Dan'S cripptic Bill: What's the Truth?

[XLFD]

Last year State Rep. Dan Scripps (D-Leland) introduced legislation that states that Michigan groundwater should be held in public trust and managed for the good of all. The legislation was spurred by concerns that current law allows for the mining and export of groundwater.

2009-HIB-5319.pdf

 

In an interview with Great Lakes Town Hall on 2-28-10 he defended his bill:

GLTH - Last December you introduced legislation (HB 5319) to strengthen protection of Michigan's water, especially related to the public trust. What will this bill do and why did you introduce it?

DS - This plan would clarify that all of Michigan's waters in the public trust, which is the same idea that allows you to take a boat out onto any of Michigan's lakes or rivers without having to pay a fee to the company that bought the land around it. This is an idea that's been around for centuries and already applies to the Great Lakes and our surface waters. Extending these protections to our groundwater is vital if we are going to protect all of our waters for our kids and grandkids.

GLTH -  The Great Lakes Compact says the Great Lakes are a public trust resource. Isn't that enough?

DS - Sadly, it is not. Experts tell us that groundwater and surface water are really one and the same. If we don't have comprehensive protections on our waters everywhere, the truth is that we don't have adequate protections for our waters anywhere.

GLTH - Some say your bill is at odds with private property rights? How do you respond to them and others who may be unsure about your legislation?

DS - Nothing could be further from the truth. This has been one of the biggest misconceptions about this plan, and I've spent a lot of time listening to concerns, and trying to correct what it is that my bill does.  Let's be clear. This plan will strengthen the property rights of well owners and make sure our water is protected. There is no clear separation of the waters under your property from those that extend under your neighbor's land. Without these protections, there's no guarantee that you can continue to access the water that belongs to you, and that a water withdrawal by a company down the road can't dry up your well.

This plan will allow you to stand up and have your voice heard. Property owners should have the right to have a say in the waters they depend on. My plan will make sure that they do.
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This bill crossed my consciousness when I recently received a Republican party political flier in the mail saying that Mr. Scripps was trying to take our property rights away, and referred to this bill.  Verifying that perspective was the Traverse City Record Eagle: 

 

"Jim Fuscaldo, a retired scientist and lawyer from Cedar, argues if water is considered in the public trust, it means the state can claim ownership and potentially tax citizens to use water on their own property. It could have implications for homeowners, farmers and businesses, he said.

“It transfers all private property water rights to the state without proper compensation. That’s unconstitutional,” Fuscaldo said. “Regulation of use is different than the unequivocal taking of property. They want to regulate the use, but they are going about it the wrong way.”

Maple City water well driller John Zientek agrees.

“It’s the state taking something away from a property owner without any compensation. I don’t think it’s right to take property rights away,” he said.

Zientek worries the state will not only claim ownership, but may one day look to user fees as a new revenue source, if groundwater is placed in public trust."
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A couple of years ago I might have thought Jim and John were being a bit too alarmist, but we need only look in our own backyard to remind us that they understand the unintended consequences of such legislation and an increasingly over reaching government. 

 

Last year, presaging Scripps' legislation, the City of Ludington took away several residents rights to use their groundwater.  In a divided vote which had the mayor casting the tie-breaking vote, the City Council prohibited  Ludington citizens using water from 12 wells in the north side of town for any purpose. 

 

These wells had been declared contaminated by prior industries, and even though they had been used by folks for years for irrigation and other non-drinking purposes, the City created law that said they could no longer use this well water for anything, they had to be capped, The owners were further restricted to connect to the City's water system, and rewarded them and every other resident a month later by raising the water rates by 19%!  Here's the contentious debate last October:

Well struggle October 2009.doc

So what's your verdict on this subject of groundwater-- public or private?  Is it more of a dealmaker or a dealbreaker for your support of Representative Scripps?  How do you think Ludington's experiment has worked for the public good, and do you think they may have overstepped their authority in telling the property owners what they had to do with their well?  After all, doesn't Rep. Scripps' bill presume the state (and its divisions) has no such power over groundwater already?

 

[Lisa O'Brien]

I would never vote to give up my rights on anything.

[charlemagnetism]

i know a couple of people in n ludville who was affected by these well laws. one spoke up at the meeting. slick danny put this bill out a couple months after this. any connection.
when the state owns all the water if this bill becomes law whats stopping scrippers and his ilk from taxing us when it rains. particlarly those darn farmers who make use of it.

[Nicole Birkett]

I was really excited when Dan proposed this bill and I saw it as a protection of local resources for the good of all local property owners, rather than at the expense of one.

When I was at MSU, I had a few professors who were working on representing the Big Rapids community who were opposed to Perrier pumping thousands of gallons of water per day out of a local spring. The fear was that pumping that much spring water per day would eventually dry up the local spring-fed wells.

I have seen whole lakes/large ponds disappear with a pump a half a mile away. I was heartbroken after my favorite, child-hood fishing pond/lake dried up because of spring siphoning.

I do think that the flyer is alarmist. This bill is-lord, as much as I hate to say it-for the greater good. Companies used to be able to find the best place to access the most water and be able to pay the land owner only for compensation for using their land to pump on, but the actual water lost can cause people within many miles to lose their existing wells (I have to replace mine soon, and the cost is unpleasantly high).

As far as the city of Ludington restricting locals from accessing their own ground water...I thought that was because they found the level of cancer causing chromium from the old local foundry to have been at dangerous levels in the local ground water, and closed anyone's ground well within a certain area north of US-10/Ludington Avenue. All in all, a relatively reasonable precaution (not a stripping of local land rights).

[Edie Lindsey]

The people that used those wells for irrigation, I think, would argue with that last paragraph of yours.

Milliken's statement "I have heard it stated that this bill would 'tax water,' 'take away property rights' and 'give the government control of our waters.' Very simply, these claims are false." has already been disproved by Ludington's actions. And this is before this bill is active as a law.

[Nicole Birkett]

It wasn't an irrigation well-it was an oil well that was installed, and they tapped a nearby spring for part of whatever they were doing. The suction from the lack of water in the spring somehow pulled the oil that was being pumped out into the local pear orchard and out into the pond/lake. It's now a 2 mile radius designated as a biohazard clean-up.

I cried when it happened, it still breaks my heart to think about it. And the people who agreed to the easement feel the same way.

I wish you wouldn't have made assumptions to invalidate what I'd written. It was very personal, and I was trying to give the best example I could from my own experience.

[XLFD]

In Edie's defense, I think she was referring to the Ludington wells in the northern section of town, not trying to invalidate what you had written about the Big Rapid's incident. She had responded only to your last paragraph.

[Nicole Birkett]

I apologize, Edie. I misunderstood what you were referring to. I wasn’t aware that there were farms that were affected by the well capping. I thought that the paper said that the water affected was north of US-10 and between Delia and I can’t remember where, I just tried to look up the old article, and how long has the Ludington Daily News had their archive search function removed?
If there were farms affected, and all the city did was to quietly close the wells, I think that they probably did the farmers a favor (how many years have they been selling produce or meat that contained dangerous levels of chromium? If anything, I’d be angry that the city didn’t release a public notice that the chromium levels didn’t just affect the owners of the wells, but also anyone who purchased food products from farms that used the groundwater to water their livestock and irrigate their fields…that’s rather scary).
Could you tell me which farms were affected? I’ve tried to find the old articles that mentioned the section of the city that was being affected by the well closings, but, like I said, the articles are no longer online-or, at least the paper has removed the search function from their site.

And any city can step in when there is a known biohazard on an individual's property that can possibly affect their neighbor's health. This isn't new, and it isn't just Ludington.

[Nicole Birkett]

X, have you seen Gov. Milliken's reply to the flyer in the "Traverse City Record Eagle"? I believe it was published in the Eagle on October 3rd:

"I have heard it stated that this bill would 'tax water,' 'take away property rights' and 'give the government control of our waters.' Very simply, these claims are false."

In fact, this legislation would give our groundwater the same protections that have been in place for our rivers, lakes and streams for decades. Without these protections, we currently cannot prevent out-of-state interests from taking and exporting our fresh water. In an age of scarce resources, this is unacceptable."

Former Governor of Michigan, Bill Milliken

[Nicole Birkett]

I questioned one of Dan's aides about his bill and he referred me to www.michiganwaterfacts.org.

1) Representative Scripps introduced legislation (HB 5319) to give groundwater the same protections that every other kind of water in Michigan currently has.

2) Representative Scripps also introduced legislation (HB 6050) to prevent any unit of government from taxing our water.

The current law says that water users are not required to obtain a permit unless they are withdrawing over 2 million gallons per day from any source ("Natural Resources and Environmental Protection Act, Act 451 of 1994, Section 324.32723")

Why Dan feels this is necessary?
"Michigan has long had what's called a "Reasonable Use" standard for water use, meaning that you could use as much water as you wanted as long as it wasn't affecting your neighbor's ability to do the same. Unfortunately, as part of the litigation surrounding the Nestle case, the Michigan Court of Appeals radically changed this standard to what's now known as the "Reasonable Use Balancing Test." The special treatment this gave to major corporations-in this case, Nestle-necessitates the protections this bill would give to taxpaying citizens."

http://www.mlui.org/landwater/fullarticle.asp?fileid=17431

In the Nestle case, it had to go to court in order to stop their proposed pumping. The court agreed that it was likely that Nestlé’s proposed pumping would reduce the river’s flow by 28 percent and the level of the two lakes by as much as 6 inches and in 2003 they halted Nestlé’s water withdrawal because it would cause substantial harm-but, had not Nestle been taken to court, they had already obtained the necessary permits based on the current law (the adjacent properties wouldn't be affected, but the lake and river miles away would). Think about what could happen if Pere Marquette's flow permanently dropped by 28% and the lake by 6 inches.

[XLFD]

I have taken a look at both sides, and I agree that there may be some overblowing of the facts by the conservative flyers, particularly when they try to say he is trying to take away all private water rights, and that his bill would allow the government to TAX the well water of private property owners.

The Pollyanna outlook of Bill Milliken and Dan as regards the benefits of state stewardship of groundwater seems a bit off to me too though.

The conservative points may be, however, some unintended consequences that may develop if such a bill was to become a law. I will assume that Dan Scripps' motives are the same as what he states, he has given me no reason to believe he would be dishonestly putting this out to make those unintended consequences real.

I've noticed I can't talk about this bill without saying the catchphrase "unintended consequences". Freaky.

[Nicole Birkett]

I think it's unfair and inaccurate to call both Milliken and Dan's outlooks as Pollyanna-like. They are attempting to fix a known problem: the loophole that was created in Michigan law after the Nestle case makes it more difficult, nigh impossible, for the public to take to court a company who wants to pump water for sale out of state-as the Berrien citizens were able to partially do.

A Pollyanna would say that there's nothing wrong with the changes made to the law, and everything will work itself out...which is Franz's position-there's the Pollyanna outlook.

Scripps is saying, "Wait, wait, we've taken away the rights of the people to protect their own property, and we're leaving the state open to greater dangers: potentially losing our most valuable resource."

Franz has countered, "That won't happen. And, I'm going to tell everyone you just want more regulation at everyone's expense by falsely implying that you're going to tax groundwater (even thought that's been expressly prohibited in your bill) and implying that your bill will create more regulation that could establish precedent to extend government control over private property (although, it's been expressly noted in the bill that no new regulation would be extended to groundwater, it would be the EXACT same regulation that covers rivers and creeks)."

I had a group of people in my office who were yelling at Dan's aide yesterday, and from what I've heard, the farming community has been told/asked, "What do you think about having your groundwater, that you use to irrigate your fields, regulated by the government and possibly taxed?"

They've been baited with hypotheticals bordering on lies (there is a provision of the bill that PROHIBITS groundwater from being taxed. The bill still allows 200 million gallons of water to be pumped per day (that's how the law has always been) and it won’t affect farmers.

I wish you would rethink that title of this discussion. There is nothing cryptic about the bill, or about Dan’s intentions (I have the utmost respect for both Dan and Gov. Milliken-and it’s hard to find politicians that honest, straightforward, and open to conversation-he carries a notebook with him and takes notes on everything you say to him, for crying out loud, and then repeats back what he’s written to make sure he didn’t miss anything).

Have you read the bill? It’s just an amendment:

Michigan House Bill No. 5319

A bill to amend 1994 PA 451, entitled "Natural resources and environmental protection act," (MCL 324.101 to 324.90106) by adding part 4.

The people of the State of Michigan enact:

Part 4. Public trust resources

Sec. 401. (1) The conservation and development of the natural resources of the state are of paramount public concern in the interest of the health, safety, and general welfare of the people, and the air, water, and other natural resources of the state shall be protected from pollution, impairment, and destruction.

(2) The waters of the state, including groundwater, are held in trust by the state. The state shall protect these waters and other natural resources that are subject to the public trust for the benefit of present and future generations.

(3) The attorney general, on behalf of the state, or any other person may maintain an action in the circuit court having jurisdiction to enforce the public trust in the state's natural resources, either alone or in conjunction with other provisions of this act or other legal remedies that are appropriate. The circuit court may apportion costs, including attorney fees, if the interests of justice require.

[Sweater Cows!]

Nicole, Use west MI Well Drilling 757-0581. I paid $4750 last summer (09), it might be a touch more if you want him to do the yard landscaping afterwords or run a yard hydrant out to the barns. I just had him put in a load of sand and smooth it and no other landscaping, not sure really if they do it or the homeowner is supposed to.. for my 5(or 4 can't remember) inch well that went down to 80 or 100 feet. He also put a yard hydrant in for me, make sure you have this done. Heck put one by each of the barn and one on the North side of your house in case you ever want a pool or garden over there. It is SIMPLE for him to run it right out by your barns. I wouldn't give yard hydrant up for anything. I LOVE MY YARD HYDRANTS. It is better than running water all around the house or having to mess with hoses, I hate messing with hoses. But boy can that outside pressure flow! It is run straight off the well line coming into the house so it is before the pressure tank so the flow is straight out of the well.

And make sure you have it (the well) put exactly where you want it. I didn't put mine in a good spot and now it is stuck in the middle of my yard for 100 years.