'No One Owns Water'

Ohio Senate makes an issue out of property rights and water

Oct 8, 2008 at 2:06 pm

Most people believe that government shouldn’t control how you use your property, including water that runs under or through land you own. And most would agree the only role government ought to have is making sure one property owner doesn’t use, pollute or damage those resources in a way that limits the rights of other property owners to them too.

Organizations supporting and opposing Issue 3 agree that there are already laws in place that have created controls on what the state of Ohio is allowed to do. Passage of the issue in November simply would add language to the state constitution related to those two points.

So why is this constitutional amendment needed if appropriate laws are already in place?

“The language that is in Issue 3, for the most part, is already on the books,” says Kristy Meyer, director of Agricultural and Clean Water Programs for the Ohio Environmental Council (www.theoec.org). “The two things that are not on the books already are that there is no recognition in our constitution of public trust and how it pertains to Lake Erie. It recognizes the regulatory authority of the state of Ohio over water use and water quality both within groundwater and surface water.”

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.

The Ohio Environmental Council supports the passage of Issue 3, but Meyer offers no explanation as to how adding this language to the constitution is beneficial.

Constitutional amendment

The proposed amendment doesn’t belong in the Ohio Constitution, according to Mike Eckhardt, deputy director of the Ohio League of Conservation Voters (www.ohiolcv.org). He says Issue 3 is a waste of time and money because it offers no real benefits but creates risks that don’t currently exist.

“It was passed so rapidly through the Ohio Senate that no one really had a chance to consider any implications that may be in this amendment,” Eckhardt says. “You have the same rights today. Tomorrow, if this issue passes, we’ll be putting it in the state’s constitution, which is not a place to legislate. If a problem presented itself 10 years from now in a court, it would require another statewide vote to undo this.”

Unable to predict how a court might interpret this amendment until it’s challenged makes it impossible to know what problems the amendment could create.

Right now, anyone who owns a piece of property also owns the rights to drill for oil or natural gas, dig for minerals or sink a well for water; all of the natural resources on that land are yours to use. The limit on those rights is “reasonable use.”

For example, if a stream runs across your land, that means you can’t keep all the water for yourself by creating a dam that prevents your neighbor from using the water from that same stream that also crosses his land.

“No one owns water,” Meyer says. “If I move in right next to you and I’m upstream from you and I dig a well and decide I’m going to start pumping out water for bottled water, I ship everywhere and I actually run the aquifer dry, you can sue me because you no longer have a right to reasonable use.”

The potential problem that Eckhardt sees is that a court might not view the constitutional language of “reasonable use” in the way it’s legally interpreted right now.

“It is conceivable that a court will look at this and say, ‘This does actually give you a private property right on the water beneath your land,’ and that … would allow you to run it dry, which you wouldn’t be able to do right now,” Eckhardt says.

It could also mean that the state would have to purchase the right to the water on your land in order to protect it for others. The only way anyone can be sure about the legality of this constitutional language is with a court challenge because the courts, not the legislature, make those judgments.

Protecting the Great Lakes

The opposing sides agree that Issue 3 came into being as a compromise to get a vote in the Ohio Senate on the Great Lakes-St. Lawrence River Basin Water Resources Compact. And that’s creating a source of confusion for some voters.

The agreement, commonly referred to as the Great Lakes Compact, was created by the Council of Great Lakes Governors (www.cglg.org) as a means to update the shared responsibility of members to protect and preserve the Great Lakes, the largest body of freshwater lakes on the planet.

The council was established to “encourage and facilitate environmentally responsible economic growth through a cooperative effort between the public and private sectors among the eight Great Lakes States and with Ontario and Québec,” according to the Web site. “Through the council, governors work collectively to ensure that the entire Great Lakes region is both economically sound and environmentally conscious in addressing today’s problems and tomorrow’s challenges.”

The compact was agreed on in 2005 and sent to member governments for approval; Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin all had to approve the compact. One Ohio legislator, Sen. Tim Grendell (R-Chesterland), used the vote as a way to raise a private property rights issue that held up a vote on the legislation.

Meyer cautions that Issue 3 and the Great Lakes Compact aren’t linked in any way.

“The compact has already been signed into law,” she says. “The passage of the compact is not dependent on the passage of Issue 3. There are some people that are claiming that they’re tied together. There are people that have paid for automated calls stating otherwise.”

Deception in politics isn’t new, which is why both Meyer and Eckhardt encourage voters to study Issue 3 before going to the polls. 

“(Property owners) already have all of the rights that this amendment is designed to ensure,” Eckhardt explains. “There’s no danger in voting this down. This is an entirely unnecessary amendment.”

Learn more about ISSUE 3 and other statewide ballot initiatives at the Ohio Secretary of State’s Web site: www.sos.state.oh.us/SOS/elections.aspx. Find the OHIO BALLOT BOARD by clicking on “OH Issue Procedures and Ballot Board.” Look for additional CityBeat coverage of candidates and ballot issues in upcoming issues through Election Day, Nov.4

“(Property owners) already have all of the rights that this amendment is designed to ensure. This is an entirely unnecessary amendment.”

— Mike Eckhardt, Ohio League of Conservation Voters,
               who calls Issue 3 “a waste of time and money”

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