Posted: April 12, 2010
ONLINE COMMENTARY – Detroit Free Press
Water and the public trust
BY JAMES OLSON
The future of Michigan’s economy and quality of life, like that of other Great Lakes states and provinces, hinges on our ability to preserve the integrity of one-fifth of the world’s fresh surface water as a public trust — that is, publicly controlled and held by government for the benefit of all citizens, not for the possession, ownership, or control to benefit the few.
The public trust not only creates a right in the public as beneficiaries of this trust, but also imposes a duty on the state as trustee for citizens. This duty prohibits the sale, alienation or subordination of water to private interests for private gain. It protects everyone’s use of water, such as drinking, growing crops, swimming, boating, navigation, fishing, hunting, canoeing, kayaking, wildlife, education, research, and manufacturing products or generating electricity.
It does not mean the public can trespass or take over private rights in land, including the right to use water to farm, manufacture or recreate. The public trust is a critical boundary that protects all water users and the economy, especially the economy of farmers, forestry, industry and utilities, fishing and tourism, all of whom share these waters with the public and other landowners and the needs of the environment.
If public trust principles are not reaffirmed (these principles have been around for more than 2,000 years), then the water commons that supports all life and economy here will be diminished in flow, level and quality, and claimed by special or foreign interests under international treaties such as NAFTA. That’s the danger if a limit is not placed on the sale or export of water out of our watersheds and the Great Lakes Basin.
In other words, industries and the jobs they produce, like farming — Michigan’s second largest industry — will be forced to compete with the infinite demand for water anywhere in the country, continent or the world. Imagine owning land and depending on water, and suddenly having to compete with those willing to pay more money for the water than we can afford for growing our food, and watching it being sold and drained from beneath our feet gallon by gallon.
This is why everyone in Michigan, regardless of political persuasion, should support the passage by the Legislature of state Rep. Dan Scripps’ proposed public trust bill (House Bill 5319).
In less than 30 years, half the world’s population will be without safe drinking water if current water waste and pollution are not curbed. Recent U.N. and business surveys demonstrate that world demand for freshwater will outstrip supply by more than 30%.
Why would Michigan leave itself open for the rest of the world to press a finger on the map, buy land, and come here and ship the water somewhere else?
There will be naysayers, like those falsely claiming that they own groundwater or have a private property right to sell water for any reason at any price without regard to the effect on a neighbor, a lake or stream, or the public. But these claims are misplaced.
There is only a right to use water in connection with use of land or needs of a community in a watershed or basin. No one person or landowner owns the water any more than the air, the Great Lakes, a river, or the fish, nor should we ever recognize such right.
Landowners, farmers and businesses enjoy the right to use the water without diminishing or selling it off at the expense of everyone who shares the use of the water commons.
House Bill 5319 declares water a public trust, imposes a duty on the state and government, as the trustee, to protect water and related natural resources, and prohibits the government or anyone from violating the public trust principles. Water cannot be sold for a private purpose and profit as if water were a product or commodity; it cannot be transferred or diverted if it impairs the use or common rights of the public in water, or is used to subsidize a few at the expense of all.
The bill also grants each citizen the right to bring a lawsuit in the courts if the government or another violates the public trust duty and principles. What good is a public trust or right, if citizens cannot enforce it when government violates its public trust duty? If citizens can act, we will maintain public control, respect private use, and prohibit the private abuse or export of freshwater, basic to the survival of all of us.
James Olson is a Traverse City attorney.
Public Trust Press Release World Water Day event
Public Trust Bill ACTION ALERT 3-19-2010- final (2) (2)
Public Trust Bill Action Alert
Article available on http://www.freep.com/article/201004120300/OPINION05/100409057