Competing bills have been introduced to the Ohio Legislature which are designed to implement the Great Lakes Compact. The Compact was passed by the other States that border the Great Lakes. Its fundamental purpose was to establish a new regulatory structure over water withdraws from the Great Lakes.
In 2008, Ohio passed H.B. 416, by which Ohio officially became part of the Compact. After all states passed endorsements of the Compact, it was approved by Congress. While the Compact set up the regional structure for regulation of water withdraws, the nuts and bolts of the program were left to States through implementation legislation.
If a State fails to pass its own implementation legislation, then the Compact has provisions that automatically become applicable in the State. Ohio wants to avoid the automatic standards and is moving forward now with implementation legislation.
Some of the key issues decided in the Ohio’s implementing legislation include:
- What size withdrawal from Lake Erie or its tributaries will require a permit?
- What industries or types of withdrawals should be entirely exempt from the water withdrawal regulatory process?
- If the size of the withdraw triggers the need for a permit, what is the standards for determining issuance of the permit. Principally, will the withdraw have adverse impacts?
- Are tributaries meant to be protected under the Compact or was the goal to protect the lakes themselves?
One legislative proposal is being supported by industry and the other is being pushed by environmental groups. The proposals take vastly different views of the purpose the Great Lakes Compact.
Reasons for Passage of Compact at the Center of Ohio Debate
The seeds for passage of the Compact were laid in 1998 when Nova Group, a Canadian company, saw an opportunity to meet the growing fresh water needs of Asia and received a permit to export 158 million gallons per year of water from Lake Superior. The permit was eventually retracted.
However, the Nova proposal coupled with the growing scarcity of water in the western states raised fears the Great Lakes, which holds 20% of the world’s fresh water, would drained by exports to areas in need of fresh water. The Compact was seen as a means to create a new legal structure to prevent unregulated exports out of the basin.
As the Compact was developed it added water conservation measures to the mix, including allowing States to regulate withdraws by any business within their boundaries. The question remained as to how much regulation local businesses who were not exporting water should be subject o under the Compact. The Compact left that debate up to the individual states who were provided flexibility to shape their own programs.
In Ohio, the debate has become a classic example of economy versus environment. At its core, the debate centers on whether an enhanced water conservation and regulatory program is needed.
H.B. 231 Sponsored by Rep. Wachtmann (Companion Bill in Senate Sponsor- Sen. Grendell)
H.B. 231 Great Lakes Compact Implementation Legislation is supported by a variety of industry groups (Ohio Chamber, Ohio Manufacturers Association, Ohio Farm Bureau, etc.). In addition, the Kasich Administration has testified in support of the Legislation.
Key provisions in H.B. 231:
- Trigger thresholds for permit- As outlined in a recent Dispatch article, the bill would set some of the highest trigger thresholds of any of the States who passed the Compact. Withdraws from Lake Erie trigger a permit at 5 million gallons per day (gpd). The lowest trigger is for small high quality streams, with a withdrawal requiring a permit at 300,000 gpd. Michigan has triggers of 2 mgd for lake withdrawals and 100,000 gpd from streams. Pennsylvania and New York require permits at 100,000 gpd no matter the location of the withdrawal.
- Adverse Impacts- Under the Compact, a permit cannot be issued if it results in adverse impacts. Under the bill, only impacts to Lake Erie can be considered and not potential impacts to a stream where the withdrawal occurs. As to lake impacts, the bill defines adverse impacts in the negative- anything at below 90 mgd from the Lake or 45 mgd from groundwater is presumed not to cause an impact.(Note: the bill uses the term "annual mean runoff" but those figures can be converted roughly to the mgd figures noted above) 90 mgd is a very large withdrawal, there may be only one current user with that large of withdraw.
Key perspectives shaping the legislation:
- Avoid Creating New Regulations that Do Not Address a Real Problem- Groups supporting H.B. 231 note the lack of examples where businesses who withdrawal for industrial or agricultural purposes are having a negative ecological impact on the Great Lakes as direct result of that withdrawal. They argue implementing legislation should focus Compact requirements on preventing exports of water to other states outside the Great Lakes or to other countries.
- Avoid Creating Additional Regulatory Hurdles for Economic Development- The implementing legislation establishes a major new environmental regulatory program that could complicate business expansions or prevent new facilities from being built in the Great Lakes region. If Ohio has less regulation it could put the State at a competitive advantage to attracting new business.
H.B. 257 Sponsored by Rep. Murray (Companion Bill in Senate- Sponsor Sen. Skindell)
A competing bill H.B. 257, was introduced which is supported by environmental groups and offers a stark alternative to H.S. 231.
- Trigger Thresholds- At the high end, for Lake withdraws the bill sets a trigger level of 2.5 mgd. The other trigger levels are based on size of the stream and go as low as 10,000 gpd. These triggers would be close to those enacted by other states, but would be more restrictive for high quality streams.
- Adverse Impacts- The bill defers to rulemaking the standards for determining adverse impacts. However, the rule’s definition of "adverse impact" would have to be based on a science based assessment that includes an analysis of whether stream flows would be protective of aquatic life. Furthermore, impacts to streams would be considered.
Key perspectives shaping the legislation:
- Passage of Compact Included Water Conservation- Those supporting a more restrictive regulatory program argue that water conservation programs and regulation of local withdraws were part of the bargain in passing the Compact. They argue Congress, with members of states outside the Great Lakes states, wanted to see requirements regulating "local withdraws." That was the bargain struck for there to be broad support of the Compact in Congress.
- Streams Need Protection from Impacts from Withdrawals- Environmental groups argue that large withdraws that go beyond a stream or rivers capacity can harm the ecological quality of those streams. Therefore, Ohio should go beyond protecting just the lake itself and include the rivers and streams that feed Lake Erie.
Editorials across Ohio Newspapers have focused on comparing the standards in H.B. 231 to neighboring states.