The second 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 Great Lakes state to manage their water consumption to protect our shared water and ecological resources. Each state that signed the Compact must pass its own legislation to give it effect. In this three part series, we are looking at ways that Ohio’s proposed implementing legislation falls short of protecting our waters or complying with the Compact.
In our first installment, we examined how Ohio’s proposed implementing legislation—HB 473—represents an unprecedented restriction on the rights of Ohio citizens to appeal when an administrative decision causes them harm.
In this installment, we will discuss ways in which the proposed legislation fails to protect the waters that flow into Lake Erie, and how this lack of protection could eventually harm the lake as a whole.
The Great Lakes Compact gives state agencies the ability to prohibit water withdrawals that would have a significant adverse impact on the watershed that the water is being pulled from—the “source watershed.” Section 1.2 of the Compact explains that when water is withdrawn from the watershed of a stream that flows into a Great Lake, the source watershed “shall be considered to be the watershed of that Great Lake . . . with a preference to the direct tributary stream watershed” that is the source of the water.
This language means that the Ohio DNR must not allow any significant adverse impacts to Ohio’s portion of Lake Erie. It also requires DNR to consider any significant adverse impact to the stream watershed from which the withdrawal occurs.
Current Ohio Law
Ohio has already passed the first round of legislation to implement the Compact. House Bill 416, passed in December 2008, defined “source watershed” as either the Lake Erie basin considered as a whole or the individual source watershed from which the withdrawal occurred, considered as a whole, just like the Compact. This was codified in 1522.07(B) of the Ohio Revised Code. This language is codified as the stated intent of the General Assembly in passing the Compact structure, and was based on the negotiated definition of source watershed by the regulated community and environmental groups.
It is the understanding and intent of the general assembly that Section 4.11.2 of the great lakes-st. Lawrence river basin water resources compact as enacted in section 1522.01 of the Revised Code shall be interpreted to require that a withdrawal or consumptive use will be implemented so as to ensure that the withdrawal or consumptive use will result in no significant individual or cumulative adverse impacts on the quantity or quality of the waters and water dependent natural resources of either of the following: The basin considered as a whole; or The applicable source watershed of lake Erie considered as a whole. – ORC 1522.07(B)(1)
HB 473 would leave the tributaries out to dry
In an abrupt 180 degree turn that essentially negates the agreement made by the regulated community and enviros in 2008 (not to mention the intent of the 127th General Assembly), HB473 would change our definition of “Source Watershed” to only mean “Lake Erie as a whole.” This definition would allow approval of water withdrawals that would cause a significant adverse impact to a tributary, as long as the Lake as a whole would not suffer a significant impact.
For example, consider the impacts of First Energy’s Bayshore Power Plant, which pulled nearly 700 million gallons of water per a day from the Maumee River. A report commissioned by the Ohio EPA estimated that the plant’s water intake system killed more than 46 million adult fish and over 2 billion fish larva per a year. To name just one species, the plant killed nearly 10% of the Maumee River’s walleye population annually. That is definitely a significant impact on the Maumee River, and upon local people who depend on the walleye for their livelihood or recreation. But at the same time, it is only a small amount of the walleye population of Lake Erie as a whole.
Under the Compact, and under current Ohio Law, the Department of Natural Resources would be able to strictly review or even deny a permit for a plant like First Energy’s because it would cause a significant impact to the Maumee. But under the proposed language of HB 473, DNR would have little authority to deny such a permit because it would not cause a significant impact to all of Lake Erie, considered as a whole.
But the whole is only as good as the sum of its parts. A healthy Lake Erie is dependent upon the health of the tributaries, which are essential for maintaining water levels; providing habitat and spawning grounds for prized sport fish; and providing nutrients that are key to the food chain of Lake Erie.