Advocates for Water as a Public Trust Resource Prevail
(For the Time Being)
In the final hours of the development of the state Water Plan, opposition arose to the principle that water is a public trust resource (see below). But a rapid response campaign by the public and state Senate Democratic leadership led the Water Planning Council to vote to retain the public trust language that opponents had sought to delete.
This is likely to be only the first skirmish in a longer war. Rivers Alliance is fully involved. Call or email us with any questions or suggestions: 860-361-9340 or firstname.lastname@example.org
Does Water in the State of CT Belong to the People of CT?
You May Not Find the Answer in the State Water Plan.
The CT State Water plan has hit an astonishing roadblock right before it is due to go to the General Assembly for consideration. Public comment on the draft plan emphasized the importance of the concept that water is a public trust resource: it belongs to the public and is held in trust by the state, which must manage it in the best interests of the public. According to Kirk Westphal, the consultant most knowledgable about the plan: "... the plan simply acknowledges the existence of the current statute, lists the issue as one that warrants further discussion, and introduces the concept in the section on balance in the Sxecutive Summary ('each person is entitled …'). The plan makes no effort to advocate for, interpret, or prioritize this issue." A link to his excerpts is below.
The Dept. of Public Health (DPH), CT Water Works Association (CWWA), and others immediately launched a campaign in opposition to this concept (link to their letter below). Senators Len Fasano and Kevin Witkos also oppose this concept and insist that references to the public trust concept (see link to their letter below) should be deleted.
The state comprehensive water plan is due to go to the legislature in February. Final edits were to be done Friday, Jan. 19, in a meeting of the Water Planning Council. That meeting was rescheduled to Tuesday, Jan. 23, 2018, at 10:30 a.m., at the offices of the Public Utilities Regulatory Authority, Ten Franklin Square, New Britain, Connecticut. The purpose of the meeting is to vote on the finalization of the Draft State Water Plan. The meeting will be open to members of the public, but participation will be limited to the members of the WPC. For those not attending in person, the Call-in Number is 888-658-6260 and the Participant Code is 7094124.
Please write to the CT State Water Planning Council at email@example.com by the end of Monday, Jan 22, to re-emphasize your support for the inclusion of the principal that water is a public trust resource.
FOR THE WATER PLANNING COUNCIL
PUBLIC HEARING TESTIMONY OF RIVERS ALLIANCE OF CONNECTICUT
The development of a state water plan (the Plan) presents a unique opportunity for the people of Connecticut, to protect our valuable natural waters for our own and for future generations.
It is our responsibility not only to move this Plan forward but to be sure that it is consequential. The Plan does a good job of identifying problems. But that is not enough. These problems are already familiar; after all, it was these very problems that led the General Assembly to mandate creation of the plan. The Plan must propose precise means to solve these problems in a timely manner.
Last week, at an agency presentation of the plan in Westport, a resident asked: if this plan is adopted, what will change? The answer was: Nothing will change. He asked: How can we advocate for it then?
Rivers Alliance is advocating for the plan as a platform on which change can be based. Not change in the undefined future, but change in the close future, including the 2018 legislative session. There is no good reason to keep postponing better protection of state waters.
Here are several of the issues that could and should be addressed with urgency.
Drought: Since before 2000, the state and all stakeholders have recognized that Connecticut does not have an effective or comprehensive program for responding to drought. Draft drought plans have been in the works nonstop. None are comprehensive. None have been adopted. Efforts by legislators to reform aspects of drought response inevitably fail because we do not even have consistent definitions of levels of drought or consensus on who should do what. Get this fixed. Please.
Water Governance. Responsibility for water stewardship is extremely fragmented at both the state and local levels of government. In 2001, the Connecticut General Assembly created the Water Planning Council in the hope that it would bring some order to the situation. But the Council (which consists of DEEP, PURA, DPH, and OPM) was only given authority to submit an annual report; in 2014, this authority was extended to development of the Plan, which is to be submitted to the legislature; thus, the Plan is a kind of super report. There is no governing structure for the Council, no rules for decision-making. On this issue, the Plan and the Council itself express quite clearly that prompt action is needed.
Dried Up Streams. Since 2014, it has been the stated goal of Rivers Alliance that, under the Plan, it shall no longer be legal to dry up streams. Many of our streams suffer artificial drought every year. Some are reduced to a trickle; a few show bare stream beds. Our state gets on average approximately 50 inches of rain each year. This is a water fortune. So why are people asked to choose between water in the faucet and water in their streams?
Groundwater Pumping. A major source of water supply is groundwater, and, going forward, groundwater will be used in greater and great volumes; it is easier and cheaper to access. Nevertheless, there is nothing in our streamflow-protection regulations that limits groundwater pumping. That portion of the regulation was stripped out in response to political pressure. At the time (2012), leading legislators promised to take up the problem in the next session. The science is clear: excessive groundwater pumping draws down surface water and kills aquatic wildlife. There is no need to tolerate this kind of harm in this state.
Registrations. Since 1982, utilities and others taking water were exempted from environmental regulation of those diversions if they registered with the state the amount they were using or were likely to use. Under this compromise law (Water Diversion Policy Act), there was and is no requirement that the sources registered as used actually could yield the amounts registered. There is nothing to stop a registered user from egregious abuse of sources. Legislators first became aware of this problem around 2000, when multi-town litigation over the Shepaug River was in progress and DEEP (then DEP) submitted a report documenting that the great majority of diversions and of the water volumes diverted were exempt from oversight or limits. Among the numerous other problematic cases have been the increased impoundment of the Mill River in New Haven, the desiccation and fish kill in the Fenton River at UConn, and the similar desiccation of the Copper Mine Brook trout stream in Bristol. As long as most of our water is allocated for use with no environmental limits, we will not be able to protect natural waters in Connecticut.
Water Bottling and Other Large-Volume Water Sales. The controversy that flared up in Bloomfield over sales of public water to a private bottling company is one of the many critical spin-offs of the registration system. To have credibility, the Plan cannot be silent or evasive on this issue.
The Benefits of Healthy Natural Waters. The Plan should include a clear statement of why so many people in Connecticut value their natural waters and want them protected. Detail the benefits to the world around us and to our individual health and wellbeing.
Balance. The Plan prominently calls for balance in water policy and practices. However, if the balance in question is between environmental protection and societal claims on water, then we are starting in a situation of stark imbalance. Balance should not mean that we start with the status quo and that, thereafter, each step to protect natural waters must be balanced with a step to get those waters out of the natural environment and into a pipe. We define “balance” as an ongoing condition of sustainability, such that preservation of waters in the public trust coexists with human health and societal wellbeing. The Plan verges on this principle in its positive references to the “triple bottom line.” The term refers to a balance in public and private policies between three sectors usually identified as People, Planet, Profits (the human race, the natural world, private businesses).
Public Access to Water Data. In 2003, water utilities successfully supported sweeping exemptions from the Freedom of Information Act for their data. Together with the Department of Public Health (DPH), water companies redacted, deleted, or otherwise withheld from the public all information on the location, safe yield, and margins of safety of their sources. In a series of challenges by Rivers Alliance, the water companies’ rights to data secrecy were upheld by the Freedom of Information Commission. Prior to the start of work on the comprehensive state Water Plan and on the parallel plans being developed by Water Utility Coordinating Committees (WUCCs), Rivers Alliance and other organizations maintained that no policy decisions relating to allocation and management of the public’s water should be approved unless the public had the chance to see the underlying data. In 2016, compromise legislation was passed that seemed to give the public access to this basic utility data. However this month (October 2017), DPH stated at a meeting of the Water Planning Council that its attorney and the attorney for the Department of Administrative Services maintained that the adverse rulings in the Freedom of Information Commission (mostly in 2010) still were legally binding. The case that precipitated this conclusion was a request by Save Our Water to see the supply plan of the Metropolitan District Commission. Redacted material included the all-important calculations of safe yield, which are essential to calculating margins of safety. THERE IS NO POINT IN ASKING THE PUBLIC TO PARTICIPATE IN OR ACCEPT WATER PLANS IF THE DATA ON WHICH THE PLAN IS BASED CANNOT BE SEEN BY THE PUBLIC.
Margaret Miner, Executive Director
Rivers Alliance of CT
FOR THE WATER PLANNING COUNCIL
PUBLIC HEARING TESTIMONY OF RIVERS ALLIANCE OF CONNECTICUT
We are alarmed at the number of negative references and wording that implies implementation of the 2011 stream flow regulations will be a bad thing for our state’s water resources.
During the Plan’s drafting, we noted the constant use of the negative sounding “impacts of stream-flow regulations.” We suggest the use of more neutral phrasing, such as, “effects, good and bad, of stream-flow regulations.” If the Plan is really “balanced” it should be using neutral language.
Whenever real or potential water shortages are discussed, instream flow requirements are always identified as the culprit, suggesting if we could only eliminate this requirement there’d be enough water. Why isn’t water conservation included as a potential way of increasing supply? We know that dramatic savings can be achieved by an aggressive water conservation program and this should be presented as a viable method of meeting water supply demands instead of sacrificing stream health as the first option.
There are a few mild acknowledgements that water must be reserved for healthy rivers and the aquatic resources they support but nowhere is there a discussion of the benefits of the stream-flow regulations, recognizing ecological benefits for the whole river system, along with recreational benefits and economic benefits. A balanced water plan should include recognition that implementing the 2011 stream flow regulations will have benefits.
An Omission: Section 5 on Future Water Data Needs does not include instream flow studies or stream gauges. Both are critical to understanding our water resources and should be included as data needs.
Water is a Public Trust Resource:
I’ve attended many of the meetings while this Plan was being drafted and also served as a member of the policy work group. I commend everyone who’s worked and already commented on the Plan—the hard work and time contributed from people who care deeply about our state’s water resources is amazing.
However, I’m wishing there was a clearer overall theme to this water plan. While the stated goal is to “Balance the use of water to meet all needs,” it isn’t clear how everything in the Plan will accomplish that goal. The Plan feels kind of impersonal.
Why aren’t we emphasizing and talking more about water as a public trust resource? Why aren’t we explaining to everyone that this is their resource too, that water belongs to everyone in the state and to our collective futures, and the future beyond our lives? The very wise, and now sadly missed Russ Brenneman once said, “the public trust is not merely a legal doctrine but a state of mind that suggests how we might wisely and ethically look at resources.”
Declaring that water belongs to everyone should be emphasized, and mentioned frequently in the Plan, to make it a clear overarching theme, or “state of mind” that we all have a stake in water planning, and the Plan is about us and our futures.
Martha Smith, Policy Director
Rivers Alliance of CT
FOR THE WATER PLANNING COUNCIL
PUBLIC HEARING TESTIMONY OF RIVERS ALLIANCE OF CONNECTICUT
The draft State Water Plan contains summaries of the huge amount of data available on water in Connecticut, yet it is clear that even more data, updated regularly, is needed to plan for Connecticut's water. Consistent, transparent, and reliable use of presently available and future additional measurements and estimates of our state’s water will be required. A unified system of presenting water data and calculating the results of change over time, if available to all participants in the water planning process, is critical to the management of this public resource. It would enable us to quickly resolve disagreements over the possible effects of water management options and move to consideration of which options provide the greatest public good.
In the basin summaries and other data projections the margin of error is large, often in the range of 30 percent. Gathering additional data will make these summaries more accurate. However, their usefulness is limited by the fact that the basins studied are the 44 regional basins. Most people and planners must deal with a more local scale, that is, the subregional basins. But since these number about 357, resources and data were not available to work at this scale.
“CDM Smith’s Simplified Water Allocation Model (SWAM) … was originally developed to address an identified need for a networked generalized water allocation modeling tool that could be easily and simply applied for planning studies by a wide range of end-users.”
Whether the right answer is SWAM or something developed by another company or by a state agency, it is clear that something of this sort should be accessible to everyone involved in water planning. CDM Smith reported that the model is available (in another state) to any organization that gets training on its use, a reasonable limitation. The results of anyone's various model runs can become publicly accessible, a necessary component when considering a public resource. If watershed associations, Councils of Government, town officials could all use the system to try out possibilities with an expectation that the model results would actually represent reality, consensus regarding water management will be streamlined.
For example, increasing the number and size of interconnections between water systems is mentioned often in the materials published by the three Water Use Coordinating Committees (WUCCs) as a potential way of improving water supply emergency reliability, to address future changes in water consumption, to alleviate the results of drought conditions and to address contamination of supply sources. With a publicly available model such as SWAM, the effects of interconnections could be predicted in a way we all could agree on. Of course a computer program cannot predict if a particular decision is the best course of action, that’s what committees are for. But if all parties concerned were able to say "Yes, that is what WOULD happen if we...." then the debate can move on to applying public policy to decide if that is what SHOULD happen.
We recommend that the Plan specifically call for creation of a system and training in SWAM or a similar program to make the research useful at the more local level.
Tony Mitchell, Science Department
Rivers Alliance of CT
The following commentary was not submitted to the state as formal comments, but was made available here to aid river advocates in consideration of the Water Plan. Much of this was included in Rivers Alliance formal comments above, and we appreciate all the groups and individuals who considered our viewpoints and submitted their own comments to the Water Planning Council.
RA Commentary on PRIVATE RESIDENTIAL WELLS
in the draft Water Plan
Approximately one quarter of Connecticut residents get their water from private residential wells. Residential wells are spread across the state in mostly rural and suburban areas making management as a water resource challenging.
The state Department of Public Health, working with local Health Districts, provides the majority of regulatory oversight for these wells. While drinking water quality rules are established, there is no requirement for testing after a well has been installed. Looking at the water quantity side of private wells, with no required pumping data, quantities used by private well owners can only be rough estimates. Much of the actual data for private wells either is not available or has not been converted to useful digital formats. Consequently, the role private wells play in the use Connecticut’s water resources is murky, at best.
More Education: Recommendation for more effort educating private well owners on best practices
Digital Well Reports: Requiring well completion reports in a digital format, and converting older reports into a digital, searchable format.
Periodic Water Testing: Recommendation for a water quality testing and reporting program for private wells.
The first two recommendations are very doable, not expensive, and would be a big step forward in understanding the private well component for any state wide water resource evaluation. We feel there should be more urgency in moving forward on these.
Periodic Water Testing: The requirement for water quality testing of private wells is critically important to ensure public health, but is not discussed in detail and with enough urgency. We think this might be because more testing is expensive and may lead to discovery of expensive problems. What do you do if you find out your well water is no longer safe to drink? Potential costs are one reason why both home owners and regulatory agencies are reluctant to do periodic water quality testing.
We believe people should know they have a safe water supply to keep their families healthy. Exploration of cost effective ways to test private wells should be proposed in the Plan. For instance, local health districts could offer information and support for homeowners to collaborate and negotiate a group rate for testing.
Who should be part of this discussion? Certainly the private well owners, but we note their omission in the Plan recommendations to bring; “Homebuilders, real estate associations, and laboratories” into the discussion about private well testing and water quality reporting (p. 5-69).
Outreach to Private Well Owners: While outreach to well owners for best practices is proposed in the Plan, we are concerned it may be passive outreach, such as a website. A more vigorous outreach program needs to be included, especially considering the large percentage of Connecticut residents who rely on their own well for water supply. While wells likely fall into most homeowners’ concern only if they are “broken;” educational messages about preventing contamination and understanding that ground water is a shared resource need to be emphasized. Also as noted above, well owners should be included in any discussions about residential water quality testing.
Water Supply Protections: Private residential well owners do not have any legal protection if a nearby well pumps the local groundwater source dry. This should be acknowledged in the Plan, along with suggestions to move forward to find a solution.
RA Commentary on WATER REGISTRATIONS in the draft Water Plan
Here are a few topics Rivers Alliance of Connecticut feels are important and should be commented on related to WATER REGISTRATIONS in the Plan. We hope this will help you in formulating comments of your own. Rivers Alliance of Connecticut stands ready to answer any questions you may have relating to the Plan. Email firstname.lastname@example.org.
REGISTRATIONS: Registered Water Diversions (“Registrations”) were established in 1982-1983 (under the Water Diversion Policy Act). The Registrations are grandfathered rights to take (divert) large amounts of water. (A “diversion” is any artificial alteration in a water body, whether by damming, pumping groundwater, gravity-piping, etc.). The law was meant to protect natural waters via a permitting requirement for diversions in excess of 50,000 gallons per day; the required permit includes a strict environmental review. (The quantity requiring a permit is any quantity in excess of 50,000 gallons per day.) But an unfortunate compromise in the law provided an exemption from the permitting process for all existing diversions registered with the state by the user. These registered diversions, or “Registrations,” account for more than 80 percent of the number of water diversions under the state’s permitting system. Frequently, the quantities authorized in a registration exceed the water in the source. It is in fact legal in Connecticut to pump a river dry. There is no environmental review and no legal recourse.
GOOD: The Plan strongly recommends that obsolete registrations should be taken off the books as a potential water demand. For example, on paper it might appear that, because of a registration, there is no water available in a given aquifer. But, in fact, the registration may be obsolete or unusable. An example would be a registration for agricultural irrigation, but now the farm and farmer are long gone; a residential subdivision has replaced the farm. That registration should be taken off the books. (There is less agreement over whether “unused” registrations should be retired because these allow diversions that the water utility or other registration holder might want to use in the future.)
BUT: The draft Water Plan tiptoes quietly around the fact that Registrations are a major roadblock to good water resource planning. Almost all major water conflicts in Connecticut have involved registrations, and these conflicts are the main reason the state decided that a comprehensive water plan is needed. Over and over in the Plan, when Registrations are mentioned, they are acknowledged as an obstacle to understanding or solving an issue. But the Plan is weak on recommendations for removing or breaching this roadblock. Here’s a review of several of the policy areas in which Registrations are problematic.
Conservation: Registered water diversions are not required to implement water conservation measures.
Ecological Needs: Registered water diversions were granted with no environmental review and allow pumping volumes that dry up streams. There is still no process for environmental review now.
Regional Water Planning: A number of the regional basins are shown with critical water needs. Some basins have real water deficits that need to be addressed and others do not, but because of registrations included as water claims, realistic planning cannot proceed.
Public Trust Resource: There is no discussion that water is a public trust resource, held in trust by the state for the benefit of current and future uses. When registrations are regarded as “carved in stone” claims on water resources, but no longer benefit current or future uses, the state is not conducting responsible management of our public trust water resources.
No “Pathway Forward” Proposed: Lack of any discussion of revisions to or retirement of registrations in the draft Plan, because it is a politically difficult issue, means the draft Plan does not seriously address improvements in future water resource planning. If we can’t address current problems, how will the draft Plan help us going forward? The Plan needs a bold and brave proposal for a commission to study and prepare a plan recommending how to retire registered water diversions.
RA Commentary Regarding CONSERVATION OF WATER
in the Draft Water Plan
In this section, we offer our ideas on some of the key issues regarding CONSERVATION OF WATER in the draft Water Plan. Our comments are based on references to water conservation in the Plan. We hope this will help you in formulating comments of your own. As always, Rivers Alliance stands ready to answer any questions you may have relating to the Plan.
GOOD: The draft Plan has a unanimous goal of encouraging water conservation. Yay! Everyone likes conservation! (We, of course, feel that conservation of natural waters is as important as conservation of water running in pipes.)
BUT: We find the following areas in need of improvement if the goal is a robust and effective water-conservation policy.
Conservation Effort: The Plan is biased toward modest water-customer conservation efforts, led by the water utilities. But water use by customers has dropped significantly (about 12 percent) in recent years. And, since water conservation normally means less revenue for water utilities, one can hardly expect an energetic and enthusiastic conservation program with utilities in the lead.
Water Conservation Pricing: One promising approach to water conservation that does not unduly stress water utilities is water pricing that separates the direct connection between volumes of water sold and revenue gained. The approved water rate is sufficient for infrastructure maintenance. This is sometimes called “decoupling.” Connecticut has adopted decoupling provisions for private water companies. Public utilities have not been enthusiastic. They do not want state rate regulation.
Drought Planning. Connecticut has been working on an updated drought plan for more than 10 years. There is universal agreement that we need a plan that provides for fair and prudent water management in times of drought (such as the summers of 2015 and 2016). But in the state draft Plan, there is no urgency with respect to moving a state drought plan forward for approval. It is critical to have a better drought plan in place before the next drought.
Water Conservation and Ecological Health: The Plan states that droughts or other water shortages that harm streams must be addressed in planning. Having water available in pipes while streambeds are dry is not acceptable. But, in general, there is little emphasis on using conservation measures to protect natural streams. Taken as a whole, the Plan implies that meeting instream or ecological needs will be difficult or impossible, as if the impracticality of saving high-quality streams is a foregone conclusion.
Municipal Conservation Efforts: The draft Plan gives only slight attention to the role of municipalities and the need for adoption of enforceable municipal water conservation measures. This is important in times of drought and emergency as water utilities have no enforcement powers. The state governor has authority (yet to be exercised) to declare a statewide drought emergency. But often drought and water emergencies occur on a local or regional scale. A local lawn-watering ban might be what is needed, enforced by the municipality. But if the town hasn’t enacted an emergency water conservation ordinance, it can’t enforce a lawn-watering ban or any other water conservation measures.
Water Conservation = Energy Conservation: The Plan needs to give more attention to the relationship between water conservation and energy conservation. Energy is used to treat water before distribution, during distribution, and for wastewater treatment after use. Water is used for cooling power facilities and delivering hydropower. One of the most effective approaches to conserving water and energy is to control peak demand. Entire streams are diverted and power plants built to meet demand in peak-use times. For example, a hydro facility may impound a river year round so that the plant can supply a small amount of electricity for, say, three months of the year.