Ridenbaugh Press/Water Rights

Concerns about use of water for mining have spread to some seemingly unlikely places.

Such as Carollton, Ohio, where a group of residents said they plan to meet on December 4 to discuss their issues with the use of water by a proposed (by the Rosebud Mining Company) mine in the area.

Rosebud, based at Cadiz, Ohio, describes itself: “Since 1979, Rosebud Mining Company has actively produced high quality bituminous coal from mines located in Western Pennsylvania and Ohio. The company now operates eighteen deep mines, six surface mines, and seven preparation plants in Armstrong, Beaver, Cambria, Clearfield, Elk, and Indiana counties in Pennsylvania along with Carroll, Columbiana, Jefferson, Stark, and Tuscarawas counties in Ohio. Currently, Rosebud Mining Company is the third largest underground coal producer in Pennsylvania, providing steam and metallurgical coals to domestic & international customers.”

Carroll County neighbors, organized as the Carroll Concerned Citizens, said the state Department of Natural Resources has not much responded to their concerns, and “without water protections afforded by the Ohio Constitution.”

In what may have been the major water-related ballot action in the nation on Tuesday, Ohio voters approved Issue 3, “to affirm certain property interests with respect to ground water and other water on or flowing through a property owner’s land so as to maintain the stability of Ohio’s economy.”

The measure, which adds to the state constitution, is the Ohio Water Compact Constitutional Amendment. The state legislature referred it to the ballot as a companion to the Great Lakes Water Compact, which the legislature approved in June 2008. The amendment is intended to protect landowners’ right to the “reasonable use” of water on or running under their property. The effective date is December 1.

One commenter noted that much of the amendment already is incorporated in state law and precedent, but “If passed, Issue 3 would guarantee in the state Constitution that a private property owner has a right to make reasonable use of the ground water that lies beneath the owner’s land and of the water in a lake or watercourse located on or flowing through the owner’s land. These rights would remain subordinate to the public welfare.”

Ohio voters have more to decide in November than just the partisan races such as president. There’s also Issue 3, which is aimed at preserving individual water rights in the state in the face of the Great Lakes water compact, which Ohio has ratified.

The state’s approval of the compact is not reliant on the vote on Issue 3, which would amend the state’s constitution. The item appears on the November 4 general election ballot, and it could make for some changes in the reach of state water law.

Some critics of the regional plan, including Cleveland-area state Senator Tim Grendell, said that it may override some long-standing water uses by local Ohians. Grendell was a prime backer of Issue 3.

The Ballotpedia web site remarked of the legislative tussle on the matter, “House Democratic Leader Rep. Joyce Beatty of Columbus led the move against adoption of the ballot issue resolution. She said she wasn’t certain the property-rights protections belonged in the constitution, where passage by voters would place it, and that Grendell was trying to strong-arm lawmakers. It was Senate vs. House on this issue. In general, the opposing Democrats gave the Republicans a long and hard fight. Republicans refused to give the “ok” on the Water Compact until an agreement was reached on the constitutional amendment. In early June, a compromise was finally reached and the amendment was approved. Once the House took that action, the Senate swiftly and unanimously passed the compact.”

The ballot item describes itself as “proposing to enact Section 19b of Article I of the Constitution of the State of Ohio to affirm certain property interests with respect to ground water or other water flowing on or through a property ownr’s land so as to maintain the stability of Ohio’s economy.”

The Cleveland Plain Dealer has endorsed the proposal, saying “The Ohio Supreme Court already has acknowledged the existence of private property rights related to water. Issue 3 would merely reaffirm that ruling, and should be approved.”

From the Alliance for the Great Lakes:

President George Bush on October 3 signed the Great Lakes-St. Lawrence River Basin Water Resources Compact, endorsing sweeping protections for the Great Lakes that culminate a decade’s-worth of work by conservationists, government agencies, businesses, the public, as well as countless local, state and federal leaders.

The Alliance for the Great Lakes and the National Wildlife Federation — both engaged in the compact from the start — applauded the many efforts that made today’s historic signing possible.

“This is a great day for the Great Lakes,” said Alliance President Cameron Davis. “What started as just a ripple in 1998 when the region beat back a Great Lakes water grab has given rise to a cascade of support for these waters both in the region and across the country.”
“With President Bush’s signature, we’ve given notice that the Rust Belt is turning into the Blue Belt, where our freshwater defines our economic future,” said Andy Buchsbaum, regional executive director of the Great Lakes office of the National Wildlife Federation. “In this time of financial crisis, we are blessed to have the Great Lakes as assets that will remain the foundation of our region’s future.”

The eight-state water management pact protects the nation’s largest fresh surface water resource from depletion and diversions. Together with companion laws in the

Canadian provinces of Ontario and Quebec, the compact stresses conservation and establishes first-of-its-kind decision-making standards for Great Lakes water use.
“Protection of our Great Waters is not a partisan issue, it’s an America issue,” said Marc Smith, Great Lakes state policy manager for the National Wildlife Federation. “This signing reflects the commitment to protecting one of America’s greatest natural resources—the Great Lakes—for our children and for generations to come.”

Before winning approval from the U.S. House of Representatives in September and the U.S. Senate in August, the compact was approved by the legislatures of the Great Lakes states: Minnesota, Wisconsin, Illinois, Michigan, Indiana, Ohio, New York and Pennsylvania.

The Great Lakes contain more than 90 percent of the fresh surface water in the United States, and 20 percent of the world’s supply. Seemingly abundant, less than 1 percent of the Great Lakes water is renewed each year, however, leaving the lakes vulnerable to depletion.

Work on the compact began 10 years ago when the Great Lakes governors convened a binational task force and advisory committee to respond to the threat of water diversions to Asia.

The Michigan state legislature on May 15, in approving the Great Lakes Regional Compact, moved to try to block diversion of water from the Great Lakes to outside the region.

Eight states are planned to be participants in the agreement.

Lawmakers remained at odds, however, on water diversions within the state – other than directly from the Great Lakes. Those could include waters from some in-stream streams, ponds and lakes as well as groundwater. Such legislation is prerequisite to the state’s participation in the larger compact.

Legislation would require water users to obtain permits after withdrawing more than a certain amount of water. A Senate proposal would set that limit at two million gallons per day, and a House proposal would set it at about half as much. The issue has pitted environmental and business groups against each other.

Ohio, Pennsylvania and Wisconsin still have not reached final action on the agreement. Four other states, and the Canadian provinces of Ontario and Quebec, have done so.
See Detroit (MI) Free Press, May 15; article by T

In a ruling released December 11 Lake County Common Pleas Court Judge Eugene Lucci says that the boundary between public and private land moves with the tides.
As Great Lakes water levels drop and the debate over property rights versus public access heats up, the ruling has sweeping implications for Lake Erie beach walkers as well as fishermen, waterfowl hunters, and birders who want to access the shoreline.
It defines the “water’s edge”—not the historic high-watermark—as the property boundary.
The ruling marks the latest development in a class action lawsuit filed in 2004 on behalf of Lake Erie’s 15,500 shoreline property owners in Lucas, Ottawa, Sandusky, Erie, Lorain, Cuyahoga, Lake, and Ashtabula counties. The lawsuit accused state officials of illegally taking private land under the guise of protecting the public’s right to access Lake Erie.
Former Gov. Bob Taft’s administration argued that the dividing line was the shoreline’s historic “ordinary high watermark,” a policy based on the Supreme Court’s public trust doctrine, which Ohio and Michigan adopted decades ago. However, on July 13 Gov. Ted Strickland said he would yield to whatever is outlined in property deeds while waiting for courts to sort out the dispute.
Judge Lucci’s ruling states that Ohio “has ownership in trust of the waters of Lake Erie and the land beneath those waters landward as far as the water’s edge, but no farther.”
Public interest groups claim the decision is disappointing and confusing because it suggests the boundary changes with wave action, and that it basically privatizes the Lake Erie shoreline. They predict the ruling will be used to benefit new development rights along the shore without any state oversight. The groups cited a 2005 Michigan Supreme Court ruling which asserted the public trust went up to the high watermark.
Private property rights advocates claimed the ruling was well reasoned and researched, and heralded it as a move in the direction of putting an end to government takings.
Reference: The Toledo Blade: http://toledoblade.com/apps/pbcs.dll/article?AID=/20071212/NEWS02/712120423

A researcher from Bowling Green State University has completed a 12-year follow-up study to the effects of the 1994 failure of the IVEX Dam on the Chagrin River (northeastern Ohio). The study documents long-term changes that occur as a river adjusts to the removal of a dam.
There are presently 632 dams in northern Ohio on tributary streams flowing into Lake Erie. Because many of these dams are aging and would require extensive repairs to maintain public safety, there is a growing trend to remove old dams that no longer fulfill a useful purpose.
If dams are not maintained, they can fail during a flood event. This is what happened in 1994 to the IVEX Dam, which was breached and released over 10 million gallons of water and sediment within a few minutes.
The study used surveying and sediment coring over a 12-year period to document ways the river responded to removal of the dam. The initial response was the release of mud-sized material from the former reservoir, as the Chagrin River re-established its channel. However the major effect occurred over a period of years, as the new channel stabilized, and as sand and gravel began to move downstream of the former dam site.
The study presents a modified model that can be used to anticipate the long-term changes that will occur after a dam is removed.
Results of this study “Sediment Impacts of the 1994 Failure of IVEX Dam (Chagrin River, NE Ohio): A Test of Channel Evolution Models,” are reported by James E. Evans in the latest issue (Volume 33, SI2, pp. 90-102) of the Journal of Great Lakes Research, published by the International Association for Great Lakes Research, 2007.
Contacts For more information about the study, contact James E. Evans, Department of Geology, Bowling Green State University, Bowling Green, OH 43403; evansje@bgsu.edu, (419) 372-2414.
For information about the Journal of Great Lakes Research, contact Marlene Evans, Editor, National Water Research Institute, 11 Innovation Boulevard, Saskatoon, SK, S7N 3H5, Canada; editor@iaglr.org; (608) 692-1076.
Links:
The Article (abstract)
Vol. 33(SI2) Table of Contents
Searchable JGLR Archive
IAGLR Web Site