What the Law says

 Bryan Times July 6, 2018 (Report by Ron Osburn):  Julie Weatherington-Rice, who is semi-retired from an environmental consulting firm and has taught at OSU, says: “Reasonable use means that as long as he stays within the confines of his property ownership agreements, and he doesn’t de-water anyone, then he’s taking ‘his’ water.”  She cited a 1980’s case decided by the State Supreme Court (Cline v. American Agregates) and Issue 3, a state constitutional amendment passed in 2008.  “It basically says you own the water under your property,” or in this case, property AOP leases, she said.

Weatherington-Rice also noted that AOP will be subject to following “all rules and regulations” set by the state for water use or for causing contamination of a water supply.  Also, commercial users over 100,000 gallons per day must file detailed state reports, she said.

If the project is approved and Kidston deviates from approved usage levels, he could face legal action, though that could be a challenge to prove and be costly, Weatherington-Rice added.

UNDERSTANDING WATER RIGHTS IN OHIO

This information is based on the following source: Law Notes from OSU Agricultural & Resource Law Program by Peggy Kirk Hall.   “The law of reasonable use still stands today.” The Ohio Supreme Court affirmed the private property right to underground water. “But precisely what amount of water is beneath a property at any given time?”
“It is common for an aquifer to lie beneath many different parcels of land and to change over time, creating challenges for determining the extent of a landowner’s water right. To address this problem, Ohio abides by the law or “reasonable use.” This legal doctrine states that a landowner may withdraw ground water and use it for a beneficial purpose unless the withdrawal:

  • unreasonably causes harm to another by lowering the water table or reducing artesian pressure
  • exceeds the landowner’s reasonable share of the annual supply or total store of ground water
  • has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to use it’s water  

“The legal doctrine of reasonable use allows one water use(r) to protect his or her water right by making a claim against the offending water user for violation of the reasonable use doctrine.”

Bryan Times, Aug. 25, 2018 (report by Josh Ewers, Science and law are topics)  In a presentation by Jack Wittman:  Still, no matter which side of the fence an individual finds themselves on in reference to the project at hand, there is one large legal truth that currently applies to the project.

“We all have equal access to water in the state of Indiana (and Ohio) without limitation, any business or entity,” said Wittman.  “There isn’t a number to say you can’t take more than this.”  When the state formed there was so much water than individual users couldn’t alter their neighbors’ access to the same resource, it’s like air… There’s no limitation.”

What Wittman describes are called usufructuary rights, which give Kidston the legal ability to start the project and leaves any other entity free to do the same so long as it owns land over the aquifer.

McNamara v. Rittman established that right in Ohio.  But later precedent added a reasonable use clause that a landowner may draw groundwater and use it for a beneficial purpose unless withdrawal “unreasonably” causes “harm” to another by lowering the water table or reducing artesian pressure, exceeds the landowner’s reasonable share of the annual supply or total store of ground water or has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to use its water.

Factors considered in determining “unreasonable harm” include purpose, social and economic value, sustainability, extent of harm and whether adjustments can be made.

Wittman, while maintaining his neutrality, indicated his belief that the Michindoh project will not be stopped by the Environmental Protection Agency.

“The state has to be awakened on this topic,” said a concerned Wittman, making his view on the lack of groundwater oversight (and not specifically the Michindoh project) in the region clear.  “The state has to act.”  Wittman encouraged attendees to contact their representatives and draw their attention on the issue.