Canadian Bar Association Second Annual National Environmental, Energy - - PDF document

Canadian Bar Association Second Annual National Environmental, Energy and Resources Law Summit

Waterways / Waterwars Some Lessons for the Great Lakes from Water Management in Eastern Basins

• R. Timothy Weston1

Kirkpatrick & Lockhart Nicholson Graham LLP Harrisburg, Pennsylvania tweston@klng.com Toronto, Ontario, Canada April 27-29, 2006 I. Introduction As the States and Canadian Provinces that comprise the Great Lakes Basin region seek to launch a new regional water management regime, it may be helpful to review the lessons learned from other eastern North American river basins in terms of framing and carrying out workable water management systems. On December 13, 2005, the Governors and Premiers signed two documents, intended to establish an expansive regional approach to managing water withdrawals from the Great Lakes

• Region. These two documents

the Great Lakes-St. Lawrence River Basin Water Resources Compact ( Compact ) and the Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement ( Agreement ) seek to implement the lofty goals of cooperation and conservation described in the Great Lakes Charter signed by the Governors and Premiers in 1986.

1 The views set forth in this article are solely those of the author, and do not necessarily reflect the

views of Kirkpatrick & Lockhart Nicholson Graham LLP or its clients. Portions of this paper were previously presented as part of the author s article Evolving Water Resource Issues in the Mid-Atlantic Region, published in the proceedings of the American Bar Association, Section of Environment, Energy, and Resources 13th Section Fall Meeting, September 21-25, 2005.

• 2 -

Since adoption of the Great Lakes Charter in 1986, the Great Lakes jurisdictions have been grappling with issues of how best to manage, husband and conserve the region s water resources for both economic benefit and environmental protection. In 2001, the States and Provinces adopted an Annex to the Charter outlining further measures they would consider to foster greater regional cooperation and consistency. The Compact and Agreement signed in December 2005 are intended to implement the principles of Annex 2001. The Compact and Agreement seek to establish a statutory and regulatory framework for imposing substantial additional regulatory controls on water withdrawals involving Great Lakes Basin waters, including withdrawals from the lakes themselves, streams within the basin, and groundwaters within the Great Lakes and St. Lawrence River watersheds. The key elements of this program include:

• Registration. All existing water withdrawals greater than 100,000 gallons per

day in any 30-day period are required to register with their States or Provinces. Criteria applied through this process will be used to define the grandfathered amount of those existing withdrawals (thereby establishing a baseline defining future increases that may trigger permit requirements). Water Withdrawal Permitting. States and Provinces are required to establish permitting programs regulating new or increased withdrawals above to-be- defined trigger levels. Such withdrawals may be approved only if they meet prescribed minimum criteria (referred to as the Decision-Making Standard ). Significant Consumptive Water Uses: Where withdrawals involving significant consumptive uses of water (> 5,000,000 gallons per day ( gpd ) in any 90-day period) are subject to review by a Regional Body, which may render comments and a declaration of findings back to the State/Provincial permitting agencies. Water Conservation Measures. States and Provinces are required to develop and implement voluntary and/or mandatory water conservation measures applicable to both existing and new users. New or increased withdrawals must implement environmentally sound and economically feasible water conservation measures. Out-of-Basin Diversions and Intra-Basin Water Transfers. With limited exceptions, the Compact and Agreement would prohibit out-of-basin diversions

• 3 -
• f water; and transfers of water between the subbasins of the Great Lakes will be
• restricted. Subject to some high regulatory standards, use of basin waters by

straddling communities will be permitted. As the Compact and Agreement aggressively aim to establish new and much more expansive regulatory measures governing basin water use (substantially beyond the regimes existing in most Basin jurisdictions), the fact is that the Great Lakes Basin is not the first watershed in eastern North America to attempt multi-jurisdictional, trans-boundary water

• management. Other jurisdictions in the east, and particularly the significant watersheds

comprising the Delaware and Susquehanna basins, have tackled water management on a watershed approach for many years, with varying degrees of success. The experience of these basins may be helpful in terms of looking forward to the challenges facing the Great Lakes. Given the theme of this panel, this paper provides an overview of the water conflict resolution processes and water management programs used in the Delaware and Susquehanna River Basins, compared to the approach suggested in the Great Lakes Compact and Agreement. That comparison focuses on some of the central and evolving themes and issues in water management, including (1) factors or standards used in the approval of ground and surface water withdrawals; (2) management of trans-watershed transfers; (3) development and use of water budgets, and management of consumptive water use; (4) identification and management of instream flows necessary for downstream uses (such as fisheries), and balancing of instream and withdrawal uses; and (5) systems for sharing and managing interstate waters. II. Overview of State and Basin Water Management Systems in the Delaware and Susquehanna Basins Current water management approaches in the Delaware and Susquehanna Basins reflect a range of systems involving a combination of both state-level programs and broad quantity and quality regulation through interstate compact commissions. At the state level, three of the involved states (New Jersey, Maryland, and Delaware) have adopted statewide programs regulating major ground and surface water withdrawals; one (Pennsylvania) has limited state- level regulation of only certain withdrawals by public water supply agencies; and one (New York) still largely relies on common law. However, overarching the state level programs, the Delaware and Susquehanna river basin compacts, and the commissions created under those compacts, establish pervasive basinwide management of water quality and quantity issues. The following sections lay out the history, framework, and experience for state and basin commission

• 4 -

programs, and Section III of this paper highlights some of the themes, issues, and lessons to be learned. A. State Level Water Management Programs 1. Delaware Although the State of Delaware once relied upon a largely common law approach to water management, in 1966 Delaware adopted a permit system for regulating more significant withdrawals from surface water and ground water under 7 Del. Code §6001 et seq. Section 6003

• f the statute prohibits any person, without a permit issued by the Secretary of the Delaware

Department of Natural Resources and Environmental Control ( DNREC ) to undertake any activity [i]n any way which may cause or contribute to the withdrawal of ground water or surface water or both. Under regulations adopted by DNREC, this water withdrawal permitting program has been restricted to projects involving the withdrawal of greater than 50,000 gallons of water in any 24-hour period.2 The Delaware statute declares that water is to be allocated on the basis of equitable apportionment,3 and DNREC regulations provide substantial definition and refinement to that general concept in specifying the factors to be considered in review and issuance of water withdrawal permits. Delaware s rules establish general guidelines for determining the limits on withdrawals from both surface and ground water sources. Surface-water withdrawals are limited to those rates which: do not interfere with other permitted withdrawals unless compensation for such injury is provided satisfactory to the Department; allow dilution and flushing of waste discharges and maintain adopted water quality standards; protect valuable fish and wildlife; maintain adequate flow over spillways of downstream impoundments;

2 DNREC Regulations Governing the Allocation of Water, §1.02. 3 7 Del. C. § 6010(f)(1).

• 5 -

prevent intrusion of saline waters where such intrusion threatens ground or surface water supplies; and provide other ecological, recreational, aesthetic, and private benefits which are dependent upon surface water flows.4 In a similar manner, ground-water withdrawals are limited to rates which will not cause: long-term progressive lowering of water levels, except in compliance with management water levels established by the Department; significant interference with the withdrawals of other permit holders unless compensation for such injury is provided satisfactory to the Department; violation of water quality criteria for existing or potential water supplies; significant permanent damage to aquifer storage and recharge capacity; or substantial impact on the flow of perennial streams below those rates specified for surface waters in the preceding section.5 During review of an application, DNREC will also evaluate whether the requested use permit is consistent with local, state, and regional water resources plans, land use plans, and zoning requirements.6 DNREC s permit application forms solicit specific information upon which to review each proposal against the factors and criteria discussed above.7 As part of a water allocation permit application, all applicants must submit in writing and demonstrate the existence of and commitment to a water conservation program, suitable to their particular use . . . . 8 Under Section 4.03, six specific conservation measures must be taken by recipients of water allocation

4 Regulations Governing the Allocation of Water § 3.03. 5 Id. § 3.04. 6 Id. § 4.02 7 Forms are available at http://www.dnrec.state.de.us/water2000/Sections/WatSupp/Library/

WaterSuppForms.htm.

8 Regulations Governing Allocation of Water § 4.03.

• 6 -

permits, including (1) establishment of a program for periodic monitoring and evaluation of water usage; (2) establishment of a systematic leak detection and control program; (3) use of best practical methods and devices to conserve water; (4) a plan to alert employees and customers of the need to conserve water and reduce wasteful usage; (5) evaluation of the potential to use water

• f less than potable quality where possible; and (6) establishment of pricing schedules which

reflect the actual cost of water service (required for PUC-regulated utilities and encouraged by non-regulated utilities). Water allocation permits are typically issued with a specified maximum allowable withdrawal rate expressed in daily, monthly and annual terms.9 Most users are required to install and record water use based upon metering,10 although agricultural wells may utilize alternative means, such as time lapse recorders to estimate water withdrawals.11 With certain exceptions, permits are issued for a thirty-year period and are reviewed every five years.12 The periodic review of permits will be coordinated with periodic analyses of water withdrawals and hydrologic conditions on an aquifer or drainage basin basis where possible.13 Permits are renewable so long as the use remains reasonable and beneficial and providing the withdrawal has not exceeded the safe sustainable yield. 14 Delaware s regulations do not establish any priority scheme or ranking of water uses. All types of water use deemed reasonable and beneficial are considered equal for the purposes of allocation.15 Thus, the agency is left with substantial discretion in granting allocation permits and balancing the allocation among competing water uses. 2. Maryland Maryland has a well-established permit program governing withdrawals from both ground and surface water programs, operating as a regulated riparian regime.

9 Id. § 5.05.B. 10 Id. § 5.06 11 Id. § 5.06.A.3. 12 Id. § 5.01. 13 Id. § 5.01. 14 Id. § 5.02. 15 Id. §5.02.

• 7 -

Maryland law requires that every person obtain a permit from the Maryland Department

• f the Environment ( MDE ) before appropriating state water or beginning to construct any

plant, building, or structure which may appropriate or use any waters of the State, whether surface water or groundwater. 16 Exceptions are provided for uses of water for domestic purposes (other than for heating and cooling) and for those agricultural withdrawals involving an average annual water use of less than 10,000 gallons per day.17 MDE regulations further except residential subdivisions of ten or fewer lots if water is obtained from individual wells on each lot, where the property is not within a water management strategy area and (for property located west of the fall line) the lot is at least one acre in area.18 Permit applications for power plants (one of the largest single consumptive uses of water) are coordinated with the process for obtaining a certificate of public convenience and necessity from the Maryland Public Service Commission, and hearings under the Public Service Commission and MDE procedures are coordinated.19 All such water allocation permits are subject to the application procedures and requirements referenced in Md. Code Ann., Envir. §§ 5-506 to 5-508, including provision for public notice and hearings upon permit applications. The prime statutory criteria concerning review of water withdrawal permit applications establishes a balancing arrangement, where MDE must weigh all respective public advantages and disadvantages of the application.20 MDE is required to issue a permit if it determines, based

• n its investigations, evidence before it and the water resources policy set forth in the statute, that

the applicant s plans provide greatest feasible utilization of waters of the State, adequately preserve public safety, and promote the general public welfare . . . . 21 Criteria for review of applications is further elucidated in regulations promulgated by

• MDE. MDE will issue a water appropriation or use permit only for a beneficial appropriation or

16 Md. Code Ann., Envir. § 5-502 (West 2005). 17 § 5-502(b). 18 Md. Regs. Code tit. 26, §26.17.06.03.B. 19 § 5-502(e). 20 Id. §5-507(a). 21 Id. §5-507(a).

• 8 -

use 22 a term which is defined to mean a direct use of water which is (a) necessary to a permit applicant, (b) not wasteful, (c) reasonably non-damaging to the resource and other users; and (d) in the best interest of the public.23 In judging beneficial appropriation and use, MDE will review whether the amount of water to be appropriated is reasonable in relation to the anticipated level

• f use during the permit period, and whether the requested appropriation and use does not have

unreasonable impact on waters of the State or other water users.24 In judging reasonableness for most uses, MDE will consider a series of factors, including (1) protection of existing water uses, land values, investments and enterprises; (2) financial hardship of requiring a new user to bear the loss of potential harm to others; (3) the purpose of the use; (4) the suitability of the use to the watercourse, lake or aquifer; (5) the extent and amount of harm the use may cause; (6) the practicality of avoiding harm by adjusting the proposed use or method of use by either the applicant or another permittee; (7) aggregate changes and cumulative impacts of current and future appropriations in the area; (8) contributions of the appropriation to future degradation of waters of the State; and (9) whether the proposed use is located within a water management strategy area.25 With respect to surface water withdrawals, MDE may condition approval upon the provision of low flow augmentation to offset consumptive use during lower flow periods.26 Further surface water withdrawals may be conditioned on maintenance of a required minimum flow past the point of withdrawal (often called a pass-by flow ) to protect other uses and to protect flora and fauna within the watercourse.27 Special criteria govern ground water withdrawals. Among others, a ground water withdrawal permit will not be issued if the proposed withdrawal will directly and substantially affect a water course or lake and thereby cause unreasonable harm to persons entitled to use water from such surface sources.28 Withdrawals from a confined aquifer will be limited to the

22 Md. Regs. Code tit. 26, §26.17.06.05.A. 23 Id. §26.17.06.01.B(5). 24 Id. §26.17.06.05.A. 25 Id. §26.17.06.05.B. 26 Id. §26.17.06.05.C. 27 Id. 28 Id. §26.17.06.05.D.

• 9 -

sustained yield of the aquifer, with the regional sustained yield potentiometric surface not to be lowered below 80% of the drawdown between the top of the aquifer and the historical pre- pumping level.29 Withdrawals are limited to avoid saltwater intrusion into freshwater aquifers. As noted above, Maryland rules provide for closer scrutiny and special regulation of withdrawals in water management strategy areas. Such areas are designated by MDE based on identification of a specific water resource problem, for which MDE has adopted specific water use restrictions or criteria for permit approvals in order to protect the water resource or existing water users.30 In general, Maryland water appropriation permits are issued for 12 years, unless MDE determines that a shorter period is appropriate.31 With the exception of agricultural water use permits, MDE reviews permits every three years, and during a permit review, may modify the quantity of water allowed or add conditions for water management purposes, such as avoidance

• r mitigation of unreasonable adverse impacts.32 Even when a permit is issued, the permit may

be altered if there is a water supply emergency that renders available water supplies inadequate to meet the needs of all permittees.33 3. New Jersey Like Maryland, New Jersey has moved from a common law riparian to a regulated riparian/water withdrawal permit system operating under the New Jersey Water Supply Management Act.34 The permitting system, which is administered by the New Jersey Department

• f Environmental Protection ( NJDEP ), applies to withdrawals from both surface and

groundwater sources. With limited exceptions, the New Jersey permit system applies to all persons diverting, having the capability to divert, or claiming the right to divert more than 100,000 gallons of water per day either from a single source or a combination of sources, and to all persons intending to divert more than 100,000 gallons of water per day from either surface or

29 Id. 30 Id. § 26.17.06.01. 31 Id. § 26.17.06.06.A. 32 Id. § 26.17.06.06.B. 33 Id. § 502(d). 34 N.J. Stat. Ann. § 58:1A-1 et seq.

• 10 -

ground water.35 Excepted from the permit program are most diversions for agricultural or horticultural purposes, diversions of salt water, and emergency diversion of water for periods of less than 31 days for fire fighting, spill response or other emergencies.36 The New Jersey statute requires NJDEP to establish standards and procedures to be followed by diverters to ensure that (1) proper methods are used to divert water; (2) only the permitted quantity of water is diverted, and that the water is only used for its permitted purposes; (3) water quality of the source is maintained and the water standards for the water use are met; and (4) NJDEP is provided with adequate and accurate reports regarding the diversion and use of water.37 Information required for permit applications varies according to source type. Ground- water diversion applications must include a discussion of the geology, hydrogeology, and expected impacts of the diversion on both the resource and other users. Applications for new or increased ground-water withdrawals require a hydrogeologic pumping test meeting specified criteria, and a hydrogeologic report.38 Surface water withdrawal applications require information

• n the watershed, including drainage area at the diversion point, stream water quality

classification, stream flow records and duration curves, upstream and downstream diversions, and a comprehensive hydrogeologic evaluation of the proposed diversion and its impacts.39 All applicants must submit information regarding nearby diversions, landfills and groundwater contamination in the area, and delineated freshwater wetlands within the zone of influence.40 Most users are required to submit a water conservation and drought management plan.41 In order to obtain a permit, an applicant must substantiate the need for the proposed allocation and the choice of resources for the allocation,42 and must provide information establishing that: (1) the proposed diversion is in the public interest; (2) the diversion will not

35 N.J. Admin. Code § 7:19-1.4(a). 36 Id. § 7:19-1.4(a)1-4. 37 N.J. Stat. Ann. § 58:1A-5.b. 38 N.J. Admin. Code §7:19-2.2(c). 39 Id. §7:19-2.2(d). 40 Id. § 7:19-2.2(e). 41 Id. §7-19-2.2(i). 42 Id. §7:19-2.2(g).

• 11 -

exceed the natural replenishment or safe yield of the resources, or threaten to exhaust such waters

• r render them unfit for use; (3) plans for the proposed diversion are just and equitable to other

water users affected, and that the withdrawal does not adversely affect other existing surface or groundwater withdrawals; (4) any proposed ground water diversion will not cause an increase in saline intrusion that renders the water unfit for use, spread ground water contamination, or interfere with any ground water remediation plan or activity; and (5) any diversion structures are not located in a wetland.43 NJDEP regulations contain specific provisions concerning the establishment of pass-by flows (referred to as passing flows in the rules). The agency will establish a passing flow requirement for each surface water diversion source or ground water diversion source that impacts a surface water source . . . . 44 The passing flow requirement is set according to different criteria depending on the water use.45 If the water is used for public water supply, the passing flow requirements will be set according to criteria set out in N.J. Admin. Code § 7:19-4.6.46 Specific passing flows are established by rules for various public water supply systems drawing from particular streams. For other public water supply withdrawals, the passing flow is set by NJDEP based on an amount equal to the average daily flow for the driest month of record, or in lieu thereof, at a rate of 125,000 gpd per square mile of unappropriated watershed above the point of diversion.47 In cases where the diverted water is not used for the public water supply, the passing flow requirement is established at a level that will not reduce the passing flow below the 7-day, 10-year low flow (Q7-10) as established by the United States Geological Survey.48 It is incumbent upon the permittee to ensure that the intake structure for the surface water diversion source is designed to maintain the passing flow requirement. 49 If the permittee does not maintain the passing flow level, a charge will be imposed based upon a formula established by NJDEP.50

43 Id. §7:19-2.2(f). 44 N.J. Admin. Code § 7:19-1.6(e). 45 See N.J. Admin. Code § 7:19-1.6(e)(1). 46 See N.J. Admin. Code § 7:19-1.6(e)(1). 47 N.J. Admin. Code § 7-19-4.6(f). 48 N.J. Admin. Code § 7:19-1.6(e)(2). 49 N.J. Admin. Code § 7:19-1.6(e)(6). 50 See N.J. Admin. Code § 7:19-4.6.

• 12 -

The New Jersey regulations allow some variance from the standard passing flow regime. First, an applicant may propose a lower passing flow in lieu of that established by the regulatory

• formula. However, for NJDEP to allow a lower passing flow requirement, the applicant must

submit a detailed environmental impact study which demonstrates to the satisfaction of the Department that no adverse environmental impact will occur as a result of the proposed lower passing flow requirement. 51 Second, NJDEP may temporarily increase the passing flow requirement . . . if the Department determines such an increase is warranted to preserve the water quality of the diversion source. 52 Third, under certain circumstances, typically where the flow of a stream is very low, the Department will not establish a passing flow requirement. 53 In addition to the water diversion permitting program that applies statewide, New Jersey has a particularized program specifically aimed at designated areas of critical water supply concern. After notice and hearing, the Commissioner of NJDEP may designate as areas of critical water supply concern ( critical areas ) any area where the Department determines that adverse conditions exist, related to ground or surface water, such that special measures are required to ensure the integrity or viability of the water supply source and to protect the public health, safety or welfare. 54 In each designated critical area, NJDEP is charged to study water supply availability, estimate future water supply needs, identify reasonable and appropriate water supply management strategies, and select and adopt water supply alternatives after notice and hearing.55 NJDEP may, after public hearing, modify the conditions of an existing water supply allocation permit in order to limit or reduce the quantity of water which may be diverted to the safe or dependable yield of the source.56 Alternatively, NJDEP may allow the permittee to

51 N.J. Admin. Code § 7:19-1.6(e)(3). 52 Id. § 7:19-1.6(e)(4). 53 Id. § 7:19-1.6(e)(5). 54 Id. § 7:19-8.2(a). 55 Id. § 7:19-8.3. 56 When New Jersey s agency originally adopted the critical area program and attempted to cut

back on over-pumping from the Potomic-Raritan-Magothy system, a court challenge held that the Department did not have the authority to order a cutback in diversions absent a governor-declared state of emergency. Matter of Water Supply Critical Area No. 2, 233 N.J. Super 280, 558 A.2d 1321 (1989). Subsequently, the Water Supply Management Act was amended in a manner which recognizes NJDEP s explicit power to order reductions in existing withdrawals within such critical areas, while limiting those powers for a 10-year period starting in 1993. See N.J. Stat.

• Ann. § 58:1A-7.3.

• 13 -

change the location of withdrawal, or require the permittee to use alternative sources of water.57 The agency may impose more stringent water conservation, metering, leak detection and other

• measures. In general, NJDEP will not issue new or increased diversions from affected aquifers in

a critical area, with exceptions provided, among others, for projects that provide recharge to the affected aquifer and temporary allocations to be used until an approved alternative source is available.58 4. New York Although one commentator has described New York as a regulated riparian state,59 its state level management program with respect to water allocation and withdrawals is limited compared to the more comprehensive regimes seen in Delaware, New Jersey, and Maryland. New York s Water Resources Law (part of the Environmental Conservation Law) requires a permit from the New York State Department of Environmental Conservation ( NYSDEC ) for the acquisition, development, use and distribution of water for (i) potable purposes (public water supply), (ii) agricultural irrigation,60 (iii) projects undertaken pursuant to Article 5-D of the County Law (relating to projects by small watershed protection districts); or (iv) multi-purpose projects undertaken pursuant to N.Y. Environmental Conservation Law §15- 1101 et seq.61 Such permits are required prior to acquiring water supply or additional water supply from an existing source, using eminent domain to acquire new or additional sources of supply, commencing construction of projects in connection with proposed plans, and certain other activities associated with such regulated uses.62 Notably, the statewide water withdrawal regulatory provisions of the Water Resources Law are limited to public water supply and agricultural irrigation, leaving a substantial range of water using enterprises outside the purview

• f the statute. Separately, New York has attempted to specially regulate surface and ground

57 N.J. Admin. Code § 7:19-8.3. 58 Id. 59 N. A. Robinson, New York, in 6 WATERS AND WATER RIGHTS (R.E. Beck, Ed., 1994). 60 Although the statute mentions agricultural irrigation, the NYSDEC regulations are notably

silent regarding the regulation of water withdrawals for irrigation.

61 N.Y. Envtl. Conserv. Law § 15-1501 (McKinney 2005). 62 Id.

• 14 -

water withdrawal projects designed to transport water to points outside the state by establishing a separate permit program for interstate diversions.63 For those public water supply withdrawals subject to statewide permitting, the Water Resources Law and NYSDEC regulations require applicants to submit information indicating the need for the proposed withdrawal, the reasons why the proposed sources were selected, the methods proposed to determine and provide for compensation for any direct or indirect legal damages to persons or property resulting from the acquisition of any land in connection with the project, and a description of the applicant s near term and long range water conservation program.64 In deciding to grant, deny or condition a permit, NYSDEC is required to determine whether, among other items: (1) the proposed project is justified by the public necessity; (2) the project takes proper consideration of other sources of supply that are or may become available; (3) the supply will be adequate; (4) there will be proper protection of the supply and watershed; (5) the project is just and equitable to all affected municipalities and their inhabitants, including consideration of their present and future needs for sources of water supply; and (6) the applicant has developed and implemented a water conservation program in accordance with local water resource needs and conditions.65 5. Pennsylvania In large part, the right to withdraw water from both surface and groundwaters in Pennsylvania is governed by common law, composed of the doctrines and precedents established by courts in cases decided over the past two centuries.66 With the exception of state laws regulating the withdrawal of surface water by public water supply agencies, Pennsylvania has no statewide regulatory program mandating the acquisition of permits for withdrawing surface or ground waters. Basin level regulatory programs of the Susquehanna and Delaware River Basin Commissions have displaced the courts as the arbiters of water rights issues in the eastern two- thirds of the Commonwealth. However, common law doctrines and traditions remain strong.

63 Id. § 15-1505. 64 Id. § 15-1503.1. 65 Id. § 15-1503.2, N.Y. Comp. Codes R. & Regs. tit. 6, § 601.6. 66 R.T. Weston and J.R. Burcat, Legal Aspects of Pennsylvania Water Management, WATER

RESOURCES IN PENNSYLVANIA: AVAILABILITY, QUALITY AND MANAGEMENT (1990).

• 15 -

Because common law rests on individual cases read together, rather than a cohesive code, many gaps remain in the court decisions governing water rights. No state statute or regulatory program comprehensively addresses the allocation or use of ground or surface waters among competing users, or provides for long-term management of water

• resources. A few state statutes have attempted (or been interpreted) to impose regulations and permit

requirements on withdrawals from specified sources and particular uses. The 1939 Water Rights Act67 requires that public water supply agencies wishing to withdraw water from surface sources, or to acquire rights in surface sources, first obtain a permit from the Pennsylvania Department of Environmental Protection ( PaDEP ). For these purposes, a public water supply agency is defined to include any corporation, municipal or quasi-municipal corporation, district or authority vested with the power, authority, right or franchise to supply water to the public. Traditionally, this has been interpreted to apply to those entities that supply water to the public via pipes (as opposed to bulk or bottled water suppliers). The 1939 Water Rights Act does not regulate industrial, commercial or agricultural water users, and the Act does not cover groundwater withdrawals. It has been estimated that the 1939 Water Rights Act regulates only about 10% of the total surface water withdrawals in the Commonwealth. The Pennsylvania Safe Drinking Water Act68 ( SDWA ), the state counterpart to the Federal Safe Drinking Water Act, was enacted primarily to address concerns regarding the quality of Pennsylvania s drinking water supply. In regulating the distribution of water to the public, however, the Pennsylvania SDWA more broadly defines public water systems subject to regulation to include (1) all systems that provide water to the public for human consumption that have at least 15 service connections or that serve at least 25 individuals daily at least 60 days out of the year, and (2) systems which provide water for bottling or bulk hauling for human consumption. The SDWA requires operators of both community and non-community public water systems to obtain construction and operation permits, which generally regulate the design, installation and operation of a system s sources, treatment, and distribution facilities.69 While the regulations adopted under the Pennsylvania SDWA are focused on setting water quality, design, construction and operating standards to assure safe and sanitary potable

67 32 P.S. §§631-641. 68 35 P.S. §721.1 et seq. 69 35 P.S. §721.7.

• 16 -

water, recent case decisions have drastically reinterpreted the statute to include consideration of the impacts of water withdrawals. In Oley Township v. DEP and Wissahickon Spring Water, Inc.,70 the Pennsylvania Environmental Hearing Board ( EHB ) reviewed an application by a private water bottling company for a permit under the SDWA related to development and use of a groundwater well source for bottling purposes. The EHB found PaDEP abused its discretion in failing to consider the potential impacts on wetlands of the proposed withdrawal. The EHB reasoned that the SDWA authorizes PaDEP to issue permits if it determines that the proposed water system is not prejudicial to the public health and complies with the provisions of [the SDWA], the regulations adopted [under the SDWA], and all other applicable laws administered by the Department. 71 The EHB further found that the SDWA requires an affirmative determination of compliance with all environmental laws before issuance of a permit. Finding that the proposed groundwater withdrawal might affect adjacent water resources to the point of affecting plant and animal species, and compromising the economical functions of the wetlands, the EHB noted that such degradation (affecting existing use of water resources) would violate the Clean Streams Law. The potential impact of the Oley Township decision has not been fully assessed or felt. Instead of moving to develop regulations that would better define the process and applicable criteria, PaDEP has moved forward (sometimes in fits and starts) with guidance and draft policies that have left the regulated community with few guideposts. In one guidance document, PaDEP has provided screening criteria defining when surface or ground water withdrawals will be considered not likely to affect wetlands or water quality.72 That guidance, for example, concludes that effects on stream or spring flows will not be considered significant if the quantity of surface

• r ground water withdrawals is less than 10 percent of the Q7-10.

In July 2001, PaDEP issued for public comment a draft Policy for Protecting Aquatic Resources and Related Stream Uses in Processing Approvals for Water Rights Acquisitions in Selected Waters of the Commonwealth (the Passby Flow Policy ) That policy proposed to establish passby flows for new or increased withdrawals subject to PaDEP regulation based upon modeled habitat impact, depending upon the classification of the stream. Under the draft Passby

70 1996 EHB 1098. 71 35 P.S. §721.7(j). 72 PaDEP, Screening Criteria on Water Quality/Quantity Impacts for Drinking Water Permits,

• Doc. No. 383-2131-001 (July 24, 2004), available at http://www.dep.state.pa.us.

• 17 -

Flow Policy, the most stringent passby flows were to be set for streams classified as exceptional value or high quality special protection waters and Class A wild trout streams designated by the Pennsylvania Fish and Boat Commission, and less stringent passby flows to be set for streams that were cold water fishery waters meeting Class B, C and D wild trout stream criteria. PaDEP had proposed to limit withdrawals based on the results of the Pennsylvania Instream Flow Model, a computer model which utilizes data drawn from a survey of a variety of streams in different geographic provinces to predict the overall impact on trout habitat. This model, which has not been peer reviewed, assumes that overall physical habitat translates into fish diversity and biomass values an assumption which is very much subject to scientific debate. The draft Passby Flow Policy had recommended that public water supply withdrawals be limited and conditioned with passby flows such that the impact on fish habitat was no greater than 5% for the highest category of streams, with lower values (10-15% change) allowed for lower classifications

• f stream. In some cases, the policy would have resulted in passby flows as much as 30% or

more of average daily flow, effectively cutting off public water supply withdrawals for extended periods during droughts or even usual low flow portions of the summer and fall of every year. During public comment, the public water community severely questioned the basis for the policy, and the draft Passby Flow Policy has never been formally adopted. However, PaDEP appears to be following and applying the draft Passby Flow Policy both in making permitting decisions as to those withdrawals subject to agency jurisdiction, and in advocating positions before the DRBC and SRBC. The Water Resources Planning Act ( WRPA ),73 adopted in 2002, is focused on the preparation and updating of the State Water Plan and regional water plan elements to the state

• plan. The WRPA mandates the updating of the State Water Plan by March 2008, and periodic

updating every five years thereafter. A part of that process involves the required registration and reporting of water use by more significant water users. The WRPA moves away from the top-down, agency-dominated process toward a more collaborative planning process, with strong input from the regional (basin) level. The Act recognized that with proper planning, Pennsylvania s water resources are capable of serving multiple uses in a balanced manner. Nothing in the WRPA authorizes or expands PaDEP s authority to regulate, permit or control water allocations or water withdrawals.

73 27 Pa.C.S. §3101 et seq.

• 18 -

The planning process is built around a Statewide Water Resources Committee, working with six Regional Water Resource Committees and PaDEP, in a multi-step process toward development of water plans for each region and the state. The six Regional Water Resource Committees are aligned on the basis of major watersheds,74 each with a membership appointed to represent a cross-section of stakeholders in the respective basins. The Statewide Committee s membership includes a combination of six representatives from the regional committees, members appointed by the Governor from major interest segments, and certain state agency

• fficials. The Statewide Committee, in consultation with PaDEP, has the lead in developing

policies and guidelines for the preparation of the regional plans and State Water Plan. The regional committees, in turn, are to guide the development of regional components to the state

• plan. The State Water Plan and regional components are to include a number of mandatory

elements, including: An inventory of ground and surface water resources. An assessment and projection of withdrawal and non-withdrawal demands. Identification of potential water availability problems or conflicts between users. Assessment of public water supply capabilities. Process of identifying projects and practices that conserve water, and process for giving recognition to such efforts. Identification of practical alternatives for addressing availability problems, adverse impacts, or use conflicts. Recommended actions, programs, policies, institutional arrangements, projects and management activities. The WRPA further provides for the designation of critical water planning areas, which are defined as any significant hydrologic unit where existing or future demands exceed or threaten to exceed the safe yield of available water resources.75 For these purposes, safe yield is defined on the basis of the amount of water that can be withdrawn from a water resource over a period of time without impairing the long-term utility of a water resource such as dewatering of an aquifer; impairing the long-term water quality of a water resource; inducing a health threat; or

74 The WRPA establishes committees for the Ohio, Great Lakes, Upper Susquehanna, Lower

Susquehanna, Potomac, and Delaware basins. 27 Pa.C.S. §3113.

75 27 Pa.C.S. §3112(a)(6).

• 19 -

causing irreparable or unmitigated impact upon reasonable and beneficial uses of the water resources.76 Such a safe yield is to be determined based upon the predictable rate of nature and artificial replenishment of the water source over a reasonable period of time. In each critical water planning area, the regional water resource committee is to create a special advisory body, and proceed to prepare a critical area plan.77 That critical area plan must identify existing and future reasonable and beneficial uses, include a water availability evaluation, assess water quality issues that have a direct and substantial effect on water availability, identify existing and potential conflicts among users and adverse impacts on uses, and recommend practicable supply-side and demand-side alternatives for resolving such issues. Ultimately, each regional plan and the entire State Water Plan must be approved by both the Statewide Water Resources Committee and the Secretary of PaDEP. The adopted plan will have some degree of importance. The State Water Plan is already recognized as a mandatory consideration in some state regulations, such as in the preparation and approval of sewage facility plans under 25 Pa. Code Chapter 71. The WRPA further provides for the general use of the State Water Plan as a policy and guidance document, providing information, objectives, priorities and recommendations to be considered and weighed in a broad range of decisions.78 Further, the plan is to be used to: (1) identify and prioritize water resource and water supply development projects; (2) provide information to public and private decision makers; (3) identify opportunities for improving operation of existing infrastructure; (4) guide development and implementation of policies and programs; and (5) guide policies on activities that directly and significantly affect the quantity and quality of water, with the objective of balancing and encouraging multiple uses of water resources.79 To gather and maintain up-to-date information on water use across the Commonwealth, §3118 of the WRPA requires the registration and reporting of water use by (i) any person who withdraws more than 10,000 gallons per day averaged over any 30-day period from any surface water or groundwater source; (ii) all public water supply agencies regardless of withdrawal amount; and (iii) each hydropower facility regardless of the withdrawal amount.80 The trigger

76 27 Pa.C.S. §3102. 77 27 Pa.C.S. §3112(d). 78 27 Pa.C.S. §3116. 79 Id. 80 27 Pa.C.S. §3118.

• 20 -

withdrawal amounts are determined on the basis of the total amount withdrawn by a person from

• ne or more points of withdrawal operated as a system. Thus, if a company has five wells in a

given watershed, and uses them to supply a given facility, the total amount withdrawn over any 30-day period from those five wells must be counted together. Registrations must be filed with PaDEP on forms (hard copy or electronic) provided by the Department. The first round of interim registrations was due on March 16, 2004. PaDEP has recently issued draft rules governing monitoring, recordkeeping and reporting

• f water use. The WRPA provides that all sources subject to registration will be required to

periodically report the source, location and amount of their withdrawal, including the amount of consumptive and non-consumptive use, and the locations and amounts of waters returned or

• discharged. The WRPA does not mandate metering in all cases. Where alternative methods exist

to obtain a reasonably accurate evaluation of withdrawals and uses, the rules to be developed are to allow for use of those alternative methods to obtain a reasonable estimate or indirect calculation.81 For smaller withdrawals of less than 50,000 gpd (except public water supply systems), the statute requires that the rules provide for use of alternative methods of estimation or indirect calculation in lieu of direct metering or measurement.82 B. Delaware River Basin Commission The Delaware River Basin provides perhaps the best case study of alternative methods for resolving interstate conflicts over the water rights and water management. Over the past 80 years, the Delaware Basin States and their citizens have resorted to virtually every conceivable approach for addressing inter-jurisdictional disputes over water short of invasion and civil war in the continuing search for viable management of precious and limited water resources. 1. Basin Facts The Delaware Basin watershed forms the major water source for some 15 million residents of the Northeast Metropolitan Corridor from New York City to Wilmington, Delaware, roughly five percent of the nation s population. In relative terms, the Delaware is a small

• watershed. The Delaware Basin drainage area encompasses only 13,539 square miles, draining
• ne percent of the United States. The basin encompasses four states, 42 counties, and some 838

81 27 Pa.C.S. §3118(b)(1). 82 Id.

• 21 -

municipalities, while its service area extends to encompass the entire New York City and northern New Jersey region. In the Delaware Basin, the fundamental issue that first led to interstate conflict, and which permeates basin management today, involves the balance of out-of-basin diversions to New York and north central New Jersey, in-basin consumptive water use through power generation, industry and agriculture, the flows needed to protect the water quality and environment of the upper basin, and the minimum flows needed to protect lower basin water

• 22 -

supplies located in the Delaware Estuary from salinity intrusion and contamination from numerous point and nonpoint sources. 2. The Water War Battles Before the U.S. Supreme Court In the early part of the Twentieth century, New York City proposed development of reservoirs in the Delaware Basin. After two failed attempts by the States to negotiate and ratify an acceptable compact, in May 1929, New York State approved the City's plans for a Delaware diversion of 600 million gallons per day (mgd). New Jersey sued the State and City of New York, invoking the original jurisdiction of the United States Supreme Court, and the Commonwealth of Pennsylvania intervened. New Jersey advocated adoption of common law riparian rules, which would have banned any out-of-basin diversion that materially diminished stream flows. In contrast, Pennsylvania noted the potential need by other Basin States to undertake future intrabasin and interbasin projects, and therefore opposed application of the strict and inflexible riparian rule. The Commonwealth of Pennsylvania proposed a more flexible approach, based on the principle of compensating releases to maintain downstream flows as a quid pro quo for allowing consumptive water use and interbasin transfers. After the exchange and advocacy of several alternative operating plans, the Special Master recommended, and the Supreme Court approved, a decree which allowed New York City to divert up to 440 mgd (less than the City wanted), subject to conditions requiring the City to make releases to the river sufficient to maintain certain flows in the River at the tri-state border (Montague) and at Trenton.83 Essentially, the Court's 1931 Decree established New York's right to a diversion, subject to compensating releases necessary to avoid demonstrated injuries. The 1931 Decree, while resolving the immediate dispute, failed to establish a framework for long-range planning and management. Stimulated by the 1936 floods and a national movement toward interstate cooperation, the States organized the Interstate Commission on the Delaware River Basin (INCODEL) as an advisory body in the field of interstate water issues. INCODEL developed proposals for an extensive basin

83 New Jersey v. New York, 283 U.S. 336 (1931).

• 23 -

development program, including 8 reservoirs - but failing to receive unanimous support, the plan

• collapsed. The Basin was left without a viable, cooperative development plan.

Over the same period, New York City's appetite for additional Delaware water became more pressing, and in April 1952, the City petitioned the Supreme Court to amend the 1931 Decree to allow a diversion of up to 800 mgd. New York State, New Jersey, Pennsylvania, and Delaware appeared as parties or intervened in the proceedings. In initial negotiations, New Jersey prepared to settle with New York, in exchange for New Jersey being granted the right to divert up to 250 mgd out of basin to service north central Jersey

• areas. Not surprisingly, when the other parties were presented with the results of this "you take/I

take" agreement, Pennsylvania strenuously objected, particularly to the large and uncompensated diversion by New Jersey. After hearings before the Special Master, a proposed settlement was framed allowing for an increased New York City diversion, with corresponding increased compensating releases to be made from the City's three existing and then proposed Delaware Basin reservoirs, together with a smaller 100 mgd diversion by New Jersey, to be compensated by the development of a mainstem reservoir near the Delaware Water Gap.84 With the experience of the 1950's Supreme Court proceedings, and the negotiations leading to the Consent Decree, the Basin States once again turned to the long-term challenges confronting the watershed. Shortly after the ink dried on the 1954 Decree, however, the floods of Hurricanes Connie and Diane struck the Basin. As is so often the case in the field of water resources management, disaster served to overtake the plans of the parties, leading to a new course of action. A comprehensive study of the basin, commissioned by Congress and conducted by the Corps of Engineers, recommended a revised basin development plan. While the Corps' Delaware Comprehensive study was underway, the Basin States once again engaged in negotiations leading to development of an interstate water management compact. Spurred on by the experience of a long and frustrating litigation, and with the aid of a foundation-funded institutional study, the States undertook to develop a new mechanism for long-term water management on a basin basis.

84 New Jersey v. New York, 347 U.S. 995 (1954).

• 24 -

3. Delaware River Basin Compact When adopted in 1961, the Delaware River Basin Compact85 was a unique document. It was the first compact not merely consented to by Congress, but in which the Federal Government became a full signatory party. While the Federal agencies resisted the proposal, the States persisted in the belief that Federal membership was requisite to the effectiveness of the new regional entity. Congress agreed. The Compact created a new institution, the Delaware River Basin Commission (DRBC), composed of the Basin State Governors and a Presidential appointee (each with one alternate). With few exceptions, a vote of the majority bound all. DRBC is granted broad powers to plan, develop, conserve, regulate, allocate and manage the water and related land resources of the Basin. In providing for the joint exercise of the sovereign rights of the signatory parties in the common interests of the people of the region, 86 DRBC is directed to prepare and adopt a Comprehensive Plan for the immediate and long range development and uses of water resources. 87 The Commission is further empowered to allocate water among the signatory States, providing the allocation could not constitute a prior appropriation of waters or confer any superiority of right.88 But DRBC is not just a planning agency. The Commission was created as a true management institution, with both regulatory and project development authority. The Compact explicitly recognizes that [a] single administrative agency is ... essential for effective and economical direction, supervision and coordination of the efforts and programs of federal, state and local governments and of private enterprise. 89 The Compact further declares as one of its fundamental purposes the objective to apply the principle of equal and uniform treatment to all water users who are similarly situated without regard to established political boundaries. 90 With

85 Delaware River Basin Compact, Pub. L. No. 87-328, 75 Stat. 688 (1961). 86 Delaware River Basin Compact §1.3(b). 87 Delaware River Basin Compact §13.1. 88 Delaware River Basin Compact §3.3. 89 Delaware River Basin Compact §1.3(c). 90 Delaware River Basin Compact §1.3(e).

• 25 -

these objectives, DRBC is conferred the power to adopt and enforce standards and rules covering the broad spectrum of water quantity and quality issues.91 4. DRBC Project Review As a central mechanism for implementing these regulatory powers, DRBC is authorized under §3.8 of the Compact to regulate and approve any project having a substantial effect on the water resources of the Basin, to assure consistency with Commission-adopted comprehensive plan, and the proper conservation, development, management or control of the water resources

• f the basin. The term project is very broadly defined by the Compact to include

any work, service or activity which is separately planned, financed, or identified by the commission, or any separate facility undertaken or to be undertaken within a specified area, for the conservation, utilization, control, development or management of water resources which can be established and utilized independently or as an addition to an existing facility, and can be considered as a separate entity for purposes of evaluation.92 Under this provision, DRBC regulates a broad spectrum of projects that may affect the quality and quantity of water resources within the basin. Projects subject to commission review and approval include, among others: All surface and groundwater withdrawals exceeding 100,000 gpd in any 30-day period. Construction or alteration of industrial wastewater treatment facilities or domestic sewage treatment facilities involving a design capacity 50,000 gpd. Draining, filling or altering wetlands when the area affected is greater than 25 acres. The diversion (exportation of importation) of water from or to the Delaware Basin whenever the design capacity is greater than 100,000 gpd. Impoundment of water.

91 Delaware River Basin Compact §§ 3.6(b) (standards for planning, design and operation of all

projects and facilities in the basin which affect basin water resources), 5.2 (water quality standards), 5.4 (water quality enforcement), 6.2 (flood plain zoning).

92 Delaware River Basin Compact §1.2(g).

• 26 -

Electric generating or cogenerating facilities designed to consumptively use in excess of 100,000 gpd during any 30-day period.

93

The fundamental criterion governing approval of projects is whether the project proposal is consistent with the Delaware River Basin Comprehensive Plan. More specifically, DRBC is required to approve a project if it determines that the project would not substantially impair or conflict with the comprehensive plan. 94 The Comprehensive Plan encompasses a wide range of regulations and policies, most of which are now compiled as part of the DRBC Water Code.95 Project review with respect to withdrawals includes consideration by DRBC of such factors as the need for the proposed withdrawal, alternative sources available, impacts on other uses in the area and

• n instream uses downstream of the point of extraction, proposed mitigation measures,

implementation of conservation measures, and other issues. DRBC s general approach to water withdrawals looks at not only individual withdrawal proposals, but the overall cumulative situation in the watershed or aquifer in question. Fundamentally, DRBC allocates water based upon the doctrine of equitable apportionment.96 During drought emergencies, DRBC has established a series of water use priorities, with first priority being given to uses which sustain human life, health, and safety, and second priority to uses needed to sustain livestock. After those priorities, water is to be allocated based on equitable apportionment, among producers of goods and services, food and fibers, and environmental quality in a manner designed to sustain the general welfare of the basin and its employment at the highest practical level.97 Water conservation policies applied to both new and existing uses. The Basin Water Code requires maximum feasible efficiency in water use by new industrial, municipal and agricultural users, and eventual application by existing users of those water-conserving practices and technologies that can feasibly be employed.98 Public water systems are mandated to adopt and

93 18 C.F.R. §401.35. 94 Delaware River Basin Compact § 3.8. 95

The Delaware River Basin Water Code is currently available

• n

line at: www.state.nj.us/drbc/regula.htm.

96 Delaware River Basin Water Code § 2.5.1. 97 Id. § 2.5.2. 98 Id. § 2.1.2.

• 27 -

implement water conservation plans, including source and service metering, leak detection and repair, water conservation performance standards for plumbing fixtures, and a water conservation pricing structure.99 DRBC policy reflects a finding that the waters of the basin are limited in quantity and that the Basin is frequently subject to drought water and drought declarations due to limited water supply storage and streamflow during dry periods. Commission policy discourages the exportation of water from the basin. At the same time, because of limited assimilative capacity, Commission policy discourages the importation of wastewater into the basin that would significantly reduce the assimilative capacity of receiving streams, particularly with respect to conservative substances.100 In review of projects involving import or export of water, DRBC considers assessments of the resource, the economic impacts of the project and all alternatives to any export or import. Such projects are subject to evaluation of particular factors, including (1) effort to first develop, use and conserve the resources outside of the basin; (2) water resource impacts of each alternative available; (3) economic and social impacts of the import or export of water and each of the available alternatives; (4) the amount, timing and duration of the proposed transfer and its relationship to passing flow requirements and other hydrologic conditions; and (5) benefits that may accrue to the basin as the result of the proposed transfer.101 Given these considerations, the fact is that a number of intra- watershed and interbasin transfers have been implemented, including New York City s diversion of 800 mgd from the upper basin under the terms of the U.S. Supreme Court s consent decree in New Jersey v. New York; a 100 mgd transfer by New Jersey to serve the northeastern New Jersey communities; a 60 mgd transfer from the Susquehanna Basin to the City of Chester area (west of Philadelphia); and various municipal system transfers involving communities that straddle the basin

• divides. Within the basin, numerous withdrawals involve transfers of water between the subbasins

and watersheds that comprise the overall Delaware Basin, including transfers that have been specifically undertaken to relieve over-pumping of certain aquifers in developed areas. Thus, discouragement of basin transfers does not amount to a prohibition, and each project is judged on its

• wn merits.

99 Id. § 2.1.2.C. 100 Id. § 2.30.2. 101 Id. § 2.30.4.

• 28 -

In addition to basinwide project review authority, the Compact grants the Commission special powers to designate protected areas where withdrawals are exceeding, or threaten to exceed, available resources or conflict with the comprehensive plan. Growing concerns regarding potential overuse of aquifers in southeastern Pennsylvania led DRBC in 1981 to designate the Southeastern Pennsylvania Groundwater Protected Area.102 Within the area largely defined by Triassic formations, new or increased groundwater withdrawals exceeding 10,000 gpd are subject to strict review, including the requirement for sophisticated pump testing and hydrologic analyses prior to permitting. The aggregate of new and existing withdrawals are managed within withdrawal limits for the affected aquifers or sub-basins, to assure that total takings do not exceed the rate of groundwater recharge during normal or dry periods. DRBC has undertaken to further define the withdrawal limits. DRBC has established numeric withdrawal limits for each significant sub- basin, based on the 1-in-25-year average annual baseflow rate. Where total withdrawals in a watershed exceed 75% of this value, the watershed is designated as potentially stressed. In such potentially stressed sub-basins, the rules require that applicants include one or more programs to mitigate the adverse impacts of a new or expanded withdrawal. In addition, as part of a protected area permit application, the project sponsor must show that the proposed withdrawal will not significantly impair or reduce the flow of perennial streams in the

• area. 103 Under the Protected Area regulations, DRBC takes specific steps to consider and protect

existing water users whose wells may be affected by newer, deeper and more powerful neighbors. Where interference is predicted or observed, new users are required to limit withdrawals in order to avoid interference, or to provide compensation (in the form of replacement water supplies) where interference is unavoidable.104 Thus, DRBC attempts to promote efficient development of the resource, while protecting the reasonable expectations and investments of current users. DRBC is further empowered to declare emergencies and impose restrictions on water withdrawals and diversions (including suspension of State-issued water rights) during such periods.105 In both protected areas, and during emergencies, DRBC s authority to grant, modify or deny permits is guided by standards found in Compact §10.5, which calls for actions so as to avoid

102 18 C.F.R. Part 430. 103 18 C.F.R., §430.13(d)(4). 104 18 C.F.R. §§430.13(d)(5), 430.19. 105 Delaware River Basin Compact §§10.4, 10.8.

• 29 -

such depletion of the natural stream flows and groundwaters as will adversely affect the comprehensive plan or the just and equitable interests and rights of other lawful users of the same source, giving due regard to the need to balance and reconcile alternative and conflicting uses in the event of an actual or threatened shortage of water of the quality required. In effect, DRBC is granted plenary authority to reallocate and regulate waters within protected areas and during emergencies so as to balance all legitimate uses of water within the basin or particular affected area. DRBC s regulatory powers are complemented by project development authority. The agency is given authority to finance and construct a wide variety of water projects,106 or to jointly sponsor projects with other Federal and State agencies, and to assess and collect charges from those using Commission facilities and services.107 Specific powers were conferred for DRBC to oversee and coordinate the actions of any signatory agency affecting water resources, including all Federal and State projects. C. Susquehanna River Basin Commission 1. Basin Facts Draining 27,500 square miles (including one-half of the land area of Pennsylvania, plus portions of New York and Maryland), the Susquehanna River Basin represents the longest commercially non-navigable river in North America, and the 16th largest river in the United States. The basin hosts a population of some 4.1 million and supports a service area that extends to the City of Baltimore and many northern Maryland counties outside the basin. The basin comprises 43 percent of the Chesapeake Bay s drainage area, supplying a normal flow of about 18 million gallons per minute at Havre de Grace, Maryland. That flow represents 90 percent of the fresh water flow to the upper half of the Bay, and 50 percent of the Bay s overall fresh water inflow.

106 Delaware River Basin Compact §§ 4.1 (domestic, municipal, agricultural and industrial water

supply), 4.2 (storage and release of waters, and regulation of flows), 5.1 (pollution abatement), 6.1 (flood protection), 6.3 (flood lands acquisition), 7.3 (fish and wildlife habitat maintenance and improvement), 8.1 (recreation), 9.2 9.3 (hydroelectric power generation and transmission).

107 Delaware River Basin Compact §§ 3.7, 4.3.

• 30 -

The Susquehanna Basin has experienced growing volumes of consumptive use, which is currently estimated to peak at 446 mgd. The basin is a major center of electric energy production, from a combination of hydroelectric facilities in the lower basin, and both nuclear and fossil fuel fired steam electric stations throughout the drainage area. Consumptive use of all forms is projected to increase to over 645 mgd by the year 2010.

• 31 -

2. Susquehanna River Basin Compact The Susquehanna River Basin Compact108 was developed nearly a decade after the Delaware Compact, stimulated in part by concerns among some that the thirsts of the eastern seaboard metropolis might cause some (notably New York City) to look to the Susquehanna's headwaters as a new source for diversions. Indeed, at least one such flood skimming project was proposed to serve New York. Although the Compact was adopted in 1970, the Susquehanna River Basin Commission (SRBC) actually came into being in 1972. SRBC is essentially modeled on DRBC, with membership by the United States, New York, Maryland and Pennsylvania. Although SRBC's powers are essentially identical to those of the Delaware Commission, the emphasis of Commission activities and the development of Basin programs have been different. Notably, the Susquehanna is the largest U.S. river flowing into the Atlantic, and its mixture of urban, suburban, agricultural and forest areas presents a far less dense population distribution. However, major water users are found up and down the basin, and the river provides a major source of water for diversions and interbasin transfers that serve portions of the lower Delaware Basin and the Baltimore/northern Maryland metropolitan and suburban areas. The SRBC's initial emphasis focused on flood control and planning. This effort is not surprising, considering the fact that virtually as the Commission was getting organized, the Basin was hit by the devastating Agnes Floods of 1972. Much of SRBC's early work involved flood plain management studies, flood control project evaluations, and promotion of multipurpose projects with strong flood storage components. In the mid- to late-1970's, the Commission expended substantial resources in proceedings to force installation of fish ladders to restore migratory fish runs past hydroelectric dams which spanned the lower river area. Most of these efforts involved interventions by SRBC in hydro project relicensing proceedings before the Federal Emergency Regulatory Commission (FERC), where SRBC strenuously argued that, under the terms of the Federal/Interstate compact, FERC was bound by the SRBC's water management plan and determinations. In substantial part, the SRBC won its

108 Susquehanna River Basin Compact, Pub. L. No. 91-575, 84 Stat. 1509 (1970).

• 32 -
• bjective

and major fish passage facilities have been installed and a substantial migratory fish restoration program is well underway. SRBC has developed a fairly sophisticated groundwater management program, including regulation of all significant groundwater withdrawals in a program which considers both the aquifer and associated surface water impacts of all proposed well development projects.109 For the past three decades, SRBC has expressed concern for impact of growing consumptive uses in basin, and resulting lowering of drought flows for instream water quality and water balance in the Chesapeake Bay. Considerable effort has been expended in the past two decades on reallocation/reformulation of storage in existing reservoirs in order to make room for flow augmentation storage. 3. Project Review and Regulatory Powers Specific SRBC regulatory programs target the management of new and increased withdrawals and consumptive uses. While the SRBC requires project approval for all surface and groundwater withdrawals in excess of 100,000 gpd in any 30-day period,110 any new or increased consumptive water use in excess of 20,000 gpd requires SRBC approval, irrespective of its source

• f supply.111

SRBC has established particular standards governing consumptive uses of water within the Susquehanna Basin,112 which apply to all consumptive uses that involve more than 20,000 gpd over any 30-day period and that were initiated or increased after January 23, 1971. For these purposes, a consumptive use is defined to mean the loss of water from a ground-water or surface water source through a manmade conveyance system (including such water that is purveyed through a public water supply system), due to transpiration by vegetation, incorporation into products during their manufacture, evaporation, diversion from the Susquehanna River Basin, or any other process by which the water withdrawn is not returned to the waters of the

109 18 C.F.R. §803.43. 110 18 C.F.R. §803.4(a)(4). 111 18 C.F.R. §803.4(a)(3). 112 18 C.F.R. §803.42.

• 33 -

basin undiminished in quantity. 113 Consumptive uses include, for example, situations where water is incorporated into a product (such as beer), or is evaporated as part of a process (such as steam generation or cooling). SRBC regulates such consumptive uses whether they derived their water directly from the surface or groundwater, or indirectly from a public water supply system or

• ther connection. Thus, for example, a major commercial building connected to a municipal

water system that uses water cooler air conditioning systems may be subject to SRBC consumptive use rules. Under the SRBC rules, regulated consumptive users must either curtail their consumptive use during low flow periods (defined at the time when streamflow at the point of taking is equal to or less than the 7-day, 10-year low flow (Q7-10)), or must provide compensation for that use.114 Such compensation may be provided by one of several methods, including development of storage facilities and provision of releases from those facilities during low-flow periods; purchase

• f available water supply storage from existing facilities; use of water from a public water

supplier that maintains a conservation release or flow-by of Q7-10 or greater at the supplier s point

• f taking; use of groundwater; or other means approved by SRBC.115 In lieu of providing such

compensation, a user may provide payments to SRBC under a set fee schedule, and SRBC, in turn, utilizes those funds for the operation of several storage facilities acquired by the Commission to provide for streamflow augmentation during low-flow periods. 4. Passby flow and conservation release requirements As a guide used in administering its project review authority, in late 2002, the SRBC adopted guidelines governing the determination of passby flows and conservation releases for surface and ground water withdrawal projects.116 The SRBC uses passby flows, conservation releases, and consumptive use compensation to protect aquatic resources, competing users, and instream flow uses downstream from the point of withdrawal.117 Passby flow requirements mandate that, while water is being withdrawn, a specified amount of water must be allowed to

113 18 C.F.R. §803.3. 114 18 C.F.R. §803.42(a). 115 18 C.F.R. §803.42(b). 116 SRBC, Guidelines for Using and Determining Passby Flows and Conservation Releases for

Surface-Water and Ground-Water Withdrawal Approvals, Policy No. 2003-001 (November 8, 2002).

117 Id.

• 34 -

pass a certain point downstream from the point of withdrawal.118 Approved surface-water withdrawals from small impoundments, intake dams, continuously flowing springs, or other intake structures in applicable streams will include conditions that require minimum passby flows.119 Additionally, approved ground-water withdrawals from wells that impact streamflow,

• r for which a reversal of the hydraulic gradient adjacent to a stream (within the course of a 48-

hour pumping test) is indicated, also will include conditions that require minimum passby flows.120 There are three narrowly tailored exceptions to the SRBC passby flow requirements. First, an exception is provided in cases where the surface-water or ground water withdrawal has

• nly a minimal impact in comparison to the natural or continuously augmented flows of a stream
• r river.121

The SRBC defines minimal impact as 10 percent or less of the natural or continuously augmented Q7-10 low flow of the stream or river. 122 Second, an exception may be provided where the project in question requires Commission approval and a passby flow would be required under the guidelines, but where a passby flow has historically not been

• maintained. 123 In these cases, withdrawals exceeding 10 percent of the Q7-10 low flow will be

permitted whenever flows naturally exceed the passby flow requirement plus the taking.124 When streamflows do not naturally exceed the passby flows, the rate of withdrawal and quantity allowed are reduced to less than 10 percent of the Q7-10 low flow. This procedure is allowed for a period of four years from the approval date, and during this period, the project sponsor should develop additional storage or supplies that will allow for withdrawals while still maintaining the passby flow requirement.125 In such cases, within two years from the SRBC approval date, the project sponsor will be required to file a plan outlining the proposed development of additional

• n-site storage or supplies.126

118 Id. 119 Id. (emphasis added). 120 Id. 121 Id. 122 Id. at pg. 2. 123 Id. 124 Id. 125 Id. 126 Id.

• 35 -

The method of determining passby flow for streams that support trout populations is based upon the SRBC s Instream Flow Studies Pennsylvania and Maryland (May 1998) publication. That publication reflects studies which applied Instream Flow Incremental Methodology ( IFIM ) to evaluate cold water fish habitat impacts in a sampling of streams in several hydrologic regions of Pennsylvania and Maryland, arriving at a surrogate model to be applied to other streams in assessment predicted habitat loss. The SRBC policy pegs the acceptable amount of habitat loss depending upon the classification of the stream. Less than 5% habitat loss is allowed for exceptional value streams. Generally, less than 5% loss (or at most 7.5% habitat loss) is allowed for high quality waters. Passby flows to prevent more than 10% or 15% habitat loss would be imposed on streams with lower classifications supporting trout

• populations. For areas of the basin that do not support trout populations, the SRBC passby flow

policy sets levels generally ranging from 15% to 25% of average daily flow.127 In no case is the passby flow less than the Q7-10 flow.128 In lieu of the desktop methodology set forth in the SRBC passby flow policy, the policy allows a project sponsor to provide an instream flow study to demonstrate that lower passby flows and releases will provide an acceptable level of aquatic habitat protection. Exceptions may also be provided if the applicant can demonstrate that there are no viable alternative supplies available, or if after coordination, another acceptable passby flow criterion can be established.129 Conversely, pursuant to SRBC regulations §§803.43(a)(1) and 803.44(a)(1), the Commission may increase the passby flow requirement for any project when water quality or sensitive environmental resources may be adversely affected.130 Conservation releases only come into play with surface-water withdrawals made from a large impounding structure.131 A conservation release imposes a requirement to actually augment stream flows by releases from storage. Such augmentation may occur not only during low flow

127 Id. at pg. 6. 128 Id. at pg 3-4. 129 Id. at pg. 7. 130 Id. at 2. 131 Id.

• 36 -

periods, but also during more normal flow regimes. When this is the case, the conservation release shall be equal to, or greater than, the Commission s low flow criterion. 132 III. Issues and Lessons / Some Comparisons to the Great Lakes Compact & Agreement From this experience of water management programs in the Delaware and Susquehanna Basins, several themes and issues have evolved which have particular relevance to the path forward in the Great Lakes region. A. Factors or Standards for Withdrawal Approvals A range of approaches has developed in terms of specifying the factors and standards utilized for the review of withdrawal projects. Most jurisdictions (including the DRBC and SRBC) have adopted a multi-factor considerations approach, without adopting hard-and-fast

• standards. This is also the approach recommended by the peer-reviewed REGULATED RIPARIAN

MODEL WATER CODE.133 A multi-factor approach reflects the fact that many water allocation decisions inherently involve a balancing of competing considerations, with not one factor or issue necessarily trumping the others in all cases. The difficulty with the standards approach (where an applicant must demonstrate, for example, no impact on the environment or downstream users) is that inflexibility can often lead to less than optimal decisions. Favoring one factor, such as protection

• f fish or protection of existing uses, over all others may preclude desired economic development,
• r foster movement of populations away from established urban areas into less densely settled

lands (thereby consuming valuable agricultural acreage). Where water supply alternatives are limited, a balancing approach is often the only workable method for deciding the appropriate location and amount of water that may be taken while conserving instream flows and uses. The Great Lakes Compact and Agreement partially reflect this lesson in their Decision- Making Standard. For example, Section 4.11 of the proposed Compact contains a requirement that a proposed withdrawal and use be determined reasonable, based upon a consideration of six factors, including:

132 Id. 133 American Society of Civil Engineers Water Laws Committee, THE REGULATED RIPARIAN

MODEL WATER CODE (Joseph W. Dellapenna, Ed.) (1997).

• 37 -

Whether the proposed withdrawal or consumptive use is planned in a fashion that provides for efficient water use and will avoid or minimize water waste. If efficient use is made of existing water supplies. The balance between economic development, social development and environmental protection. The supply potential of the water source, considering quantity, quality, and reliability and safe yield of hydrologically interconnected water resources. The probable degree and duration of any adverse impacts caused or expected to be caused to other lawful water uses, or to the quantity or quality of basin waters and water-dependent natural resources, and proposed plans for avoidance or mitigation of such impacts. If the proposal includes restoration of hydrologic conditions and functions of the source watershed. At the same time, however, the Great Lakes Compact and Agreement contains several criteria that read more like standards, whose real meaning and impact have yet to be weighed. For example, Section 4.11.2 requires that withdrawals be implemented so as to ensure that the Proposal will result in no significant individual or cumulative adverse impacts to the quantity or quality of the Waters and Water Dependent Natural Resources and the applicable Source

• Watershed. The problem with this formulation is that it creates a serious ambiguity as to the

scale of impacts that would preclude withdrawal approvals. Is the significance of impacts to be judged based on impacts upon the overall Source Watershed (which is defined as the entire drainage area of each Great Lake), or can measurable impacts on flow within just a few hundred feet of stream (which occurs with many withdrawals) be enough to preclude a project? Exclusion

• f grand scale impacts may make sense, but establishing a criterion that absolutely protects

against the smallest scale of impacts would be setting an impossible (and irrational) hurdle. B. Management of Trans-Watershed Transfers Surprisingly little mention is made in either statute or regulation in most eastern States concerning the management of trans-watershed transfers. Under common law riparian doctrine,

• 38 -

the transfer of water off of the riparian land or from its basin of origin to another basin was proscribed (deemed in some jurisdictions unreasonable per se).134 The fact is that in many eastern states, with large metropolitan areas and complex public water supply systems, the transfer of water between watersheds is not only common, it is frequently necessary to assure an adequate supply to key population centers. The greater Philadelphia area, for example, extends across at least three major subbasins of the Delaware River, and many substantial watersheds within those subbasins. Indeed, water to serve major suburban areas west of Philadelphia is imported from the Susquehanna River. The Delaware and Susquehanna River Basin Commissions policies recognize that trans- watershed transfers between and among the neighboring basins of eastern North America are a relatively common practice, and almost impossible to prohibit. The DRBC and SRBC policies discourage such transfers, establishing special requirements designed to assure that (i) the importing watershed has used its existing sources to best advantage, (ii) the exporting watershed s current and future uses are protected; and (iii) the exporting basin is appropriately compensated for the transfer of water. The most sophisticated approach to trans-watershed transfers is probably that reflected in the DRBC policy on imports and exports, which discourages the interbasin diversion of water, but then establishes a specific set of factors and evaluations to be used in reviewing such projects. Both SRBC and DRBC have followed the principle, first reflected in the U.S. Supreme Court s New Jersey v. New York135 decision of the 1930 s, of requiring compensation to the basin of origin, in the form of augmenting releases during low flows, as a quid pro quo for obtaining the right to divert water across basin boundaries. In contrast to the experience in the Delaware and Susquehanna Basins, the proposed Great Lakes Compact and Agreement try to draw a bright line against exports from the Great Lakes Basin, and set high hurdles for even transfers between the watersheds of different lakes. The ban on exports is ostensibly driven by a concern over the possibility of long-distance transport of water such as the often mentioned specter that States in the U.S. southwest may come to grab a portion of Great Lakes water. With all due respect to the Great Lakes Basin s political leadership, the specter used to justify an outright ban on out-of-basin diversions is largely a pipe dream. The reality is

134 See, e.g., Scranton Gas & Water Co. v. Delaware L. & W. R.R., 88 A. 24 (Pa. 1913); Irving's

Ex'rs. v. Borough of Media, 10 Pa. Super. 132 (1899), aff'd, 45 A. 482 (Pa. 1900).

135 283 U.S. 336, 342 (1931).

• 39 -

that water transfers crossing basin boundaries both in the Great Lakes region and throughout eastern North America are almost always destined for relatively nearby locales such as counties and cities that straddle the basin divide. C. Development of Water Budgets / Consumptive Use Management An evolving issue across many eastern jurisdictions is the appropriate approach to development of water budgets that is, how to evaluate the dependable or sustainable yield of watersheds and aquifers, in comparison to the cumulative amount of surface and groundwater

• withdrawal. Often linked to this concept is the concern of how to manage consumptive use,

whether that use comes in the form of incorporation of water into products, evapotranspiration in agriculture or urban lawns, power plant cooling towers, or other means. The first key question is what defines a sustainable or dependable yield. Most eastern watersheds and aquifers receive substantial recharge and replenishment, even during dry years, and over the long-term, water withdrawals and recharge can be balanced with some forethought. The issue, however, becomes what conditions define the level of dependability and what degree

• f impact will be considered allowable within a sustainable yield analysis.

For example, in evaluating yields within the Delaware River Basin, DRBC has set a withdrawal limit on ground water withdrawals based upon the 1-in-25 year average annual baseflow for the particular area, with the assumption that the baseflow equates to the rate of recharge during that period. The conservative approach effectively limits total groundwater withdrawals from each aquifer unit based on drought year conditions, even though the aquifer might well support higher levels of pumping in more normal years. For uses that require nearly constant withdrawals and dependable supplies (i.e., uses that are not interruptible), that approach may be supported by the public policy favoring dependability. However, in a conjunctive use management arrangement, where some uses can be suspended or shifted to other sources in times

• f shortage, the basis for adopting an absolute withdrawal limit linked solely to drought period

recharge may be questioned. The recent Pennsylvania Water Resources Planning Act ( WRPA ) takes a slightly different approach to defining safe yield. Under the WRPA, safe yield means the amount of water that can be withdrawn from a water resource over a period of time without impairing the long-term utility of a water resource, inducing a health threat, or causing irreparable or

• 40 -

unmitigated impact upon reasonable and beneficial uses of the water resource. 136 The definition goes on to declare that the [s]afe yield of a particular water source is primarily to be determined based upon the predictable rate of natural and artificial replenishment of the water source over a reasonable period of time. Thus, the safe yield definition focuses on three types of impacts that define excessive demands: (1) impairment of the long-term utility of the water resource; (2) inducement of a health threat; and (3) causing irreparable or unmitigated impact upon reasonable and beneficial uses of the water resource. The term reasonable and beneficial use is also defined in the statute, and includes both withdrawal and non-withdrawal (i.e., instream)

• uses. A reasonable and beneficial use means the use of water for a useful and productive

purpose, which is reasonable considering the rights of other users and consistent with the public interest, in a quantity and manner as is necessary for efficient utilization. Inherently, the concept

• f a reasonable and beneficial use involves a balancing among uses; it is not simply a matter of

promoting one use (such as industry or agriculture) over another use (such as fish habitat) or vice versa. In a similar manner, the ASCE REGULATED RIPARIAN MODEL WATER CODE (the Model Code ) refers to establishing a safe yield based on the long-term maintenance of three elements the biological integrity, chemical integrity and physical integrity of a water source. As explained in the Model Code, these concepts aim to (1) prevent permanent impairment to aquatic and other life forms dependent on a particular water source ;137 (2) achieve water quality standards prescribed for the water source by federal or state laws or regulations in light of authorized effluent discharges and other expected impacts on the water source;138 and (3) provide water to support commercial navigation, preserve natural, cultural or historic resources as required by applicable federal and state laws, provide adequate recreational opportunities, and prevent serious depletion or exhaustion of the water source.139 The Great Lakes Compact and Agreement are notably muted on the issue of working toward a water budget, or evaluating the system s safe yield. Among the myriad of procedures and processes for reviewing proposals for new or increased withdrawals, the Great Lakes

136 27 Pa.C.S. § 3102. 137 Commentary to Model Code §2R-2-02. 138 Model Code §2R-2-03. 139 Model Code §2R-2-16.

• 41 -

documents are decidedly short on long-range planning and holistic evaluations of the resource. The closest that the documents come is a provision for periodic assessment of cumulative impacts every five years or each time that incremental losses to the basin from transfers or consumptive uses reach 50,000,000 gallons per day averaged over a 90-day period.140 But such impact assessment is not the same as resource management. D. Management of Instream Flows / Balancing Instream and Offstream Use The management of instream flows, and the methods for balancing instream versus off- stream use, has been a growing area of contention, punctuated by strongly-held (but not necessarily well-proven) assumptions, theories and models. The laws and water management programs of most Mid-Atlantic States recognize a wide range of instream uses (including fisheries, navigation, recreation and water pollutant assimilation), and also recognize the need to balance instream and withdrawal uses. However, increasingly the focus of the instream flow debate has been on fish habitat, and the relative priorities of fish vs. people. As noted above, some jurisdictions (including the SRBC) have adopted passby flow and conservation release policies that are pointedly aimed at protecting fish habitat against significant

• impacts. Using mathematical models based upon the IFIM methods, these policies would impose

conditions on withdrawals designed to protect against physical habitat impacts as low as 5% (a level which is essentially unmeasurable in the watershed world). Such stringent policies, if applied literally and without balance, can have drastic effects. For example, in one part of the Delaware, communities have been rapidly developing as populations move from the northeastern metropolitan areas. Many streams in the area are classified as high quality, and support sustainable trout populations. A flow management policy that precludes impacts that may affect fish habitat by a very small percentage (say 5%) can frequently result in passby flow conditions of 25-35% or more of average daily flow. This translates, in this example, to preventing the withdrawal of water for public water supply or other purposes approximately 37% of the time. During drought years, withdrawals from surface and ground water would be precluded from using the source a much larger percentage of the time. As starkly underscored in this example, in order to prevent a minimal reduction in habitat for trout (based on 5% of optimum standard), such a policy, if literally applied, would require human beings relying on such a withdrawal to forego their use of water or seek another source for more

140 Agreement Art. 209.

• 42 -

than one-third of the time. If an alternative source were not readily available, such a policy effectively posits the position that fish always come first, and the people must simply take a long vacation or move. A rote application of such a policy, without balancing, leads to a significant reduction in the habitat value for at least one species human beings. From the perspective of a practitioner who represents public water supply systems, the management of water quantity and quality issues requires a balanced approach, assuring the protection of all existing uses of water. There can be little doubt that the economic welfare and future of States and Provinces that surround the Great Lakes, as well as their environmental well- being, depend on water. Water is one of the region s greatest assets, and is essential to virtually every enterprise and human endeavor. Such management, to be successful, needs to start with a recognition that water is a shared resource, which must be used and allocated equitably to concurrently meet sometimes competing needs and uses (including both instream uses and withdrawal uses). No one use be it industrial, public supply, or fisheries should be promoted to the exclusion of other legitimate uses of this shared resource. E. Water Conservation Virtually every water management scheme adopted contains some reference to promotion

• f water conservation efforts, but there is little agreement regarding the methods and measures

used to achieve the laudable objective of more efficient water use. One of the lessons from water management programs in the basins studied is that while some conservation measures can be effectively effectuated through regulatory methods (such as plumbing standard changes to require low flow toilets in new construction), the myriad of industries and enterprises across our jurisdiction are too vast, and their processes too varied, to make mandatory conservation standards realistic. One of the earlier drafts of the Great Lakes Agreement (and some accompanying guidelines) had suggested that water conservation standards would be developed for each water use sector, with the expectation that States and Provinces would require users in each sector to meet such standards. That vision eventually dissipated, as the realization came that Basin jurisdictions had woefully insufficient information on which to even categorize uses, let alone establish conservation objectives or standards for each category. The prospect of government

• 43 -

dictating major modifications to facilities and processes across the basin was ultimately unworkable and unpalatable. In most situations, a broad mandatory, command-and-control conservation program across the basin is unjustified and misaimed. Given cost-considerations relating to pumping, water supply treatment, and wastewater treatment, most industries and commercial enterprises are already well-motivated to find and implement more efficient methods of using and recycling

• water. Creating a mandatory program where all water users have to go through a government-

supervised procedure of identifying and evaluating conservation methods would rapidly bog down the progress of water conservation. Instead, the most effective approach to promoting water conservation may be a combination of education and technical outreach. The final Great Lakes Compact and Agreement recognize that water conservation is a subject where one size does not fit all. While requiring that the applicants for new or increased water withdrawals implement environmentally sound and economically feasible water conservation measures, the Compact and Agreement provide a flexible definition of that term. The resulting formulation requires the proponent of a new or increased use to show that it is carrying out those measures, methods, technologies and practices for efficient water use and for reducing a Withdrawal, Consumptive Use or Diversion that i) are environmentally sound, ii) reflect best practices applicable to the water use sector, iii) are technically feasible and available, iv) are economically feasible and cost-effective based on an analysis that considers direct and avoided economic and environmental costs and v) consider the particular facilities and processes involved, and taking into account the age of equipment and facilities involved, the processes employed, environmental and energy impacts, and other appropriate factors. 141 With respect to existing uses who are not seeking new or increased withdrawals, States and Provinces have committed to develop water conservation and efficiency goals and objectives, and then develop and implement water conservation and efficiency programs, either voluntary or mandatory, to meet those objectives. Periodic reviews are to be conducted to evaluate whether those programs are effectively meeting the objectives.

141 Compact §1.2.

• 44 -

F. Sharing and Managing Interstate Waters The Delaware and Susquehanna basins provide some of the best examples of shared management of interstate waters, acting through compact commissions that have proven by and large to be highly successful vehicles for avoiding conflict and fostering common objectives. The SRBC and DRBC are acknowledged models of cooperative interstate decision-making within a management program that is comprehensive. Surface water and ground water, water quantity and quality, and all instream and off-stream uses, are clearly recognized and incorporated into the management efforts of these two basin commissions. I would observe that while these regional water management institutions have been effective, they are operating within basins that (1) have a limited number of States, (2) are relatively cohesive in geographic extent, and (3) share a strongly interconnected economy. The Delaware, for example, encompasses the relatively cohesive area of the northeastern metropolitan area, where the four basin states (New York, Pennsylvania, New Jersey and Delaware) have many common economic, social, environmental and other interests and perspectives. Moreover, each of the four jurisdictions has significant land area in the basin, and a substantial stake in the

• basin. Even within this relatively small area, and among just these four jurisdictions, reaching

compromise and consensus is often not easy. Similarly, the Susquehanna Basin s three states have much in common, but still must deal with a range of divergent interests. To the extent DRBC and SRBC have achieved success, much of it can be credited to the fact that the agencies were created as comprehensive water management agencies, and staffed with a dedicated and sophisticated basin commission professional staff that could perform evaluations on the basis of sound science and can guide State policymakers to common ground. Despite their achievements, however, both DRBC and SRBC now face ongoing budgetary difficulties which threaten their effectiveness as truly regional institutions. The Great Lakes region presents a severe challenge in terms of creating any entity at the regional level that can work efficiently and cohesively. The ten jurisdictions of the region are spread out across two countries, some 1200 miles, with many of the jurisdictions having only a small percentage of their land area within the Great Lakes Basin. While the Great Lakes States and Provinces have some common interests, the region is not cohesive to the same degree in terms of either its geography or economy as seen in the regions governed by the SRBC and

• DRBC. Obtaining the political will, support and commitment to not just adopt, but also sustain, a

• 45 -

workable compact agency will be extremely difficult given the myriad of disparate interests across the span of this region. IV. Final Words The water resources available to the jurisdictions of the eastern U.S. and Canada need not be the subject of water wars. The resources available are relatively plentiful, and should be sufficient to supply the needs of our watersheds and citizens on a sustainable basis, if managed with a reasonable amount of care and an ample dose of common sense. To be successful, a good water management regime needs to be less a matter of command and control, and more focused

• n understanding the resource and its capabilities while accommodating all legitimate uses in a

reasonable fashion. Conflicts are resolved when those involved understand that they are, indeed, sharing a common resource for which no one use or category of use (be it industry or agriculture, public water supply or fisheries) can claim hegemony or absolute priority. Water resource management is a matter of constant balancing, accommodation and adaptive

• management. Words in compacts and agreements may be a starting point, but ultimately it is the

attitude and aptitude of the stakeholders that will dictate whether the stewardship of these shared resources is ultimately successful.