Freshwater Inflow-Related Policies


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Policies can alleviate the pressure on the freshwater supply by ensuring less detrimental practices are used in construction projects and water removal events. Policies allow agencies to issue permits that can be used to monitor water use and set restrictions that conserve the water supply. Some relevant policies are described in this section.

Withdrawal permitting

Many states in the United States require people wanting to withdrawal substantial amounts of water to obtain a permit. These permits may apply to both surface and groundwater withdrawals and may stimulate practices that help protect other water users and/or wastewater. The person or persons receiving the permit receives reassurance that the allocation of this water will be available.

Discharge permitting

Industrial discharges. Source: chenected.aiche.org

Industrial discharges. Source: chenected.aiche.org

Discharge permits are statewide permits that limit the discharge of pollutants by avoiding pollution of groundwater or prevent the mismanagement of wastewater treatment plants (Washington 2013). Industrial facilities that have any wastewater discharges to wastewater treatment plants must also attain a discharge permit unless the facility has previously obtained a pretreatment discharge permit (Washington 2013).

Discharge Permitting resources:

Washington State Governor’s Office of Regulatory Assistance: http://apps.ecy.wa.gov/permithandbook/permitdetail.asp?id=20

Instream flow requirements

Assessment of water requirements. Source: www.r2usa.com

Assessment of water requirements. Source: www.r2usa.com

Instream flow requirements are the amount of flows or releases necessary to maintain the health and integrity of estuarine ecosystems (TCEQ 2009). Instream flow requirements are generally set to the minimum flows necessary, but they can also include maximum flow limits for hydropower dams, seasonal releases for fish spawning, or weekend releases for recreational purposes (TCEQ 2009). There are a variety of methods used to set flow standards.

In Texas, Senate Bill 3 passed in 2007, which calls on scientists, stakeholders, and officials to address two issues: how much water is needed to keep the state’s estuarine systems healthy and how the state can protect that water (TCEQ 2009).

Resources for Texas Estuaries:

Texas Water Matters: The Environmental Flows Allocation Process:

http://apps.ecy.wa.gov/permithandbook/permitdetail.asp?id=20

Reservoir management

Source: www.tampabaywater.org

Source: www.tampabaywater.org

 

A reservoir is a place where water is collected and stored either naturally or artificially, general for human use including consumption, irrigation, electric facilities, etc. Reservoir management is a process of developing and implementing a reservoir management plan using rules and regulations in order to provide reliable water supplies.  In some cases reservoir plans also endeavor to protect the ecosystem by requiring the most efficient and environmentally sound exploration and exploitation processes. Reservoir management teams who create the reservoir management plan are composed of reservoir engineers, field operators, reservoir geologists, production and facility engineers, and field staff.

Inversions and interbasin transfers

Interbasin Transfer. Source: techalive.mtu.edu

Interbasin Transfer. Source: techalive.mtu.edu

Inversions and interbasin transfers are defined as the artificial withdrawal of water by dams, tunnels, canals or pipelines for anthropogenic uses, ranging from industrial to agricultural use.  This removal can be done by diversion of a river’s course, or by the assemblage of a large waterway with the ability to transfer large amounts of water (Micklin 1985). Licensing and regulations including pumping regulations can be imposed on the diversion of water practices, which can reduce the amount of water, removed as well as increase irrigation efficiency.

Flood Plane Modification

Floodplain modification. Source: www.rjh-consultants.com

Floodplain modification. Source: www.rjh-consultants.com

Flood planes are terrestrial areas adjacent to waterways that are exposed to periodic inundation (DRDEESESAOSA 1991). Inundation refers to the submergence of vegetation in water. Rivers and stream constantly change to some degree due to precipitation and runoff events. A major source of river and stream modification is anthropogenic development. When a river or stream experiences a heavy or continuous rainfall that exceeds the ability of water to percolate the adjacent soil and the flow capacity of a stream or river, flooding occurs (DRDEESESAOSA 1991). Flooding is when the water in a river or stream pores over the banks and onto the terrestrial area surrounding it.

Flood plane modification policies may prohibit development projects that cause river and stream modification or require methods aimed at flood control (DRDEESESAOSA 1991).

Resources:

Floodplain Definition and Flood Plane Hazards:

http://www.oas.org/dsd/publications/Unit/oea66e/ch08.htm

Sediment and erosion controls

Erosion control using a Gabion Erosion Cage. Source: www.gabion1.com.au

Erosion control using a Gabion Erosion Cage. Source: www.gabion1.com.au

Topsoil vegetation protects soil erosion through root growth which holds the soils in place. The removal of vegetation increases the rate of erosion from natural weathering processes including water carrying off soil in runoff and wind (EPA 2012). The removal of natural vegetation and topsoil makes the exposed area particularly susceptible to erosion, causing transformation of existing drainage areas and disturbance of sensitive areas (EPA 2012). Regulations and policies that help prevent topsoil erosion are often implemented. The EPA webpage is a resource that explores some of the sediment and erosion control regulations currently in place in several states (EPA 2012).

Resources:

Environmental Protection Agency:

http://water.epa.gov/polwaste/nps/erosion.cfm 

Water Quality Standards

Water quality monitoring. Source: denr.sd.gov

Water quality monitoring. Source: denr.sd.gov

Water quality standards set expectations for the quality of water by controlling pollution (USEPA 2013b. The EPA controls pollution regulation, and are given regulatory powers under the Clean Water Act (USEPA 2013b). The EPA webpage describes the water quality standards for surface waters (USEA 2013b).

Resources:

EPA: Water Quality Standards for Surface Waters:

http://water.epa.gov/scitech/swguidance/standards/index.cfm

Further Texas Policies Resources:

Books:

Water Policy in Texas by Ronald C. Griffin

Websites:

Texas Water Development Board: http://www.twdb.state.tx.us/waterplanning/index.asp

Texas Water Matters: http://www.texaswatermatters.org/resources_links.htm

Overview of State Laws and Commentary Relating to Protection of Instream Flows for Environmental Purposes

        *The following literature was put together as part of the CAMEO Project: Building the Foundation- An Integrative Approach to Managing the Dewatering Estuaries. Please note the following information is current as of 2010 and the legislation and statutes may have since changed. For more information about the CAMEO project, please visit: The Harte Research Institute for Gulf of Mexico Studies  

        States with no flow laws or statutes, and do not require a permit for water allocation:

Alabama, Arkansas, Illinois, Indiana, Kentucky, Louisiana, Michigan, Missouri, Nevada, New Mexico, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, West Virginia

States with some instream flow requirements, i.e. water permits:

Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Utah, Virginia, Washington, Wisconsin, Wyoming

        States with specific instream flow statutes:

Alaska, California, Hawaii, Texas

        ALABAMA

Title 33:

<http://www.legislature.state.al.us/CodeofAlabama/1975/coatoc.htm>

        ALASKA

All Statutes:

<http://www.legis.state.ak.us/basis/folio.asp>

Permit is required to appropriate water. See Alaska Code § 46.15.040(b)

Alaska Code § 46.15.040(b):

<http://touchngo.com/lglcntr/akstats/Statutes/Title46/Chapter15/Section040.htm>

“the commissioner may approve an application for removal or permit an appropriation for removal … of water from a lake, river, or stream that is used by fish for spawning, incubation, rearing, or migration … only if the commissioner reserves a volume of water in the lake or an instream flow in the river or stream for the use of fish and to maintain habitat for fish. The commissioner may adjust the volume of water reserved under this subsection if the commissioner, after public notice and opportunity to comment and with the concurrence of the commissioner of fish and game, finds that the best interests of the state are served by the adjustment.” Alaska Code § 46.15.035(c) <http://touchngo.com/lglcntr/akstats/Statutes/Title46/Chapter15/Section035.htm>

“The commissioner shall issue a permit if the commissioner finds that (1) rights of a prior appropriator will not be unduly affected; (2) the proposed means of diversion or construction are adequate; (3) the proposed use of water is beneficial; and (4) the proposed appropriation is in the public interest. … In determining the public interest, the commissioner shall consider (1) the benefit to the applicant resulting from the proposed appropriation; (2) the effect of the economic activity resulting from the proposed appropriation; (3) the effect on fish and game resources and on public recreational opportunities; (4) the effect on public health; (5) the effect of loss of alternate uses of water that might be made within a reasonable time if not precluded or hindered by the proposed appropriation; (6) harm to other persons resulting from the proposed appropriation; (7) the intent and ability of the applicant to complete the appropriation; and (8) the effect upon access to navigable or public water.” § 46.15.080(a), (b) <http://touchngo.com/lglcntr/akstats/Statutes/Title46/Chapter15/Section080.htm>

“The state, an agency or a political subdivision of the state, an agency of the United States or a person may apply to the commissioner to reserve sufficient water to maintain a specified instream flow or level of water at a specified point on a stream or body of water, or in a specified part of a stream, throughout a year or for specified times, for (1) protection of fish and wildlife habitat, migration, and propagation; (2) recreation and park purposes; (3) navigation and transportation purposes; and (4) sanitary and water quality purposes. … The commissioner shall issue a certificate reserving the water applied for under this section if the commissioner finds that (1) the rights of prior appropriators will not be affected by the reservation; (2) the applicant has demonstrated that a need exists for the reservation; (3) there is unappropriated water in the stream or body of water sufficient for the reservation; and (4) the proposed reservation is in the public interest.” § 46.15.145(a), (c) <http://touchngo.com/lglcntr/akstats/Statutes/Title46/Chapter15/Section145.htm>

        ARIZONA

Does not provide significant direct protection of instream flows, but the following may be of some interest: Arizona Water Protection Fund, the ability for any person to appropriate water for instream purposes (but only the government can transfer), and the acquisition of land by environmental groups to prevent groundwater withdrawals.

Title 45:

<http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=45>

Arizona Water Protection Fund:

<http://www.azwpf.gov/Pubs/FY2009/FY%202009%20Annual%20Report.pdf>

ARKANSAS

Colorado Water Conservation Board:

<http://cwcb.state.co.us/StreamAndLake/>

Statutes, Title 37:

<http://cwcb.state.co.us/StreamAndLake/LawsRules/statutes.htm>

CALIFORNIA

Charlton H. Bonham, Symposium, Perspectives from the Field: A Review of Western Instream Flow Issues and Recommendations for a New Water Future, 36 ENVTL. L. 1205, 1221-24, 1225-27 (2006):

Today, the chief architect of California’s water future concerning instream flows is SWRCB [the State Water Resources Control Board]. Harrison C. Dunning, California Instream Flow Protection Law: Then and Now, 36 McGeorge L. Rev. 363, 372 (2005) (noting that “the principal source of protection of instream uses is the process of the… [SWRCB] administration of water rights”); Governor’s Comm’n to Review Cal. Water Rights Law, Final Rep. 105 (Dec. 1978), available at http:// www.swrcb.ca.gov/general/publications/docs/l584a.pdf (discussing SWRCB’s authority to regulate instream uses). SWRCB is a state agency with hundreds of employees, an operating annual budget of hundreds of millions of dollars, and a five member board. See Water Boards, About the State and Regional Water Quality Control Boards, http://www.swrcb.ca.gov/about/swrcb.html (last visited Nov. 12, 2006) (discussing composition of board and regional offices); Water Res. Control Bd., Enacted Budget-3950, http://govbud.dof.ca.gov/Enacted/StateAgencyBudgets/3890/3940/department.html (last visited Nov. 12, 2006) (showing SWRCB expenditures of more than 630 million dollars and employment of more than 1,500 positions for 2006-2007 fiscal year). Consideration of fish and *1222 wildlife preservation and enhancement is an overarching statutory requirement for SWRCB. Cal. Water Code § 1257 (West 2006). <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=01001-02000&file=1250-1259.4>

Indeed, SWRCB instream flow determinations are a condition precedent to issuance of new water rights. See id. § 1243.5 (“In determining the amount of water available for appropriation, the board shall take into account … the amounts of water needed to remain in the source for protection of beneficial uses.”). <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=01001-02000&file=1250-1259.4>

In 1983, the California Supreme Court concluded in National Audubon that: “[T]he function of the Water Board has steadily evolved from the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters.” National Audubon Society v. Superior Court, 658 P.2d 709, 726 (Cal. 1983). Great opportunity comes with this mandate. SWRCB can undertake regional, integrated water planning efforts to meet this responsibility regarding instream flow. For example, in the 2004 legislative session, Governor Schwarzenegger signed Assembly Bill 2121, requiring that SWRCB develop instream flow guidelines from San Francisco Bay north to the Mattole River, Mendocino County, which is an area that covers Marin, Napa, Sonoma, Mendocino, and southern Humboldt counties. Assemb. B.

2121, 2003-2004 Reg. Sess., 2004 Cal. Legis. Serv. Ch. 943 (Cal. 2004) (codified at Cal. Water Code §§ 1259.2, 1259.4 (West 2006)). The geographic scope of this regional instream flow effort is larger than many northeastern states. <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=01001-02000&file=1250-1259.4>

SWRCB has not ignored opportunities to expand its authority to protect and enhance instream flow. Gregory S. Weber, Articulating the Public Trust: Text, Near-Text and Context, 27 Ariz. St. L.J. 1155, 1173 (1995) (discussing the state water board’s role as the principal developer of public trust text since the California Supreme Court’s decision in National Audubon). Very recently, the California courts provided additional impetus for SWRCB to act. Countless scholars have analyzed SWRCB’s ongoing efforts to balance its adjudicatory role regarding water quality objectives and water rights in the San Francisco Bay-Sacramento-San Joaquin Delta. E.g., David R.E. Aladjem, Innovation Within a Regulatory Framework: The Protection of Instream Beneficial Uses of Water in California, 1978 to 2004, 36 McGeorge L. Rev. 305, 311-14 (2005). In February 2006, the Third Appellate District for California determined that SWRCB’s “power to subject appropriative water rights to terms and conditions necessary to carry out water quality control plans” is more mandatory than permissive. State Water Res. Control Bd. Cases, 39 Cal. Rptr. 3d 189, 235 (Cal. Ct. App. 2006).

… *1223 California’s water code is one of the most advanced for instream flow transfers and markets. See Cal. Water Code § 1707 (West 2006) (permitting any water rights holder to petition for a change for purposes of preserving or enhancing wetlands habitat, fish and wildlife resources, or recreation in or on the water).

<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=01001-02000&file=1700-1707>

… In California, any person or entity may own or dedicate an existing water right to instream beneficial use for fish and wildlife and recreation benefit in perpetuity. Id. The one restriction is a prohibition on dedications of new rights. Gregory A. Thomas, Conserving Aquatic Biodiversity: A Critical Comparison of Legal Tools for Augmenting Streamflows in California, 15 Stan. Envtl. L.J. 3, 48 (1996). The transfer and dedication of existing rights to instream use effectively creates a legal *1224 work-around that avoids the precondition of physical possession of water for obtaining a new right. See Aladjem, supra, at 315-16 (describing how the California legislature and water users have developed innovative ways to transfer water in order to protect instream beneficial uses without formal appropriation for those purposes, specifically citing the transfer petitions allowed under the state water code).

… A “quiet revolution” for instream flow took place in California in 1992 when the state legislature amended the water code with section 1707. Cal. Water Code § 1707 (West 1971 & Supp. 2006); Thomas, supra, at 48.

<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=01001-02000&file=1700-1707>

This section is one of the West’s most advanced water code provisions for instream transactions. Unfortunately, it is very likely that the number of section 1707 transactions in California can be counted on two hands. Aladjem, supra, at 316 n.63 (listing transactions). Instream flow advocates in California are correct to ask: Where is this market?

Administrative processing hurdles and cost are two limitations to an active section 1707 market. Gregory A. Thomas, The Future of Water Law Reform in California a Quarter Century After the Governor’s Commission, 36 McGeorge L. Rev. 495, 513 (2005). Because section 1707 is styled as an instream transfer, rigorous transfer standards apply, including the “no-injury” rule. See Cal. Water Code § 1707(b) (West 1971 & Supp. 2006) (subjecting approval to the condition that it will not “unreasonably affect any legal user of water”). Moreover, because so few section 1707 transfers have occurred, inter and intra agency procedures are convoluted and not easily understood, which of course increases willing transferors’ and transferees’ transaction costs. Jesse A. Boyd, Hip Deep: A Survey of State Instream Flow Law from the Rocky Mountains to the Pacific Ocean, 43 Nat. Resources J. 1151, 1170 (2003)

A bigger obstacle is California’s fascination with all things large. The state’s water politics have always been preoccupied with the movement of water from north to south. State Water Res. Control Bd. Cases, 39 Cal. Rptr. 3d 189, 203-05 (2006). Indeed, the federal Central Valley Project and the State Water Project are designed to facilitate transfers of huge quantities of water. Id. Institutional structures like the Environmental Water Account also emphasize trading large quantities of water in the Delta and Central Valley. See Barton H. Thompson, Jr., Uncertainty and Markets in Water Resources, 36 McGeorge L. Rev. 117, 136 (2005) (explaining the theory behind the EWA). However, a drastically different scale exists. On that scale, a transfer of ten cfs or less can make the crucial difference in instream flow *1226 for fishery or other natural resource needs. This scale is unfortunately too often overlooked to the detriment of instream flow opportunities and the natural resources reliant on such flow. Section 1707 is a perfectly placed legal tool to correct this oversight.

California’s regional communities and water stakeholders are faced with the challenge of fixing the state’s water rights permitting system. This challenge is playing out north of San Francisco where there are approximately six hundred or more pending applications for new appropriative water rights and surface diversions, mostly in the Russian River basin, in Sonoma and Mendocino counties. Water Rights Petition, (State Water Resources Control Bd. Oct. 27, 2004), available at http://www.waterrights.ca.gov/coastal_ streams/docs/tupetition/tupetitiononly102704.pdf. Many of these applications have been pending ten or more years. Assemb. B. 2121, 2003-2004 Reg. Sess., 2004 Cal. Legis. Serv. Ch. 943 (Cal. 2004) (codified at Cal. Water Code §§ 1259.2, 1259.4 (West 2006)).

<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=01001-02000&file=1250-1259.4>

In some watersheds where applications are pending, which are also watersheds for endangered or threatened anadromous fish, the level of unauthorized diversion is as high as seventy-seven percent. Water Rights Petition, supra, at 35. In some cases, the unauthorized diversion has been ongoing for decades. See id. at 36 (noting administrative record correspondence concerning unauthorized diversion taking place for over forty years).

The California Legislative Analyst’s Office recently concluded that:

existing funding levels allow the [water board] to process around 150 applications annually. However, the [water board] currently has a backlog of over 680 pending applications. Even with no new applications for permits, it would take over four years to process all of the backlogged applications at the current rate. . . . Currently over 1,000 permittees are waiting to be inspected and licensed. In addition, staff inspect about 120 water rights annually at current funding levels. This reflects annual monitoring of less than 1 percent of the water rights under the [water board's] enforcement jurisdiction. [FN175] *1227 There is no dispute that the “orderly and efficient administration of the water resources of the state” is in the best interest of all stakeholders. Cal. Water Code § 174 (West 1971).

<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=00001-01000&file=174-188.5>

This challenge creates a clear choice for Californians. In this region, stakeholders can either look the other way while a wild, wild west approach to water continues, or they can take action and develop consensus solutions for an effective and timely permitting system that works for all beneficial uses, including monitoring, compliance, and enforcement. The problems will only worsen in the absence of common-sense, good government reforms to the water permitting system in northern California.

COLORADO

Although Colorado has a court devoted solely to water law and a statute that allows an agency to provide significant protection for instream flows, the agency and the water court do not provide such protection.

Statutory and Rule Changes to Water Court Practices:

<http://www.courts.state.co.us/userfiles/File/Court_Probation/Water_Courts/Statutory_and_Rule_Changes_to_Water_Court_Practice_Witwer_and_Jones_June_2009.pdf>

CONNECTICUT

A public hearing will be held on January 21, 2010 regarding proposed changes to the minimum flow regulations that would apply to all rivers. See http://www.ct.gov/dep/cwp/view.asp?

Statutes, Title 25:

http://www.cga.ct.gov/2009/pub/title25.htm

Title 15: http://www.arkleg.state.ar.us/bureau/Publications/Arkansas%20Code/Title%2015.pdf

DELAWARE

Permit is required for water withdrawals. 7 Del. Code Ann. § 6003(a)(3)

“Withdrawals from surface waters shall be limited to those rates which: A. do not interfere with other permitted withdrawals unless compensation for such injury is provided satisfactory to the Department; B. allow dilution and flushing of waste discharges and maintain adopted water quality standards; C. protect valuable fish and wildlife; D. maintain adequate flow over spillways of downstream impoundments; E. prevent intrusion of saline waters where such intrusion threatens ground or surface water supplies; ant F. provide other ecological, recreational, aesthetic, and private benefits which are dependent upon surface water flows.” Code of Del. R. 70-500-010 [section 3.03]

<http://delcode.delaware.gov/title7/c060/sc02/index.shtml#6003>

“All applicants for water allocation permits are required to submit in writing and demonstrate the existence of and commitment to a water conservation program, suitable to their particular use, as a condition of their application.A. Establishment of a program of periodic monitoring and evaluation of water usage. B. Establishment of a systematic leak detection and control program which, through routine maintenance and discovery of leaks, is responsive to high unaccounted for water usage rates. C. Use of the best practical methods and devices to conserve water. D. A plan to alert employees and customers of the need to conserve water and reduce wasteful usage. E. Evaluation of the potential to use water of less than potable quality including the use of treated wastewater, where possible. F. The establishment of pricing schedules which reflect the actual cost of water service is required of utilities regulated by the Public Service Commission and is encouraged for non-regulated utilities.” Code of Del. R. 70-500-010 [section 4.03]

FLORIDA

Joseph Dellapenna, The Law of Water Allocation in the Southeastern States at the Opening of the Twenty-First Century, 25 U. Ark. Little Rock. L. Rev. 9, 59-64 (2002):

*59 Florida abandoned the common law of riparian rights and the reasonable use approach to groundwater in 1972 with the enactment of the Florida Water Resources Act of 1972 (“Florida Act”). [FN341] The Florida Act declares the policy of the state to control fully the waters of the state in order to “realize their full beneficial use” and to assure their “sustainability.” [FN342] It applies equally to surface water and to groundwater. [FN343] Unlike Alabama and Arkansas, Florida has applied its regulated riparian scheme so thoroughly that there is no point in considering the old law relative to that state. In fact, the Florida statute is one of the primary models for the regulated riparian system in the United States. [FN344] …

The Florida Act vests the Department of Environmental Protection (“Department”) with responsibility for planning and managing the state’s waters. [FN347] The Department also is to serve as a repository for all

scientific and factual information generated by local governments, water management districts, and state agencies relating to water resources and, to that end, collect, maintain, and make available such information to public and private users within the state and assist in the acquisition of scientific and factual data from water management districts, local governments, and the United States Geological Survey.

[FN348] As the reference to the United States Geological Survey suggests, the Department is charged to cooperate with federal and local agencies that deal with water. [FN349] When the Department completed *60 the state water plan, however, it was not accepted by the state legislature and thus, became (at least technically) a dead letter. [FN350]

The Florida Act has several unique features when compared to other regulated riparian statutes. Florida, alone among regulated riparian states, chose to divide the power and responsibility for administering its regulated riparian statute among five regional water management districts. [FN351] Florida’s legislature decided that these districts correspond to the diverse matches across the state between need and availability of water. [FN352] The districts are vested with a great deal of the planning responsibility. [FN353] The districts set the protected minimum flows and levels for the state’s water resources. [FN354] The Department’s role is aptly described as a “general supervisory authority.” [FN355]

The legislature left the authority to each of the several water management districts to determine whether to implement the permit requirement of the Florida Act and whether to extend this requirement to groundwater as well as surface water. [FN356] So diverse are the districts that the two northernmost districts did not implement the permit system until the 1990s, leaving water users in those districts to continue under the common law of riparian rights for twenty years after the adoption of Florida’s regulated riparian system. [FN357] Even after all of the districts were ready to implement the regulated riparian system, wide variations existed in how they implemented it. *61 Thus, one empirical study of the Florida permit system found that at least one water district, in order to avoid conflict, routinely granted irrigators’ requests for more water than they actually needed. [FN358]

Except for domestic uses, all water users in the state are required to obtain a permit for their use from the appropriate water management district once the district initiates the permit requirement. [FN359] Florida provides that permits are to be for twenty years, but for municipalities or governmental bodies the permits can be issued for up to fifty years. [FN360] Florida adopted as its criterion the concept of “reasonable-beneficial use.” [FN361] Apparently the influential trio of Maloney, Ausness, and Morris believed that if either criterion alone was too vague, together they might somehow synergize to create the elusive objective criterion so dear to those who fear excessive administrative discretion. [FN362]

Florida’s regulated riparian statute defines the term “reasonable-beneficial use” as “the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest.” [FN363] Here, “beneficial” appears to mean two things–economic and efficient, which perhaps mean respectively non-wasteful and economically efficient. “Non-wasteful” simply means not using more water than is necessary for the planned use, while “economically efficient” can mean putting water to its most profitable use, taking all costs into account. [FN364] The Florida legislature provided virtually no guidelines to control the administering agency’s discretion in determining what is a reasonable use, except for some exceptionally vague declarations of policy. [FN365] Even assuming that it is objectively clear which uses qualify as beneficial (an assumption that often will not hold), administering agencies still have considerable discretion to determine whether the manner and purpose of the use are “reasonable” and “consistent with the public interest.” [FN366]

*62 Florida has certain specific provisions that further extend the discretionary authority of the water districts over water use permits. Florida authorizes the issuances of “general permits” for classes of use having “minimal adverse impact” on water resources. [FN367] Florida also authorizes temporary permits pending a decision on the application. [FN368] Additionally, Florida provides for permits to divert “ground or surface water beyond the overlying land, across county boundaries, or outside the watershed from which it is taken.” [FN369] …

The Florida Act, again alone among the regulated riparian statutes that have been enacted over the past forty-five years, addresses explicitly the question of civil liability in favor of a permittee injured by another permittee’s violation of the terms or conditions of a permit. [FN374] The Florida Act creates a problem for a permittee who seeks relief under this provision, however. The right to sue for damages accrues only to “abutting consumptive use permit holders,” [FN375] as if only abutting permittees could possibly injure one another. Even they cannot sue until they have first applied for and been denied relief by the water management district. [FN376]

The Florida Act makes no express provision for voluntary transfers. A provision for the voluntary modification of permits seems to address only a modification that does not change the purpose of the use or the identity of *63 the user. [FN377] Once water is fully allocated, a new water user apparently can obtain water only by filing a competing application for a permit when an existing permittee applies for renewal of a permit. While in principle, as between two qualified applicants, the permit should go to the one that best serves the public interest, [FN378] the Florida Act provides a preference for renewal applications over initial applications–if competing applications “qualify equally” for the permit, an existing permit should be renewed. [FN379] Of course, the water

management district can easily determine that the applications do not qualify equally if the district is so inclined.

Florida authorizes water management districts to curtail water uses during water emergencies. [FN380] The Florida Act not only requires the districts to prepare emergency plans, [FN381] but also authorizes the water management districts to impose further restrictions on water users should their plans prove inadequate to the crisis, without regard to any inconsistency with the permits as issued. [FN382]…

Finally, unlike Alabama and Arkansas, Florida has a large native American population with claims to water rights derived from federal law rather than Florida law. [FN388] Florida and the Seminole Tribe have reached a settlement by a compact between the tribe and the state that could serve as a model for such issues in other regulated riparian states. [FN389] Florida recognized a Seminole’s right to a percentage of the water available from specified sources (usually fifteen percent), and the Seminoles agreed to abide by most non-procedural aspects of Florida’s regulated riparian statute. The tribe has the exclusive right to regulate Indian water usage, but must provide annual notice of the patterns of use to state authorities. This approach would appear to be based on riparian principles rather than on appropriation principles. In fact, so alien is the approach of this eastern Indian water settlement that a purportedly comprehensive study of Indian water settlements did not even mention the Seminole agreement. [FN390] This agreement might presage an attempt to market Indian water rights–a development finding increasing support in western states. [FN391]

Summer 2008 research for MASGLP:

Florida is divided into five regional water management districts, and each district is responsible for establishing its minimum flow requirements. The statewide minimum flow is defined as “the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.” Fla. Stat. Ann. § 373.042 (West 2008). In establishing minimum flows for their respective districts, “consideration shall be given to natural seasonal fluctuations in water flows or levels, nonconsumptive uses, and environmental values associated with coastal, estuarine, riverine, spring, aquatic, and wetlands ecology, including:

(a) Recreation in and on the water;

(b) Fish and wildlife habitats and the passage of fish;

(c) Estuarine resources;

(d) Transfer of detrital material;

(e) Maintenance of freshwater storage and supply;

(f) Aesthetic and scenic attributes;

(g) Filtration and absorption of nutrients and other pollutants;

(h) Sediment loads;

(i) Water quality; and

(j) Navigation.” Fla. Admin. Code Ann. r. 62-40.473 (2008).

If a river falls below or is projected to fall below the minimum flow requirements, a recovery or prevention strategy must be implemented. Fla. Stat. Ann. § 373.0421(2) (West 2008).

<http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0373/SEC0421.HTM&Title=-%3E2009-%3ECh0373-%3ESection%200421#0373.0421>

A closer examination of one district – the St. John’s Water Management District in northeast Florida – may be helpful. First, the district must submit a priority list of rivers to the Department of Environmental Protection, focusing on the importance of and potential harm to the river. Carl Vinson Inst. of Gov’t, Univ. of Ga., Balancing Instream and Offstream Uses: Instream Flows, Surface Storage and Aquifer Management, 38 (2006). Next, the district begins to establish minimum flows based on the priority list. There are six flows that the district uses in its temporal hydrologic regime: (1) minimum infrequent high (flooding); (2) minimum frequent high; (3) minimum average; (4) minimum frequent low; (5) phased restrictions (water shortage); and (6) minimum infrequent low (extreme drought). Id. at 39. The district establishes minimum flows for each water body at each of the six flows, including a calculation for flow (cfs), water level (feet), and duration (days). Id. The goal is to conduct a site-specific study for each river in order to most accurately determine the needed flow.

GEORGIA

Joseph Dellapenna, The Law of Water Allocation in the Southeastern States at the Opening of the Twenty-First Century, 25 U. Ark. Little Rock. L. Rev. 9, 68-73 (2002):

*68 Over the past forty years, the Georgia General Assembly has enacted a broad range of statutes that regulate various aspects of water use in the state. Two statutes directly address the allocation of water to particular uses through the requirement of permits for the use of water–The Ground-water Use Act of 1972 (“Ground Water Act”) [FN421] and a 1977 amendment to the Georgia Water Quality Protection Act of 1964 (“Protection Act”). [FN422] These statutes impose similar permit systems on water users; the first applies to users of groundwater and the second to users of surface water. Both statutes are premised on the idea that the general welfare and public interest require that the water resources of the state be put to beneficial use to the fullest extent to which they are capable subject to reasonable regulation in order to conserve the waters and to provide and maintain conditions which are conducive to the development and use of water resources. [FN423]

… The Protection Act defines the term “surface waters” as any body of water on the surface that lies within or along the boundary of the state, whether natural or artificial, although springs are included only if they produce more than 100,000 gallons per day. [FN425] The Environmental Protection Division (“Division”) of the Department of Natural Resources has the sort of extensive planning responsibilities that are customary under regulated riparian statutes. [FN426] To support these

planning responsibilities,*69 both Acts authorize the Division to require extensive reporting of data and, for surface waters, to maintain a data bank on the usage of water in any area of the state.

[FN427]

The core of both statutes is a requirement that any user who withdraws or impounds more than 100,000 gallons per day from a water source in the state must have a permit to do so that is issued by the Division. [FN428] Applications for permits are to be evaluated according to the same criteria of reasonableness that apply under common law riparian rights. [FN429] … For surface waters, Georgia directs the Division to simply give a preference to an existing use over an initial application to begin a use. [FN431]

The Director of the Division determines the duration of permits, generally within upper and lower limits of ten to fifty years. [FN432] … Both Acts require holders of water use permits to report periodically on the amounts withdrawn or used, identifying the particular source of the water, and specifying the nature of the use. [FN434] …

For surface water, if the Division discovers a violation of an applicable law, regulation, or permit, the Protection Act authorizes the Director of the Division to revoke the permit, but only for a period of one year. [FN436] Georgia goes on to allow the Director to revoke, suspend, or modify a permit for the use of surface water “for any other good cause consistent with the health and safety . . . and with this article.” [FN437] …

The Director may also seek an injunction without satisfying the usual requirement of showing the lack of an adequate remedy at law. [FN440] … For surface water, civil penalties for wrongful diversion are included in the civil penalty provisions for pollution, and thus the limits are much larger–up to $50,000 per day and up to $100,000 per day if a separate violation occurs within one year of the original violation. [FN442] … Again, violations regarding surface water permits are potentially subject to harsher penalties because such violations are felonies. [FN444]

The two Georgia statutes make no express provision for the market transfer of a water use permit apart from the transfer of the title to the land on which the water is used. The two statutes create a possibility for such a transfer by their provisions authorizing the Division to approve a modification of a permit at the request of a permittee; apart from farm uses, [FN445] this is limited to situations where a change of circumstances requires more water than has hitherto been used or where a modification will allow for a more efficient use of the water. [FN446] The provision on modifications thus seems to contemplate a change in the pattern of use, but not a change in the type of use. If so, a market for water permits is likely to be extremely circumscribed.

For surface water, the Division can revoke a permit because of non-use of the water, the use of which is authorized by permit, for two consecutive years without proper excuse. [FN447] This provision,

however, is more likely to prompt a permit holder to continue to waste water rather than to risk forfeiture. …

Georgia did initiate an experiment in economic incentives for water allocation management in the year 2000. [FN448] The statute authorizes the use of *71 up to $4.5 billion of Georgia’s share of the tobacco settlement to pay farmers in the Flint River basin to stop well irrigation during drought years to prevent the drying of the river. The initiative for such payments lies with the farmers, not the state. There have been reports of considerable irregularities–payments denied to eligible farmers and made to ineligible farmers. [FN449]

Georgia authorizes emergency orders to deal with water shortages. The standards that justify the issuance of emergencies are different in the two statutes. … For surface water, the Director can issue such an order when the water shortage is such “as to place in jeopardy the health or safety of the citizens of such area or to threaten serious harm to the water resources of the area.” [FN451] The Director cannot issue such an order for surface water except after a certified mailing to give notice to affected permit holders and a wait of five days after the mailing to allow a contest of the order. [FN452] … Such an emergency order can restrict any water use permit. [FN454] Farm uses have second priority in case of water emergencies–only behind water for direct human consumption. [FN455]

These complex statutes represent a good beginning towards an adequate regulated riparian system. They establish in law the public nature of water and provide a mechanism for managing water resources consistent with the public trust as well as with promotion of private welfare. Thus far, no one has challenged the constitutionality of the two statutes. …

*72 An even more important failing of the two statutes is their near complete exemption of farm uses from the operation of the permit system if the farm use began before July 1, 1988, and certain procedural steps were taken before July 1, 1991. [FN458] The statutes define “farm uses” as including water used for the growing of any crop (including turf, trees, and ornamental plants), for aquaculture or animal husbandry, and for the processing of perishable agricultural products. [FN459] The Division must issue special permits for such privileged farm uses that are irrevocable, have no term, and are automatically transferred with title to the land on which the water is used. [FN460] The Georgia statutes direct the Division to measure permits for farm uses by the operating capacity of the withdrawal system. [FN461] The permits cannot include a reporting requirement, but they are subject to investigations by the Division and can be suspended if the Division determines that the use authorized by the permit unreasonably interferes with other users. [FN462]

Farm uses remain far and away the largest use of water in Georgia. The virtual exclusion of farm uses from the scope of the two regulated riparian statutes (which go far beyond the exclusions of certain uses in other regulated riparian states [FN463]) prevents the rigorous

implementation of the regulated riparian scheme such as is found in Florida. The common law principles of riparian rights and absolute ownership as developed in the Georgia cases will continue to govern disputes over water allocation involving farm uses–which constitute many or most disputes over water allocation.

[FN464] The Georgia statutes do not even alter the common law prohibitions of use on non-riparian or non-overlying lands. Indeed, the Protection Act (which includes the regulated riparian provisions for surface water) provides that nothing in the Protection Act preempts private rights of action under the *73 common law in general or specifically directed at suppressing a nuisance or at abating pollution. [FN465] …

The statutes also are almost completely silent regarding interstate transfers, while the provisions relating to interbasin transfers are extremely limited. The Director must give a preference to water usage within a water basin over proposed interbasin transfers. [FN466] … There is no provision in either statute for public or local participation in decision-making apart from participating in public hearings when such hearings are required. [FN467]

Statutes, Title 52:

<http://www.lexis-nexis.com/hottopics/gacode/Default.asp>

Summer 2008 research for MASGLP:

In 1977, Georgia adopted the 7Q10 method for calculating minimum flows. See generally Carl Vinson Inst. of Gov’t, Univ. of Ga., Balancing Instream and Offstream Uses: Instream Flows, Surface Storage and Aquifer Management (2006). In 1995, the Wildlife Resources Division of the Department of Natural Resources (DNR) published a report recommending improvements on the 7Q10 method. In 2001, the DNR abandoned the 7Q10 method and adopted an “interim policy,” still in effect as of 2008, that provides applicants with options to preserve instream flow for purposes of preserving fish habitat as a condition of receiving a water withdrawal permit.

Applicants seeking water withdrawal permits are allowed to choose from three options:

(1) For water supply reservoirs, permittees are required to release from the reservoir the lesser of the monthly 7Q10 (thus more seasonally specific than 7Q10) or the inflow to the reservoir. For direct withdrawals from streams, permittees must allow the lesser of the monthly 7Q10 or the inflow to pass the withdrawal point.

(2) Any applicant can choose to perform a DNR-approved site-specific instream flow study to determine what minimum flows must be maintained to protect aquatic habitat. DNR then evaluates the study results and, with the EPD Director, either concurs or recommends an acceptable minimum flow.

(3) Applicants can also choose mean annual flow (MAF) options:

i. For direct withdrawals from a stream, the applicant must allow the lesser of 30% of the MAF or the inflow to pass the stream withdrawal point

(thus, if the inflow is less than 30% of the MAF, the permittee cannot withdraw water).

ii. For water supply reservoirs, the applicant is required to release from the reservoir the lesser of: 30% of the MAF or inflow from July to November (low flow season), 60% of the MAF or instream flow from January through April (high flow season), and 40% of the MAF or inflow from May-June and December (intermediate flow seasons).

Georgia’s interim policy exempts a wide-variety of water users, including (1) agricultural users; (2) those users already holding, or in the applications pipeline for, water use permits; (3) users of highly “regulated” waters, such as the Savannah River; and (4) federal dams. Carl Vinson Inst. of Gov’t, Univ. of Ga., Balancing Instream and Offstream Uses: Instream Flows, Surface Storage and Aquifer Management, 66 (2006). It appears that most permittees are drawing water from water supply reservoirs and electing to release the monthly 7Q10, as opposed to performing a site-specific study or complying with the tiered seasonal approach based on percentages of the MAF. The monthly 7Q10 approach is the lowest cost option, but it likely provides the least protection to aquatic habitat.

Georgia’s interim policy also did not enact all of the recommendations from the 1995 Wildlife Resources Division report. The report did not recommend monthly 7Q10 because monthly 7Q10 offers only a slight improvement on the 7Q10 method. The report did recommend a September median flow for “trout streams” in the Blue Ridge Province, but this recommendation was not enacted.

HAWAII

Water withdrawal permits are required. Haw. Rev. Stat. § 174C-48(a). The commission on water resource management shall “[e]stablish instream flow standards on a stream-by-stream basis whenever necessary to protect the public interest in waters of the State” and “[e]stablish an instream flow program to protect, enhance, and reestablish, where practicable, beneficial instream uses of water.” Id. § 174C-71(1), (4). An applicant show that the proposed use “(1) Can be accommodated with the available water source; (2) Is a reasonable-beneficial use…; (3) Will not interfere with any existing legal use of water; (4) Is consistent with the public interest; (5) Is consistent with state and county general plans and land use designations; (6) Is consistent with county land use plans and policies; and (7) Will not interfere with the rights of the department of Hawaiian home lands.” Id. § 174C-49(a)

State Water Code §174C:

<http://www.state.hi.us/dlnr/cwrm/regulations/Code174C.pdf>

IDAHO

Title 70:

<http://law.justia.com/idaho/codes/70ftoc/70ftoc.html>

ILLINOIS

Although I do not see a general permit requirement, the following regulation on state areas (such as parks) may be helpful:

“The following criteria will be used to evaluate requests for water withdrawal and failure to meet these criteria will result in rejection: a) Demonstration of Need. The party requesting the use of water from a Department site must provide information which demonstrates that it has exhausted reasonable alternatives to satisfy its water needs. b) Compatibility With Fish Management or Other Site Management Activities. For example: If a lake has a history of use or the need to utilize fishery management chemicals (aquatic herbicides or fish toxicants) these facts must be taken into consideration during the Department’s review of water withdrawal requests. Information on the use of chemicals must be provided to the requestors in the interest of public health and safety. The District Fisheries Biologist will notify the Site Superintendent annually, by January 31, of all use of chemicals on waters of a site under his control. This notification will include the type of chemical, the date a chemical was applied, the purpose of the application and how many pounds/gallons were applied. c) Compatibility With Migratory Bird Management Activities. For example: If a wetland has a history of being dewatered on a seasonal basis for the purpose of managing migratory birds, these factors must be taken into consideration during the Department’s review of water withdrawal requests. d) Overwintering and Summer Survival of Aquatic Life. In any water withdrawal situation, sufficient water depth must remain to allow overwintering and summer survival of the water area’s aquatic life. Winter-kill risk must be minimized in case refilling prior to winter does not occur following withdrawal, and thermal refuges must be maintained throughout the summer. e) Consideration of Federal Requirements. In all cases where federal funding was utilized in acquiring or developing a site/lake, the associated federal requirements must be considered in the review of water withdrawal requests and inherent obligations must be honored. f) Physical Attributes of the Lake and Watershed. The morphological configuration of the lake in question should be analyzed to determine the amount of water which may be withdrawn. Factors such as the lake’s maximum depth, average depth, ratio of littoral zone to total lake acreage, watershed to lake ratio, inflow/outflow hydrograph of the impoundment for water recharging, spawning requirements and the location of boat ramps and dockage all must be considered. g) Presence of Endangered or Threatened Species. Water withdrawal from surface waters providing habitat for endangered or threatened species will require review by the Endangered Species Program Manager. h) Proximity of a Withdrawal Request to or in a Designated Illinois Nature Preserve. A request of this nature will require coordination with, and concurrence by, the Illinois Nature Preserve Commission. Proximity of a withdrawal request to or in a natural area will require review to ensure there will be no negative impact on the natural area. i) Withdrawal Method Impact. The method of water removal will be considered as a significant factor in the consideration of requests to withdraw water. Under certain

circumstances, the method of water withdrawal could be more damaging to the resource and to Department programs than the loss of water itself.” 17 Ill. Adm. Code § 120.20

<http://dnr.state.il.us/legal/adopted/120.pdf>

INDIANA

Indiana requires reporting but does not require a permit

“(a) the commission may determine and establish the minimum flows of streams, taking into account the varying low flow characteristics of the streams of Indiana and the importance of instream and withdrawal uses, including established water quality standards and public water supply needs. (b) The established minimum flows of streams: (1) Are those naturally occurring, as determined by the commission; and (2) May be calculated to reflect seasonal and regional variations.” § 14-25-7-14

<http://www.in.gov/legislative/ic/code/title14/ar25/ch7.html>

IOWA

“The director or the commission may issue a permit for beneficial use of water in a watercourse if the established average minimum water flow is preserved.” § 455B.267(1)

Established average minimum flow is defined as “the average minimum flow for a given watercourse at a given point determined and established by the commission. The “average minimum flow” for a given watercourse shall be determined by the following factors: (a) Average of minimum daily flows occurring during the preceding years chosen by the commission as more nearly representative of changing conditions and needs of a given drainage area at a particular time; (b) Minimum daily flows shown by experience to be the limit at which further withdrawals would be harmful to the public interest in any particular drainage area; (c) The minimum daily flows shown by established discharge records and experiences to be definitely harmful to the public interest.” § 455B.261(7)

“the director shall investigate the effect of the use upon the natural flow of the watercourse, the effect of the use upon the owners of any land which might be affected by the use, the effect of the use upon prior users of the water source … and whether the use is consistent with the principles and policies of beneficial use.” § 455B.264(2)

“Each permit granted after July 1, 1986, shall include conditions requiring routine conservation practices, and requiring implementation of emergency conservation measures after notification by the department.” §455B.265(1)

<http://coolice.legis.state.ia.us/Cool-ICE/default.asp?category=billinfo&service=IowaCode&ga>

[Enter Code Chapter/Section in field]

KANSAS

“Whenever the legislature enacts legislation establishing a minimum desirable stream flow for any watercourse in this state, the chief engineer shall withhold from appropriation that amount of water deemed necessary to establish and maintain for the identified watercourse the desired minimum stream flow.” § 82a-703a

The monthly minimum desirable flow (in cfs) has been established for numerous specific rivers. See § 82a-703c

§ 82a-703:

<http://www.ksda.gov/includes/document_center/appropriation/DWR_forms/1_100_17.pdf>

Water rights can be donated to the state under § 82a-707(d).

“In ascertaining whether a proposed use will prejudicially and unreasonably affect the public interest, the chief engineer shall take into consideration: (1) Established minimum desirable stream flow requirements; (2) the area, safe yield and recharge rate of the appropriate water supply; (3) the priority of existing claims of all persons to use the water of the appropriate water supply; (4) the amount of each claim to use water from the appropriate water supply; and (5) all other matters pertaining to such question.” § 82a-711(b)

“The chief engineer may require an applicant … to adopt and implement conservation plans and practices … pursuant to a finding that such plans and practices will assure public benefit and promote public interest.” § 82a-733(a)

“any holder of a water right … who is willing to voluntarily return all or a part of the water right to the state shall be eligible for a grant not to exceed 80% of the total cost of the purchase price for such water right.” § 2-1915(c)

Kansas also has provisions establishing a state water bank program

To look up statutes § 82a-707(d), § 82a-711(b), § 82a-733(a), § 2-1915(c):

<http://www.kslegislature.org/legsrv-statutes/getStatuteInfo.do>

KENTUCKY

Title IX:

<http://www.lrc.ky.gov/krs/titles.htm>

LOUISIANA

Title 30, 56:

<http://www.legis.state.la.us/lss/lss.asp?folder=75>

MAINE

The minimum instream flow depends on the water’s classification.

Class AA waters: “(1) When natural flow exceeds the spring aquatic base flow, 90% of the total natural flow shall be maintained; (2) When natural flow during the early winter season exceeds the early winter aquatic base flow, 90% of the total natural flow shall be maintained; (3) When natural flow in any other season [summer and fall] exceeds

1.1 times the seasonal aquatic base flow …, 90% of the total natural flow shall be maintained.” Me. Admin. Code § 06-096 Ch. 597, § 4(B)

Class A waters: “Flow requirements established by the standard allowable alteration in Class A waters may not be less than the seasonal aquatic base flow as defined, except when natural conditions alone cause those flows to be less. Withdrawal or other direct or indirect removal, diversion, activity, or use of Class A waters may not occur for more than two consecutive seasons under the standard allowable alteration. The Commissioner may establish, pursuant to sections 7 or 8 of this chapter, site-specific water flows that are protective of all water quality standards, including all designated uses and characteristics of those waters.” Me. Admin. Code § 06-096 Ch. 597, § 5(B)

Class B and C waters: “Flow requirements established by the standard allowable alteration in Class B and C waters may not be less than the seasonal aquatic base flow as defined, except when natural conditions alone cause those flows to be less. The Commissioner may establish, pursuant to sections 7 or 8 of this chapter, site-specific water flows that are protective of all water quality standards, including all designated uses and characteristics of those waters.” Me. Admin. Code § 06-096 Ch. 597, § 5(C)

<http://www.maine.gov/sos/cec/rules/06/chaps06.htm>

MARYLAND

Permit required. Md. Code Ann., Envir. § 5-502(a)

Granting or denying the permit: “Before acting on any permit application, the Department shall weigh all respective public advantages and disadvantages and make all appropriate investigations. If the Department believes from the evidence before the Department and based upon State water resources policy declared in this subtitle that the applicant’s plans provide greatest feasible utilization of the waters of the State, adequately preserve public safety, and promote the general public welfare, the Department shall grant the permit … If the Department believes from the evidence before the Department that the proposed appropriation or use of State waters or proposed construction is inadequate, wasteful, dangerous, impracticable or detrimental to the best public interest, the Department may reject the application or suggest modifications to the proposed plans to protect the public welfare and safety.” § 5-507(a)

Conservation: “When applying for a new or expanded water appropriation permit or State financial assistance, public water systems shall include a description of best management practices currently in use, or to be implemented, for improving water conservation and the efficiency with which water is used, treated, stored, and transmitted.” § 5-5B-04(a)

MASSACHUSETTS

A permit is required for new withdrawals by large users. Mass. Gen. Laws 21G § 2, 7-11

<http://www.mass.gov/legis/laws/mgl/21g-7.htm>

In approving a permit, the following factors are considered: “(1) The impact of the proposed withdrawal on other water sources which are hydrologically interconnected with the water source from which the withdrawal is to be made; (2) The anticipated times of year when withdrawals will be made; (3) The water available within the safe yield of the water source from which the withdrawal is to be made; (4) Reasonable protection of water uses, land values, investments and enterprises that are dependent on previously allowable withdrawals; (5) The use to be made of the water proposed to be withdrawn and other existing, presently permitted or projected uses of the water source from which the withdrawal is to be made; (6) Any water resources management plan for any city or town in which the affected water source is located; (7) Any state water resources management plan adopted by the commission; (8) Reasonable conservation practices and measures, consistent with efficient utilization of the water; (9) Reasonable protection of public drinking water supplies, water quality, wastewater treatment capacity, waste assimilation capacity, groundwater recharge areas, navigation, hydropower resources, water-based recreation, wetland habitat, fish and wildlife, agriculture, and flood plains; and (10) Reasonable economic development and the creation of jobs in the commonwealth.” Mass. Gen. Laws 21G §7

MICHIGAN

“Upon request of a council or a board, the department shall determine, within the watershed subject to the council, the minimum level of stream flow necessary to safeguard the public health, welfare, and safety.” § 324.31112

<http://www.legislature.mi.gov/%28S%28fa4ejh45coyxa345nvqbaknu%29%29/mileg.aspx?page=getObject&objectName=mcl-324-31112>

MINNESOTA

Permit required. § 103G.271(1)(a)

<https://www.revisor.mn.gov/bin/getpub.php?type=s&num=103G.271&year=2007>

“If data are available, permits to appropriate water from natural and altered natural watercourses must be limited so that consumptive appropriations are not made from the watercourses during periods of specified low flows. The purpose of the limit is to safeguard water availability for in-stream uses and for downstream higher priority users located reasonably near the site of appropriation.” § 103.285(2)

“As a condition to a surface water appropriation permit, the commissioner shall set a protective elevation for the water basin, below which an appropriation is not allowed. During the determination of the protective elevation, the commissioner shall consider: (1) the elevation of important aquatic vegetation characteristics related to fish and wildlife habitat; (2) existing uses of the water basin by the public and riparian landowners; and (3) the total volume within the water basin and the slope of the littoral zone.” § 103G.285(3)(b)

<https://www.revisor.mn.gov/statutes/?id=103G.285&year=2009>

MISSISSIPPI

§51-3-5:

<http://www.mscode.com/free/statutes/51/003/0005.htm>

MISSOURI

Section 256.405:

<http://www.moga.mo.gov/statutes/C200-299/2560000405.HTM>

MONTANA

“The department of fish, wildlife, and parks may change an appropriation right, which it either holds in fee simple or leases, to an instream flow purpose of use and a defined place of use to protect, maintain, or enhance streamflows to benefit the fishery resource.” Mont. Code Ann. § 85-2-436(1)

<http://data.opi.mt.gov/bills/MCA/85/2/85-2-436.htm>

NEBRASKA

“The right to divert unappropriated waters of every natural stream for beneficial use shall never be denied except when such denial is demanded by the public interest.” Neb. Rev. Stat. § 46-204

<http://nebraskalegislature.gov/laws/statutes.php?statute=46-204>

“An allotment from the natural flow of streams for irrigation shall not exceed one cubic foot per second of time for each seventy acres of land and shall not exceed three acre-feet in the aggregate during one calendar year for each acre of land for which such appropriation has been made, and an allotment shall not exceed the least amount of water that experience may indicate is necessary, in the exercise of good husbandry, for the production of crops.” § 46-231

<http://nebraskalegislature.gov/laws/statutes.php?statute=46-231>

Instream appropriation

“An instream appropriation may be obtained only by the Game and Parks Commission or a natural resources district and only for that amount of water necessary for recreation or fish and wildlife. The instream use of water for recreation or fish and wildlife shall be considered a beneficial use of water.” § 46-2,108(2)

<http://nebraskalegislature.gov/laws/statutes.php?statute=46-2,108>

“The application shall include the locations on the stream at which the need for instream flows begins and ends and the time of year when instream flows are most critical.” § 46-2,110

<http://nebraskalegislature.gov/laws/statutes.php?statute=46-2,110>

“An application for an instream appropriation which is pending on or filed after January 1, 1997, shall be approved by the director if he or she finds that: (1) In order to allow for future beneficial uses, there is unappropriated water available to provide the approved instream flow rate at least twenty percent of the time during the period requested; (2) The appropriation is necessary to maintain the existing recreational uses or needs of existing fish and wildlife species; (3) The appropriation will not interfere with any senior surface water appropriation;

(4) The rate and timing of the flow is the minimum necessary to maintain the existing recreational uses or needs of existing fish and wildlife species; and (5) The application is in the public interest.” § 46-2,115

<http://nebraskalegislature.gov/laws/statutes.php?statute=46-2,115>

“In determining whether an application for an instream appropriation is in the public interest, the director shall consider the following factors: (1) The economic, social, and environmental value of the instream use or uses including, but not limited to, recreation, fish and wildlife, induced recharge for municipal water systems, and water quality maintenance; and (2) The economic, social, and environmental value of reasonably foreseeable alternative out-of-stream uses of water that will be forgone or accorded junior status if the appropriation is granted.” § 46-2,116

<http://nebraskalegislature.gov/laws/statutes.php?statute=46-2,116>

NEVADA

Section 533.030(2) of the Nevada Revised Statutes includes “any recreational purpose” in the definition of beneficial use, and the Nevada courts include “wildlife watering.” Wildlife watering, in turn, includes water for fish. So, a lot of the protection comes from the court decision.

<http://www.leg.state.nv.us/NRS/NRS-533.html#NRS533Sec030>

NEW HAMPSHIRE

NH Statutes Title 50:

<http://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-L.htm>

NH Instream Flow Protection Pilot Program:

<http://des.nh.gov/organization/divisions/water/wmb/rivers/instream/>

NEW JERSEY

Permit required for diversion of more than 100,000 gallons per day. § 58:1A-7(a)

Formulas for specific water basins, see § 58:1A-7.3

NJ Statutes: Scroll down to find § 58:1A-7(a), § 58:1A-7.3

http://www.state.nj.us/dep/watersupply/njsa_58_1a_1.pdf

NEW MEXICO

NM Chapter 72 §5:

<http://www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main-h.htm&2.0>

NEW YORK

Permit required. N.Y. Envtl. Conserv. Law § 15-1501

<http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$ENV15-1501$$@TXENV015-1501+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=49857496+&TARGET=VIEW>

“In making its decision to grant or deny a permit or to grant a permit with conditions, the department shall determine whether the proposed project is justified by the public necessity, whether it takes proper consideration of other sources of supply that are or may become available, whether all work connected with the project will be proper and construction safe, whether the supply will be adequate, whether there will be proper protection of the supply and watershed or whether there will be proper treatment of any additional supply, whether the project is just and equitable to all affected municipalities and their inhabitants and in particular with regard to their present and future needs for sources of water supply, whether there is provision for fair and equitable determinations of and payments of any direct and indirect legal damages to persons or property that will result from the acquisition of any lands in connection with the proposed project or from the execution of the proposed project, and whether the applicant has developed and implemented a water conservation program in accordance with local water resource needs and conditions.” § 15-1503(2)

<http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$ENV15-1503$$@TXENV015-1503+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=49857496+&TARGET=VIEW>

NORTH CAROLINA

North Carolina does not require a permit for surface water withdrawals, so there is not a statewide statutory or regulatory minimum flow requirement. See N.C. Gen. Stat. § 143-215.22H (requiring registration only). <http://www.ncga.state.nc.us/enactedlegislation/statutes/html/bysection/chapter_143/gs_143-215.22h.html>

However, North Carolina’s minimum flow requirements for dammed waters are noteworthy. First, dammed rivers are classified as poor, moderate, good, or special case. A “poor” stream has poor fish assemblage and is poor in at least two of the following areas: substrate, cover, or macro-invertebrate organisms. 15A N.C. Admin. Code 02K.0501 (2008). Surprisingly, “poor” rivers are given the least amount of protection either because they are too far gone to renew or because they do not offer strong resources to the state. A “moderate” stream has intermediate physical conditions and biota (i.e. is between poor and good). Id. A “good” stream has good fish assemblage and is good in at least two of the following areas: substrate, cover, or macro-invertebrate organisms. Id. Specific definitions are provided in the regulation for the above terms (good cover, poor fish assemblage, etc.). A “special case” stream is an Outstanding Resource Water, is home to a threatened or endangered species, is home to wild trout, or has other exceptional qualities/resources. Id. “Special case” rivers are given the most protection and require site-specific studies. Next, the minimum flow is calculated based

on the size, classification, and location (piedmont, mountain, or coastal) of the river. Minimum flow requirements are determined using the 7Q10 flow, percentage of MAF, regression technique based on wetted perimeter studies, and/or site-specific studies. North Carolina’s river classifications and varied techniques insure a greater amount of protection to rivers that need it without dramatically increasing costs.

A dam that diverts water from less than 4000 feet of a stream bed has the following possible outcomes: (1) 0.8 times the 7Q10 flow or the 7Q10 flow if the stream is “poor”; (2) 3.0 times the 7Q10 flow if the stream is “moderate” or “good” in the piedmont region and the stream’s 7Q10 flow is 6% MAF or less; (3) 2.2 times the 7Q10 flow if the stream is “moderate” or “good” in the piedmont region and the stream’s 7Q10 flow is between 6% and 10% MAF; (4) 1.2 times the 7Q10 flow if the stream is “moderate” or “good” in the piedmont region and the stream’s 7Q10 flow is above 10% MAF; (5) site-specific study undertaken by the owner if he/she disputes the calculated minimum flow; or (6) site-specific study if the stream is “special case” or a “moderate” or “good” river in the mountain region. 15A N.C. Admin. Code 02K.0503 (2008).

<http://ncrules.state.nc.us/ncac/title%2015a%20-%20environment%20and%20natural%20resources/chapter%2002%20-%20environmental%20management/subchapter%20k/15a%20ncac%2002k%20.0503.html>

A dam that diverts water from more than 4000 feet of a stream bed but has a mean annual daily flow of 3.0 cfs or less will result in no minimum required release or in a required release of the 7Q10 flow. 15A N.C. Admin. Code 02K.0502 (2008).

<http://ncrules.state.nc.us/ncac/title%2015a%20-%20environment%20and%20natural%20resources/chapter%2002%20-%20environmental%20management/subchapter%20k/15a%20ncac%2002k%20.0502.html>

A dam that divers water from more than 4000 feet of a stream bed and has a mean annual daily flow of more than 3.0 cfs has the following possible outcomes: (1) 7Q10 flow if the stream is “poor”; (2) flow computed using a regression equation (either with or without a continuous stream gage) if the stream is “moderate” and in the piedmont region; (3) site-specific study if the stream is “moderate” in the mountain or coastal region or is “good”; or (4) site-specific study undertaken by the owner of the dam if he/she disputes the minimum flow. Id. The minimum flow may be decreased in times of drought or increased if the flow proves to be inadequate. Id.

NORTH DAKOTA

A permit for beneficial use of water is required. § 61-04-02

Limit on amount of water: “An individual may not apply for a permit or permits for irrigation which, if approved, would enable the individual, at any one time, to hold a conditional permit or permits for more than seven hundred twenty acre-feet [888106.75 cubic meters] of water which has not been applied to beneficial use.” This does not apply to the Missouri River. § 61-04-03.1

Approving the permit application: “The state engineer shall issue a permit if the state engineer finds all of the following: (1) The rights of a prior appropriator will not be unduly affected; (2) The proposed means of diversion or construction are adequate;

(3) The proposed use of water is beneficial; (4) The proposed appropriation is in the public interest. In determining the public interest, the state engineer shall consider all of the following: (a) The benefit to the applicant resulting from the proposed appropriation; (b) The effect of the economic activity resulting from the proposed appropriation; (c) The effect on fish and game resources and public recreational opportunities; (d) The effect of loss of alternate uses of water that might be made within a reasonable time if not precluded or hindered by the proposed appropriation; (e) Harm to other persons resulting from the proposed appropriation; (f) The intent and ability of the applicant to complete the appropriation.” § 61-04-06

Chapter 61-04: Appropriation of Water:

<http://www.legis.nd.gov/cencode/t61c04.pdf>

OHIO

Possibly relevant articles:

<http://codes.ohio.gov/orc/15>

<http://codes.ohio.gov/orc/61>

OKLAHOMA

Permit required. § 105.9

Approving the application: “(1) There is unappropriated water available in the amount applied for; (2) The applicant has a present or future need for the water and the use to which applicant intends to put the water is a beneficial use. In making this determination, the Board shall consider the availability of all stream water sources and such other relevant matters as the Board deems appropriate, and may consider the availability of groundwater as an alternative source; (3) The proposed use does not interfere with domestic or existing appropriative uses; and (4) If the application is for the transportation of water for use outside the stream system wherein the water originates, the proposed use must not interfere with existing or proposed beneficial uses within the stream system and the needs of the water users therein.” § 105.12

785:20-1-4. Statutory provisions on ownership and use of water:

<http://www.oar.state.ok.us/oar/codedoc02.nsf/frmMain?OpenFrameSet&Frame=Main&Src=_75tnm2shfcdnm8pb4dthj0chedppmcbq8dtmmak31ctijujrgcln50ob7ckj42tbkdt374obdcli00_>

785:46-5-2. Regulatory flow determination:

<http://www.oar.state.ok.us/oar/codedoc02.nsf/frmMain?OpenFrameSet&Frame=Main&Src=_75tnm2shfcdnm8pb4dthj0chedppmcbq8dtmmak31ctijujrgcln50ob7ckj42tbkdt374obdcli00_>

785:46-7-2. Determination and use of regulatory flow:

<http://www.oar.state.ok.us/oar/codedoc02.nsf/frmMain?OpenFrameSet&Frame=Main&Src=_75tnm2shfcdnm8pb4dthj0chedppmcbq8dtmmak31ctijujrgcln50ob7ckj42tbkdt374obdcli00_>

OREGON

Permit required. Ore. Rev. Stat. § 537.130

<https://www.oregonlaws.org/ors/537.130>

“the Water Resources Department shall approve all applications [to withdraw water] made in proper form which contemplate the application of water to a beneficial use, unless the proposed use conflicts with existing rights.” § 537.160(1)

The withdrawal must be in accord with the public interest. Ore. Rev. Stat. §§ 537.150, 537.153

<https://www.oregonlaws.org/ors/537.150>

<https://www.oregonlaws.org/ors/537.153>

“The State Department of Fish and Wildlife may request the Water Resources Commission to issue water right certificates for in-stream water rights on the waters of this state in which there are public uses relating to the conservation, maintenance and enhancement of aquatic and fish life, wildlife and fish and wildlife habitat.” § 537.366(1)

Water right certificates are also available for water quality and recreation or scenic attraction. § 537.366(2), (3)

§537.160: Approval for Beneficial Use:

<https://www.oregonlaws.org/ors/537.160>

§537.336: State Agencies Authorized to Request Instream Water Rights

<https://www.oregonlaws.org/ors/537.336>

PENNSYLVANIA

Title 32: Possibly relevant

<http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/32/32.HTM>

RHODE ISLAND

Title 46: Possibly relevant

<http://www.rilin.state.ri.us/Statutes/TITLE46/INDEX.HTM>

SOUTH CAROLINA

Does not provide significant protection for instream flows

A bill using mean annual flow was never put to a vote in 2008; just let me know if you want the details.

South Dakota

“no person may appropriate the waters of this state for any purpose without first obtaining a permit to do so.” § 46-1-15

“Any application for appropriation of water, pursuant to this chapter, in excess of ten thousand acre feet annually shall be presented by the water management board to the Legislature for approval prior to the board’s acting upon the application.” § 46-5-20.1

<http://legis.state.sd.us/statutes/DisplayStatute.aspx?Statute=46-1&Type=Statute>

TENNESSEE

Title 69: Waters, Waterways, Drains and Levees:

<http://www.michie.com/tennessee/lpext.dll?f=templates&fn=main-h.htm&cp=tncode>

TEXAS

Andrew K. Jacoby, Comment, Water Pressure: The Eightieth Texas Legislature Attempts to Protect Instream Flows of Rivers and Streams, and Freshwater Inflows to Bays and Estuaries, 20 Tul. Envtl. L.J. 381 (2007):

B. Texas Water Law

*385 … Texas employs a riparian rights system to manage its groundwater resources, and a prior appropriation system to manage its surface water resources. [FN16]

A riparian rights system for groundwater is guided by the “rule of capture” allowing a landowner to draw as much groundwater as desired. There are two exceptions to the unlimited withdrawal right. First, a landowner is not permitted to withdraw water in a willfully wasteful manner that injures a neighbor when there is also a malicious intent to injure that neighbor. [FN17] The second exception is that a landowner is not permitted to withdraw in a manner that negligently causes subsidence to *386 a neighbor’s property. [FN18] In effect, the rule of capture does not do much to discourage wastefulness. In adopting this user-friendly groundwater doctrine, the Texas Supreme Court stated in 1904 in Houston and Texas Central Railway Co. v East that underground waters “are so secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would be, therefore, practically impossible.” [FN19]

Unlike the riparian rights system for groundwater, the prior appropriation system for surface water is based on statute, not common law. Under the Texas Water Code, all surface water belongs to the state in trust for the people of Texas. [FN20] The Texas legislature initiated the prior appropriation system via two acts in 1889 [FN21] and 1895, [FN22] after which the right to draw Texas surface water was no longer inherent to landownership, [FN23] but rather dependent on giving notice to the county clerk. [FN24] Water was not allocated so much as staked out by the water consumer. In 1913 the Texas legislature enacted rules that dictated that rather than filing a form, a prospective user must submit an application to seek approval from the state government to use its water. [FN25] The permitting system has evolved, but essentially remains the same. In Texas, to collect groundwater, you need land, a shovel, and a bucket; to collect surface water, you need a bucket and a permit. …

D. Texas Water Law Protection for Environmental Flows

*388 Texas water law lacks an adequate mechanism to protect environmental flows in large part because the Texas legislature historically did not foresee battles over insufficient water resources. Despite Texas’ recurrent droughts, until recently, Texas had no emergency plan to manage dwindling water supplies during dry years. [FN32] Nor did state law ensure that at least some water remained in rivers and flowing to bays. [FN33]

*389 Historically, the prior appropriation system for surface water did not harbor any protection for environmental flows, and the state divvied up water without regard to leaving instream flow to sustain the ecosystem. Specifically, the Texas Water Code protects water extraction. Thus, in spite of litigation attempting to gain water rights to instream flow, [FN42] the Texas Water Code has not allowed for new water rights to preserve instream flows.

*390 Not only does the Texas Water Code not permit new water rights to preserve instream flow, and also the water rights application process did not factor in environmental flows until 1985. Prior to that year, no requirement existed forcing the state to consider the environmental impact as the state doled out water rights to water users. In 1957, the Texas legislature amended the Texas Water Code to establish water plans [FN43] to provide “orderly development, management, and conservation of water resources and preparation for and response to drought conditions.” [FN44] Collectively, however, these periodic amendments to the Texas Water Code and the Texas Constitution did not result in sufficient protection of Texas rivers, streams, estuaries and bays. …

IV. House Bill 3, 80th Legislative Session

*397 In early February 2007, Texas Representative Robert Puente of San Antonio [FN83] submitted House Bill 3 (H.B. 3) to the Texas legislature. [FN84] H.B. 3 closely resembled the 2005 Water Bill, but with one major exception: the system by which Texas manages its environmental flow protection. The design of the system is where the rubber meets the road (or, perhaps, where the paddle meets the stream) for environmental protection.1

Under H.B. 3, committees and science teams from each basin would recommend a system for environmental flow protection. A single state-wide Advisory Group would make key appointments, keep the Texas legislature abreast of committee and team activity, [FN85] and issue its own recommendations to the final arbiter, TCEQ. The composition of the Advisory Group would be critical–a lopsided commission of either environmentalists or industry and municipal representatives could tilt policy heavily enough in one’s favor at the expense of the other. The political maneuvering has already begun. [FN86]

1 please note that House Bill 3 did become law in 2007; see, e.g., the date of enactment for Tex. Water Code Ann. § 11.02362.

Under H.B. 3, local basin and bay expert scientific teams (Basin Science Teams) would work together with an overarching statewide team of scientific experts (Texas Science Advisory Committee). [FN87] These Basin Science Teams would develop and submit to TCEQ environmental flow *398 regime recommendations (EF Regime Recommendations). [FN88] Each basin would also have a committee of basin and bay stakeholders (Basin Stakeholder Committee) which would comment and make recommendations to TCEQ with regard to the EF Regime Recommendations. [FN89] TCEQ would then adopt a regime for each river basin and bay system. [FN90]

A. Regime Change

In H.B. 3′s environmental flow protection system, power would flow top down. That is, state politicians would have appointment power of key positions, along with removability power for some. [FN91] Management would rest primarily with Texas’ Environmental Flows Advisory Group (Advisory Group), [FN92] which would in turn be appointed by three Texas politicians. [FN93] The Advisory Group’s duties would include: (1) determining the geographical boundaries of each basin; [FN94] (2) developing schedules for EF Regime Recommendations; [FN95] (3) appointing the Basin Stakeholder Committee members; [FN96] (4) appointing the Texas Science Advisory Committee (TSAC); [FN97] (5) considering for approval the Basin Stakeholder *399 Committees’ ongoing work plans; [FN98] (6) receiving reports from TCEQ, TPWD, and TWDB regarding flow recommendations and implementation of flow plans; [FN99] (7) reporting activities to the Governor, lieutenant Governor, and speaker of the house; [FN100] and (8) submitting comments to TCEQ during review of EF Regime Recommendations. TCEQ ultimately would adopt and promulgate the regime and standards. [FN101] Thus, the Advisory Group would act as a conduit of information from the Texas political leadership to the policy makers at TCEQ.

The environmental flow protection regime would not be well-insulated from politics. The Advisory Group itself would be composed entirely of political appointees. [FN102] The Advisory Group would have nine members. [FN103] The first three would be appointed by the Governor. [FN104] The Governor’s three appointees would be consistent with section 11.0236(c), which states that one appointee would be from TCEQ, one would be from TWDB, and one would be from the TPWD. The next three would be appointed by the Lieutenant Governor, and all three would come from the Texas Senate. [FN105] The final three members would be appointed by the Speaker of the House of Representatives, and all three would come from the Texas House. [FN106] All appointments would be made by only three politicians, and thus happenstance of political leadership could lead to representation for narrow constituencies, rather than a more politically-neutral process that would represent broader interests.

The Advisory Group members would serve at the pleasure of the person who appointed them. [FN107] While removability would add an element of accountability, the structure also would subject the member to additional direct political influence that could draw them away from their expert impartiality. An appointee whose position is subject to a Governor’s whims would likely find it difficult to muster the courage to *400 act inconsistently with the Governor’s political inclinations, especially since water issues are so politically charged. Effectively, the removability provision elevates political loyalty over evenhanded basin management.

The political makeup of the Advisory Group would affect the composition of the Basin Stakeholder Committees, which are appointed entirely by the Advisory Group, for five year terms. [FN108] These appointments would be subject to a flexible rule under which various industries, water users and environmental interests must be represented. [FN109] Under this rule, a minimum of seventeen stakeholders must form each Basin Stakeholder Committee, with fourteen of the positions being earmarked for specific kinds of stakeholders. [FN110] Overall the Texas Water Code would allocate positions for representatives of water users, to the detriment of those interested in preserving in-stream flows. With water consumers weighing heavily, the likely result would be that EF Regime Recommendations would lean towards water consumption, with too little environmental protection for rivers and streams.

Each Basin Stakeholder Committee would appoint a basin and bay expert science team. H.B. 3 affords much discretion in the appointments, with little direction in the process beyond that the Basin Science Team should be “composed of technical experts with special expertise regarding the river basin and bay system or regarding the development of environmental flow regimes.” [FN111] The Basin Science Team members would serve five year terms. [FN112]

The environmental flow regime, as set forth in H.B. 3, calls for the Basin Stakeholder Committees to submit recommendations to the TCEQ. *401 These recommendations would supplement and respond to the EF Regime Recommendations submitted earlier to TCEQ by the Basin Science Team. As noted above, the Advisory Group would submit to TCEQ comments on the Basin Stakeholder Committee’s recommendations. Approval power with respect to environmental flow standards would rest with TCEQ (which would rely on the Texas Science Advisory Committee for scientific support). Standards would be finalized on a basin by basin level.

The Advisory Group would appoint the TSAC to make recommendations to the Advisory Group concerning flow programs at Texas’ agencies and basin science team activities. [FN113] The TSAC would provide “an objective perspective and diverse technical expertise, including expertise in hydrology, hydraulics, water resources, aquatic and terrestrial biology, geomorphology, geology, water quality, computer modeling, and other technical areas pertinent to the evaluation of environmental flows.”

[FN114] The TSAC would work closely with each basin science team, with TSAC appointing one nonvoting liaison as a member of each Team. The liaison would “facilitate coordination and consistency in environmental flow activities throughout the state.” [FN115] The TSAC would report on Basic Science Teams’ recommendations to the Advisory Group. [FN116]

The TWDB, TCEQ, and TPWD would also delegate representatives as nonvoting members to the Basin Science Teams to “provide technical assistance to each basin and bay expert science team . . . [and] to facilitate the development of environmental flow regime recommendations.” [FN117]

B. Sunlight Provisions

H.B. 3 proposes a system to develop basin wide plans to protect Texas rivers, streams, bays, and estuaries. Although this plan would be poised to bend in political winds, H.B. 3 includes provisions that would help offset the political character slightly. H.B. 3 would feature sunlight provisions requiring that deliberations be public for Basin Science Teams, [FN118] Basin Stakeholder Committees, [FN119] and the Advisory Group. [FN120] *402 The Texas Science Advisory Committee would not have a public hearing provision.

Coupled with the cross-membership between the Texas agencies, Basin Science Teams, Basin Stakeholder Committees and the Advisory Group, the sunlight provisions assure that Texas water policy would not be created in secret. With much of water law taking place off the ordinary Texan’s radar, such an open policy is welcome in that it would encourage newspapers to report on water issues, and it would allow concerned citizens to participate in the debate. The sunlight provisions would make it harder for any particular stakeholder to be shortchanged in the process.

C. No New Water Rights for Instream Flows

The H.B. 3 reform proposal states that TCEQ “may not issue a new permit for instream flows dedicated to environmental needs or bay and estuary inflows.” [FN121] This provision would remove any doubt that environmental organizations cannot apply for new water rights to dedicate to the Trust for environmental flow protection (a direct legislative response to the SMRF application). [FN122] Precluding new environmental flow water rights statutorily would ease the work of city planners. That is, planners would not have to contend with large blocks of water declared off limits by new inflow water rights. H.B. 3 would allow TCEQ to amend an existing permit “to change the use to or add a use for instream flows dedicated to environmental needs or bay and estuary inflows.” [FN123] At the moment, there appears to be no incentive for a water right holder to amend a permit for instream flow, and it is unlikely that this provision will trigger a waterfall of amended permits for instream flows.

The SMRF application was a unique attempt to establish a base minimum flow in the Guadalupe River, but its achievement would have

left growing cities high and dry. The absolute nature of such a right would not allow for compromise in times of drought. Nor would such an instream right accommodate future development along the river, development that could, arguably, be managed in such a way that does not compromise environmental flows. It is good governance to preclude blanket instream flow protection of new water rights, but there is a *403 meaningful absence of strong alternative environmental flow protection in H.B. 3′s remaining provisions.

D. Environmental Set-Aside

H.B. 3 would set aside water for environmental purposes in rivers that have not been fully appropriated. [FN124] Although the final calculations have not been made, few rivers would likely meet this criteria, and thus few would have water set aside. [FN125] For rivers which lack enough unappropriated water to set aside to meet environmental flow standards, “a variety of market approaches, both public and private, for filling the gap must be explored and pursued.” [FN126] H.B. 3 would not expropriate by removing water from existing water rights to serve environmental flows. H.B. 3 differs from the 2005 Water Bill in the addition of the qualifying term “market,” which would restrict solutions to the realm of water marketing. There are no funding provisions complementing the set-aside provision, and state purchase of water rights on the market for deposit into the Trust would be highly unlikely.

On the other hand, H.B. 3 would leave the onus to protect rivers, streams, bays, and estuaries on private parties with an interest in environmental flows. That is, if environmentalists and fishing organizations want to protect flows, they would have to buy water rights from private water rights holders, then donate those rights to the Trust. If this arrangement results from H.B. 3, the stakeholders for preservation (which includes everyone from tubing/canoeing companies to fisherman to industries that depend on healthy bays) would need to pool their resources to secure water rights.

E. Texas Water Trust Provisions

H.B. 3 would remove impediments to transferring and leasing water rights to the Texas Water Trust. This would include fees, [FN127] cost assessments, [FN128] and expenses [FN129] for donations and long-term leases. [FN130] The purpose here would be to encourage transfers to the Trust by reducing costs for the donor. Water in the Trust would be actively protected as *404 environmental flow by giving standing to TPWD to file suit as guardian of the Trust’s water rights.

For the water rights holder, these provisions would be beneficial because a rights holder who does not use up his allocated water was previously susceptible to rights cancellation. But per H.B. 3, his rights would not be subject to cancellation if the unused water is loaned to the Trust.

F. Environmental Set-Aside Set-Aside (Emergency Provisions)

In times of heavy rainfall, water is plentiful and environmental flows need little protection. In times of drought, though, protection for environmental flows is at its most critical. According to H.B. 3, water set aside for environmental flows “may be made available temporarily for other essential beneficial uses if the commission finds that an emergency exists that cannot practically be resolved in another way.” [FN131] Moreover, “all permit conditions relating to [environmental flows] must be subject to temporary suspension if necessary for water to be applied to essential beneficial uses during emergencies.” [FN132]

The result of these provisions is that environmental flow standards would be compromised during droughts, and water right permits with environmental flow conditions could have those conditions (environmental safeguards) removed in time of emergency. Setting aside for a moment what would constitute an “emergency” (the beginning and end dates of droughts cannot easily be determined), safeguards that can easily be set aside when they are needed most are not safeguards. Indeed, set-aside provisions that can be easily set-aside are impotent protections. Under H.B. 3, TCEQ would determine when an “emergency” exists. These provisions would facilitate water management during a drought, and thus constitute a tool for city planners. This is a significant attribute of the proposed emergency provisions. However, the benefit would be gained at the cost of instream flow and freshwater inflow protection, and would render ineffective H.B. 3′s environmental safeguards.

Sec. 11.02362. DEVELOPMENT OF ENVIRONMENTAL FLOW REGIME RECOMMENDATIONS

<http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.11.htm#11.02362>

UTAH

Jesse A. Boyd, Hip Deep: A Survey of State Instream Flow Law from the Rocky Mountains to the Pacific Ocean, 43 Nat. Resources J. 1151, 1188-92 (2003):

Utah’s maiden venture into statutory instream flow protection can be found in section 73-3-3(11)(a) of the Utah Code, which states that,

[i]n accordance with the requirements of this section, the Division of Wildlife Resources or Division of Parks and Recreation may file applications for permanent or temporary changes for the purpose of providing water for instream flows, within a designated section of a natural *1189 stream channel or altered natural stream channel, necessary within the state of Utah for: (i) the propagation of fish; (ii) public recreation; or (iii) the reasonable preservation or enhancement of the natural stream environment. [FN204]

Also, the state engineer cannot approve an appropriation or permanent change application without first determining that the proposed appropriation or change will not “unreasonably affect public recreation or the natural stream environment, or…prove detrimental to the public welfare….” [FN205] “Any person interested may file a protest with the

state engineer,”

[FN206] and “[t]he state engineer shall consider the protest and shall approve or reject the application.” [FN207]

<http://le.utah.gov/~code/TITLE73/htm/73_03_000300.htm>

VERMONT

Title 25: Navigation and Waters, Ch. 3: General Provisions

<http://www.leg.state.vt.us/statutes/sections.cfm?Title=25&Chapter=003>

VIRGINIA

Title 62.1-248:

<http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+62.1-248>

WASHINGTON

The Department of Ecology may “establish minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same.” Wash. Rev. Code § 90.22.010.

<http://apps.leg.wa.gov/rcw/default.aspx?cite=90.22.010>

However, these minimum flows cannot affect existing use or storage rights. Wash. Rev. Code § 90.22.030

<http://apps.leg.wa.gov/rcw/default.aspx?cite=90.22&full=true#90.22.030>

WEST VIRGINIA

Ch. 22: Environmental Resources

<http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=22&art=1>

WISCONSIN

Permits required. Wis. Stat. § 30.18(2)

“The department shall approve an application for a permit … if the department determines both of the following: (1) That the proposed withdrawal will not injure any public rights in navigable waters; (2) That the water to be withdrawn is surplus water, or if it is not surplus water, that all riparians who may be adversely affected by the withdrawal have consented to the proposed withdrawal.” § 30.18(5)(a)

“If after examination and investigation the department determines that it is necessary to raise water elevations in any navigable stream or lake for conservation purposes, the department may … determine and establish the elevations to which the water may be raised or maintained.” § 30.18(8)

Ch. 30; Scroll to 30.18:

<http://www.legis.state.wi.us/statutes/Stat0030.pdf>

WYOMING

Title 41-1:

<http://legisweb.state.wy.us/statutes/statutes.aspx?file=titles/Title41/Title41.htm>

 


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