Friday, February 15, 2008

OH & WI Legislators Team Up To Challenge Compact Approval

Feb 14: According to a release from Ohio Senate President Bill Harris (R-Ashland, OH), he and Wisconsin Assembly Speaker Michael Huebsch (R-West Salem, WI) have teamed up to propose "modification" of the Great Lakes Compact and say they "will move expeditiously to pass legislation in their respective chambers." The release from Harris indicates the version they support was introduced as Senate Bill 291 in the Ohio Senate by State Senator Tim Grendell (R-Chesterland). A companion bill will be introduced in coming days by Representative Scott Gunderson, chairman of the Wisconsin Assembly’s Natural Resources Committee.

The legislators say the bills seek to protect the Great Lakes from future diversions outside the Basin, while making two clarifying changes that they say "will address fatal flaws within the existing language that threaten private property rights, and that grant participating states unilateral authority to block one another from future intra-Basin water transfers." The legislators said they hope that if given a viable alternative to "the problematic wording in the Compact," the other Great Lakes states will follow suit and pass a Compact which they say "is stronger and a more accurate reflection of the participating states’ intent."

Until now the assumption has been that the Compact language, approved by eight Great Lakes Governors and two Canadian Provinces in 2005 is not up for negotiation. Thus far, Minnesota and Illinois approved the compact; Indiana and New York legislators have approved and sent legislation to their Governors for signing expected very soon [
See WIMS 2/13/08]; and approval bills are pending in the Michigan and Pennsylvania. However, the Ohio and Wisconsin legislators say that, "While the goals are commendable, many experts have begun to raise concerns that, in the haste to ratify the Compact, the language agreed to at that time by the Governors is ambiguous and conflicts with current Ohio law when it comes to traditional protections for private property owners."

Ohio Senator Grendell noted that the current language states that “The Waters of the Basin are a precious natural resource shared and held in trust by the states.” He said, "While that sounds reasonable on its face, devil is in the details. The problem is that 'waters of the Basin' is defined as not just the Great Lakes, streams and navigable surface waters, but also includes groundwater and wells, that run under and supply the homes of private property owners throughout the 35 counties in Ohio that are part of the Basin. We support passage of a multi-state Compact to protect the Great Lakes. What we cannot support is ambiguous language that would call into question for example, the rights of private property owners to use or tap into groundwater on their own land. As it stands today, the Compact we are being asked to approve would be in direct conflict with Ohio’s tradition of strong private property rights.”

While alternative language is suggested, there appears to be a larger concern with the overall Compact. According to the release, "Grendell and Harris, backed by the opinions of other attorneys who specialize in these areas, are concerned that intent language alone is insufficient for protecting Ohio private property rights. As the governing document, the multi-state Compact would trump any assertions made only in Ohio law by the members of the 127th General Assembly. Harris said, “If clarifying language is needed to explain the intent of the Compact, then the language is too ambiguous.The only way to address this concern is to fix the Compact itself.”

Additionally, the legislators are suggesting additional changes in the basic structure of the Compact. Their release indicates that, "Another change supported by the group of legislators from Ohio and Wisconsin is to ensure that in the future if any of the Great Lakes states petitions to increase intra-Basin water transfers for things like economic development projects, the decision would be made by a majority vote of the Great Lakes states. By contrast, the existing Compact would allow any one of the participating states to unilaterally veto such transfers."

Access the release from Senator Harris (
click here). Access details on individual state activity in enacting the Compact from the Council of Great Lakes Governors website (click here). Access various media reports on the Ohio and Wisconsin efforts (click here). Access the WIMS Great Lakes Environment Blog for links to additional information and background or to comment on this article (click here).