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 Weston 1 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 ex pansive 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.

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 establi sh 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/Prov incial 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 implem ent 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 - 2 -

of 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 ex pansive 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 th e 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 - 3 -

programs, and Section III of this paper highlights some of the themes, issues, and lessons to be learned. A. State Level Water M anagement 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 of 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 wildli fe; 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). - 4 -