Ohio State Senator Tim Grendell has been the leading opponent of the proposed Great Lakes compact, arguing that the compact would lead to a “taking” of private groundwater rights by extending the public trust doctrine to groundwater. While Senator Grendell’s arguments have little legal merit, he has been able to stop the compact from passing in Ohio, despite overwhelming bipartisan support. About a month ago, Senator Grendell announced on an Ohio public radio show that he would propose an amendment to the Ohio Constitution to protect property rights in groundwater and prevent the public trust doctrine from extending to groundwater in Ohio. Senator Grendell has said that as a compromise, he would not oppose the compact if his constitutional amendment is put to the voters.
In addition to the uncertainty of the constitutional amendment process and the resulting delay for passing the compact (the amendment could not be voted on until the general election in November), I was very skeptical of what exactly Senator Grendell’s amendment would say. Certainly private landowners in Ohio have a right to the reasonable use of groundwater below their land, just as in every other Great Lakes state. But this does not mean that landowners “own” the groundwater like they own the car parked in front of their house.
Now that Senator Grendell has released his proposed constitutional amendment, perhaps I owe the senator an apology for my skepticism. (Download the joint resolution with the full text of the amendment.) The constitutional amendment accurately states the nature and extent of private groundwater rights. It provides that “A property owner has a property interest in the reasonable use of the ground water underlying the property owner’s land. When that property interest is taken for public use, the taking and compensation shall be made in accordance with Section 19 of Article I of the Constitution.” It further states that “Ground water underlying privately owned land and nonnavigable waters located on or flowing through privately owned land shall not be held in trust by any governmental body.” The proposed amendment also makes clear that private groundwater rights are subservient to the public welfare (meaning the government can regulate their use) and that they can be voluntarily conveyed to the state.
So how would this constitutional amendment change water law in Ohio? The answer is, not at all. In 2005, the Ohio Supreme Court directly addressed the issue of private groundwater rights in McNamara v. City of Rittman. The Ohio Supreme Court held that landowners have a property right to the reasonable use of groundwater below their land, and this right “is one of the fundamental attributes of property ownership and an essential stick in the bundle of rights that is part of title to property.” As the court made clear, this does not mean that landowners “own” the groundwater, but rather have a right to the use of the groundwater. The court analogized groundwater rights to riparian rights, as “a riparian landowner does not own the water in a stream that runs along his property, but he does own the right to the reasonable use of the stream as a part of the title to his real estate.”
Senator Grendell’s amendment follows the Ohio Supreme Court’s decision basically word for word. Even the first part of the amendment, stating that “[t]he stability of Ohio’s economy and the protection of the rights of Ohio’s property owners requires the recognition and protection of property interests in ground water” mirrors language of the Ohio Supreme Court (“The well-being of Ohio homeowners, the stability of Ohio’s economy, and the reliability of real estate transfers require the protection of groundwater rights.”)
While the proposed amendment is legally sound, there is no reason for Ohio to wait until it is voted on before passing the Great Lakes compact. The amendment essentially takes the Ohio Supreme Court’s decision in McNamara v. City of Rittman and puts it in the state constitution. Even without the amendment, the McNamara case is the law of Ohio, and it's not going to change anytime soon. Ohio can pass the compact now, vote on the amendment in November, and rest assured that both the Great Lakes and property rights would be well protected.