Representative Wachtmann has introduced H.B 473 which will implement Ohio’s regulatory program under the Great Lakes Compact. H.B. 473 follows last summer’s veto by Governor Kasich of H.B. 231 which was criticized by environmental groups and former Governor Taft and Senator Voinovich as not protective enough of Lake Erie.
The Great Lakes Compact was passed by the Great Lake states as well as Congress. The Compact sets regional standards governing water withdrawals and diversions from the Great Lakes. With 20% of the worlds fresh water, the Great Lake states viewed the Compact as critical to protecting their fresh water resource as pressure mounts to divert water to other regions or countries facing dwindling supplies of fresh water.
H.B. 473 certainly marks a significant departure from H.B. 231 on several important points. The most notable changes relate to the trigger levels for needing a permit and the standard for determining when a withdrawal could have an adverse impact.
Trigger Levels for Permitting
The main criticism of H.B. 231 was that it contained permit trigger thresholds which were higher than most of the other Great Lakes States which have already passed legislation implementing the Great Lakes Compact..
|Triggers||H.B. 231||H.B 473|
|From Lake Erie||5 MGD averaged over 90 days||2.5 MGD|
|From Streams that flow into Lake Erie or groundwater||2 MGD averaged over 90 days||1 MGD|
|From High Quality Streams||300,000 gpd averaged over 90 days||100,000 gpd|
H.B. 473 significantly ratchets down the trigger thresholds for needing a water withdrawal permit. Under the bill, Ohio would have lower thresholds than Indiana and comparable to Michigan’s. It will still have higher thresholds than Pennsylvania or New York.
However, all other states allow averaging over at least 30 day period. The current version of H.B. 473 does not allow averaging. This is likely to be an area of debate moving forward.
The Compact itself allows averaging. It seems unreasonable to trigger a permit if on one day a pump installed has the capacity to withdrawal 100,000 gpd from a high quality stream regardless of whether that capacity is actually going to be utilized. This is particularly the case when the permit program exams impacts to Lake Erie and not the stream itself.
Definition of "Adverse Impact"
The State must deny a permit if the water withdrawal is determined to cause an "adverse impact" on Lake Erie. H.B. 473 eliminated the controversial definition of "adverse impact" that appeared in H.B. 231.
H.B. 231 defined adverse impacts in the negative- anything at or below 90 mgd from the Lake or 45 mgd from groundwater was presumed not to cause an impact. H.B. 473 leaves the definition up to future rulemaking by the Ohio Department of Natural Resources (ODNR). The bill calls for a study commission which will make recommendations on a definition to the Legislature.
Overall, H.B. 473 provides broader rulemaking authority to the ODNR. This marks a significant departure from H.B. 231 which provided virtually no rulemaking authority. H.B. 231 was meant to provide clarity by setting forth all the important provisions in statute leaving very little to future rulemaking.
H.B. 473 should be less controversial than H.B. 231 which was vetoed by Governor Kasich after virtually every major in Ohio paper issued editorials opposing the bill. While certain provisions will be debated, H.B. 473 moves Ohio much closer to the other Great Lakes States in how it regulates future water withdrawals from the Great Lakes Basin.