Emerging Issue: Water Use Regulations and Jurisdiction

The State of Michigan has a unique system of regulating water use based on a model that estimates potential impacts to streams from surface or groundwater withdrawals in the area. This model can be supplemented as needed by site-specific data showing what level of impact a withdrawal will have if the model predicts an issue. However, implementing water regulation has brought up two different challenges for managing the program and water use decisions:

1. The Michigan Department of Environment, Great Lakes, and Energy (MDEGLE) regulates water use. Under legislation passed in 2018, MDEGLE is required to consider site-specific data and models submitted by hydrologists, and if MDEGLE denies the registration, they must document specific errors in the submitted data and/or models. MDEGLE has not approved any proposed water uses under this legislation despite the requirement to review submitted models separate from their existing model, and there is no commission or appeal board for registrants to find recourse with MDEGLE.

2. Part of Michigan’s regulation of water use comes from classifying streams by temperature, to determine how much water can be withdrawn from surface or nearby groundwater sources before it impacts the stream’s ability to provide fish habitat. Although MDEGLE regulates water use, the Michigan Department of Natural Resources (MDNR) is responsible for collecting data to classify stream temperatures. Michigan water use law states the Natural Resources Commission (NRC) should make decisions on proposed stream temperature reclassifications, but the MDNR Director and Attorney General’s office have taken over authority to make those decisions based on Executive Orders from 2011 reorganizing the MDNR and outlining the responsibilities of the NRC. The stream reclassification process is underway in the upper reach of the Prairie River in Branch County, but more stream temperature reclassifications are expected so the Prairie River proposal sets an important precedent.

Policy References

MFB #9 Commission System of Government

MFB #89 Water Use in the Great Lakes Basin

Additional Resources

Michigan’s Water Use Program

Michigan Water Use Annual Report, 2021

Michigan Farm Bureau’s Comment Letter on the Proposed Prairie River Reclassification

MDNR Director’s Statement on the Prairie River Stream Temperature Reclassification

Thoughts to Consider

How can farmers better ensure there is a robust and meaningful appeal process for water withdrawal registrations that are denied despite hydrologic evidence they will not cause an impact? Is there a role for a commission or appeal board to review those appeals?

How can farmers ensure there is a transparent, science-based process for classifying streams since they have such an important role in determining water use registration availability? Should the NRC have a decision-making role in this process?