A fish kill in Oregon may seem to have little to do with Michigan waters – but if you look closely there is a close connection in law.
As the result of large-volume groundwater withdrawals like that in Oregon’s Deschutes River, western states have documented the serious impairment of streams, their ecosystems, fish, and the public right to fish. Michigan should also undertake this same type of documentation in order to prevent the loss of our own water resources and important public rights in our lakes and streams.
This kind of robust data collection and information can show the connection between groundwater withdrawals and their causal impact on our public trust resources and protected public uses like fishing, canoeing, and swimming.
Faced with such factual and scientific clarity, most state courts (Wisconsin, Arizona, California, Hawaii) are readily expanding public trust law to limit groundwater withdrawals that diminish flows and levels and water quality on lakes and streams, and cause harm to fish and fishing or other protected uses.
In Michigan, the Supreme Court in Schenk v City of Ann Arbor recognized over 100 years ago that it was unlawful under the common law of groundwater for a landowner—in that case a city—to withdraw and divert water off-tract if this measurably diminished the flow or level of a creek, stream, pond, or lake, or interfered with others’ riparian uses.
Michigan’s Constitution, article 4, section 52, declares that our state’s water and natural resources are of paramount public concern and interest. Michigan’s groundwater law and the Great Lakes Compact recognize that groundwater, lakes, and streams are a singular hydrological system. There is no ethical, scientific, or legal reason why the impairment of public trust resources or interference with public rights and uses of our lakes should not be ruled unlawful by our courts in Michigan under the common law public trust doctrine.
