The Fight for Water Rights
However, it’s important to note that the aggregates industry is a water mover, not a consumer. “We need to separate ourselves in this contentious debate from other industry sectors that deplete groundwater and divert surface water,” Hayden says. This doesn’t mean the aggregates industry has no localized impact in areas where the groundwater table is high, he says. But controlled reintroduction of the pumped water back into the hydrogeologic cycle via groundwater injection wells — or just putting the water back into a surface system — can mitigate the localized impacts felt by neighbors on their supply wells, Hayden adds.
With members spread out across the nation with great diversity and regional differences, balancing the needs of members could prove challenging, especially because there are differing opinions as to whether water should be sent to different areas. To assist in alleviating these challenges, NSSGA in June created a Water Resources Task Force of the Environmental Committee to monitor and track state and regional activities with regard to water use, access, availability, and quality. This group, along with NSSGA’s Government Affairs Division, also will monitor federal legislative proposals dealing with water use.
“I see NSSGA as a clearinghouse of existing information related to water resource issues for our membership,” Hayden says. “We will gather information already created by states such as Michigan and others and use that to develop a clearinghouse of state and regional best management practices, legal dispute resolution initiatives, and workable regulatory schemes.”
Tracking regulatory initiatives is critical now, especially with some legislators suggesting national water policies. New Mexico Gov. Bill Richardson, a Democratic presidential candidate, told the Las Vegas Sun in late October that if he is elected, he plans to bring states together to discuss how the water-rich states could assist states with shortages, such as in the Southwest, according to a report in the Detroit Free Press that sources The Sun’s report.“I want a national water policy,” Richardson told The Sun, according to the newspaper report. “We need a dialogue between states to deal with issues like water conservation, water reuse technology, water delivery, and water production. States like Wisconsin are awash in water.”
These statements caused alarm among environmentalists, according to the report. And, “comments like these are taken very seriously in the Midwest,” MAA’s Newman says.
Henriksen agrees, adding that future challenges will center on whether the government decides to limit water withdrawal of producers and any other water users. “We must be prepared to educate policymakers and the public at large regarding the aggregates industry’s impact on the hydrogeologic regime of our region,” Henriksen points out. “Our…economy and well-being depend on the ready availability of water, a resource we have historically taken for granted…The aggregates industry must be alert for legislative, regulatory, or policy initiatives that impact our access to water as well as to access required by our customers.”
What are your rights?
Different states have different laws as to who may claim rights to water and how it may be done. Water rights in the United States are determined through two divergent systems. Riparian water rights are common in the Eastern United States, and prior appropriation water rights (developed in Colorado and California) are common in the West. Each state has its own variations on these basic principles. Typically, water rights are established by obtaining authorization from an individual state via a water right permit.
Michigan, for example, uses riparian law. Under riparian law, there is entitlement to the water on personal land as long as it is used in a “reasonable” way. (There are not exacting definitions for the term “reasonable,” so this could leave some room for problems. However, what is considered “reasonable” is generally determined if there is a conflict and it goes into a court of law.)
Water rights under a prior appropriation doctrine are “first in time, first in right,” meaning that a more senior water right may operate to the exclusion of junior water rights. A “priority date” is significant for this.
Using a Five-Step Process
Here’s a quick look at the Michigan Aggregates Association’s (MAA) proactive approach to ensure that its access to water is protected, while addressing state and community concerns and being good stewards of water. This five-step process, which is still under final development, has helped to amicably resolve conflicts about water usage and rights.
Step 1: Conflict Resolution — This helps to eliminate emotion. “You won’t have citizens saying, ‘My well went dry, and no one could help me,’” says Mike Newman, MAA executive director. “If you take away the emotion, it no longer becomes an issue.”
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