Preserving the Great Lakes
PROTECTING OHIO’S FUTURE WATER USE AND ECONOMIC DEVELOPMENT
By: State Senator Tim Grendell
As Ohioans, we are fortunate to have direct access to the world’s largest fresh water resource. Securing that water is an extremely important goal to all states that border the Great Lakes region. The waters of Lake Erie are one of Northern Ohio’s greatest assets. While the exodus of citizens to the West (e.g. California, Nevada and Arizona) continues to shift federal congressional power to western states, one important fact remains – Ohio and the Great Lakes states have water, and plenty of it. In fact, every day, 161.6 billion gallons of Great Lakes water are regenerated through rainwater and snow melt.
This equates to 60 trillion gallons per year of new water entering the Great Lakes (13 times the flow of the Colorado River). Only 1.5 percent of the regenerated 161.1 billion gallons per day is lost by human consumption. Indeed, nature diverts a larger amount of Great Lakes water over Niagara Falls.
While the Great Lakes waters are not currently threatened, the unique value of this water resource and its potential to drive future economic development warrant prudent, reasonable protective action. The key words here are “prudent” and “reasonable.”
Despite the well documented abundance of water in the Great Lakes, environmental advocacy groups have very effectively convinced governors in the Great Lakes states and several state legislators that an impending crisis exists over the water supply from the Great Lakes. This environmentalist-led movement helped draft the Great Lakes Compact, an agreement limiting the use of Great Lakes waters. The proponents of the Compact publicly stress its necessity to control the diversion of Great Lakes water to Nevada, Georgia and Saudi Arabia.
Preventing the diversion of Great Lakes waters out of the Great Lakes basin to Nevada or some foreign country is very important. The diversion of Great Lakes waters out of the Great Lakes basin is already prohibited by federal law – the Water Resources Development Act (WRDA) passed by Congress in 1986. However, to the extent the Great Lakes Compact adds another impediment to diversion, passage of such an additional limitation on diversion is good public policy, as long as such action does not violate private water rights or unduly restrict Ohio’s future economic development.
Passing another restriction on diversions of Great Lakes waters does NOT require the conversion of private water rights into public trust property or an abdication of Ohio’s ultimate control over the use of Lake Erie waters here in Ohio to seven other states. If the Great Lakes Compact simply said “thou shall not divert,” it would have been approved by the eight state legislatures two years ago. However, the broad language of the Compact threatens some harmful and (supposedly) unintended consequences.
The Compact, as currently drafted, does much more than simply prevent diversions. The Compact, in the form negotiated by the Great Lakes governors, risks converting Ohioans’ private water rights into public trust (publicly owned) property. Proponents of the Compact mistakenly assert that all ponds and groundwater are publicly owned. Even Representative Matt Dolan, sponsor of legislation approving the Compact as originally written, has admitted that the “held in trust” language creates a risk that Ohioans’ private water rights could be declared public trust property. Since the possibility of any diversion is not imminent because of the current federal law protection, why rush to pass a compact that puts private water rights at risk?
The Compact also seeks to prevent the overuse of Great Lakes waters within the Great Lakes states, including Ohio. Exactly who will decide what constitutes overuse is lost in the Compact’s vague and broad terms. Professor Jay Lehr, Ph.D., a noted expert on water issues and science editor for the Heartland Institute, has observed that the overriding theme of the environmentalist-led effort toward passage of the Compact is “that in order to ensure no water may ever be diverted from the basin, states must show Congress they will protect the waters from overuse or abuse. Acceptance of this premise has caused many in the leadership of the Great Lakes Legislatures to behave as though they resided in a desert rather than in one of the world’s richest water resources.”
Professor Lehr further warns that “the obscure language [of the Compact] will make local industries vulnerable to harassing anti-business litigation and lead to detrimental unintended consequences.”
The Ohio House of Representatives has fallen prey to the siren song of the environmentalist advocacy groups and approved the Compact as initially drafted. The Ohio Senate, under the sound leadership of Senate president Bill Harris, has joined the State Assembly of Wisconsin in taking a more prudent and responsible approach. This approach proposes two small changes to the Compact. The first is the addition of language to eliminate any risk of converting Ohioans’ private water rights into public trust ownership. The second is language that requires that future uses of water are approved by a majority vote of the Council. These revisions consist of fewer than two dozen words in the version approved by the governors of the eight states. These changes are listed below:
THE INITIAL COMPACT LANGUAGE:
Public Trust
“The Waters of the Basin are precious public natural resources shared and held in trust by the States.”
Approval of Projects
“The Proposal is approved by the Council. Council approval shall be given unless one or more Council members vote to disapprove.”
THE SENATE LANGUAGE
Public Trust
“The Waters of the Basin are precious public natural resources and, except for tributary groundwater and non-navigable surface waters, are shared and held in trust by the States. In addition, the Waters of the Basin are subject to reasonable regulation by the Council.”
Approval of Projects
“The Proposal is approved by the Council. Council approval shall be given if a majority of the Council members vote to approve the Proposal.”
There is no need to reopen the negotiating process. The majority of states have not yet approved the Compact, and those (two) that have can introduce amendments. This action can be taken quickly and a final Compact could be sent to Congress before the summer. If the Great Lakes states really believe that the Compact is necessary to prevent diversion, they will promptly follow the lead of the Ohio Senate and Wisconsin Assembly.
Northern Ohio has suffered many economic setbacks in recent years. Throughout that time, one thing has remained true– Northern Ohio has plenty of water. That water will be invaluable to Northern Ohio’s economic rebirth. Enhancing the protection of diversion beyond current federal law is a worthwhile goal. The Ohio Senate is right to stand up for the water rights of Northern Ohioans and to protect Ohio’s future use of the abundant waters of Lake Erie for economic development. Failure to prevent Ohioans’ water rights and economic development opportunities by passing the flawed compact as negotiated by former Governor Bob Taft will likely give truth to the old adage: Water, water everywhere but not a drop to drink.
Ohioans’ private water rights are too precious an asset to leave to chance or the future thoughts of a federal judge in Washington, D. C. (the likely venue for any litigation involving the Compact). That is the reason why the major flaws in the Compact should be fixed before it is approved by the Ohio Legislature. Ohioans’ future water usage rights should never be left to chance. NEO
