July 2019

(Reader Alert:  The following is taken from The Bryan Times, July 18, 2019 report by Ron Osburn)

Citing “existing Ohio (legal) precedent” and case law from the Ohio Supreme Court, Stelzer’s ruling backed up (the BOE) saying “the content of the proposed charter fails to provide for an alternative form of government as required in Ohio Constitution Article X, Section 3.”

In addition, Stelzer wrote, “it includes provisions to exercise control over the administration of State and Federal law which controls are not within the authority of a county to enact.  It also does not provide for the performance of duties upon county officers and offices required by law.”

(Reader Alert:  One paragraph of article is omitted)

The hearing Tuesday was requested by Toledo-based attorney Terry Lodge, representing the Alliance.  Lodge argued the election board exceeded its powers in making its ruling and instead should have ruled only on whether there were enough signatures to qualify the issue for the November ballot.

Lodge said the 16-page charter basically was a framework to ban commercialization of the Michindoh Aquifer and any lack of detail in reference to county job titles and duties was covered by reverting back to the Ohio Revised Code.

But Stelzer, in his four-page decision, wrote that while the language of the proposed charter “contains a general ‘catch-all’ provision that attempts to address these listed failures, the Ohio Supreme Court has ruled that such an overly general ‘catch-all’ is insufficient, citing the 2017 Ohio Supreme Court case of McGinn v. Walker.

(Reader Alert:  Two paragraphs omitted)

“I’m disappointed but not surprised,” Alliance organizer Sherry Fleming said Wednesday, adding she felt it is “unreasonable for us to catch every single thing every single official does, and if you missed them, then it makes the whole petition invalid.”

She said the Alliance will appeal the decision.

“I think the thing that is motivating this (charter) is people are feeling outrage.  They see the state is not adequately protecting our natural resources and our health — the state is doing nothing — but restricting our right to bring an initiative to a vote,” Fleming said.

On the other hand, in a statement released late Wednesday, County Commission President Terry Rummel said he opposed the charter “as it would give the county commissioners the ability to enact regulation and laws with little or no oversight.  This is a gross overreach of governmental power with no checks and balances,” Rummel said, adding, with emphasis, that he believes the charter would not stop Artesian of Pioneer from being able to pump water from a test well AOP has drilled near Fayette, in Fulton County.  (The Ohio Environmental Protection Agency has yet to approve that well).

Rummel emphasized that he was speaking for himself as a commissioner, and not for fellow commissioners, Lew Hilkert and Brian Davis.  Both have declined to comment publicly.

Rummel pointed out the Williams County Commissioners have been working with commissioners and governmental officials in the nine counties in the three states — Ohio, Michigan and Indiana — that share a border with the Michindoh Aquifer to develop a board that will monitor the aquifer levels.

“The purpose of this board will be to ensure that the aquifer is regenerating at the rate the Ohio Department of Natural Resources and Ohio EPA require and to ensure that the water from the aquifer is plentiful for current and future generations of Williams County families.  I feel that developing this board will be the most successful way to protect our resource,” said Rummel.

A meeting is set July 30 in Bryan to bring the following counties together: Williams, Fulton and Defiance counties in Ohio; Lenawee, Hillsdale and Branch counties in Michigan; and Steuben, DeKalb and Allen counties in Indiana.

(Reader Alert:  Paragraph omitted which refers to the Bryan Area Chamber of Commerce statement opposing the proposed Charter.  See following article.)

Rummel also took issue with the Pennsylvania-based Citizens Environmental Legal Defense Fund (CELDF), which is working with the Alliance and provided Lodge’s services to the Alliance under a $1 agreement.

“I found that it is not uncommon for them to support initiatives like this for their own special interests and I do not believe that their views are in alignment with the majority of the citizens of Williams County,” Rummel said.

Bryan Times July 20, 2019

New Rules for state’s aquifers

report by Don Koralewski

Tucked into the bi-annual state budget that Ohio Gov. Mike DeWine signed on Thursday morning are dozens of pages that apply specifically to Michindoh Aquifer protections — and, more broadly to groundwater source throughout the state of Ohio.

State Representative Jim Hoops and State Senator Rob McColley provided a brief on the legislation to Williams County Commissioners during their Thursday morning meeting — Hoops in person and McColley over the phone.  Also in attendance were local elected officials, including Bryan Mayor Carrie Schlade.

High points of the legislation are:

  • The Ohio Department of Natural Resources (ODNR) will be the agency of authority with regard to all things groundwater — in essence, equating groundwater with other natural and mineral resources in the state;
  • Groundwater users will be able to point to large scale water consumers as a possible cause of negative impact on their wells, and ODNR will investigate and is authorized to order the possibly offending well shut down, or water draw slowed down.  Affected well owners will also be able to launch complaints without having to prove the source of their lost water flow  — they can point to other possible water users nearby, and the onus to prove that their wells aren’t responsible for affecting others’ wells will be on the suspected well owner; and
  • $500,000 has been set aside by the legislature for the study of aquifers north of the Maumee River.  Funding to be provided at $250,000 a year for the next two years.

The legislation was authored by Hoops in the House and McColley in the Senate, and was months in the making — beginning shortly after Artesian of Pioneer proposed drilling into the Michindoh and providing millions of gallons of aquifer water to communities around Toledo.

One of the first meetings in Columbus took place last summer with Williams County Commissioner Brian Davis and Bryan Mayor Carrie Schlade in attendance.  Hoops and McColley brought together senior staff from ODNR and the Ohio Environmental Protection Agency (OEPA) to conduct an information and work session specifically in response to local concerns in Williams County.

It was reported that previous to this meeting aquifers in Ohio were not regulated the way surface water sources were, or specifically which agencies had authority over groundwater usage.  There was nothing in state law that prohibited large scale commercial draw of groundwater.

Since then, the legislators report that they have been working with state agencies to draft and move state legislation.

“What we found is that we had a system in the state of Ohio, but the system really was not very well thought out and it was lacking,” said Sen. McColley.  “One thing that we did is we said look, we need to go in here and make sure that the experts in the state government are the ones who have oversight of this.”

Basically the EPA was the agency responsible for monitoring the withdrawal of water from these aquifers.

“The EPA even admitted to Jim and I in our meetings that they lacked the technical expertise for that.  The EPA is more concerned about water quality.  They are concerned about the quality of your drinking water, they’re concerned about the quality of surface water.  They don’t have the technical expertise to be able to  evaluate the physics and the hydrodynamics and everything of that nature as it concerns the potential impact of withdrawing from an aquifer,” said McColley.

In addition to delineating responsibility for groundwater withdrawal, the legislation provides for scientific study and evaluation of the aquifer.

“How is it (the aquifer) affected if something happens,” asked Hoops.  “No one really has any idea of how this aquifer actually works.  We heard people on one side saying ‘it’s going to recharge.’ Then we had people on the other side saying, ‘no it’s not.’  We really don’t know how it’s going to affect it.

“What USGS said is you just need more science,” said Hoops.

The legislation provides a total of $500,000 for study of the aquifer, which will include installation of monitor wells and data evaluation.

“The process requires information to make sure that the aquifer is not being detrimentally impacted, and actually prescribes remedies and potential remedies from the government and for the private citizen that may be brought in the event that the aquifer may be detrimentally impacted,” said McColley.

“We feel this strikes a good balance in what needs to be done to ensure that the aquifer is protected and everybody can rest easy that there’s not going to be a detrimental impact on the water supply.”

Williams County Commissioner Lewis Hilkert thanked the legislators for their work.  “It’s been a long process and tedious process, but thank you for doing this for not only our area, but also for the state of Ohio.”

Commission President Terry Rummel said the legislation may have provided a workable balance for proponents and opponents of large scale commercial water draws from the aquifer.  “We probably hit the middle ground, and it is probably where we needed to be,” said Rummel.

Bryan Mayor Carrie Schlade commended Hoops and McColley for their work as well.

“I think this is an example of government working the way that it should,” said Schlade.  “The constituents reached out to us as local officials.  We reached out to our senator and state representative.  They then got the adequate groups around them in Columbus, and unfortunately for the last 12 months, nobody has really been able to speak about it to anyone because of the powers that be, the political backlash and quite frankly there were things that they needed to work through to try to avoid all those unintended consequences that we all keep talking about.

“So, I appreciate their ability to reach something that is bipartisan, that helps all of us.  And the fact that they are there listening to us when we bring our constituents’ concerns to them, which is exactly what all of our jobs are.

The AOP project is still awaiting an ODNR permit for a test well in Fayette, which Hoops said has been delayed due to continued consideration of public comment received during an EPA public hearing in Fayette.

 

Bryan Times, July 27, 2019

Alliance to file protest of decision

report by Ron Osburn

To Sherry Fleming, one thing became apparent during the informational meeting in early June by John Leutz, legislative counsel with the County Commissioners Association of Ohio, on the proposed county charter initiative.

“It’s not just an issue of water, but who has the power,” Fleming said, reflecting on the June 3 mid-day PowerPoint presentation and question-and-answer session that drew about 90 people to the East Annex conference room.

Leutz expressed doubt the charter would be approved for the ballot and on July 8, the Williams County Board of Elections rejected the charter petition, though it found a sufficient number of valid signatures.  The board ruled that based on the county prosecutor’s opinion, language in the proposed charter issue exceeds the scope of the powers afforded to local governments by the state.

On July 17, the Williams County Common Pleas Court backed the county elections board in a ruling rejecting the charter petition, agreeing with the election board and also saying the charter failed to provide enough detail on the duties of county officials, and includes provisions which are not within the authority of a county to enact.

Fleming said the Alliance intends to take the next step in the process and file a protest to be heard by the secretary of state’s office.

Per Ohio Revised Code Section 307.95, a protest concerning the board of election’s findings on the validity or invalidity of a county charter petition or any signature may be filed to the board of elections by 4 p.m. on July 31.

The board of elections is then required to deliver one copy of the protest to the secretary of state’s office, which determines the validity or invalidity of the petition within 10 days.

The secretary of state must notify the board of elections of its ruling by 4 p.m. on Aug. 16.  If determined to be valid, the charter will be placed on the ballot.  If determined to be invalid — which Fleming expects — the Alliance will file an appeal with the Ohio Supreme Court, she said.

The Alliance has proposed the charter as a way to legally oppose Artesian of Pioneer’s (AOP) controversial plan to drill into the underground aquifers that span a nine-county area in Ohio, Michigan and Indiana — commonly referred to as the Michindoh Aquifer — and sell up to 14 million gallons a day of Michindoh water to entities outside of the aquifer area.

Fleming said while the Alliance’s efforts have centered on qualifying the charter, the focus has broadened.

“Now it’s as much about protecting the right of citizens to (vote on) a charter as it is about the charter itself.  It’s not only about the aquifer, but about the push by the state against citizens who want more control over what happens in their communities.  Right now, all power is at the state.  It’s not a level playing field,” Fleming said Friday, using legislation in HB463, passed by the state legislature in 2016, as an example of the state’s over-reach in restricting charter efforts.

“Before that,for the past 100 years, the government was not interfering with the right to p etition.  With HB463, now that’s changed.  So we plan to bring it to the Supreme Court, Fleming said.

Fleming also said she is skeptical about language in the state’s recently passed budget bill that includes $500,000 over the next two years to develop data about the aquifer, which is the sole source of water to Williams County.

“From what I’ve read, there is no language that prohibits AOP or Nestle or anybody from drilling and selling the water as long as they meet certain criteria.  Right there, to me, is a red flag,” Fleming said, adding she is concerned with what she sees as the budget bill’s amplified protection for industrial agriculture and factory farms and lack of protection for ecosystems.

The non-profit Alliance is being assisted in its efforts by the Pennsylvania-based Community Environmental Legal Defense Fund and represented in court proceedings by Toledo-based attorney Terry Lodge.

AOP president Ed Kidston, who recently filed to run again in November as mayor of Pioneer, has said he is withholding comment to the media.

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