Public trust doctrine and water withdrawals aim to protect the Great Lakes

(MI Environment is featuring articles from the State of the Great Lakes report. Today's article was written by James Clift, EGLE deputy director.)

The Great Lakes have undergone some significant changes in the past few years. Lake levels rebounded in Lakes Michigan and Huron more than six feet from their levels in 2013, and groundwater tables rose several feet in some places. Major investments were made in infrastructure, and new science and technology has emerged. What hasn't changed is that Great Lakes regional leadership remains steadfast about working collaboratively to sustainably manage Great Lakes water resources.

Michigan's Great Lakes water resource management policy is shaped by a complicated network of legal protections, regional agreements, and science-driven decision-making processes. At a time when so much seems to be in flux, it's more important than ever to understand what these rules and regulations can and cannot do. Though there are many places to enter this conversation, perhaps the best starting point is the foundational concept that underlies the system — the public trust doctrine.

Public Trust Doctrine and Protecting the Great Lakes

The basic premise behind much of the Great Lakes legal protection is the idea that surface water itself is not property of the state, but a public good. Over the years, a number of court cases have firmly established this legal principle, known as the "public trust doctrine." The public trust doctrine means protecting public water resources for the use and enjoyment of all.

Under the public trust doctrine, the state acts as a trustee who is empowered to protect the water. In Michigan, that responsibility lies with the Michigan Department of Environment, Great Lakes, and Energy (EGLE), which protects, preserves, and restores the Great Lakes through regulatory oversight and water stewardship programs.

Regulatory protection of clean and abundant water resources in Michigan involves establishing water quality standards, overseeing public water supplies, regulating the discharge of industrial and municipal wastewaters, monitoring water quality and the health of aquatic communities, developing policy, and fostering stewardship.

According to the U.S. Supreme Court, the state holds title to the land below public waters but would not be allowed to use or dispose of those resources if there is "substantial impairment of the interest of the public in the waters." The state may grant leases to private owners, but only with conditions that they protect the public use of the waters themselves.

The public trust doctrine protects the public's right to use the waters of the Great Lakes for purposes such as navigation, hunting, and fishing. It also ensures that people have the ability to walk along the shorelines of the Great Lakes, even as water levels fluctuate — in 2005 the Michigan Supreme Court found that walking along the lake was part of the doctrine's traditionally protected rights.

The concepts behind public trust are so important to the people of the state of Michigan, they were included in the Michigan Constitution, which states:

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction. (Article IV, section 52)

Keep reading about the public trust doctrine in the State of the Great Lakes report.

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