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UT conference addresses new pact to protect Great Lakes, groundwater issues, cross-boundary pollution |
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Jim Winkler |
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Nov 25, 2008
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Significant progress continues to be made to keep the waters of the Great Lakes clean and healthy, but they still face a host of threats, a member of the International Joint Commission (IJC) in Washington, D.C., told some 150 people who attended The University of Toledo College of Law’s eighth annual Great Lakes Water Conference Nov. 14.
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| Sam Speck, former director of the Ohio Department of Natural Resources, talked about the recently ratified Great Lakes-St. Lawrence River Basin Water Resources Compact at the Great Lakes Water Conference in the Law Center Auditorium. |
Sam Speck, conference keynote speaker and former director of the Ohio Department of Natural Resources, said the recently ratified Great Lakes-St. Lawrence River Basin Water Resources Compact is an important proactive measure, but warned of hazards still to be faced: pollution from industrial, urban and agricultural runoff; low water levels; urban sprawl; sewage overflows; diversion of water to support large cities around their shores; and harmful invasive species such as the Asian carp and the zebra mussel.
Speck was one of 13 participants at the conference, where the new compact, groundwater rights and cross-boundary pollution were discussed. The College of Law and its Legal Institute of the Great Lakes, which is directed by Kenneth Kilbert, associate professor of law, sponsored the program.
With offices in Washington, Ottawa and Windsor, Ontario, the IJC is a binational government agency that has helped the United States and Canada resolve disputes over boundary waters since 1909.
The compact was approved by governors in all eight Great Lakes states in 2005 and later by state lawmakers. Congress approved the compact in September, and it was signed by President Bush in October. Ontario and Quebec adopted similar policies.
In addition to limits on water diversions out of the Great Lakes basin, the compact regulates withdrawals within the basin, requires each state to develop conservation plan, and establishes a council made up of the eight governors with broad authority to conduct research and plans for the future. Limited exceptions include water bottled in containers of less than 5.7 gallons, which isn’t subject to the “no diversion” rules — essentially an exemption for the bottled water industry.
The Great Lakes states must develop conservation programs within two years and management programs for new or increased withdrawals within five years, according to Sara Gosman, an attorney with the Ann Arbor-based National Wildlife Federation, who spoke at the conference.
Speck outlined other initiatives such as the Ohio Scenic River program, a $50 million project to clean contaminated sediment from the Ashtabula River, more walking and hiking trails along rivers, new regulations on ship ballast water aimed at eliminating invasive species, cleaning up brownfields along river and lake shorelines, and increased cooperation among Great Lakes governors, city mayors and tribal leaders.
Talking about groundwater rights, Robert Abrams, a Florida A&M University law professor, noted that the issues surrounding groundwater — where to find it, how to tap it, how to measure it and how to manage its use — are incredibly complex.
Groundwater is water that has soaked into and completely saturates underground layers of permeable rock, gravel or sand. Riparian rights allow land owners “reasonable use” of the groundwater supplies on their land, but not absolute ownership.
“Overuse of groundwater can have tremendous ecological, economic, social, cultural and political impact,” Abrams said, warning that some aquifers are being depleted by rapidly growing cities and drought faster than they can naturally recharge themselves.
Cleveland attorney Louis McMahon explained that the passage of Ohio’s Issue 3 earlier this month formalizes property owners’ rights to the groundwater on their land, establishing that water “cannot be held in trust by any governmental body.”
But gaps and many unanswered questions remain, McMahon said. What level of interference with a groundwater right constitutes a taking? How is the reasonableness of a groundwater property right measured? What constitutes a reasonable regulation of groundwater? How is a groundwater property right measured, valued and recorded?
Also discussed at the conference was the issue of cross-boundary pollution and a lawsuit brought in a Canadian court against DTE Energy, an American corporation and parent of Detroit Edison Co., by a private Canadian citizen, Scott Edwards, who has accused the utility of violating the 2005 Fisheries Act by emitting 2,000 pounds of mercury annually from two of its coal-fired power plants. The suit alleges that the emissions harm Canadian fish habitat and violate Canadian law. Private citizens are allowed to initiate and conduct a case for what they consider breaches under Canadian law. The speakers were Edwards, who is a legal director for the Waterkeeper Alliance; Craig Parry, Edwards’ Canadian attorney; and Joseph Polito, the attorney representing DTE.
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