August 22, 2017

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Michigan Passes Groundwater Well Dispute Statute – Again

The hectic lame-duck session of the Michigan Legislature has resulted in the resurrection of the state's once-and-future groundwater dispute resolution process.  Michigan had originally passed similar legislation in 2003, then repealed it in 2009 as a budget cutting measure.  Pressure to revive the dispute resolution process mounted as complaints about failing wells increased under the past year's drought conditions, as water use for irrigation increased and water tables lowered. The bill provides a formal process for resolving disputes between high-capacity wells (such as irrigation wells) and residential or other low-capacity wells that allege impacts from the high-capacity withdrawals.

The revived law would allow small-capacity well owners to file complaints with the Director of either the MDEQ or MDARD (if the alleged perpetrator was an agricultural well), if the small-capacity well owners reasonably believe that a high-capacity well has interfered with the operation of their wells.  The law gives the Director the authority to investigate the claim and to seek to resolve the complaint among the affected parties. 

If such the informal resolution is not successful, the Director may issue an Order declaring a groundwater dispute in existence.  This Order gives the Director authority to require the immediate temporary provision of a potable water supply to affected people.  The Director may also restrict the quantity of groundwater that may be withdrawn by the high-capacity well, and order compensation for the owners of affected small-quantity wells.  The Director's Orders are subject to direct judicial review in the circuit court.  The law contains an exemption from its requirements for fire suppression wells and dewatering wells, such as those used in mining operations.  The new law reinstates Part 317 of the State's Natural Resources and Environmental Protection Act (NREPA).

© 2017 Varnum LLP


About this Author

Timothy J. Lundgren, Varnum, Environmental Attorney, Public Service Lawyer

Tim Lundgren is a partner in the Environmental, Energy and Natural Resources team. On energy issues, Tim represents clients before the Michigan Public Service Commission, including energy suppliers, marketers, manufacturers, agricultural processors, public entities and institutions, and trade associations representing competitive power supply and business interests. He also advises clients on developments in energy law and policy in Michigan, and assists them in the development of legislative proposals.