Michigan Lawmakers Must Step Up on Behalf of Our Water

It is vital to assert the human right to water and prohibit private control and sale of water as a product

Jim Olson, FLOW Founder & Senior Legal Advisor

Editor’s Note: Great Lakes Echo published an article in December 2021 titled, “Can a bottled water royalty help preserve the Great Lakes?” which highlighted the idea of applying a royalty on sales of water captured by private entities and sold on the market. FLOW founder Jim Olson offers his thoughts on the nature of water as part of the public trust and the necessity of retaining state sovereignty over all water.

By Jim Olson

In Michigan, water in its natural state, including groundwater, is held by the state as sovereign for the benefit of the people. Michigan’s 2008 groundwater withdrawal law declares that lakes, streams, and groundwater–indeed springs, seeps, and wetlands–are a singularly connected part of the water cycle. The removal of water from one arc of the water cycle affects the other, often substantially.

It’s time for all legislators regardless of political party to step up on behalf of all of us and protect our public water, assert the human right to water, and prohibit private control and sale of water as a product.

The 2008 law also declares waters of the state, including groundwater, are held in trust for the benefit of citizens, and so does the eight-state Great Lakes Compact, which also dates back to 2008. When the singular and connected nature of groundwater and surface water is scientifically understood, that the removal of groundwater is a removal of surface water that is otherwise replenished by the groundwater, courts regularly subject the withdrawal to public trust protections. The U.S. Supreme Court, in its 2021 Mississippi v. Tennessee ruling, reaffirmed its basic rule that groundwater, like all waters within the boundaries of a state, are subject to exclusive control and ownership of the state, except for navigational servitude and interests. 

The Michigan Supreme Court has recognized that groundwater is not owned by anyone, and to the extent that it is, it is the common property of the state as sovereign. So, too has our legislature declared that our lakes, streams, and groundwater are a single hydrological system and that these common waters are held in trust by the State as sovereign. Sovereign means people–that’s all of us here in Michigan.

The International Bottled Water Association is wrong. Water is not a product until a state authorizes the sale of water as a product. That hasn’t happened in Michigan. BlueTriton Brands, formerly Nestlé Waters North America, Inc., like other bottled water operators, gets permits to withdraw and use water, but the notion that use includes sale has never been addressed. Once it is, water, if allowed to be sold in bottles or other containers less than 5.7 gallons must be licensed. Any other sale of water must be prohibited and explicitly not authorized or subject to license. Otherwise, Wall Street hedge funds and commodities exchanges will move in, prices will skyrocket, and water necessary to our own people, farmers, farms, industries, recreational pursuits, and communities will be subject to private control. 

We sure don’t want water traded or marketed out of the Great Lakes or Michigan. If there’s a humanitarian need or crisis, a one-time transfer can be done by the state for a public, humanitarian purpose on behalf of its citizens. But it won’t be sold, and it won’t be a product.

It’s unconscionable that those in cities and villages in rural areas facing water shutoffs because of inability to pay for the unaffordable rising costs of infrastructure or the presence of lead or another health threat should be forced to buy and use bottled water, which is degrading.

Municipal drinking water services are public goods established for public use, not private sale. That’s why bottled water companies that tap public water supplies in Michigan must obtain a license. Otherwise they would take the water, jack up the price once in a bottle, and not share the gain from selling a public good with the rest of the community’s residents–that’s called a subsidy, and under Michigan law and constitution, it’s unlawful. 

It’s time for all legislators regardless of political party to step up on behalf of all of us and protect our public water, assert the human right to water, and prohibit private control and sale of water as a product. It’s unconscionable that those in cities and villages in rural areas facing water shutoffs because of inability to pay for the unaffordable rising costs of infrastructure or the presence of lead or another health threat should be forced to buy and use bottled water, which is degrading, and 100 to 1000 times more expensive than what people should be able to pay to a city or village for their public water service.