Before adjourning for the 2008 summer break, the Michigan legislature approved the Great Lakes Compact (pdf) and accompanying changes to Michigan's water laws. Governor Jennifer Granholm signed the bills into law on July 9, 2008 thus completing the required multi-state legislative approval process by all eight Great Lakes states.

The Compact must now be approved by Congress before it moves forward for formal approval by the Canadian government at which time it would become part of an international agreement known as the Great Lakes Charter Annex. Both the Compact and the Annex are designed to protect the Great Lakes from water exports out of the Great Lakes Basin while also establishing new water conservation and environmental protection standards for water uses within the Great Lakes Basin.

Michigan's water withdrawal laws remain far too weak but lawmakers made the following changes in 2008:

1. Lowered permitting thresholds will increase the number of large water withdrawals requiring permits to use Michigan's water thus allowing the public to have a voice in more permit decisions.

The permitting trigger for Great Lakes withdrawals was lowered from 5 million to 2 million gallons per day and proposals to withdraw more than 1 million gallons per day in certain areas will require permits.

2. Lowered the permit trigger for bottled water operations.

The previous permitting trigger was 250,000 gallons per day and the legislature lowered it to 200,000 gallons per day. Worldwide consumption of bottled water has more than doubled in the past decade, and it is increasing at a rate of over 9% every year. In 2007, more than 9 billion gallons of bottled water were consumed in the U.S.; China and India have increased their consumption of bottled water 19.7% and 24.6%, respectively from 2001 to 2006. Bottled water operations represent the tip of the iceberg in the effort to commercialize Michigan's waters.

3. Strengthens water conservation provisions of Michigan's water laws by requiring proposed large water withdrawals to consider water conservation practices under certain conditions.

In areas where water is becoming scarce, users must certify that they have considered implementing conservation practices, and all applicants for new or expanded uses must show they are implementing cost effective practices. Drought, climate change, and a growing global demand for fresh water resources make us vulnerable to demands for Great Lakes water.

While there are several areas where the 2008 legislation falls short, two are most noteworthy:

1. The Senate Republicans refused to strengthen public trust protections for Michigan's waters.
Public trust is a common-law doctrine of property law, customized by each state. Dating back to the Roman Empire, it is based on traditional use of common areas for food, travel, and commerce. It established public rights in navigable waters, in land beneath the navigable waters, and on their shores.

But without a duty to apply the public trust by law in Michigan, the courts are the only existing avenue for extending public trust protections to groundwater. Applying the public trust doctrine in the law to groundwater simply brings the state's legal authority and responsibility in line with the scientific and hydrologic realities of Michigan's lakes and streams.

Both Michigan's water laws and the Great Lakes Compact exempt water in containers less than 5.7 gallons from the definition of diversion which means Michigan's water diversion laws literally leak. So, one cannot fill a ship or a truck with water and ship it out of the Great Lakes Basin. However, the same vehicle could be filled with bottled water and it can leave the Great Lakes Basin. As noted above, with the growing rate of bottled water consumption, it is easy to imagine a proposal to bottle and export at least a billion gallons per year from the Great Lakes basin to other parts of the U.S. or around the world. Bottled water companies would like water to be treated like any other commodity, as part of their interest in asserting private ownership over our public resource. If we fail to place controls on the water-for-sale industry now, we will allow this to continue and risk losing public control over the Great Lakes.

2. The legislature approved inadequate protections for Michigan's cold water streams.

Our prized coldwater streams are a resource that makes Michigan a worldwide destination for trout, salmon and steelhead anglers. These waterways also support the Great Lake's salmon fisheries and the lakeshore communities that benefit from the fisheries. The new law allows for a one percent reduction in fish habitat for cold small rivers but allows for a three percent reduction for cold streams, which threatens the state's vibrant coldwater fisheries.

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