Challenges for Innovation in Regulated Riparianism

Climate change and water management in Eastern States: Overcoming barriers to innovation in regulated riparianism

AWRA Webinar

Wednesday, February 15, 2017 11 AM-12 PM eastern

Lara B. Fowler, Penn State University

• Senior Lecturer, Penn State Law

• Assistant Director for Outreach & Engagement, Institutes of Energy & the Environment

Beth Kinne, Hobart and William Smith Colleges

• Associate Professor of Environmental Studies

Matthew E. Draper, Draper & Draper LLC

• Partner & Co-Founder

Water law follows hydrology and assumes that regional water balances will remain relatively constant or “stationary” over time; however, this assumption is no longer valid.

• Dan Tarlock, “How Well Can Water Law Adapt to the Potential Stresses of Global Climate Change,” 14 U. Denv. Water L. Rev. 1, 2 (2010).

http://urbanh2oplanner.com/dev_v1/wp-content/uploads/2015/03/Uncertainties-e1426376668414-940x600.png

http://cdn.abclocal.go.com/content/kfsn/images/cms/automation/images/1747747_1280x720.jpg

Oroville Dam, California

“Any system of water works must be accompanied by a system of human enterprise that involves the allocation, exercise and control of decision-making capabilities in the development and use of water supplies.”

Much of the east coast is at a critical junction: as much as we devote time to the engineering, so must we devote time to institutional dynamics

The challenge is adapting the law to account for what we know– and will come to know– about water resources and climate change

“If the body of law attached to water resources is antiquated, archaic, and incapable of flexible adaptation for modern needs, then economic technological and hydrological principles toward maximizing water use cannot be realized.”

- Robert I. Reiss, Connecticut Water Law: Judicial Allocation of Water Resources, U. Conn., 1967

“Connecticut, like all the other New England States, lacks a statewide comprehensive water allocation policy to deal with the current water crisis.”

- Kirk Mayland, Navigating the Murky Waters of Connecticut’s Water Allocation Scheme, 24 Quinnepiac L. Rev. 685 (2010).

http://wtnh.com/2017/01/26/no-change-in-drought-status-for-connecticut/

Parts of the United States faced dry conditions or drought at the end of last growing season, not just in the areas you’d expect…

At first glance, things are looking better (though switching drought for flood has been tough on California)

https://waterwatch.usgs.gov/new/index.php?id=ww_flood

Drought in the east remains an issue: in soil moisture levels, in root zones, and in shallow aquifers

http://drought.unl.edu/MonitoringTools/NASAGRACEDataAssimilation.aspx

Conditions in the southeast illustrate a trend towards increasing late summer drought

Source: USGS WaterWatch (Drought / Map Comparison) at http://waterwatch.usgs.gov/index.php?id=wwchart_map2

July 1980 August 2015 August 1980 September 2015

In October, more than 98% of Alabama was in some kind of drought: “It’s epic. It’s really bad.”

http://www.al.com/news/huntsville/index.ssf/2016/10/at_ground_zero_of_alabamas_dro.html

http://nca2014.globalchange.gov/

Predictions for the Northeast (including the mid-Atlantic ) are for more floods, and more winter precipitation

Real changes are already being seen: overall runoff in the northern and mid-Atlantic U.S. is increasing

Source: USGS WaterWatch (Past Flow/Runoff / Annual Summaries by State) at http://waterwatch.usgs.gov/index.php?id=statesum

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200

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1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Historic Runoff in Along Eastern Seabord (mm/yr)

Region1 (North Atlantic) Region2 (Mid Atlantic) Region3 (South Atlantic-Gulf)

Linear (Region1 (North Atlantic)) Linear (Region2 (Mid Atlantic)) Linear (Region3 (South Atlantic-Gulf))

At the same time, extreme events are breaking records

https://tribwxin.files.wordpress.com/2015/10/south-carolina-flooding-2.jpeg?w=1200

+21%

-7%

wetter drier

Precipitation change (cm per month) Ross et al. (2014)

However, the impact of drought in the summer remains a concern

People are adapting to changing patterns of precipitation; one Delaware County added ~18,000 new acres of irrigation from ‘07- ‘12

Irrigation along the eastern shore of Maryland & Delaware Photo: http://www.delmarvanow.com/story/news/local/delaware/2014/07/02/drip-irrigation/12105845/

http://pubs.usgs.gov/ds/0932/report.html

Increasing groundwater withdrawals are creating water shortages in areas generally thought of as water-rich

The Midwest and the Mississippi River Valley are also experiencing shortages, and more irrigation

“The alluvial aquifers adjacent to the Mississippi River, of which Arkansas is the biggest user, have been depleted by 26 percent. Most of that depletion occurred in the last 35 years.” (Arkansas is now in the top 15 irrigated states, along with Georgia, Mississippi, Missouri, and Florida)

“Wisconsin Groundwater Dispute Is a Warning Signal for the Eastern United States” October 26, 2015 “[Iowa] State regulators approve new rule for Jordan Aquifer water supply” June 17, 2015

Water level change from 1870 to 2007 in the Mississippi River Valley Alluvial Aquifer

Mississippi is suing Tennessee in the US Supreme Court in the 1st equitable apportionment case re: groundwater: http://www.ca6.uscourts.gov/special-master

Ground and surface water withdrawals also significantly impact local ecology and recreation in places like Massachusetts’ Ipswich River Basin

http://ipswichriver.org/wp-content/uploads/2012/03/22580021.jpg http://pubs.usgs.gov/fs/fs-160-00/

• Historical basics for the riparian doctrine:

– Adjoining “riparian” landowners have the right to make “reasonable use”

– Share and share alike (including in times of shortage)

– No export from basin

Although the riparian doctrine has principles to address shortage, the common law doctrine alone is inadequate

The definition of “riparian” may change as the rivers change

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Mississippi R. meander map Cape Girardeau, MO to Donaldsonville, LA. (Fisk, 1944) 1944 1880 1820

Factors determining “reasonable use” invite litigation

Harm to other riparian users

Economic Value of Use

Social Value of Use

Benefits to user

Duration of use

Benefits to the environment

Water withdrawals Changes in Surface Water Flow

In reacting to these issues, common law riparianism has become increasingly regulated (regulated riparianism), with a public trust overlay

Change in avg. annual precipitation, 1901-2015 EPA, 2016; Data source: NOAA, 2016

Climate change creates additional challenges

Water shortage is only one side of the water quantity problem; public health & safety, as well as energy reliability, are also issues

NASA satellite images show extent of outages http://www.nytimes.com/interactive/2016/08/22/us/louisiana-flooding-maps.html?_r=0

May 7, 2016 Aug 15, 2016

The Government Accountability Office found that state governments are making significant efforts to understand and better manage freshwater resources

Studies and Assessment

Conservation Efforts

Drought Preparedness

Plans

Climate Change

Planning

http://www.gao.gov/products/GAO-14-430

Collaborative, long-term water resource planning is a rational answer, and Federal initiatives have focused on providing support

USGS: National Water Census • Authorized by the 2009 SECURE Water Act (Public

Law 111-11)

• USGS Core Science Directive for 2007-017 https://pubs.usgs.gov/fs/2015/3045/pdf/fs2015-3045.pdf

National Drought Resilience Partnership • NOAA, USDA, EPA, ACE, and others

Mississippi Basin Healthy Watersheds Initiative • USDA and 13 states

Implementing new protective regulations is fraught with conflict

Pignataro, T.J. The Buffalo News, June 21, 2016

http://dnr.wi.gov/topic/WaterUse/waukesha/background.html

Behm, J. Milwaukee Sentinel, Aug 22, 2016

Increasing monitoring of withdrawals aids in water resource allocation planning

2011 NY State Water Withdrawal Law

“Initial Permits” not subject to Environmental Review. Sierra Club and HRFA v. Martens II (2016 NY Slip Op 51391)

http:/fracktracker.org

Pennsylvania also has a registration system but much regulatory work is done through local regulation or the Basin Commissions

Pennsylvania Dept. of Envt’l Protection

Permits Required For:

- Withdrawals of more than 10,000 gallons/day (30 day average)

- All public water suppliers and hydropower facilities

- 5 year update requirements, BUT statewide water plan hasn’t been updated since original plan

Susquehanna River Basin Commission (SRBC)

Permits Required For:

- 100,000 or more gallons per day for withdrawals and 20,000 or more gallons per day for consumptive uses (30 day average).

- All surface/groundwater withdrawal for natural gas development (2011)

- Also low flow protection in headwater streams (2012)

According to the SRBC’s recently completed “cumulative water use and availability study”, more than 1 bgd of water is approved for consumptive use, with more than 375 mgd reported in current use

http://www.srbc.net/planning/cwuas.htm

The need to adapt the law to changing conditions is critical!!

Connecticut, 2015

Vermont, 2011 (post Hurricane Irene)

Pennsylvania, 2016

Effective regulation in the face of uncertainty and variability is challenging; changes create both more challenges, and opportunities

Vested interests/rights in existing system (over-

allocation?)

Risk of creating new vested interests

Permits with reopeners/adaptation

Data issues: lack or gaps, non-comparable, private

Changing climate & increasing variability

Privacy concerns

Increased documentation =

Increased regulation?

Difficulty of managing uncertainty

Legacy issues (acid mine drainage, old mill ponds)

Challenges If changes made, more challenges

Funding

Opportunities

Adaptive Management

Coordination of effort

Law & science don’t match

Gather information

Expansion of Environmental Review

Yet we must find a way to manage these types of issues, or the issue will make its way to the courts