Bill would restrict property owners from using their own water

A dormant federal proposal to subject even small puddles to the authority of the U.S. Environmental Protection Agency has been introduced in the Michigan Legislature as a state-level idea.

Under a proposed rule called “Waters of the U.S.,” the EPA would have been able to control how farmers use water on their property. Its logic was that water on their lands, even small furrows or ponds, had a significant nexus to larger, navigable waters over which the EPA has jurisdiction.

“The waters of this state, including groundwater, are held in the public trust by this state,” according to House Bill 5953, introduced by Rep. Yousef Rabhi, D-Ann Arbor, and Senate Bill 987, introduced by Sen. Jeff Irwin, D-Ann Arbor. The legislation would give state agencies such as the Department of Natural Resources or the Environmental Great Lakes and Energy Department similar powers.

These bills do not distinguish navigable waters such as public lakes and rivers from puddles or stock ponds on private property that do not connect to public waters.

The concept of public trust cited in the legislation, is defined by the Michigan Constitution (Article IV, section 52). “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people," the section reads. “The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”

The language is not narrowly defined, giving leeway to government agencies like the EGLE and the the DNR. In the same way the EPA sought to control the activities of farmers nationwide, state agencies could require property owners to obtain permits if they wish to use water found on their own property. The uses could include collecting rain water, nourishing a garden or filling a swimming pool.

If the legislation were to become law, it would revoke current doctrine on water use. Under the existing standard, property owners have the legal right to use groundwater reasonably as long as doing so does not hinder neighboring property owners from their efforts to obtain water, according to MichiganVotes.org. The site notes that the current law relies on the riparian water use doctrine, which generally applies in states east of the Mississippi River.

In states with limited water availability, property owners often must secure water use permits, on the grounds that a regulatory scheme will keep large ranches and other operations from hindering a neighbor’s ability to obtain water. Michigan is the leading state in the nation for fresh water with 40,175 square miles, according to the United State Geological Survey. Only Alaska, which has an extensive ocean coastline, has more water-covered area, at 94,743 square miles.

Rabhi and Irwin did not respond to a request for comment. Gov. Gretchen Whitmer’s office also did not respond to a query about whether Whitmer intended to sign the bill.