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Re: E-M:/ RE: / Michigan Citizens for Water ConservationPressRelease - Vict...



Actually, and as Judge Root points out in his opinion, Michigan has long been a "Reasonable Use" jurisdiction both as applied to Riparian vs. Riparian disputes and as to groundwater vs. groundwater disputes  (i.e. I can pump as much groundwater as I want, so long as I do not unreasonably interfere with my neighbors use of groundwater). 
 
This debate is too important to get caught up in the hyperbole that too often characterizes the debates on this listserve.  The fact is, there has not been a case such as this, position groundwater use vs riparian use, before, period.
Judge Root acknowledged as much, and I certainly have no reason to believe that he didn't do his absolute best trying to come up with what he believed was the "right" decision in this case, with these facts.  After all, that is what trial court judges do.  Now it is up to the appeals courts (including likely the Supreme Court) and possibly the legislature to decide what the "right" rule in a broader context ought to be.
 
But everyone should recognize that Judge Root's holding was "groundbreaking" in terms of Michigan's law in several respects.  He elevated riparian rights to a higher protected category than groundwater rights (those who desire what's best for the environment need to consider whether this should always be the rule); that groundwater use, if "off-tract" can have NO MEASURABLE DIMINISHMENT on riparian waters (those who drink from a municipal water source should consider the implications), and the user of groundwater has the burden of proving that the groundwater use will not violate the standard (a difficult, if not impossible task, for any groundwater user).
 
This was a tremendous victory for Michigan Citizens for Water Conservation and for its attorneys, and congratulations is due them.  But in terms of overall public policy, apart from Nestle and Mecosta County, it is my humble opinion that the ruling will have a chilling effect on attracting new business to Michigan, will have a devastating effect on many existing Michigan businesses and municipalities that were never in the "crosshairs" of MCWC, and should be modified in several important respects.
 
Ken

>>> <Sadewass@aol.com> 12/15/03 01:18PM >>>
Riparian water law in Michigan has long been that "Reasonable Use" is restricted to use on the riparian property.  It does not include the right, for example to pump water out of a lake to irrigate non riparian property.  A farmer that sells off his/her lakefront property for housing has forever and irrevocably lost riparian rights and "reasonable use" is off the table.  He/she can never irrigate from the lake again because once severed, riparian rights cannot be reassembled.
 
It would not surprise me, however, if Grant is right about an appeal being quite likely successful.  Our ultra conservative Republican courts often ignore finders of fact and appropriate case and common law unless they fit their political persuasion.  They often select and/or create laws to support their position, while claiming to be "strict constructionists."  If they do select "reasonable use" as their standard in this case, they will be expanding the concept far beyond what has been done before and will be putting all of our lakes, streams, groundwater, and even the Great Lakes at risk.     
 
 




>>> <Sadewass@aol.com> 12/15/03 01:18PM >>>
Riparian water law in Michigan has long been that "Reasonable Use" is restricted to use on the riparian property.  It does not include the right, for example to pump water out of a lake to irrigate non riparian property.  A farmer that sells off his/her lakefront property for housing has forever and irrevocably lost riparian rights and "reasonable use" is off the table.  He/she can never irrigate from the lake again because once severed, riparian rights cannot be reassembled.
 
It would not surprise me, however, if Grant is right about an appeal being quite likely successful.  Our ultra conservative Republican courts often ignore finders of fact and appropriate case and common law unless they fit their political persuasion.  They often select and/or create laws to support their position, while claiming to be "strict constructionists."  If they do select "reasonable use" as their standard in this case, they will be expanding the concept far beyond what has been done before and will be putting all of our lakes, streams, groundwater, and even the Great Lakes at risk.