Ohio’s compromise to law that would’ve gutted the region’s water compact

Commentary

By Tom Henry

While more details are still forthcoming, it appears Ohio — the state that only months ago came within hours of unraveling the crucial 2008 regional compact for safeguarding Great Lakes water — will likely implement the agreement without making unreasonable concessions to industry lobbyists.

A seemingly workable compromise is being shepherded, ironically, by a governor environmentalists generally scorn. But on this issue, the often bombastic and hot-tempered Ohio Gov. John Kasich is showing a cool head, the kind of leadership that level-headed people on both sides of the debate want from him. Kudos to Kasich.

The legislation he purportedly is having sent over to the Ohio General Assembly cuts in half the 5 million gallons of water that utilities and other businesses could have withdrawn daily from Lake Erie without a permit under Ohio House Bill 231, the exemption-riddled bill that a brash contingent of Ohio Republicans passed earlier this year despite warnings about it from within their own party.

The Kasich plan, now in draft form, is expected to be introduced in December or January, according to the Columbus Dispatch.

Kasich plan “strikes a common sense balance”

House Bill 231 would have weakened the Great Lakes-St. Lawrence River Basin Water Resources Compact to the point of rendering it meaningless.

It made such a mockery of the process that other states threatened to sue if it was made into law.

Several key Republicans who helped get the compact passed by the eight Great Lakes states and Congress three years ago — including former Ohio Gov. Bob Taft, former U.S. Sen. George Voinovich, and former Ohio Department of Natural Resources Director Sam Speck — were among the most vocal critics. Speck, a former Republican lawmaker who later served on the U.S.-Canada International Joint Commission, led the compact negotiations as Ohio DNR director as the agreement was being forged.

They were joined by newly elected Michigan Gov. Rick Snyder.

So in July, Kasich, a Republican, rose to the occasion with the one and only veto of his administration, eliciting a sigh of relief from the environmental community as well as the more moderate element of his party.

His replacement legislation for House Bill 231 would allow up to 2.5 million gallons of water to be withdrawn from Lake Erie without a permit instead of 5 million gallons per day. The maximum withdrawal from rivers would be 1 million gallons a day instead of 2 million gallons a day. The max from the state’s highest quality streams would be set at 100,000 gallons a day instead of 300,000 gallons a day.

“To me, it’s not a choice between good environment and economic development,” Kasich said recently to about 250 people at the Ohio Aggregates and Industrial Minerals Association’s annual meeting.

Curiously, the reaction has been slim so far, perhaps because the legislation is still in its draft form and subject to change. Parties on both sides have been lobbying hard for weeks.

The Ohio Chamber of Commerce believes the business community still would have been better off with House Bill 231, while the Nature Conservancy of Ohio likes what it sees.

“They made some incredible improvements to the bill that made us a lot more comfortable,” Nature Conservancy executive director Josh Knight told The (Cleveland) Plain Dealer.

House Bill 231’s sponsor, Ohio Rep. Lynn Wachtmann, a Republican from Napoleon, reacted bitterly toward Kasich’s decision to veto his bill last July but recently stated, at first glance, that the Kasich alternative appears to be one he can live with.

So what appears to be emerging is legislation that “strikes a common sense balance,” according to Kasich spokesman Rob Nichols.

A workable compromise.

Rotating lawmakers, shifting politics keep things interesting

Passage of the compact and the state-by-state rules being written to implement the essence of it has been a delicate act of diplomacy, even for the contentious area of water laws.

Consider what it’s involved.

There has been a revolving set of office-holders in eight states while the political winds have shifted in all directions. Most governors who came up with the agreement-in-principle in 2005 are long gone. The impetus for the compact began with the Canadian-based Nova Group’s attempt to start shipping Lake Superior water to Asia in 1998, two years before George W. Bush entered the White House, but the groundwork actually was laid as far back as the 1950s through engineering studies that raised the specter of someday diverting Great Lakes water to the Southwest. That was enough to spur governors to first come together with a non-binding agreement on the issue in 1985.

Consider also that the compact, while not enforceable in Ontario or Quebec, had to be written in a way to gain public support in Canada. A parallel gentleman’s agreement between the states and the two Canadian provinces was signed in 2005 to acknowledge their common goals. States cannot enter into treaties with foreign entities.

In other words, two nations, eight states, two provinces, tribal nations, the environmental lobby, the business community and everyone else came to an agreement in principle. And don’t discount cultural differences, not just with tribes but also in U.S.-Canada relations, with Canadians skeptical of motives that states such as Ohio and Wisconsin have for accommodating communities that straddle the natural basin line.

None of these complexities have been lost on attendees of the University of Toledo’s annual Great Lakes water law conference sponsored by UT’s College of Law.

Noah Hall, a Wayne State University associate law professor who specializes in Great Lakes water law, opened the most recent conference by observing how the compact’s focus has shifted away from fears of massive diversions to the Southwest in favor of state programs to regulate water use.

Each of the eight Great Lakes states have until December 2013 to have their regulatory standards in place, although there are not a lot of specific guidelines in place for them to do that, Hall said.

Hence the anxiety over how to proceed post-House Bill 231.

Ohio Rep. Dennis Murray, a member of the Ohio House Judicial Committee, is a Democrat who represents Ottawa and Erie counties in northwest Ohio, which border Lake Erie. Yet even he admits not knowing the compact’s intimate details when he was named to an Ohio House compact advisory board in 2009.

Murray now sees the compact as the most “finely honed” effort to unify the region on the fundamental issue of water use. He referred House Bill 231 as “voodoo” that equates to “kicking the can down the road to another generation.”

“This isn’t some socialistic dogma,” Murray said of the compact. “The Great Lakes compact would not have been adopted by the eight states in the first place if it was anti-business.”