The first in our Three-Part Series on HB473 – Great Lakes Compact Implementation
(Posted by Grant Maki, Law Fellow at the Ohio Environmental Council)
The Great Lakes Compact is an agreement between the region’s states to manage water consumption in order to protect the integrity and health of the Lakes ecosystem.
The Compact recognizes that the waters of the Great Lakes “are precious public natural resources shared and held in trust by the States.” It places on each party state “a shared duty to protect, conserve, restore, improve and manage the renewable but finite Waters of the Basin for the use, benefit and enjoyment of all their citizens, including generations yet to come.”
The Compact requires each state that is a party to the agreement to pass state legislation to implement the terms of the agreement. Representative Lynn Wachtmann (R-75th District) recently proposed legislation to implement the Compact in Ohio. This is a much better bill than the one introduced by Representative Watchmann and passed by the General Assembly in June, and ultimately vetoed by the Governor this past Summer due to blatant violations of the Compact. That bill, HB231, was wrought with violations of both the Compact Agreement between the states and good science.
Unfortunately, there are still three big problems with Ohio’s proposed implementation in HB473;
- Limitations on the right of appeal,
- Inadequate protections for upstream tributaries, and
- Loophole for “experimental” water use permits and averaging of impacts.
Each of these important issues merits its own post. The focus for today is the limitations on the right to appeal.
How the proposal limits Ohioans’ rights
The proposed legislation limits the right to appeal decisions made under the Compact to only those people who have can show “a direct economic or property interest that is or will be adversely affected.” Under this proposal, if DNR approved of massive water withdrawals that lowered the water levels in a river enough to kill all of the fish, Ohioans fisherman would not be able to appeal.
Likewise, if a permit allowed a power plant to suck up enough water to cause an increased occurrence of harmful algal blooms, Ohioans who enjoy swimming at an affected beach would not be able to appeal that decision.
This restriction is inconsistent with the Compact agreement that we as a state signed onto. As we said above, the Compact specifically recognizes the states’ obligation to manage the waters of the Great Lakes for the use, benefit, and enjoyment of all citizens. Thus the Compact is intended to protect a range of interests that go beyond just dollars and cents.
Not only would the proposed restriction on the right to appeal violate the Compact, it would be unprecedented in the history of state law.
Unprecedented in Ohio Administrative Law
Ohio’s Administrative Procedures Act sets the default rule for review of agency decisions throughout the state. This law says that “any person adversely affected” may bring a claim to protect their legitimate interests, allowing allows appeals to vindicate more than just economic and property interests.
The proposed legislation would single out water usage as the one area in all of Ohio administrative law where a person whose legitimate non-monetary interest is harmed by an administrative order can’t have their day in court.
Contrary to Ohio’s Public Trust Doctrine
What’s more, Lake Erie and the waters of the state have long been shared and held in trust for use and benefit of all Ohioans under the public trust doctrine. This ancient legal doctrine has its roots in the English Common Law, was recognized by the Ohio Supreme Court in 1878, and was codified in Ohio law in 1917. Ohio Revised Code Section 1506.01(B) specifically recognizes that our state’s management of the Lake Erie coast must “give attention to natural, cultural, historic, and aesthetic values.”
Fishing, swimming, and boating are an integral part of many Ohioans’ lives. To prevent courts from being able to review a specific permitting action that concretely harmed those interests would be a truly unprecedented erosion of the ancient responsibility of the state to manage Lake Erie’s waters for the use, enjoyment, and benefit of all.
An Easy Problem to Solve
The proposed legislation restricts the rights of Ohio citizens to appeal administrative decisions in a way that has never been seen before. The fix is simple: just replace the words “direct economic or property interest” with “concrete and personal interest”. We will be watching the bill as it moves through the General Assembly in the coming weeks, and post updates on whether our legislators decide to reverse course on this proposal to our basic rights as Ohio citizens to protect our interests in court.