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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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