Gov. Kasich signs Lake Erie legislation

Bill controls water withdrawals allowable without permit

6/5/2012

COLUMBUS — Gov. John Kasich on Monday signed into law a bill he has maintained successfully balances the protection of Lake Erie with ensuring its lifeblood waters continue to flow for Ohio industry.

While opponents concede it is an improvement over what Mr. Kasich vetoed last year, they wanted a second veto because of the way this bill treats the rivers and streams that feed the shallowest and most life-abundant of the Great Lakes.

"It reinforces what the Great Lakes compact does," said Rep. Lynn Wachtmann (R., Napoleon), the bill's sponsor and president of a water bottling company. "It protects the assets of Lake Erie for the people of Ohio and other users of natural resources. Secondly, that resource is available for what will hopefully be future job growth."

The law writes between the lines of the Great Lakes-St. Lawrence River Basin Compact approved by eight states and Congress and agreed to in principle by two Canadian provinces.

The primary goal of the compact was to unite Great Lakes states against attempts to pipe the lakes' freshwater resource to drier areas such as the nation's southwest or carry it by tanker to other parts of the world.

The fight in Ohio was over how much power plants, manufacturing plants, water companies, farms, mining operations, and others could take from the lake, groundwater, rivers, and streams within the watershed before having to ask the state for a permit.

The first attempt that reached Mr. Kasich's desk in the spring of 2011 drew the ire of other states, congressmen, and even two of Mr. Kasich's Republican gubernatorial predecessors who feared it violated the intent, if not the rule of law, of the compact. That version contained the highest thresholds of water withdrawals of any law passed by the seven other Great Lakes states, rivaled only by Indiana.

Before a permit requirement would be triggered, its successor, House Bill 473, would allow the withdrawal of up to:

2.5 million gallons a day if taken directly from the lake with the amount averaged over a 90-day period.

1 million gallons a day if taken from most groundwater, river, stream, inland lake, or other watershed source, also averaged over 90 days.

100,000 gallons per day from high-quality streams with watersheds larger than 100 square miles, also averaged over 90 days.

100,000 gallons a day for high-quality rivers and streams that have watersheds of their own covering 50 to 100 square miles, as averaged over 45 days.

100,000 gallons a day for smaller high-quality tributaries with no averaging. A single daily withdrawal exceeding that limit would requirement a permit.

The overall thresholds put Ohio largely in the middle of the pack when compared to other states.

Rep. Dennis Murray (D., Sandusky), a lawyer who lives and works on Sandusky Bay, pointed to the fact that the lake debate took place at the same time as a separate energy bill dealing with hydraulic fracturing. That process uses water and chemicals at high pressure to fracture shale to release the oil and natural gas within.

"The reality of fracking poses a threat to those streams…," he said. "When you get right down to it, this bill does not protect the animal and plant populations that need water to be there 24/7. You could have really big withdrawals, such as with irrigation and fracking, that could devastate the quality of the stream.

"Fish don't live in an average. They live in natural water," he said, echoing testimony from some scientists before lawmakers.

The bill will take effect in 90 days. That will trigger an 18-month period for the state to develop rules on how to judge adverse impacts on the lake when making permitting decisions.

"It's important that we be able to be signatories to the compact and still be able to be competitive from an economic standpoint," said Linda Woggon, vice president of the Ohio Chamber of Commerce. "This bill, when compared to other state's permitting programs, establishes limits as protective or more protective than some other states — for example, Indiana. It does more to protect high-quality streams than any other state."

Opponents this time around were more focused on the averaging of withdrawals from the tributaries. They argued that users could withdraw massive amounts of water at one time, endangering waterways during vulnerable drier periods, and still stay under the 90-day or 45-day average.

Only Indiana and Pennsylvania join Ohio in averaging over as long a period as 90 days. Most of the others, including Michigan, average over 30 days.

"Unfortunately, the General Assembly has chosen to elevate mining and bottling companies over millions of anglers and boaters and countless wildlife dependent on a healthy Lake Erie," said Kristy Meyerof the Ohio Environmental Council.

She pointed to a provision that allows only those who can demonstrate a direct adverse economic impact from the waters to challenge permitting decisions.

That leaves out boaters, anglers, swimmers, and other recreational users of the lake and its tributaries.

Contact Jim Provance at: jprovance@theblade.com, or 614-221-0496.