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Great Lakes
Article:
Ohio ruling favors groundwater rights
By Jim Provance
Toldeo Blade
Published December 22, 2005
COLUMBUS - The Ohio Supreme Court yesterday gave a major
boost to landowner property rights by unanimously determining
that governments cannot divert groundwater and not compensate
property owners for drying up their wells.
"[Ohio law] recognizes the essential relationship
between water and property and confirms the groundwater
rights are a separate right in property…," wrote
Justice Paul Pfeifer. "That 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."
The court offered the interpretation in response to a
question posed by the 6th U.S. Circuit Court of Appeals.
The Cincinnati-based federal court is considering two
cases brought by homeowners claiming that Columbus and
the Wayne County city of Rittman unconstitutionally took
their properties by diverting water from aquifers running
under them.
Cities across the state have been watching the case closely.
"We are the major water providers in Ohio,"
said Sue Cave, executive director of the Ohio Municipal
League. "Water is extremely important to municipalities,
not just for growth and development but for residents
who rely on the city to supply them with clean water in
quantities that support their quality of life."
Mark Squillace, former University of Toledo law professor
and current director of the Natural Resources Law Center
at the University of Colorado School of Law, said the
decision could be interpreted very broadly.
"The court does not adequately explain when and
how a groundwater right vests," he said. "The
concern would be that the court is prepared to recognize
any right of landowners to assert groundwater rights even
if they're not using the water.
"That could be disastrous for future development
in Ohio and even potentially interfere with the historic
agreement [on water diversion] the Great Lakes states
have just reached, which affects groundwater," he
said.
The 6th Circuit, armed with the Supreme Court's interpretation
of Ohio law, now will decide whether the property owners
are entitled to compensation from the cities for shortages,
poor- quality water, or dry wells they claim the cities
caused.
"Those people now have protection from the government
taking or polluting their groundwater, where they didn't
before," said Steven Edwards, attorney for the property
owners in both cases. "There are farmers who are
afraid their wells will dry up. If you're three miles
from a centralized water system, you can't operate a farm
with piped-in water or water brought in in barrels."
Although the Supreme Court ruling applies only to Ohio,
the two cases being considered by the 6th Circuit could
set some precedent for Michigan, which is under the 6th
Circuit's jurisdiction.
"In Ohio, it appears the court has similar concerns
as Michigan courts," said Jim Olson, an attorney
who has successfully fought unlimited pumping from streams
near Mecosta, Mich., by Nestle for sale as bottled water.
"This isn't a private company like Nestle but a
municipality providing a water service," he said.
"The court is clearly saying, municipality, you're
not any different from anyone else. You're not immune
from suit."
Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.
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