September 6, 2010
New York, U.S.

Whose lakes are these, anyway?

By Steve Orr, Rochester Democrat and Chronicle, democratandchronicle.com 6 September 2010

With a minimum of fanfare, President Obama signed an executive order in mid-July creating a National Ocean Council. The council, made up of 26 federal executive-branch officials, is charged with overseeing the implementation of the United States’ first ocean policy.

Most of the attention the order got focused on the salt-water aspects of the new policy. But it covers not just the nation’s oceans but its five Great Lakes as well – and state officials from Minnesota to New York have been trying to figure out what that means for them.

The policy calls for coordination of regulatory efforts and stresses ecosystem-based management and spatial planning. The latter would be an effort to protect sensitive resources and direct development to the most suitable places. Observers seem fond of describing it as zoning for the water.

That’s all well and good, but here’s the rub: While the federal government has always had legal jurisdiction over the ocean waters and underlying bottomland that extends 200 nautical miles from shore, that’s not so in the Great Lakes.

“The states own the bottomlands. That extends all the way to the middle of the lakes, to the international boundary or the border with another state. The water itself is owned by the citizens and managed by the states on their behalf,” said David Naftzger, the executive director of the Council of Great Lakes Governors.

It’s not entirely clear yet how the new policy might change that, such whether it gives the federal government new power over the Great Lakes at the expense of the states. “We’re in the process of getting a better understanding of how this would relate to our unique situation,” Naftzger told me in late August.

If you go online, you can find plenty of people, most of them political opponents of President Obama, who cast this as a federal power grab. The items along this line that I read presented nothing factual to back up this notion, and many were way over the top.

Natfzger said he didn’t believe the White House was seeking to overturn the existing legal framework giving the states hegemony over the land at the bottom of the lakes. But, he said, “the administration feels it has the authority it needs to convene this (council) and move ahead with this planning process.”

One concern would be existing groups like the Great Lakes Fishery Commission, which the states and Canadian provinces use to coordinate fishing policies and practices. It’s a model they’re comfortable with, presumably, and they might object if the feds shunted it aside.

Another issue, and the one that intrigues me, is the siting of wind farms. While wind farms in the Great Lakes need permits from the U.S. Army Corps of Engineers and other federal agencies, the states control the underwater land on which the turbines would rest and thus have ultimate control over where they’re built.

But the thrust of the national policy is to use spatial planning to determine the best places for things such as wind turbines to be built, and to identify sensitive places that should be off-limits to them. Regional planning bodies would oversee this process; one of the nine regions would be made up of the Great Lakes states.

Who knows what this means for wind-turbine siting. Would states promoting construction of off-shore wind farms have to go through this planning process first? Would they be obligated to allow greater public partcipation, or to consult other states? Would these planning bodies be able to impose their decisions and, if so, who would control the planning bodies?

I asked the New York Power Authority, which is pushing wind turbines in Lake Ontario or Lake Erie, if they knew what this meant for them. I got no response.

Terry Yonker, co-chair of the Great Lakes Wind Collaborative, said there are on-going discussions with the White House Council on Environmental Quality about what agency would coordinate federal permitting of Great Lakes turbines. But he was doubtful any of this would lead to a usurpation of state control.

“Yes, the states own the bottomlands and it would be difficult to override a state decision not to lease bottomlands unless there is an overwhelming national need,” he said in an e-mail. “For instance, the Coast Guard historically was able to place lighthouses in state bottomlands because of the need to provide navigation aids to shipping to slow the incidence of ship wrecks in the Great Lakes. A corollary would be perhaps a decision by a state to approve an offshore wind project that could not be implemented because there was a Coast Guard or Corps navigation issue.

“I haven’t seen the blogs on this subject, so I would simply say that any presumed taking of siting authority by the federal government under a National Oceans Policy that includes the Great Lakes would be unlikely,” he concluded.