The Ohio Senate voted unanimously to approve Senate Joint Resolution 8, sponsored by State Senator Tim Grendell. The joint resolution, which the House must also approve with at least a three-fifths majority vote, would amend Ohio’s constitution to protect private groundwater rights while still allowing state regulation of groundwater use. It would enact a new section 19b of Article I of the Ohio Constitution as follows:
(A) The protection of the rights of Ohio's property owners, the protection of Ohio’s natural resources, and the maintenance of the stability of Ohio’s economy require the recognition and protection of property interests in ground water, lakes, and watercourses.
(B) The preservation of private property interests recognized under divisions (C) and (D) of this section shall be held inviolate, but subservient to the public welfare as provided in Section 19 of Article I of the Constitution.
(C) A property owner has a property interest in the reasonable use of the ground water underlying the property owner’s land.
(D) An owner of riparian land has a property interest in the reasonable use of the water in a lake or watercourse located on or flowing through the owner's riparian land.
(E) 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 state, and a political subdivision to the extent authorized by state law, may provide for the regulation of such waters. An owner of land voluntarily may convey to a governmental body the owner's property interest held in the ground water underlying the land or nonnavigable waters located on or flowing through the land.
(F) Nothing in this section affects the application of the public trust doctrine as it applies to Lake Erie or the navigable waters of the state.
(G) No other provision of the Constitution shall impair or limit the rights established in this section.
If adopted by Ohio voters in the November 4, 2008 election, the amendment will take effect December 1, 2008.
Senator Grendell developed and proposed the amendment as a compromise to clear the way for passage of the Great Lakes compact in Ohio. (See my previous post on this issue.) The language of the proposed amendment was modified slightly from the original proposal to address concerns raised by the Ohio Environmental Council and other conservation groups.
As detailed in the Great Lakes Environmental Law Center’s memorandum to the legislature (thanks to the work of Oday Salim, a legal fellow with the GLELC), the proposed constitutional amendment (as modified to address environmentalists’ concerns) is entirely consistent with established Ohio law. It provides a balance between protecting private groundwater rights and the state’s authority to regulate groundwater use. It also recognizes the public trust doctrine as it applies to navigable waters in Ohio (including Lake Erie and the submerged lands below it). I’m just sorry that I wasn’t in Columbus to see conservative Republican Senator Tim Grendell and Jack Shaner of the Ohio Environmental Council hug it out.
UPDATE: Looks like the hugs were a bit premature. As reported by Aaron Marshall of the Cleveland Plain Dealer, the Ohio House Democrats managed to defeat the resolution by a 58-37 vote (two votes short of the required three-fifths majority needed to put a constitutional amendment on the ballot). The Ohio House Republican leadership will try to negotiate an agreement and bring the resolution back for a vote on June 10 when the House has its next session day. This also delays passage of the Great Lakes compact, since the Ohio Senate won't vote on the compact until the resolution is approved by the House. Such are the joys of politics.