Change In Basic Water Use Law Could Hit Michigan Farms

The King Orchards produce company has two locations in Northern Michigan and sells its canned tart cherries online.

“Give your cherry recipes a homemade feel with these Montmorency tart cherries, packed in water,” reads the company’s online ad.

Fruit and vegetable sales represent the largest “export” of water from the state of Michigan.

In 2016, irrigation for agriculture accounted for 44% of “consumptive water use” in Michigan, according to data from the Michigan Department of Environment, Great Lakes and Energy. Commercial use of water was just .19% (less than 1%). The department defines consumptive water use as “the portion of a water withdrawal that is not returned locally due to evaporation, incorporation into products, or transport out of the Great Lakes Basin.”

Under recently proposed legislation, King Orchards, and any Michigan farm or business whose farm products are shipped out of state, could be required to obtain permission to use water under a public trust doctrine from state environmental regulators before growing a single cherry, tomato or bushel of corn.

State Rep. Yousef Rabhi, D-Ann Arbor, introduced House Bill 5290 in December.

Rabhi's office said in an email that the provisions in the bill would not apply to agricultural products. Under the bill, farmers could need to get permission to access ground water needed to grow crops but once grown would not be prohibited from exporting the water out of the state in containers.

The real target of the bill is a particular Michigan water bottling operation run by Nestle that sells, or “exports,” water to other states. But the legislation proposes a broad-brush regulatory regime that would affect every food grower and producer in the state.

Specifically, the bill would empower state environmental regulators to impose rules that are, in its words, “necessary to sufficiently ensure the protection of the public trust in the waters of this state.” The ultimate reach of the bill would be defined by rules imposed by state regulators after the proposed legislation became law.

The term “public trust” is key to this proposal. It is a legal term of art meaning that prior government permission is required for water use. The doctrine is prevalent in arid parts of the western U.S. but not in the east.

But Michigan has always operated under a “riparian rights” water use doctrine. This grants property owners a right to use groundwater without prior government permission, as long as their use does not impair neighbors’ access. The right comes with a duty to not impair others’ use of the resource, and to compensate them if that happens.

Editor's note: This story was updated to provide comments from Rabhi's office. This story was modified to reflect their comments.