This is the first installment in the Ohio Environmental Law Center’s Top 10 of 2009 — The Top Ten Hits (but unfortunately mostly misses) in Environmental and Conservation Law over the past year. This is a purely OELC subjective look back at 2009 — a look back at the wins and losses for environmental protection at the state and federal level. Our methodology? Simple . . . issues, cases, or legislation that occurred in 2009 that shaped, have a potential to shape, or in most cases could have had a potential to shape environmental protection in Ohio for years to come.
As with all top-ten lists, some readers will object some items being included in the list and/or other items left off the list. Either way, we encourage any additions through comments. — Trent Dougherty, Staff Attorney and Director of Legal Affairs
No. 10 — One Year of Constitutionally Held Water Rights and Questions Still Linger
OK, the substance and legislative action of Number 10 actually occurred in 2008, but 2009 was the first full year of Article I, Section19b of the Ohio Constitution — the Ohio Constitutional Amendment to “protect private water rights.” In the spirit of the holidays as well, OELC wanted to thank the drafters of the SCR 8/State Issue 3 once again for such a wonderful gift, that we expect will .
OELC and the environmental and conservation community were leery of SCR 8 as it was introduced during the debates over ratification of the Great Lakes/St. Lawrence River Water Resources Compact in summer of 2008. When it was placed on the 2008 November Ballot, and passed with a nearly 3/4 majority, the reaction was fear of the unknown implications of the amendment.
The overarching question was: What is wrong with the current law that necessitates amending the Bill of Rights of the Ohio Constitution (which has not occurred since 1912)? The Ohio Supreme Court had already ruled that property owners have a right to reasonable use in groundwater in Cline, and that an infringement on the use is a taking in McNamara. Questions also focused on the impact of this amendment on the Public Trust Doctrine and how Ohio would use the doctrine in the future to protect and preserve the water quality and quantity of Ohio.
Yet, as this amendment was meant to clarify everything in regard to a landowner’s water rights, it merely opened a cacophony of questions that no one has yet to answer: not the General Assembly, not state regulatory agencies, and not the Court. Questions such as:
- What does “shall not be held in trust by any governmental body” mean? Who other than the state hold trust?
- Are groundwater rights salable?
- What is the impact of stating that a landowner may voluntarily convey property interest, but not stating that a property own can convey to a private interest?
- What constitutes reasonable regulation of groundwater?
Nevertheless, a huge thank you has to be given to State Senator Tim Grendell (R-Chesterland) for introducing the resolution that “Constitutionalized” the right to reasonable use in ground and surface water. After a year of no assault on the Public Trust Doctrine or to water quality or water quantity in the state, and after legal research, it has become clear that the fears of the unknown were misplaced. The unknown (the unanswered questions) merely stands as an opportunity to have the private property owner as the torch bearer for resource protection.
Outlook to 2010
While nothing noteworthy has happened yet concerning this amendment, the years to come will show that this amendment will allow citizens to protect water quality better than any other provision passed in Ohio. Each property owner that, before, had to stand idly by and see state regulators or local officials permit offensive and destructive water intensive industries to move in directly next to them, now has a sword. This sword of a constitutionally held private property right in the reasonable use in ground and surface water, gives the landowner a ticket directly to the Ohio Supreme Court. Longwall miners that dewater surface-owners in eastern Ohio; Industrial mineral companies, like the one in the seminal groundwater case, Cline v. American Aggregates, that take the water of poor people in Central Ohio; to large industrial livestock facilities and other agribusiness that pump hundreds of thousands of gallons of water in Western Ohio; and other large-scale industrial water users statewide will have to pay (and handsomely) for the water they take.
Currently, such de-watering is an externality that many industries have traditionally needed not internalize. However, environmental plaintiffs attorneys and organizations such as OELC will be working diligently to make sure these industries do right by Ohioan’s property rights, and right by Ohio’s precious water resources.
Further, the state agencies, who have for years permitted these industries to take water for neighboring landowners, may be faced with a takings claim of their own. A single water consumption permit that dewaters an aquifer or a stream could impact many property owners. According to OELC attorney, Trent Dougherty, “Such a multi-plaintiff takings case, before a Ohio Supreme Court which has had the propensity rule zealously in favor of private property owners, could trigger a compensation order that would make the famed RTG case, and its $5 million hit to Ohio’s budget, look like a traffic ticket.”