Great Lakes Compact Legislation
In 2003, Ohio was one of eight states to agree to implement provisions pertaining to the Great Lakes Basin Compact. As a result, companion legislation was introduced in 2010 pertaining to these issues in House Bill 231 and Senate Bill 170.
House Bill 231 became the “vehicle” for enacting this legislation. In this proposal, Ohio Revised Code Section 1522.13 (K) exempted all consumptive uses “subject to regulation under a state or federal law” outside of the provisions designated in the bill.
Governor Kasich vetoed the legislation, stating: “While most of HB 231 fulfills Ohio’s obligations without concern and helps meet the needs of Ohio’s industrial, energy and agricultural water users, portions of it must be improved.”
At the end of 2011, discussions on a new bill began through the Ohio Chamber of Commerce.
UPDATE: Great Lakes Compact Legislation Becomes Ohio Law
The second (and now final) piece of legislation dealing with the implementation of provisions regarding the Great Lakes – St. Lawrence River Basin Water Resources Compact have been signed and enacted into law. The bill, House Bill 473 sponsored by Rep. Lynn Wachtmann, would require industries (like the oil and gas industry) to apply for a new water withdrawal or consumptive use permit under certain circumstances.
As you will recall, House Bill 473 is the second stab at implementing legislation to enact the provisions of the Great Lakes Compact. Earlier this year, Governor Kasich vetoed a similar bill on this topic – House Bill 231. The Governor citied concerns over clearer standards for withdrawals and consumptive uses and further evaluation and monitoring of withdrawals and usage as reasons for using his veto authority.
House Bill 473 requires the Chief of the Division of Soil and Water resources within the Ohio Department of Natural Resources to establish a two-fold program for water withdrawals from the Lake Erie watershed. This program would include withdrawal and consumptive use permit along with a diversion permit process. It is important to note that this bill affects water used within the watershed and not just water withdrawals from Lake Erie itself.
Generally speaking, the permitting process would require an operator with new or increased capacity for water withdrawals or consumptive uses to obtain a permit if their withdrawal or use is above certain thresholds. These thresholds are:
- 2,500,000 gallons per day from Lake Erie or a recognized navigation channel
- 1,000,000 gallons per day from river, stream or source of ground water within the Lake Erie watershed
- 100,000 gallons per day from a river or stream with the Lake Erie watershed that has been designated “high quality water”
High quality water was defined as water deemed as such at the time the bill goes into effect (which is September 4, 2012). High quality water would apply to the segment in question and all water upstream from the segment. High quality water is not “outstanding state waters” that are designated as such by the Environmental Protection Agency (EPA).
The bill also includes several exemptions where obtaining a permit for withdrawal or consumptive use is not warranted. All withdrawals and consumptive uses below the stated threshold amounts are exempt from the new permitting requirements. More importantly, withdrawals and consumptive uses that exceed these per day amounts may be averaged over a 90-day period (or 45-day period for certain high-quality waters). For example, if you are withdrawing water from a river in the Lake Erie watershed, you may exceed the 1,000,000 limit on a given day, so long as your total 90-day average does not exceed 1,000,000 per day.
However, the bill discourages any “water withdrawal” from the Lake Erie basin. This means that you may not remove any water from the Lake Erie Basin. For example, the water used for hydraulic fracturing operations within the Lake Erie basin should be disposed of via a Class II injection well that is also within the basin.
The legislation passed the Ohio House of representatives by a 59-38 margin, with a majority of Democrats claiming the bill fails to adequately address the provisions of the Great Lakes Compact. The bill gained the support of one House Democrat – Rep. Michael Stinziano.
During testimony before the Ohio Senate, sport fishermen and hunters joined efforts with environmentalists in an effort to stop the bill. Again, just like the previous HB 231 debate, the oil and gas industry was used as a foil to further their efforts.
“Our members are concerned about the impact that fracking has had on other fisheries,” stated Mike Matta, Director of the Lake Erie Charter Boat Association. “We must protect the spawning areas of the western basin, which would include its reefs, rivers, and tributaries, from the potential risks associated with fracking.” Matta cited reports coming from Pennsylvania those hydraulic fracturing fluids could be responsible for a large fish kill.
Environmentalists also stressed their concerns on how “aggrieved person” was defined during the permitting appeals process. Kristy Meyer, Director of Agricultural and Clean Water Project for the Ohio Environmental Council stated that the bill, “for the first time ever restricts recreational users and anglers’ rights to appeal a water-use permit”.
Brian Barger, Attorney for the Coalition for Sustainable Water Management, cleared up this misinformation. He noted that the definition of an “aggrieved person” is to be determined per the Compact by each state. Furthermore, the Ohio Supreme Court has held that those appealing permits must have an “immediate and pecuniary interest” and not a future or speculative interest to appeal. Property owners, however, could still appeal these permits under common law.
After much debate, the bill passed out of the Senate Agriculture, Natural Resources and the Environment Committee by a 6-3 party-line vote. Democrats were unsuccessful in their attempt to amend the bill, including offering amendments to change the definition of an “aggrieved person” and to eliminate the 90-day averaging provision.
The bill passed the Ohio Senate by a 20-12 tally, with some support from Senate Democrats. Governor Kasich signed the bill into law on June 4, 2012.