American Bar Association Section of Environment, Energy, and Resources Science Issues in Water Withdrawals The Nexus Between Science and Water Law R. Timothy Weston 1 Kirkpatrick & Lockhart LLP Harrisburg, Pennsylvania tweston@klng.com Eastern Water Resources: Emerging Issues in Competition, Science and Politics Miami, Florida May 11, 2006 I. Introduction The definition, determination, and resolution of conflicts over water rights in the eastern United States in inextricably linked to scientific and technical questions. The major questions faced in many water withdrawal proposals including the occurrence, reliability and variability of proposed water sources, their hydrologic interconnections to other sources, the impacts of a proposed withdrawal or other human activities on the natural hydrologic regime (stream flows and ground water levels), the relationship between hydrologic impacts and aquatic and terrestrial biologic systems, and a myriad of other questions all form a critical nexus between science and water law. This plenary session will examine some of the central science issues in water withdrawal proposals. Those issues arise, of course, in the context of applying law to specific fact setting as part of regulatory or dispute resolution processes, including the application of common law principles or regulatory criteria governing the issuance of required governmental approvals. To provide some framework for the discussion by our science presenters, we provide below a typical hypot hetical scenario, followed by a discussion of some of the typical legal questions and principles that may be applicable. 1 The views set forth in this article are solely those of the author, and do no t necessarily reflect the views of Kirkpatrick & Lockhart Nicholson Graham LLP or its clients. -1-
II. The Hypothetical Scenario Our discussion starts from the perspective of a typical water withdrawal project, with the following hypothe tical scenario: 2 All American Brands Co. ( AABC ) is proposing the development of a new specialty food processing and packaging facility in the Borough of East Springs, Trout County, in the State of Ripa. The new AABC plant would employ approximately 300 people. AABC requires a dependable peak day supply of 400,000 gallons per day to supply its plant, and the water must be of particularly high quality to meet food processing standards. The AABC plant site will be located in an industrial district of East S prings Borough, an economically depressed community. The AABC site is nearly ideal, given its proximity to target markets, its sources of materials which can arrive by rail, and a suitable trained workforce in the area. However, as with many industrial sites in the eastern U.S., the East Spring plant site does not have high quality groundwater supplies on the property, due to the underlying geology and past industrial activities in the area that have resulted in a plume of toxic contamination. Further, the East Spring Water Company s system, which draws from springs from a nearby mountain slope, is insufficient to provide a reliable supply to the proposed plant with a quality needed to meet FDA requirements. To address its water needs, AABC has found available for purchase the 100 acre Forest Farms property about two miles away in the upper watershed of Spring Creek. The Forest Farms property overlies an aquifer known to produce very high quality water with substantial yields. AABC has proposed to purchase the Forest Farms property, leasing back a major portion to the farmer to continued agricultural production. AABC s plan is to install two 300 foot deep wells, each with a capacity to extract up to 300,000 gpd, but with a combined operating rate of 400 ,000 gpd. Forest Farms adjoins West Run, which joins East Run about two miles below Forest Farms to form the mainstem of Spring Creek. The watershed of East Run at Forest Farms is approximately 2 square miles, while the watershed of Spring Creek at the confluence of the West and East Runs is approximately 7 square miles. The bedrock aquifer underlying Forest Farms provides the source for a number of springs in the West Run watershed. Flows of some of those springs feed various pocket wetlands, while other springs flow more directly into unnamed tributaries of West Run. The upper and middle portion of Spring Creek is inhabited with varying populations of brook and brown trout, and sections of Spring Creek are frequented by recreational fisherman during the permitted fishing season. The upper section of West Run in the vicinity of Forest Farms is relatively steep in 2 This scenario is entirely fictional. Any resemblance to actual persons, events or situations is entirely coincidental. -2-
gradient, with few pools (mostly riffles), while most fishing activity is located in downstream segments of Spring Creek which have more prolific pool habitats. AABC has submitted a water withdrawal permit application to the Ripa Department of Natural Resources ( RDNR ) to approve the two proposed wells, together with a hydrogeologic study (including pumping test results). AABC s hydrogeologic consultant believes that pumping tests and related analyses show that it is unlikely the proposed withdrawal will have a significant effect on other water users in the area or on flows in Spring Creek. High Acres Country Club ( HACC ), whose facilities are adjacent to Forest Farms, has intervened in the application, complaining that the proposed AABC withdrawal may impact the supply provided by several old relatively shallow wells installed by HACC which are used for watering golf course tees, fairways and greens. HACC claims that it has been long-established, and should be accorded priority based on the fact it was established first, and any interference with its use is unreasonable. Ripa Environmental Defenders & Development Opposition Group ( REDDOG ) has intervened in the RDNR proceedings, and also filed suit in the Trout County Court of Common Pleas for an injunction to stop the AABC project. REDDOG contends that the withdrawal and transfer of groundwater from Forest Farms to the East Spring Borough site will interfere with the natural flow of Spring Creek, violate riparian law by transferring water off the land where it is withdrawn, and constitute an unreasonable use of water under common law. REDDOG alleges that the proposed withdrawal will (1) reduce stream flows in West Run and Spring Creek, and thereby impact downstream trout habitat and the aesthetic and recreational qualities of the Spring Creek watershed; (2) affect water quality in Spring Creek by reducing its assimilative capacity and causing an increase temperature as the result of reducing the amount of cool spring water flows entering the stream during the summer; and (3) reduce water levels in area wetlands, some of which may be habitat suitable for the Runamuck Turtle, a species listed a s threatened by the Ripa Fish & Game Commission. III. Common Law Principles Applicable to Water Withdrawal Proposals A. Classifications of Water In large part, water rights in both surface and groundwaters in many eastern States are governed by common law, composed of the doctrines and precedents established by courts in cases decided over the past two centuries. Although regulatory programs adopted by some States or basin jurisdictions, such as the Susquehanna and Delaware River Basin Commissions, have displaced the courts as the arbiters of many water rights disputes, common law doctrines and traditions remain strong. Because common law rests on individual cases read together, rather than a cohesive code, many gaps remain in the court decisions governing water rights, and the common law is always subject to refinement or modification as new cases are litigated. Scientists generally consider all water as part of a unitary hydrologic cycle, and in general, most eastern basin s ground and surface waters are hydrologically connected and interdependent. However, for purposes of water rights and allocation, the common law of many States attempts to distinguish four different categories of water: (1) diffused surface waters (the sheet flow from -3-
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