On April 15, the Judiciary Committee of the General Assembly passed unanimously Bill 6557, AAC LIABILITY FOR THE RECREATIONAL USE OF LANDS. This bill reforms current law so that towns and water authorities will be able to keep their lands open to the public without fear of unwarranted litigation.

 The bill says that towns will have the same protection that is afforded the state and private property owners who open their lands to the public free of charge. The vote in the Judiciary Committee was preceded by several weeks in which it was not at all certain that the bill would move forward. It took long hours and political skill to get this outcome. Passage was the result of a wide and deep advocacy effort by hikers, bicyclists, and boaters, as well as business people, town officials and legislators. Our legislative champion was Rep. David Baram, now joined by more than 60 sponsors. The immediate cause of public concern over recreational liability arose in mid-summer 2010, when a jury awarded $2.8 million to bicyclist who had crashed into a gate on the property of the Metropolitan District Commission (MDC) in 2002. MDC reacted by threatening to close its extensive lands and trails. There was an enormous public outcry, and a really big campaign was born. The leaders included Appalachian Mountain Club, Connecticut Land Conservation Coalition, Connecticut Forest and Park Association, Rivers Alliance, Save Our Connecticut Trails, and Sierra Club Connecticut Chapter. Hundreds of people from around the state called and emailed legislators. The groundwork for the campaign was built three months earlier in the Conference on Recreational Liability originally proposed by Rivers Alliance in response to worries among members concerning liability exposure when planning or participating in river events. Attorney Beth Critton of the Appalachian Mountain Club played a key role. Click here for a report on the issues and advice covered in the conference. It is still relevant. We must remain vigilant. Something could still go wrong. But Bill 6557 is in the home stretch well in the lead.

TESTIMONY FOR THE EXECUTIVE AND LEGISLATIVE NOMINATIONS COMMITTEE PUBLIC HEARING, MARCH 10, 2011

To: The Chairmen, Sen. Martin Looney and Rep. Claire Janowski And to the Members of the Committee:

RE Nomination of Dan Esty as Commissioner Of the Department of Environmental Protection (DEP)

 Rivers Alliance of Connecticut is the statewide, non-profit coalition of river organizations, individuals, and businesses formed to protect and enhance Connecticut's waters by promoting sound water policies, uniting and strengthening the state's many river groups, and educating the public about the importance of water stewardship. Our 450 members include almost all of the state’s river and watershed conservation groups, representing many thousand Connecticut residents.

Thank you for the opportunity to comment on the important nomination of a new commissioner of the DEP.  Most likely this job will include integration of a much-needed Energy Department into the DEP. 

 In recent years, administration of the DEP, alone, has been a killer assignment.  The famously underfunded agency is overburdened with responsibilities and understaffed in key departments.  Meanwhile, as the recession has taken its toll on our mismanaged and faltering state, DEP is increasingly blamed for our stagnant economy.  If certain critics of the DEP are right, we can restore the state to economic health by speeding up permitting, rolling back regulation, and forgiving polluters.  This distinguished committee knows that is a crock. 

 Connecticut does not need to trash the environment to succeed in business.  Our new governor has a vision of progress that combines job creation with a clean, healthy environment and a good quality life for all citizens.  In naming Dan Esty to lead on environmental policy and administration, the governor chose a scholar with practical government experience, who is an international champion of the concept that green and gold go together.  Leaders in the environmental and business communities agree that we have to take this approach as our best chance of emerging from the state financial crisis in good shape.  There is wide agreement that Mr. Esty is the right man for the job.  The announcement of his nomination was greeted with excitement and enthusiasm.

 Therefore, I am pleased to support this nomination.  I am optimistic that the state will move rapidly in a new, better direction.   But note that the job description is formidable.  Superman himself would need the state to provide significant resources to get the job done.  So we need to support Mr. Esty not just today, and not just with words, but for the long run and with meaningful resources.       

 Thank you for your attention and hard work in this demanding session.

 Sincerely, Margaret Miner, Executive Director, Rivers Alliance of CT

TESTIMONY FOR THE ENVIRONMENT COMMITTEE PUBLIC HEARING January 31, 2011

To Chairmen Ed Meyer, Richard Roy, and Members of the Committee:

Rivers Alliance of Connecticut is the statewide, non-profit coalition of river organizations, individuals, and businesses formed to protect and enhance Connecticut's waters by promoting sound water policies, uniting and strengthening the state's many river groups, and educating the public about the importance of water stewardship. Our 450 members include almost all of the state’s river and watershed conservation groups, representing many thousand Connecticut residents.

 Thank you for the opportunity to comment on the bills before you today.  This testimony addresses seven of these bills, in their order on the agenda.

 S.B. No. 60 AAC THE ENFORCEMENT AND PERMITTING DUTIES OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION [DEP].   The DEP has responded positively to recent criticism of the slow pace at which permits were being processed.  These days, most applications are moving rapidly through DEP.   (Complex projects, involving multiple authorities, are still problematic.)  By all measures, however, the state falls short on monitoring and enforcement.   Permits and mitigation plans are rarely monitored in the field by unannounced inspections or by independent experts.  Enforcement relies on self-reporting, which from time to time may not be entirely accurate.  Even when the state has received evidence that conditions in a permit or management plan are not met, the response is likely to be slow and weak.   This is true of most agencies having project oversight, not just the DEP.    These failings have frequently resulted in significant harm, cost, and danger to the public.  Rivers Alliance strongly supports adequate staffing for permitting, monitoring, and enforcement.  We believe that this could be revenue neutral if some costs (such as independent monitoring) were to be covered by applicants, and if fines (which should be reasonable) were to be collected promptly and consistently.   

 S.B. No. 834 AAC MUNICIPAL OPEN SPACE PRIORITIES AND FUNDING FOR THE PURCHASE OF SUCH PROPERTIES.   This bill enables what is popularly called the “Green Fund.”   Rivers Alliance and many other environmental groups have supported the Green Fund for a number of years.   The bill gives towns the authority to impose (if they wish) a small fee on someone buying real property in the town.   The fee is to be used for projects that have an environmental benefit, such as purchase of open space.   In most cases, such projects will directly or indirectly benefit water quality.  The Green Fund is an especially useful option at a time when state funding for municipal projects is dwindling.      

H.B. No. 5202 AAC AUTHORIZING THE ISSUANCE OF BONDS FOR FARMLAND PRESERVATION.  Rivers Alliance supports the preservation of farmland, and we have traditionally advocated for this cause either individually or as a member of a coalition.  We ask that in the purchase of development rights and other support for farm space and operations, some attention and extra benefits be given to those farms that are willing to adopt practices that minimize negative effects on air, topsoil, and water  --   and that, where practical, improve the quality of these natural resources. We believe that a sustainable, profitable farming sector is essential to the economic welfare of the state.    

S.B. No. 831 AAC CONCERNING MUNICIPAL LIABILITY FOR RECREATIONAL ACTIVITIES ON CERTAIN OPEN SPACE LANDS.   This bill would reduce the liability exposure of municipalities and certain non-private water utilities that open their lands without charge to members of the public for recreation.  Prior to 1996, it was assumed that towns had the same liability shield that applies to private landowners who allow people to come on to their properties to hike, bicycle, and the like. However, in Conway v. Wilton (1996), the court ruled that the town was not an “owner” in the sense of the protective statute (Section 1. Section 52-557f).   Rivers Alliance realized at the time that the ruling would eventually shut the public out of many public lands.   We advocated then for legislation similar to what is before you today. 

In 2008- 2009, our members and others began to request legal guidance on how to deal with liability concerns associated with paddling events, hikes, river cleanups, and so forth.   We asked attorney Beth Critton, who is testifying here today, to give a legal overview of recreational liability at a small conference in 2009.  This presentation proved of such interest that we scheduled a full-day conference for April 16, 2010.  The highest priority action item to emerge from the conference was to restore the traditional liability shield to municipalities and public utilities.  This goal was supported by the conference sponsors including American Canoe Association, Appalachian Mountain Club, Connecticut Forest and Park Association, Sierra Club - Connecticut Chapter.   Note, this was months before the adverse ruling in the MDC case.  Any suggestion that the present legislation is an overreaction to a single bad case is missing the point. Municipalities, especially small towns, are faced with conflicting pressures from residents asking for open-space access and advice from Boards of Finance that the chance of costly litigation is an unaffordable risk.  

The proposed bill provides legal consistency as to the liability exposure of all landowners who are willing to allow the public to enter public or private open space without charge. The present inconsistency makes no sense:  why should one part of a trail have a different liability status from another part of a trail depending which might cross into town land?    The bill safeguards for the public the valuable right and privilege to enjoy this state’s wonderful open spaces. It encourages exercise and good health.   It supports tourism and outdoor recreation, along with affiliated businesses. The bill will also save towns money, somewhat from lower insurance premiums, but most importantly by reducing the risk of costly legal defense in cases where there has been no wrongdoing.

We support the goal of this legislation, and would be happy to work with you if questions arise.  

S.B. 59   AAC PROHIBITING THE SALE OR USE OF FISHING SINKERS, JIGS AND TIRE WEIGHTS THAT CONTAIN LEAD.  We support the effort to keep lead, which is highly toxic, out of water. Sinkers and jigs lost in water poison fish, water fowl, and other birds, like eagles, that hunt in water.  For example, a high percentage of untimely deaths in bald eagles, loons, and trumpeter swans are due at least in part to lead poisoning   --  from 25% to over 50%.   The underlying problem is apparently the sheer volume of lead in fishing waters.  An Audubon Society Waterbird Conservation Study found that some 2,700 metric tons of lead fishing weights are produced annually, mostly to replace lost weights.  (Losing weight is good.  Losing weights is bad.)  Both science and policy are trending toward the conclusion that lead should not be used in fishing sinkers and jigs.  Lead sinkers are banned or limited in New Hampshire, Minnesota, Maine, Vermont, and Wisconsin  -- and in Yellowstone National Park.  Massachusetts has banned the use of lead sinkers at two reservoirs (Quabbin and Wachusett).  There are alternatives already available in sporting shops.   This legislation will protect the health of wildlife and humans without economic hardship or limits on recreation.     

H.B. No. 6157   AAC STATE FORESTRY PROGRAMS.  Rivers Alliance urges legislators to pass this bill this year.   There is no better protection for water resources than forested land, and good state forest management will pay for itself and even generate profits.

H.B. No. 5068 AAC CREATING A REBUTTABLE PRESUMPTION FOR THE APPROVAL OF AN INLAND WETLANDS PERMIT FOR A DRY HYDRANT.   This proposal shifts the burden of proof to wetlands commissions in applications for dry hydrants, that is, non-pressurized hydrants that access a body of water.  Dry hydrants are typically used to draw water in case of fire.   They need maintenance to be reliable.   I am not aware that inland wetlands commissions are unreasonably prohibiting installation of dry hydrants.   But if the bill is needed, the word “public” should probably be deleted from the reference to alternative access to a “public water supply.”  The alternative supply could be located on public or private land.  

Margaret Miner, Executive Director

TESTIMONY FOR THE PLANNING COMMITTEE PUBLIC HEARING FEBRUARY 14, 2011

To Chairmen Steve Cassano, Linda Gentile, and Members of the Committee:

Rivers Alliance of Connecticut is the statewide, non-profit coalition of river organizations, individuals, and businesses formed to protect and enhance Connecticut's waters by promoting sound water policies, uniting and strengthening the state's many river groups, and educating the public about the importance of water stewardship. Our 450 members include almost all of the state’s river and watershed conservation groups, representing many thousand Connecticut residents.

 Bill No. 43, Bill No. 90, Bill No. 5254

Thank you for the opportunity to comment on the bills before you today.   Bills number 43, 90, and 5254 are similar in seeking amendment of the Recreational Land Use Act.  The main purpose of the proposed amendments is to extend to municipalities and public water authorities the immunity that is afforded private citizens and the state when they open land without charge for recreation.

In this time of scarce funding for cities and towns, local governments cannot afford to offer residents extra programs.   But they should be able to open their lands for hiking and other and other healthy activities without fear of penalty.    Unfortunately, in recent years, the risk of litigation and a few surprising jury awards have led town officials and water-utility executives to close off or consider closing off open-space, and to ban previously permitted activities, such as rock climbing. 

Prior to 1996, it was assumed that towns had the same liability shield that applies to private land and state-owned that is open to the public for hiking, bicycling, and the like.  However, in Conway v. Wilton (1996), the court ruled that the town was not an “owner” in the sense of the protective statute (Section 1. Section 52-557f).   Rivers Alliance realized at the time that the ruling would eventually shut the public out of many public lands.   We advocated then for legislation similar to what is before you today. 

In 2008- 2009, our members and others began to request legal guidance on how to deal with liability concerns associated with paddling events, hikes, river cleanups, and so forth.   We asked attorney Beth Critton, who is testifying here today, to give a legal overview of recreational liability at a small conference in 2009.  This presentation proved of such interest that we scheduled a full-day conference for April 16, 2010.  The highest priority action item to emerge from the conference was to restore the traditional liability shield to municipalities and public utilities.  This goal was supported by the conference sponsors including American Canoe Association, Appalachian Mountain Club, Connecticut Forest and Park Association, Sierra Club - Connecticut Chapter.   Note, this was months before the adverse ruling in the MDC case.  Any suggestion that the present legislation is an overreaction to a single bad case is missing the point.

Municipalities, especially small towns, are faced with conflicting pressures from residents asking for open-space access and, on the other hand, advice from Boards of Finance that the chance of costly litigation is an unaffordable risk.  Supporters of the status quo suggest that towns should buy more insurance or increase the budget for legal expenses.  But any increase of that sort is unlikely to survive the budget process.  

The proposed legislation provides consistency in the legal status of landowners who are willing to allow people to enter public or private open space without charge. The present system makes no sense:   why should a sprained ankle on one part of a trail have a different liability status from another part of the trail depending on whether it happened inside a town line or just outside a town line?    This legislation safeguards for the public the valuable right and privilege to enjoy this state’s wonderful open spaces. It encourages exercise and good health.    It supports tourism and outdoor recreation, along with affiliated businesses. The bill will also save towns money, somewhat from lower insurance premiums, but most importantly by reducing the risk of costly legal defense in cases where there has been no wrongdoing.

We support this legislation, and would be happy to work with you if questions arise.  

Bill No. 499l No. 499  AAC Wastewater Management  

The purpose of the bill is laudable.   But the implementation of wastewater policies can be challenging.   As the bill is developed, we would appreciate the opportunity to comments on the particulars.

 Sincerely, &nbsMargaret Miner, Executive Director

TESTIMONY FOR THE ENVIRONMENT COMMITTEE PUBLIC HEARING March 7, 2011

To Chairmen Ed Meyer, Richard Roy, and Members of the Committee:

Rivers Alliance of Connecticut is the statewide, non-profit coalition of river organizations, individuals, and businesses formed to protect and enhance Connecticut's waters by promoting sound water policies, uniting and strengthening the state's many river groups, and educating the public about the importance of water stewardship. Our 500 members include almost all of the state’s river and watershed conservation groups, representing many thousand Connecticut residents.

 HB 6263 AAC The Transition from the Ten Mill Program

Rivers Alliance supports this bill and the testimony of Connecticut Forest & Park Association.   Forested land is the most important natural purifier of water.   The state should encourage its preservation by allowing transfer of tax reductions from the old ten mill program to the current 490 program without penalty.  

HB 66503 AAC Conservation District Funding

This bill aims to reinstate dedicated revenue for the Conservation Districts.  Rivers Alliance supports ample and stable funding for the districts.   Their expert advice to towns provides consistency in stormwater management and wetlands permitting.   They potentially could play a key role in regional integration of conservation policies and practices relating to soil and water.  Their important contributions are sometimes not understood, and their funding repeatedly has been threatened. 

HB 6505 AAC Stream Flow Regulations

This bill clarifies that PA 05-142 was intended to provide the state’s rivers and streams protection from excessive withdrawals whether by damming, pumping, siphoning, or other means.   The clarification is achieved by the insertion of the word “groundwater.”  Rivers Alliance believes this clarification is not legally necessary given the language of the Act.  Moreover groundwater regulation has been included in all drafts of the regulation until December 2010.  However, we accept that some legislators may not have realized when they voted in favor of 05-142 (unanimously) that drying up a stream by groundwater pumping would be regulated under the Act.  

Across the state, excessive pumping is impairing streams today and shrinking the supply of water for the future.   Looking forward, groundwater is the source that will be most intensely developed.   It is not usually efficient or economical to create new reservoirs.   The most famous pumping incident was the dessication and fish kill in the Fenton River at UConn in 2005.   But every year, we have lethal low flows due to pumping, siphoning, etc., in dozens of streams across the state.   One of the most publicized groundwater controversies in 2010 was the proposal by United Water to increase pumping from its well fields in Newtown’s sole source aquifer in order to send water out of basin to Brookfield.  This appeared to be a legal withdrawal, not requiring a permit (according to the DEP), even though the US Geological Study demonstrated that the pumping would decrease flows in the Pootatuck River.  

The chairmen of the Regulation Review Committee in 2010 (Sen. Joan Hartley and Rep. T.R. Rowe) told all stakeholders that groundwater should be removed from the streamflow regulation that had been presented to the committee. But they supported it being presented in new legislation.   This is that new legislation.   It does not change any language relating to process or criteria for writing the flow regulation.   It simply says that groundwater is included.   At this time, it appears that the state is moving toward passage of the regulation in phases, the first addressing dams on supply reservoirs.  We anticipate that groundwater rules will be developed subsequently as the second of the steps required by the Act. 

HB 5518 AAC Establishing a Statewide Water Use Plan

This is the Holy Grail of water management policy in Connecticut.  The quest has always been abandoned for lack of funding.   Instead the state has worked on pieces of such a plan, perhaps most importantly legislation requiring development and filing of water supply plans (under the jurisdiction of the Department of Public Health), legislation limiting new diversions (Water Diversion Policy Act, 1982) and legislation protecting streamflows (updated in 20005).   Legislative committees, agencies, industry, and environmental nonprofits have produced numerous recommendations on how to move forward with an overarching statewide water management plan.   We would be glad to work on this; in fact, we have been doing so for more than ten years, and the streamflow regulation is one result.   More rationalization and integration of water management would certainly be helpful.

 SB 205 AAC Requiring Certain Thermostat Manufacturers to Pay Incentives for the Return of Mercury Thermostats

The principle that manufacturer and distributors should be responsible for taking back waste associated with their products is becoming more widely accepted.   (In Connecticut, we have been looking at beverage bottles, paint cans, retail bags, and so forth.)  Rivers Alliance is especially concerned that mercury be handled safely.   All rivers in our state fail the federal Clean Water Act standard for fishable and swimmable waters, because fish from all tested streams have mercury in their bodies (and often PCBs).   We invest in fisheries and then we have to invest in fish advisories telling people to be careful eating the fish that we nurture and that they they catch because mercury is a deadly toxin.   It is also a valuable metal, so it ought to be profitable to recycle.  I hope this bill helps.  I do not know if $5 is too or high or too low or just right as a reward for returning the old thermostats. 

 SB 227  AAC Concerning Remediation Standards under a Consent Order

Possibly this bill is intended to address a specific misuse of authority, and superficially it sounds fair.   But there are massively contaminated sites in this state, with groundwater plumes going all over the place.   Cleanup can be delayed for decades for a range of reasons.  In that time, the state’s knowledge of what is on site and what the health risks are can change.  So I ask the committee to exercise caution on this proposed legislation.  

 SB 204 AA Exempting the White Memorial Foundation from Certain DEP Requirements

White Memorial has taken many good steps and precautions at considerable expense to manage the wastewater on its property prudently.  The executive director, Keith Cudworth, has given Rivers Alliance generous time explaining the unique wastewater challenges at the Foundation and their approach to solving them.  But we do not support this bill as written.   It would apply to any conservation organization owning more than 3,000 acres.  This would include a fair number of organizations, with various facilities on their properties, such as farms and educational centers.   Just quickly checking two land trusts in and near my own town, Weantinoge Heritage Trust conserves more than 9,000 acres (it may be the state’s largest land trust) and the little Roxbury Land Trust conserves more than 3,500 acres.  Granted, some of the conserved land is in easements, not owned outright, this gives an idea of who might be covered.  A much better approach, I believe, would be to look at the agreement that White Memorial has with the local health district and to use that as the basis for a more limited exemption.  The laws governing subsurface sewage disposal are complicated.   I believe this bill raises more questions than necessary and probably creates unintended loopholes.  

 SB 1117 AAC Pharmaceutical and Prescription Drug Waste

We support the goal of this bill and would be happy to work on it.  The main cause of discarded medications entering water appears to be the practices of certain clinics and nursing homes.   The language could be more focused on the exact reforms desired.  

 Thank you all for your dedication to the environment. Sincerely, Margaret Miner, Executive Director

Mar 9, 2011: Hurray, Haddad! Bravo, Becker!

In the single-minded Commerce Committee, two members broke the ranks of unanimity and voted against that inst that amazingly bad bill SB 1020, AAC Water Resources and Economic Development.t.  In other words, they voted FOR moving ahead with streamflow protections in Connecticut . These heroes are:  Rep. Gregg Haddad (Chaplin and Mansfield) and Rep. Brian Becker (Avon, Farmington , and West Hartford ).  The vote was 15 to 2, with 2 absent.  (On another anti-DEP bill, Rep. Chris Perone, Norwalk , joined the heroic minority.)

I read many eloquent and forceful messages from you environmental leaders to members of the committee.  It is a sign of the times that these pleas were rejected.  I am surprised that even two votes went our way.  These days, legislative meetings and hearings echo with various formulations of the opinion that environmentalists and the DEP have brought the state to the brink of ruin. 

So I want to offer the contrarian view that the state has brought itself to the brink of ruin.  DEP Commissioner Amery Marrella stood up for several difficult but righteous causes, including streamflow regulation, higher water quality standards, and a review of the propriety of the Haddam land swap (details available on request).  She did a good job of increasing efficiency and speeding up permitting.  She didn’t sell out the environment.  Thanks, Amey. 

Meanwhile, a hearing in the Environment Committee yesterday included Bill HB 6505 AAC Stream Flow Regulations (click here for status).  This bill clarifies that the law calling for the creation of flow standards (PA 05-142) was intended to provide the state’s rivers and streams protection from excessive withdrawals whether by damming, pumping, siphoning, or other means.  Several important legislators said that they did not understand that groundwater pumping would be regulated and that new legislation was needed that specifically used the word “groundwater.”   Therefore, this bill adds the word “groundwater” for clarity.  (Attorneys for the legislature and the executive branch did not feel this was necessary, but it can’t hurt.)  There was a lot of negative testimony on the idea of regulating anything, especially well fields.  The record is still open, so you can submit testimony.   The chairmen are Sen. Ed Meyer and Rep. Richard Roy.  Your comments can be sent by email to Jason.Bowsza@cga.ct.gov

Negotiations on streamflow protection are inching along.  Several months ago, we thought in terms of a phase one for surface water and a phase two for groundwater.  Now we are contemplating a sort of phase one half, phase three-quarters, etc. But still, we are talking. 

Here follows Rivers Alliance testimony on the groundwater bill.  

TESTIMONY FOR THE COMMERCE COMMITTEE PUBLIC HEARING FEBRUARY 24, 2011

To: Chairman Sen. Gary LeBeau, Chairman Rep. Jeffrey Berger, And to the Members of the Committee:

 RE RB 1020 AAC Water Resources and Economic Development

 Rivers Alliance of Connecticut is the statewide, non-profit coalition of river organizations, individuals, and businesses formed to protect and enhance Connecticut's waters by promoting sound water policies, uniting and strengthening the state's many river groups, and educating the public about the importance of water stewardship. Our 450 members include almost all of the state’s river and watershed conservation groups, representing many thousand Connecticut residents.residents.

Thank you for this opportunity to comment on this water resources bill. 

 Background:   Peak Water

 The title of the bill correctly reflects the strong link between water resources and economic development.   Worldwide, economies are stalling for lack of adequate clean water.   Depletion of groundwater in India is notorious and threatens to reverse that nation’s economic gains.    Here in the U.S., water-poor states and cities are facing reductions in supply, shrinking agriculture, and limits on growth.

 In December 2008, Peter Brabeck-Letmathe, chairman of the international food and beverage company Nestlé, wrote in The Economist magazine:   "I am convinced that, under present conditions and with the way water is being managed, we will run out of water long before we run out of fuel."  The problems in the energy sector associated with peak oil are coming at us just as fast with peak water.

 The future has arrived in California, Nevada, Georgia, Texas, and more than 30 other states.   The Lake Mead, the giant reservoir created by the Hoover dam, is presently at 42 percent capacity, down approximately 5.6 trillion gallons.  This is the water supply for the Las Vegas region.  Las Vegas is in trouble.  Connecticut can do better, but not if we continue to evade the tough decisions required for sustainable water management.   “Sustainable” means that the state will have at least as much high-quality water in the future as it has now.  

 Those states that have adequate good water are beginning to take steps to guard it from plunder.  In 2008, the Great Lakes Compact went into effect as a federal and multi-state law, which includes agreements with Ontario and Quebec.    It forbids any Great Lakes water to be exported outside the region.  New England is obviously not as water rich as the Great Lakes states; some areas in Massachusetts, for example, are water stressed.   Nevertheless, most of New England, including Connecticut, has ample water.  This gives us a much-needed competitive edge in the national and international economy.  It also inspires those who control water to tighten their grip.  

 The purpose of the flow-protection regulation is to assure that Connecticut has enough water going forward and that it is available on a fair basis.  

 Control of Water in Connecticut:   A Monopoly Game

 In the years that Connecticut developed an apparently misplaced confidence in the economic advantages of energy deregulation, the state’s water policy became increasingly more directive.   Department of Public Health (DPH), in particular, aimed at creating a non-competitive pattern of water ownership, with companies assigned exclusive service areas, and with encouragement of utility mergers.  

 Water utilities in the state are in a favorable position under the status quo.   This is one reason international utilities such as Suez and Aquarion do business in Connecticut.   Price controls applied by the Department of Public Utility Control (DPUC) to the investor-owned companies tend to limit profits but also to guarantee profits.   In a severe recession, that’s not bad.   Despite revenue losses, due to water-saving appliances and more summer rains, the private utilities can count on a protected customer base and price increases as needed.   The public utilities are more exposed in that they do not have DPUC to blame when they need to raise prices.   On the other hand, they can sell water without DPUC interference.   Plus, they can count on a stable business environment and relatively weak requirements to invest in infrastructure.    (For example, DPUC can pressure private companies to fix leaky systems.  The municipal and regional utilities are more likely to feel pressure from local officials not to fix leaky systems.   It is a credit to the many good managers in the water business that infrastructure holds up as well as it does.)

 In sum, Connecticut water utilities are protected from competition and control a “product” for which world demand is rising day by day.   It is clearly not in their financial interest to give up any water to which they have claim.   Even if they have excess water today, they may have customers for it tomorrow.   Moreover, the precedent of allowing outside interests to mandate operational rules to protect river flows is offensive to many water suppliers.  But these outside interests are people who fish, paddle, picnic by the water, and otherwise love rivers.  They want the state’s streams and rivers to be just as good for their children.  

 The Only Answer   --  Buy Back Our Water?

 Utilities have signaled that they would be more willing to allocate some portion of water for nature and aquatic life if Connecticut would pay for it.   Environmental advocates have signaled that, if it is really a question of money, that can be discussed.  But should the public have to buy back its own water?    

 Are Healthy Rivers an Economic Asset?   To Whom?    

 At Rivers Alliance, we believe the state benefits economically from the millions of dollars that are spent here each year because of our great waterways and recreational opportunities for fishing, boating, swimming, bird watching, and more.  Utilities by and large do not profit directly from these benefits.   But they do profit indirectly, as the state’s quality of life and scenic beauty attract residents (many of whom use large quantities of water for landscaping, by the way).  

 The Connecticut Business and Industry Association (CBIA) consistently has opposed streamflow protection.  So, presumably, their members are not in the tourism and recreation businesses.   But this is guesswork.   CBIA has given almost no details on which of its members would be affected and what relief they are seeking.   The objections of business interests seem to derive mainly from a generalized fear of rate increases and automatic opposition to any regulation that comes out of the Department of Environmental Protection (DEP).   These sentiments are understandable but not necessarily a prudent base for policy decisions.  

 Does It Cost Too Much to Keep Rivers Running?

 Utilities’ projections of the cost of compliance with the flow regulations range from about $10 million to about $100 million.   This compares to the known cost of $4 million for the complex, court-mandated, flow-management construction done in Waterbury; the new releases were on schedule in 2010.     Moreover, the Waterbury project included repairs already under order from the DEP, so the flow-specific work would have cost less.    Utilities should provide the data on which they base their estimates.   So far, all cost estimates seem far too high. 

 Under the proposed regulation, utilities that have a tight margin of safety would not be required to comply with the regulation for more than 20 years.  So a $10 million capital cost (using the estimate of Wallingford’s utility) would come to $500,000 per year.  If a compliance project were to be similar to Waterbury’s project, the cost would be under $200,000 per year.  In some places, we believe compliance would require no more than the installation of a siphon.  The cost would be negligible.

 The regulation incorporates exemptions, variances, and release modifications for hardship cases and droughts.   (Golf courses and agriculture are entirely exempt.) As best we can tell, these relief measures are not included in industry’s cost calculations.  

 What’s the Real Problem?

 The passionate opposition to the proposed flow-protection regulation seems to be not so much due to the estimated cost, which has been extraordinarily exaggerated, or to concerns about adequacy of supply, which the Department of Public Health has declared not be a problem.   It arises because utilities and others who have present control of water perceive that something they believe they own is being taken away from them.  

 Hot Water

We welcome the interest of the Commerce Committee in the question of how to manage the state’s water for the well-being of the public, including commercial interests..   We need every good mind we can get on this issue.  We would be pleased to work with you.

But Bill 1020 plunges into very hot water..  It undermines the authority of the Regulations Review Committee, which by statute is charged with evaluating and approving (or not) the regulation.   It disrupts the process of negotiation that led up to Public Act 05-142 and then continued in the framing of the regulation (a total span of ten years).   

 Asking Too Much

 The bill includes just about every provision that has been proposed in order to forestall streamflow protection. 

 Section 1 (a)

Concurrence..   The bill calls for DEP to get concurrence on the regulation from DPH (already done), the Department of Economic and Community Development (DECD), and the Department of Agriculture (there is an exemption for agriculture).  This is very late in the process to change the conditions for writing the regulation.   Official agency concurrence typically takes months and even years, and can be withdrawn at any point.   Connecticut is extremely unusual in having a legislative veto over executive branch regulations.    This has led to a prolonged regulatory process.   It took 14 years to pass aquifer protection regulation, and, as you know, the spreading contamination of groundwater indicates that the final regulation was excessively weakened.   The state should not create more opportunities for blocking reforms to the way it manages water resources.

Repetition and Its Message..   The original act calls upon the DEP to take into consideration the “requirements of public health, flood control, industry, public utilities, water supply, public safety, agriculture, and other lawful uses of such waters.”  The proposed bill says that, in setting release rules, the DEP must consider “public health, safety, agricultural and economic development needs of the state.”  The Regulatory Review Committee’s LCO report on the revised regulation determined that DEP had met its burden in considering these issues.   Even if the Commerce Committee disagrees with that conclusion, what is the point of inserting repetitive language with slight variations that are difficult to interpret?   The message seems to be: you did it wrong the first time, do it again.   Why not just say that?

Proposed Exemption “where compliance requires the expenditure of resources for the development of new sources of water supplies or storage which is not technically feasible or financially viable..   Assuming adequate demand-management (conservation), new sources and new storage may not be needed.  But, if needed, technical feasibility is unlikely to be a problem.   The point here is whether developing new sources or storage would be “financially viable.”   Strictly interpreted, that should mean whether compliance would cause bankruptcy.  There is a hardship exemption available in such a case.   But as likely to be interpreted, it probably means whether compliance would reduce revenue to shareholders or impose unwelcome costs on the utility.  These are what Theodore Roosevelt called “weasel words,” that is, words that suck the meaning out of the language that precedes them.   (Note, this section of new language has a grammar error that confuses the meaning. 

Section 1 (b)

 Screening and Classification. The process described here for classification of rivers and streams seems basically to repeat the plan DEP has already announced.   Water companies have complained, and we have tended to agree, that the screening process is too slow and the outcome too uncertain.  DEP has responded to these complaints by guaranteeing water suppliers that rivers downstream of their reservoirs will be classed as low-quality waters:   Class 3 or Class 4 (which is the no-hope Class).   No corresponding guarantees have been offered to river advocates.  Now that certainty for suppliers is written into the regulation, the language in 1020 calls for the same slow process suppliers previously disliked.  

 Protecting the Margin of Safety and Public Health Needs.  DPH has already determined that the proposed regulation offers no threat to public health and safety.  The entire Water Planning Council adopted a resolution to the same effect.   (The Council consists of DEP, DPH, DPUC, and the Office of Policy and Management).   Occasionally, people say that these agencies only voted reluctantly.   That perception is speculative.  

Impact on Water Rates and the Anticipated Environmental Benefits from Compliance..   Many industry representatives have called for a cost-benefit analysis of the impact of the regulation.   Bill 1020 includes a variant of that request.   We agree that the impact on water rates is relevant.  River advocates have asked utilities for this information.   But, as the Committee knows, cost-benefit analyses are controversial when the costs involve loss of life or health.   Water is essential to both.   It is frequently and aptly described as “invaluable.”   We would be pleased to participate in developing a Connecticut-specific model for a cost-benefit analysis of high-quality water, whether in streams or in faucets.   But meanwhile, we hope the state will move forward on the reasonable assumption that we need to save some water for the survival of aquatic life and the benefit of future generations of Connecticut residents.

Non-binding Classification..   The final sentence in (b) provides grounds for reversing any classification that would actually protect the resource.  It essentially demands that all the state’s waters be available to water utilities.  It forbids the DEP from assigning a high value to any stream “adjacent to or immediately downstream of any public water supply sources.”   Note that this language introduces protection of streams near well fields.  Thus, the utilities are inserting protections for their groundwater sources after insisting that groundwater NOT be covered in the regulation.   Again, the grammar slips in this section, but the thrust seems to be that any water that might be useful for economic development or water supply should not be given a protective classification.   The point of the regulation is to help the state encourage economic development where appropriate water is available and to discourage water-destructive development.   This language reverses that intention, asserting in effect that all water everywhere should be available for supply and economic development.

 Section 2 (NEW)

 No Harm, No Foul.   This section provides immediate financial relief for private water companies in case the streamflow regulation is actually approved.  The relief work will be started effective July 1, 2011, some 15 years before the projected earliest date of implementation.   DPUC is to provide ratemaking mechanisms that allow companies to recoup immediately via rates the cost of complying with a streamflow regulation.   Rivers Alliance has already advocated for similar relief to private utilities making infrastructure investments.   We have no objection to this provision.   But, if it is adopted, the utilities would suffer no harm, and should not cry “foul.”  

CONCLUSION

Bill 1020 calls for a do-over of a regulatory process that has been in progress for since 2005 and is in its final stage..  It includes provisions that would guarantee that the regulation would not satisfy the provisions in the statute.  We urge the Committee to reject this bill.   We hope the Committee will continue to be interested in helping the state to manage its water resources for the public good.

Thank you for your consideration.  Margaret Miner, Executive Director

HB 6505 AAC Stream Flow Regulations

This bill clarifies that PA 05-142 was intended to provide the state’s rivers and streams protection from excessive withdrawals whether by damming, pumping, siphoning, or other means.  The clarification is achieved by the insertion of the word “groundwater.”  Rivers Alliance believes this clarification is not legally necessary given the language of the Act.  Moreover groundwater regulation has been included in all drafts of the regulation until December 2010.  However, we accept that some legislators may not have realized when they voted in favor of 05-142 (unanimously) that drying up a stream by groundwater pumping would be regulated under the Act.  p; bsp; p;

Across the state, excessive pumping is impairing streams today and shrinking the supply of water for the future.  Looking forward, groundwater is the source that will be most intensely developed.  It is not usually efficient or economical to create new reservoirs.  The most famous pumping incident was the dessication and fish kill in the Fenton River at UConn in 2005.  But every year, we have lethal low flows due to pumping, siphoning, etc., in dozens of streams across the state.  One of the most publicized groundwater controversies in 2010 was the proposal by United Water to increase pumping from its well fields in Newtown ’s sole source aquifer in order to send water out of basin to Brookfield .  This appeared to be a legal withdrawal, not requiring a permit (according to the DEP), even though the US Geological Study demonstrated that the pumping would decrease flows in the Pootatuck River . 

The chairmen of the Regulation Review Committee in 2010 (Sen. Joan Hartley and Rep. T.R. Rowe) told all stakeholders that groundwater should be removed from the streamflow regulation that had been presented to the committee. But they supported it being presented in new legislation.  This is that new legislation.  It does not change any language relating to process or criteria for writing the flow regulation.  It simply says that groundwater is included.  At this time, it appears that the state is moving toward passage of the regulation in phases, the first addressing dams on supply reservoirs.  We anticipate that groundwater rules will be developed subsequently as the second of the steps required by the Act.   

Mar 1, 2011: AMAZINGLY BAD BILL designed to wipe out streamflow regulation

Rivers Alliance of Connecticut PO Box 1797 7 West Street, 3rd Floor Litchfield, CT 06759 860-361-9349 rivers@riversalliance.org www.riversalliance.org