STATE OF MICHIGAN

A county board of commissioners lacks authority to adopt a countywide ordinance limiting the amount of well water that may be withdrawn from an underground aquifer.

A local health department may, by regulation, limit the amount of well water that may be withdrawn from an underground aquifer, even though the department has issued a permit to construct a well in the same aquifer, provided that (i) the regulation is necessary or appropriate to safeguard the public health; (ii) the regulation is not more restrictive than necessary to address the threat to the public health; and (iii) the regulation is at least as stringent as any standard established by state law applicable to the same or a similar subject matter.

Opinion No. 7117

September 11, 2002

Honorable A.T. Frank
State Representative
The Capitol
Lansing, MI 48909

You have asked two questions regarding a county's authority to allocate the amount of underground water that may be withdrawn by various competing classes of water users in the county. Information supplied by your office indicates that during summer months, some farmers are withdrawing greater amounts of well water for purposes of irrigating their crops, thereby lowering the level of the underground water aquifer and temporarily diminishing or depleting water available in nearby residential water wells. As a consequence, the residential water users are unable to withdraw adequate amounts of well water for drinking, cooking, bathing, and other domestic purposes.

Your first question asks whether a county has authority to adopt a countywide regulation limiting the amount of water that may be withdrawn from an underground water aquifer after issuance of a permit to install a well in the same aquifer.

Const 1963, art 7, � 1, provides that: "Each organized county shall be a body corporate with powers and immunities provided by law." Const 1963, art 7, � 8, provides that: "Boards of supervisors shall have legislative, administrative and such other powers and duties as provided by law." A county, however, has only those powers that have been granted to it by the Constitution or by the Legislature. Alan v Wayne County, 388 Mich 210, 245; 200 NW2d 628 (1972). A county possesses only those powers delegated to it. Wright v Bartz, 339 Mich 55, 60; 62 NW2d 458 (1954). A county board of commissioners has no inherent powers. Mason County Civil Research Council v Mason County, 343 Mich 313, 324; 72 NW2d 292 (1955).

Michigan statutes authorize various specific county ordinances - for example, certain zoning ordinances (MCL 125.201 et seq), animal control ordinances (MCL 287.289a), and noxious weed ordinances (MCL 247.70). Beyond such instances of express statutory authorization, noncharter counties possess only the authority to adopt ordinances pursuant to section 11(j) of the County Boards of Commissioners Act (County Act), 1851 PA 156, MCL 46.1 et seq, which provides, in relevant part, as follows:

A county board of commissioners, at a lawfully held meeting, may do 1 or more of the following:

* * *

(j) By majority vote of the members of the county board of commissioners elected and serving, pass ordinances that relate to county affairs and do not contravene the general laws of this state or interfere with the local affairs of a township, city, or village within the limits of the county, . . . . [Emphasis added.]

County ordinances must relate to, and are restricted to, affairs of the county, and may not interfere with the local affairs of cities, villages, or townships. OAG, 1989-1990, No 6665, pp 401, 403 (November 15, 1990); OAG, 1969-1970, No 4696, pp 197, 200 (November 25, 1970).¹ OAG, 1969-1970, No 4696, supra, at 200, concluded that noncharter counties would be interfering with cities, villages, and townships by adopting an air pollution control ordinance where cities, villages, and townships already had the power to adopt such ordinances. Similarly, OAG, 1971-1972, No 4741, p 82 (April 3, 1972), concluded that a county lacked authority to adopt an ordinance prohibiting the discharge of firearms within the county. More recently, OAG, 1989-1990, No 6665, supra, concluded that a county lacked authority to regulate or prohibit the placement of cigarette vending machines, and OAG, 2001-2002, No 7096, p 66 (December 26, 2001), concluded that a county lacked authority to adopt a countywide noise control ordinance.

A countywide well water supply ordinance, if adopted, would apply beyond the affairs of a county. County affairs are "affairs relating to the county in its organic and corporate capacity and included within its governmental or corporate powers." See OAG, 1945-1946, No 0-4471, supra, at 639. On the other hand, a county could enact a narrow well water supply ordinance provided that the ordinance is limited to the regulation of water wells on property owned or occupied by the county government or its boards, commissions, or agencies. See OAG, 1989-1990, No 6665, supra, concluding that although counties lack authority to regulate the placement of cigarette vending machines within their respective borders, they may regulate such activity on county property. See also OAG, 2001-2002, No 7096, supra, concluding that although counties lack authority to pass a countywide noise ordinance, counties may regulate noise on county property. Additional support for a county's limited authority to regulate its own property is found in sections 11(l) and (m) of the County Act that authorize a county board to manage the county's property (subsection (l)) and manage the interests and business concerns of the county (subsection (m)).

The Legislature has, however, vested local health departments with authority to regulate matters having a direct effect upon the public health. The Public Health Code, 1978 PA 368, MCL 333.1101 et seq, grants to local health departments broad authority to adopt regulations necessary or appropriate to carry out their duties to protect the public health. Local health departments shall "promote the public health through organized programs, including prevention and control of environmental health hazards." Section 2433(1). Local health departments may "[a]dopt regulations to properly safeguard the public health and to prevent the spread of diseases and sources of contamination," (section 2435(d)), and may "adopt regulations necessary or appropriate to implement or carry out the duties or functions vested by law in the local health department." Section 2441(l). Regulations adopted by a county health department take precedence over inconsistent local regulations. Id. OAG, 1995-1996, No 6898, p 158 (May 1, 1996). Given the broad authority of local health departments to protect the public health, including authority to control environmental health hazards, and to adopt appropriate regulations, counties may, through their local health departments, regulate the amounts of well water withdrawn from an underground aquifer, provided that such regulation is necessary to protect public health. The regulation must be approved by the county board of commissioners, be at least as stringent as any standard established by state law (section 2441(1)), and be adopted only after notice and a public hearing. Section 2442. A person who violates a local health department regulation is guilty of a misdemeanor. Section 2441(2).

While counties and their agencies have only that authority delegated to them by constitution or statute, such authority "shall be liberally construed in their favor." Const 1963, art 7, � 34. OAG, 1999-2000, No 7063, p 148 (October 12, 2000), which addressed the authority of a local health department to regulate the construction of water wells, concluded that a local health department could require a permit for the construction of a water well on state university property. Local regulations lawfully adopted pursuant to statutory and constitutional authority are generally upheld if reasonably related to the protection of the public health and safety, not more restrictive than necessary to accomplish a legitimate purpose, and not preempted by state or federal law. 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions �� 398-399, 438-439, pp 436, 478.

Where a permit for the construction of a well has already issued, a local health department is not foreclosed from regulating the amount of well water withdrawn from an underlying aquifer. The authority to issue a permit generally includes the authority to alter, amend, or modify the permit, or to subject the permit holder to further regulations. In Dobbins v Los Angeles, 195 US 223, 238-239; 25 S Ct 18; 49 L Ed 169 (1904), the U.S. Supreme Court observed that a municipality does not relinquish its police power by granting a permit:

[T]he right to exercise the police power is a continuing one, and a business lawful today may in the future, because of the changed situation, the growth of population or other causes, become a menace to the public health and welfare, and be required to yield to the public good. But the exercise of the police power is subject to judicial review and property rights cannot be wrongfully destroyed by arbitrary enactment. [Citations omitted.]

This principle was recognized in Public Lands Council v Babbitt, 529 US 728; 120 S Ct 1815; 146 L Ed 2d 753 (2000), where the U.S. Supreme Court upheld the Secretary of the Interior's right to modify existing permits issued for grazing on federal land. This principle has also been recognized by the Michigan Court of Appeals, which held that a telephone company's existing license to use the streets for telephone lines remained subject to the city's police power to construct a sewage treatment facility. Michigan Bell Tel Co v Detroit, 106 Mich App 690; 308 NW2d 608 (1981).

It is my opinion, therefore, in answer to your first question, that a county board of commissioners lacks authority to adopt a countywide ordinance limiting the amount of well water that may be withdrawn from an underground aquifer.

It is my further opinion that a local health department may, by regulation, limit the amount of well water that may be withdrawn from an underground aquifer, even though the department has issued a permit to construct a well in the same aquifer, provided that (i) the regulation is necessary or appropriate to safeguard the public health; (ii) the regulation is not more restrictive than necessary to address the threat to the public health; and (iii) the regulation is at least as stringent as any standard established by state law applicable to the same or a similar subject matter.

Your second question asks whether enforcement of a local health department regulation limiting the amount of well water that may be withdrawn from an underground aquifer could constitute a taking of property requiring just compensation.

Under the Michigan Constitution, private property cannot be taken for public use unless "just compensation" is first made or secured. Const 1963, art 10, � 2. The determination whether a restriction on the use of one's property constitutes a taking has been construed to require a "case-specific inquiry." K & K Construction v Dep't of Natural Resources, 456 Mich 570, 576; 575 NW2d 531 (1998). Although "'if regulation goes too far it will be recognized as a taking,'" courts have acknowledged that this general rule does not lend itself to bright-line rules or precise formulations. Tahoe-Sierra Preservation Council, Inc v Tahoe Regional Planning Agency, 535 US ___, 122 S Ct 1465, 1480-1481; 152 L Ed 2d 517 (2002) (quoting Justice Holmes' opinion in Pennsylvania Coal Co v Mahon, 260 US 393; 43 S Ct 158; 67 L Ed 322 (1922)).

Thus, while it is not possible to provide a definitive answer to your second question, there are two situations where an actionable taking of property may be found based on what have been described as "categorical" or "per se" rules: (1) where government action results in the physical invasion or actual appropriation of property; and (2) where government action results in the denial of all economically beneficial or productive use of land. K & K Construction, 456 Mich at 576-577. An actionable taking claim may also be based on the traditional "balancing test." Id. Factors to be considered in determining if there has been an actionable taking include: (1) the regulation's economic effect on the landowner, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the character of the government action. Palazzolo v Rhode Island, 533 US 606, 617; 121 S Ct 2448; 150 L Ed 2d 592 (2001); K & K Construction, 456 Mich at 577. In applying these standards, it should also be noted that under Michigan law, users of water from an underground aquifer have only qualified rights to the use of that water. Such water cannot be owned; rather, it can merely be used. United States Aviex Co v Travelers Inc Co, 125 Mich App 579; 336 NW2d 838 (1983). Moreover, groundwater from an aquifer cannot be used so extensively as to deprive other owners of land over that aquifer of its use. Id., Maerz v United States Steel Corp, 116 Mich App 710; 323 NW2d 524 (1982).

In the end, however, the determination whether enforcement of a local health department regulation limiting the amount of well water that may be withdrawn from an underground aquifer could constitute a taking of property requiring just compensation is a fact-driven inquiry that will turn on the specific nature and terms of the regulation, and the facts and circumstances under which it is adopted and applied.

JENNIFER M. GRANHOLM
Attorney General