Large-Volume Groundwater Withdrawals and the Public Trust

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.

3 comments on “Large-Volume Groundwater Withdrawals and the Public Trust

  1. Kerri Knudsen on

    Without clean water, nothing can live for very long. We must protect all water from waste, poisoning and the ability for all people and fish/ animals to use for a healthy life.

  2. James Mark Olson, Sr. on

    This is well done, accurate, an important reminder of the damage that what-we-can’t-see effects and impacts from large groundwater withdrawals and/or diversions do to flows, levels, environmental conditions., habitat, and fish, and the rights of others. The non-material diminishment standard under the Schenk v Ann Arbor case heavily influenced the final judgement in the MCWC v Nestle case that cut in half the company’s large diversions for the sale and export of bottled water to protect a stream, wetlands, and a lake. In addition, the public trust doctrine that applies to navigable waters and their tributary waters prohibits diversions or withdrawals that impair water levels, fish habitat, fish, fishing, swimming, boating, and other public uses. These are bedrock principles that protect our groundwater, lakes, and streams and protected public rights.

  3. Isha Mazer on

    greetings I’m a liason for a yoga-ecology corp in the West. an article by Geroge Wuenthner in DEC 6/22 illuminates beyond any doubt water theft; its called Enviorn. Vandalism. There is no way to grasp how out of control the theft of water from central ORegon life blood; The Deschutes River has been emaciated by. Moreover half of all of Oregon’s endemic Salmon nation members are currently scheduled for extinction as the water extraction scheme stands. Recently far-right Republican politicians here are yeilding axes in congress to halt the breeching of concrete dams on the Snake river so to save Salmon nation members from that fate. We are visionaries of the Provisional Ecological Authority here in Oregon


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