recognizing the “interconnected nature of water sources”
How later courts described this case
- recognizing the “interconnected nature of water sources”
- “[P]rivate persons obtain property rights in water on the basis of their ownership of land.”
- opinion by SMOLENSKI, J.
- opinion by SMOLENSK, J.
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by Lansing Schools Education Ass'n v. Lansing Board of Education, 487 Mich. 349 (2010)
709 NW2d 174 (2005), overruled in part on other grounds by Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349
The opinion
WHITE, J.
(concurring in part). I join in Judge SMOLENSKl’s lead opinion with respect to the groundwater and public trust claims, as well as the ancillary issues. I join in Judge MURPHY’s opinion regarding standing under the Michigan environmental protection act (MEPA), MCL 324.1701 et seq., and agree that the Legislature’s grant of standing under the facts of the instant case does not unconstitutionally expand the judicial power of the courts.
I write separately with regard to the lead opinion’s discussion of the trial court’s MEPA analysis. While I *115 agree that a mere failure to obtain a permit under the inland lakes and streams act (ILSA), MCL 324.30101 et seq., and the wetlands protection act (WPA), MCL 324.30301 et seq. does not establish a prima facie violation of MEPA, I do not read the trial court’s opinion as erroneously adopting ILSA’s and the WPA’s permitting provisions as applicable pollution control standards, the violation of which automatically establishes a violation of MEPA. Rather, the court expressly stated its understanding that this case involves impairment and not pollution. 1
The trial court’s opinion also demonstrates that it recognized its duty to develop a judicial common law of environmental quality and make detailed findings of fact under Ray v Mason Co Drain Comm’r, 393 Mich 294 ; 224 NW2d 883 (1975), and that it referred to the ILSA and the WPA statutes for guidance in developing an impairment standard. What is lacking in the trial court’s opinion, however, is a qualitative discussion of the impairments found by the court. While the court’s MEPA analysis referred to, and adopted, its findings of fact, and further discussed the Department of Environmental Quality’s incorrect interpretation of the acts as not applying to the instant situation, the court did not explain how its earlier findings revealed a level of impairment that required judicial intervention under MEPA. I believe such a discussion is required under the case law. Therefore, I concur in the remand.
The court stated:
The task then becomes one of finding or establishing a standard or standards to measure Defendants’ water-extraction activities against to determine if such actions result in the impairment of the natural resources involved in this case (destruction or pollution are not argued as being involved in Plaintiffs’ MEPA claim, only impairment).