The third in our Three-Part Series on HB 473 – Great Lakes Compact Implementation
( Posted by Grant Maki, Law Fellow, 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.
Our first installment examined how HB 473 would restrict Ohioans’ rights to appeal administrative decisions. The second installment noted that the proposed legislation would leave the tributaries that flow into Lake Erie out to dry.
In this final installment, we will look at the problems caused by and provisions that allow water users to average their withdrawals over a 90 day period, and by provisions that allow for potentially unending exemptions for “experimental” permits.
The Compact’s Framework
The Compact requires each Great Lakes state to establish thresholds that determine the amount of water that can be withdrawn without a permit. Anyone who wants to withdraw more than the threshold amount must seek a permit. The Compact requires states to ensure that permitted water withdrawals will not individually or cumulatively cause a significant harm to the quality or quantity of the water in the source watershed.
90 Day Averaging
Under HB 473, a water user only has to apply for a permit if their average usage per day over a 90 day period exceeds certain thresholds. For example, most rivers that flow into Lake Erie are subject to a threshold of 1 million gallons per day, averaged over a 90 day period.
This opens the door for water users, such as oil and gas operations, to withdraw and/or consume quantities of water in excess of permit thresholds without having to obtain a permit. For example, a facility could withdraw 6 million gallons of water over a few days and not consume any more water over the remainder of the 90-day period and not trigger the bill’s proposed gallons-per a day threshold for needing to seek a permit.
But such huge spikes in water usage could have serious consequences for fish and wildlife, which survive or perish based on minimum environmental conditions. For example, walleye eggs and fry, as well as migrating steelhead trout, are particularly vulnerable to insufficient flow levels. A short-term but intensive withdrawal could reduce the flow of a stream to the extent that these drivers of the Lake Erie fishery would be confined to small heated pools, which would kill them within hours.
Think of it this way. If you were to withdraw all the air from a person’s home for 15 minutes and then open the windows, the oxygen levels would be just fine, averaged over 90 days. But the residents of the home would all be dead.
That is why we are pushing to get the permitting requirements to kick in based on daily water withdrawals.
Potential Loophole for “Experimental Use” Permits
HB 473 provides for “experimental use” permits to allow the testing and development of innovative new water use strategies. We are fully supportive of experimental use permitting. But there are two problems with the way these permits would be handled under HB 473.
The first problem stems from a subtlety of the proposed language. Section 1522.131 states that the Department of Natural Resources may refuse to issue an experimental use permit if it would result in a significant adverse impact on the source watershed. But this implies that the chief may also issue the permit, even knowing that it will cause an adverse impact. This is contrary to the Compact, and to sound natural resource management principles.
The second problem is that HB 473 doesn’t limit the number of times an applicant may renew their experimental permit, potentially allowing adverse impacts to continue indefinitely.
We propose requiring the Department of Natural Resources to deny permits that would cause significant adverse impacts. We also suggest that experimental use permits should expire after 24 months, at which point they could be renewed if the applicant provided a reasonable justification based on the need for further testing, or a new and different approach to water use that might lead promising results.