Nearshore ecosystem at risk by Ohio compromise on Great Lakes water compact

Commentary

After years of huffin’ and puffin’ , the eight Great Lakes states are finally about to manage water withdrawals from Lakes Michigan, Huron, Superior, Erie and Ontario collectively as a region.

Future industrial waterfront development is at stake, as is shipping. To the degree that excessive withdrawals can impede water flow and drive up nutrient concentrations in tributaries, future algae blooms could cost jobs, drive down property values and become a greater public-health menace.
Water flow affects the quality of near-shoreline habitat for ducks, geese, songbirds, and raptors, as well as the $7 billion fishing industry. Those fish and wildlife are becoming more of the economic backbone of the Great Lakes region’s recreation and tourism industries.

Phew. Threats to the Great Lakes region’s water abundance have been both perceived and real for decades. The impetus for this latest effort to unite the states on the issue of water conservation was driven by a small Canadian firm’s 1998 plan to ship Lake Superior water to Asia. The whole idea of endless water is a mirage. Lawyers who specialize in international law have stated the region’s best strategy to maintain control over the lakes is to promote conservation and make a case that there isn’t enough water to spare.

The Great Lakes-St. Lawrence River Basin Water Resources Compact, the only binding document that emerged from that potential global-trade precedent that involved Lake Superior water 14 years ago, has been described as too little, too late by some legal scholars. A faction of environmentalists have called it weak and toothless because of its exemptions for the bottled-water and agricultural industries.

Yet the multistate agreement is hailed by many as the Mother of All Regional Water Compacts.

The truth is that the compact is neither ironclad protection from the ultimate threat that created it, nor is it a waste of ink. Great Lakes states had to modernize their general principles to safeguard the region’s most valuable asset, water, for future generations as the world’s population expands and water shortages across the Earth become more acute.

As Noah Hall of Wayne State University Law School and its Great Lakes Environmental Law Center has said, the compact has bigger-picture implications on a policy level. If the Great Lakes states can’t unite on the fundamental issue of water, good luck getting them united on anything.
Which takes us to Ohio, the lone holdout. Only Michigan has more land in a Great Lakes watershed.

Barring an unlikely, last-minute change of heart, Ohio Gov. John Kasich will sign into law industry-soft rules for how the Great Lakes-St. Lawrence River Basin Water Resources Compact will be enforced in the Buckeye State.

Or, as angry groups of environmental, sportsmen, conservation, fishing and academics might suggest, how it won’t be enforced in Ohio.

Kasich has put himself on the line as the governor who has, to paraphrase his staffers, threaded a needle and expertly hit the sweet spot for both business and environmental interests.

But for what?

His critics claim he has sacrificed the near-shore health of Lake Erie for short-term political gain. Of utmost interest is Lake Erie’s western basin, which has the Great Lakes region’s most densely populated shoreline. It is Ground Zero for the region’s fishing while also being the region’s most fragile and important shoreline, with everything from Cedar Point-type tourism jobs to property values and some of North America’s most important birding habitat at stake.

Kasich’s taking a gamble, for sure, one that seems hard to rationalize even for a governor who has grabbed national headlines for making Ohio more business-friendly.

The Kasich administration, with Republican-sponsored legislation it got through both chambers of the Ohio General Assembly, has interpreted the compact literally to mean that any adverse impacts of excessive withdrawals begin with a broad look at Lake Erie at large, not at the groundwater and tributaries that replenish it. That’s about the most lenient approach that can be taken and still be in compliance with the compact’s principles if — and it’s a big if — that approach is truly in compliance. No doubt several activist groups and seven other states are already looking into that.

David Naftzger, Council of Great Lakes Governors executive director, has said Ohio’s approach is not, at first glance, in compliance or out of compliance. That’s no small accident. As the agreement was being negotiated at the gubernatorial level from 2001 to 2005, industry lobbyists — led by the Council of Great Lakes Industries — fought to keep the language about environmental requirements as vague as possible to give state legislatures maximum flexibility in tailoring rules to the extent possible for their own states. The debate all along was not just on the volumes of water businesses could use, but whether the focus would be on the micro stream-and-shoreline level or the macro lake at large. From industry’s point of view, if the lake as a whole isn’t impaired, there isn’t an issue. That logic runs contrary to what biologists want for tributary and shoreline protection, not just what environmental and fishing groups consider reasonable.

So what unfolded in Ohio is exactly what business interests wanted, except that the first crack at state implementation was an overly generous 2011 bill that became a political football for Kasich. Among other things, it would have allowed twice as much for water withdrawals.

Last year’s bill boxed Kasich into a corner. It forced him to cross party lines and veto the 2011 legislation, which he did literally hours before it would have become law without his signature. The primary sponsor for both last year’s bill and the one now before Kasich is Ohio Rep. Lynn Watchmann, R-Napoleon, who has ties to the bottled-water industry as president of Maumee Valley Bottling, Inc. and as a partner in Culligan Water Conditioning

Now, according to two previous Republican governors from Ohio who had a role in the development of the compact, Ohio has set itself up again to be sued. Of particular note is the warning re-issued by former Gov. Bob Taft, whose administration led the negotiations with other states when Taft was Council of Great Lakes Governors chairman during the highly formative 2001-2005 era.

Kasich staffers have frequently used the term “moving the goalposts” to describe their annoyance with environmentalists, especially the Ohio Environmental Council, whom they accuse of pushing the envelope by lobbying for more than what had been agreed to in principle among the governors in 2005 and the states in 2008.

On the contrary, the goalposts were never set. That’s the problem. Environmentalists brokered the best deal they could but now see what happens when a majority of conservative power-brokers is left writing the rules for what others intended. Unfortunately, though, the bill contradicts what many scientists want.

Ohio’s bill not only generates a debate over whether it goes far enough to protect rivers and streams. It offers an incredibly loose – many would say egregious – system of deciding what users must apply for permits. The threshold for many withdrawals can be based on 90-day averages. A Democrat-sponsored amendment to lower that averaging period to a more reasonable 30 days was defeated. The Kasich administration itself was not a big fan of 90-day averaging but, ultimately, did not fight for more stringent limits.

Critics also argue that Ohio’s new bill restricts opponents from challenging permit decisions.

One thing that’s hard to reconcile is the bureaucratic Catch-22 for the region’s most valuable tributary, the Maumee River. It’s not only the largest natural river that flows into the lake system; it also provides the most near-shore spawning habitat.

Never mind that parts of the Maumee River are designated by the state as scenic; the Maumee falls short of being classified as a high-quality stream because of the heavy industry near its mouth.

Under Ohio’s bill, the Maumee doesn’t get as much protection as the nearby Sandusky River, a high-quality stream which also is important for spawning. Thus, future decisions on permitting are not etched in stone. Those decisions will be based on how future Ohio Department of Natural Resources directors view the Maumee’s value to the region. If we all could sleep comfortably with the knowledge that all future public officials will do the right thing for the Great Lakes and their tributaries, there would be no need for the compact.

Maybe the Kasich administration has found the right balance. Or, maybe the implementation of Ohio’s rules for the regional water-use compact has become a cat-and-mouse game with high-stakes political opportunities and egos to match.

Maybe an administration heralded by Fox News doesn’t care what the scandal-ridden Taft administration is trying to tell it. Maybe Ohio conservatives have adopted a bring-it-on attitude toward the specter of litigation.

History may show one side wasn’t prudent enough or the other embellished. The Great Lakes-St. Lawrence River Basin Water Resource Compact isn’t perfect. But Ohio could have applied more of a precautionary principle. Instead, the Kasich administration tried its best to thread a needle.