Assessing Michigan's 2008 Water Conservation Law: Scientific, Legal, and Policy Analyses.

Abstract

In 2008, the State of Michigan enacted a new water-conservation law as part of its responsibility as a signatory of the Great Lakes Compact. Public Act 185 of 2008 established a unique science-based water-withdrawal assessment-tool (WWAT) and water-withdrawal assessment-process (WWAP). This dissertation investigates the changes to Michigan’s legal framework caused by the addition of significant water-withdrawal legislation in parallel with historic common-law. Both statute and science underpinning WWAP implicitly connect surface and groundwater, raising the possibility of challenging previous court decisions placing groundwater outside public trust. I explore the process by which the state-appointed Groundwater Conservation Advisory Council developed WWAT and WWAP and, as a boundary organization, facilitated iterative science-policy interactions over five years. During this time, scientist and policy-maker roles continually navigated both policy-construction and scientific-objectivism requirements. Concurrently, new regulatory and scientific terms were coined and defined, instituting lasting modifications to law and management-science. My dissertation also tests several legal-technical presumptions that arose during WWAP’s development, including a rebuttal of an early presumption of no adverse impact occurring if large-scale water-withdrawals occurred at pumping distances greater than 1/4 mile from a designated trout-stream. A linked hydrologic and physical-habitat modeling-assessment indicated that pumping-induced temperature-increases caused significant losses of trout habitat in the headwaters of Augusta Creek at pumping-distances up to 1 mile from the creek and longitudinally upstream and downstream. These results, along with other studies, were incorporated into the scientific-development of WWAT and WWAP. I also tested the conservation presumption in WWAP by assessing the potential cumulative impacts of unregulated pumping on agricultural lands in the Muskegon River watershed. I modeled the impacts of different water-withdrawal regimes under present and future landscape and climate conditions and different levels of adaptive governance to future change. I found that, under the current regulatory-threshold of 100,000 gallons-per-day, much of the watershed experienced an adverse resource impact, without any withdrawals requiring registration with the State. Furthermore, future-scenario modeling indicated significant portions of the watershed could be variously and negatively impacted, and compounded misinterpretations of pumping impacts will occur if WWAT is not fully updated to reflect future hydrologic and thermal changes.