Last July, new rules in Michigan required most would-be irrigators to get permission to withdraw water either from groundwater using wells or from flowing streams and rivers.
This was shocking in itself, for Michigan is a riparian state in which both surface and groundwater used to be freely available to all those above or adjacent to it (subject to the doctrine of reasonable use).
The threshold level is 70 gallons per minute, so a fruit grower needing that capacity—perhaps wanting to trickle irrigate 15 acres—would be subject to the regulation.
By spring this year, records show, about 600 people—mostly farmers—had worked their way through the new Michigan State University-developed, Web-based, computerized Water Withdrawal Assessment Tool, and more than 95 percent of them could proceed with their plans. That’s according to Andrew LeBaron, an environmental quality analyst with the Michigan Department of Natural Resources and Environment.
“It’s working pretty well,” he said about the new tool.
But what about the other 5 percent? Is it possible there could be a shortage of water in the state at the center of the Great Lakes? “In some isolated areas, available water is drying up,” LeBaron said.
But what is “available water” and what does “drying up” mean? That’s the catch that has people disgruntled. It is defined as the amount that would reduce the average flow volume in a stream or river during the driest month of the year, August, by 25 percent.
These new rules had been creeping up on farmers gradually. Starting in 2004, all large-volume water users (using the 70 gpm threshold) had to report their annual water use, month by month. The state began to build a base of data for future management of Great Lakes water.
Why manage Great Lakes water? The short answer is, if people in the Great Lakes Basin don’t manage it for themselves, they can’t tell other people how to use it either. That’s part of the Commerce Clause of the U.S. Constitution, according to David Lusch, an MSU professor who is a leading authority on the new Great Lakes Basin Compact. He explains, in a series of webinars, what led up to the current legislation.
Fear of diversion
In a nutshell, he says, there has been a long-standing fear in the Great Lakes area that, as people leave the Northeast for sunnier, drier climates to the west and southwest, they’ll want to take the water with them.
For more than 30 years, that “big long tube” vision drove efforts to perfect the Great Lakes Compact. That compact, an agreement among the eight states and two Canadian provinces that share parts of the Great Lakes watershed, was signed into federal law in October of 2008. It says that these state and provincial governments will regulate the water in a conservative manner and will not allow diversion of the water outside of the watershed, and they can therefore keep others from taking it as well. That’s what the compact demands.
Unlike in the West, where snowpack water flows inexorably from mountains to the sea and people try to use it up before it gets there, the Great Lakes is both a watershed and a storage basin. It is said that Niagara Falls drops more water toward the ocean in eight hours than all Michigan’s irrigators use in a year, but the conservation mentality held sway in the new rules.
What fish need
While all the states and provinces in the Great Lakes Basin have agreed to develop conservation rules, only Michigan has plunged ahead aggressively. It did so with new laws passed in 2006 to 2008 that base water use not on what people want but what fish need.
“Michigan has chosen uniquely among the states and provinces to use an ecological standard based on fish biology,” Lusch said.
Every watershed in Michigan, every river and stream, has been rated according to its type and the characteristic fish population in each one. Some streams and rivers have several different segments. What might be a cold, swift, trout stream at the headwaters could be a warm bluegill pond at the end. There are 12 possible kinds of rivers—three watershed sizes and four temperature levels.
An “adverse resource impact” is something that would degrade the habitat for whatever kind of fish now live there—measured by the current status. What happened in years past that may have altered a river or stream, including irrigation, deforestation, or dams, is ignored or grandfathered away.
Lyndon Kelley, an Extension irrigation specialist with a joint appointment between Michigan State and Purdue University in Indiana, has spent several years now explaining the new rules to farmers and telling them how to use the new Water Withdrawal Assessment Tool.
While Michigan has good data on what fish like, little is known about how much irrigation well withdrawals reduce stream or river flow. “Michigan has a lot more data on fish than it has on stream flows,” he said. “The question remains, does irrigation have any impact at all on stream flow?”
In Michigan, where rainfall is about 35 inches a year, there is an estimated 12 to 15 inches of groundwater recharge each year, and an irrigator in Michigan would likely use only 7 or 8 inches of water to grow a crop. Were it not for dry summers, farmers wouldn’t need to irrigate at all.
Indiana, the other state Kelley serves, has not shown much interest in following Michigan’s lead. “They have a totally different view of water there,” Kelley said. “They’re drainage oriented and not much worried about the fish.”
Kelley is located in southwest Michigan, where the sandy, porous soils have made irrigation critical, and the land is ideal for fruit, vegetable, and field crop production. And that is the one watershed the assessment tool says is reaching its limit.
Aaron Rice, a well driller there, has been gathering forces to mount a protest against the new procedures. “The state is turning $5,000 land into $1,800 sand dunes,” he said.
A battle ahead?
There may yet be a battle, and it may start there. In Michigan and all other states east of the Mississippi River, people have riparian rights to use water, and these rights are “correlative,” Lusch said. In the West, rights are by “prior appropriation”—first users need not share with those who later want water. In Michigan, under the new rules, when the assessment tool says there’s no more water available without creating an adverse impact, users have to find ways to share the available amount. They may form associations to try to do that, or they may sue other users to gain a share.
But many want to challenge the state first, wanting proof that irrigation affects fish and that the state has set a reasonable standard.
Interestingly, in northwest Michigan’s sweet and tart cherry country, where rivers are cold and watersheds are small, growers have had no problems, according to Dan Busby, a Michigan water stewardship program technician. Cherry growers and processors pull large quantities of cold water to cool cherries as well as irrigate orchards on the sandy soil.
The reason it’s no problem, he said, is that deep wells pull water directly from the Great Lakes Basin itself. In many fruit areas in northwest Michigan, there are no streams of any kind to affect.