected and preserved now and for future generations. As residents of the only state surrounded by 21% of the world’s fresh surface water, our responsibility to ensure that our water remains protected is critically important not only here at home, but across the globe.

Current Status of Public Trust Protections for Michigan’s Water

For too long, vague laws have enabled huge corporations like Nestle to chip away at our water rights. While they may not be able to take tanker trucks full of water or build pipelines to other states, they can still take massive amounts of our water, bottle it in containers of 5.7 gallons or less, sell it back to us and profit off of those sales due to the “water bottling loophole” in the Great Lakes Compact.

The Great Lakes Compact is an agreement between all eight Great Lakes states and two Canadian provinces that guarantees regional protections of our public water resources. The water bottling loophole in the compact says that water in a river, lake, or stream belongs to the public, but as soon as a private corporation like Nestle takes water that rightly belongs to the public, puts it in a bottle and sticks a price tag on it, it becomes a commodity. This contradiction sets a dangerous precedent – it opens the door to our water being for sale.

Further, public trust law has not caught up with science. We understand that groundwater and surface water are part of the same hydrologic body, however surface waters are explicitly protected as public trust resources, while the status of groundwater is not explicit and could be left up to the courts to decide.

What Clean Water Action is Doing About it

In the Michigan State House, a “water protection package” has been introduced to ensure that Michiganders now and into the future are empowered to protect the water on which we all rely. These bills will ensure basic public trust protections are in place for our water by eliminating the water bottling loophole in the Great Lakes compact and codifying the public trust nature of groundwater explicitly in state law. These prudent changes will ensure that Michigan has the ability to reject future water withdrawals that are deemed to be not in the public’s interest. Without these protections explicitly in place we face the very real possibility that our most valuable natural resource, the water which defines our state, could be interpreted as subject to international trade laws and the US Constitution as an article of commerce, and thus available for sale to the highest bidder.

While these bills will safeguard our water against companies that seek to put a public trust resource in a bottle and call it a commodity, it is important to note that they will also provide critical protections for water users in our state. As opposed to water takers like Nestle, water users, like Michigan farmers, depend on a plentiful and clean water supply to grow the crops on which Michigan families and our economy rely. It is in the best interest of farmers across our state to be good stewards of our water, as abundant and clean water resources are necessary for their farms, and livelihoods, to thrive. This legislation will ensure that our water supply is managed in the best interest of all Michigan residents, and that our water users will have the access they need to the resource in perpetuity, without having to compete for water resources with large water bottlers like Nestle.

Take action today -- Tell your State Representative to support these critical bills.

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