Articles - Vermont Journal of Environmental Lawvjel.vermontlaw.edu/files/2013/07/Volume-8-Issue-1.pdfAndrew Kohn Events Editor ... many feet per day.12 A more useful way of measuring

VERMONT JOURNAL OF ENVIRONMENTAL LAW VERMONT LAW SCHOOL

Volume 8, Issue 1 Fall 2006 Articles: Groundwater Quantity Regulation in Vermont: A Path Forward Evan Mulholland.................................................................................1 Realizing the Promise of the Great Lakes Compact: A Policy Analysis for State Implementation Melissa Kwaterski Scanlan, Jodi Habush Sinykin, and James Krohelski ................................................................................39 Essay: Energy Efficiency and Conservation: Opportunities, Obstacles, and Experiences Sandra Levine and Katie Kendall ...................................................101 Note: EPA Gives Animal Feeding Operations Immunity from Environmental Statutes in a “Sweetheart Deal” Laura Karvosky...............................................................................115


Volume 8, Issue 1 Fall 2006

The Vermont Journal of Environmental Law publishes online throughout the year at www.vjel.org. The Vermont Journal of Environmental Law mailing address is: Vermont Journal of Environmental Law, Vermont Law School, P.O. Box 96, South Royalton, Vermont 05068. The current bound volume can be purchased for $12.95 from Vermont Journal of Environmental Law. The Vermont Journal of Environmental Law welcomes the submission of unsolicited articles, comments, essays, and book reviews. Manuscripts can be submitted to the above mailing address, or electronically to [email protected]. The views expressed in this issue are those of the authors and do not represent the position or views of Vermont Journal of Environmental Law or Vermont Law School. Copyright: © Copyright 2006 by Vermont Law School. All rights reserved. Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made for classroom use, provided that: (1) copies are distributed at or below cost; (2) the author and Vermont Journal of Environmental Law are identified on the copied materials; (3) each copy bears the proper notice of copyright; and (4) Vermont Journal of Environmental Law is notified in writing of the use of the material(s)


Volume 8, Issue 1 Fall 2006

2006-2007

Editorial Board

Editor-in-Chief Lauren Whitley

Managing Editor Articles Editors Administrative Editor Karen Henderson Erin Barnes Gregory Dorrington Heather Pierce Jessica Biamonte

Caroline Keefe Andrew Kohn

Events Editor Production Editors Web Editor Laura Karvosky Devorah Ancel Brock Howell Starla Yeh Vassily-Basil Fedorchenko

Joseph Griffo Benjamin Rau Jason Weiner

Editorial Staff:

Tina Arnold Joshua Belcher Dorothy Borrelli Adam Dilts Timothy Duggan Brian Fredieu Andrew Gilbertson Julia Horrocks Kathleen Killoy Carlette Kruse Siobhan McCloskey Harper Marshall Amanda Mott Danielle Murray Timothy Riley Elise Rindfleisch John Sautter Dan Schramm Richard Sieg Samantha Simmons

Jamalea Westerhold


Volume 8, Issue 1 Fall 2006 Faculty Advisors: Karin Sheldon

Associate Dean for the Environmental Program, Director of the Environmental Law Center, and Professor of Law

Tseming Yang Professor of Law Christine Ryan Environmental Research Librarian Administration Geoffrey B. Shields President and Dean Stephanie J. Willbanks Vice Dean for Academic Affairs and Professor of Law Lorraine Atwood Vice President for Finance and Administration Kathleen Hartman Associate Dean for Enrollment Management Shirley Jefferson Associate Dean for Student Affairs and Diversity Dorothy Behlen Heinrichs Vice President for Institutional Advancement Karin Sheldon

Associate Dean for the Environmental Program, Director of the Environmental Law Center, and Professor of Law

Faculty Susan Apel Tracy L. Bach Alexander W. Banks Richard O. Brooks Liz Ryan Cole N. Bruce Duthu Michael Dworkin Stephen Dycus Arthur C. Edersheim Paul S. Ferber David B. Firestone Jackie A. Gardina Oliver R. Goodenough Cheryl Hanna Gregory Johnson Martha L. Judy Laurie C. Kadoch Kenneth R. Kreiling Gil Kujovich Mark Latham Reed Elizabeth Loder James May David Mears Michael A. Mello


Volume 8, Issue 1 Fall 2006 Philip Meyer Marc Mihaly Janet E. Milne Cathryn C. Nunlist Patrick Parenteau Craig M. Pease Anthony Renzo Faith Rivers Jennifer B. Sargent Karin P. Sheldon Geoffrey B. Shields Linda Smiddy Pamela J. Stephens Ellen Swain Peter Teachout Joan Vogel Stephanie J. Willbanks L. Kinvin Wroth Tseming Yang Carl A. Yirka Maryann Zavez Visiting Faculty Betsy Baker Ian Bartrum Daniel Freed Robert Gagnon Brian Porto Robert Rachlin Norman Stein Burns Weston Jeffry White Adjunct Faculty Howard Ball Bonnie Barnes Robin Barone, Esq. Sarah Branch Amy Harman Burkart Nolan Burkhouse Bernard S. Carrey Cynthia C. Cook John Evers Catherine A. Feeney Frank V. Fontana Priscilla Fox Kevin W. Griffin Allen C.B. Horsley Eric W. Janson Shirley Jefferson Gerard Jones Walter Judge Robert Keiner Peter B. Kunin Debra L. Leahy Matthew I. Levine William Loftus Brian R. Marisuscivetere Randall Mayhew Lawrence H. Meier Barry Needleman Phillip J. Nexon Sarah North Sheldon M. Novick, Esq. Larry Novins Charles Platto Linda Purdy William P. Russell Anna Saxman Kaveh S. Shahi Judy E. Stern Elizabeth York

Groundwater Quantity Regulation in Vermont: A Path Forward

Evan Mulholland* Groundwater in Vermont is a resource that is not extensively regulated, nor well understood, but it is taken for granted by thousands of Vermonters every day. Only a sliver of the planet’s water is liquid freshwater, with over 99% of that sliver located underground in aquifers.1 Approximately 246,000 people in Vermont draw their domestic water supply (over 20 million gallons per day (mgd)) from individual groundwater wells, and approximately another 117,000 rely on public water systems that draw from the ground.2 Further uses of groundwater include agricultural and industrial applications, as well as use in consumer goods, which incorporates water into the finished product, such as bottled water.3 Arguably the most important function of groundwater in Vermont and New England is in maintaining stream flows vital to aquatic ecosystems and recreational use through its interaction with surface water. In this paper, I will describe the hydrology of New England’s groundwater resource and the various statutes and regulations that govern its use in Vermont. I will next describe in detail the regulatory structures in place in various eastern states and summarize the different possible regulatory structures for groundwater. Finally, I will critique the recent Vermont regulation proposed in the Vermont House of Representatives in 2004 and offer some suggestions for the future of groundwater regulation in Vermont.4

I. DESCRIPTION OF GROUNDWATER AND THE SURFACE WATER–GROUNDWATER INTERACTION

In order to assess the various plans for the management of groundwater, it is useful to define some terms and identify the features of the groundwater resource in New England and, in particular, Vermont. Groundwater is defined as that water below the earth’s surface which saturates the substrate in which it is contained.5 A substrate can be any

* L.L.M. Vermont Law School 2005; J.D., Harvard Law School 2001. The author wishes to thank Jon Groveman of the Vermont Natural Resources Council for his help with this article. An adaptation of this article will be published by the VNRC for use in the 2007 legislative session. Currently, the author is practicing environmental law with Cheney, Brock & Saudek in Montpelier, Vermont. 1. ROBERT GLENNON, WATER FOLLIES 40–41 (2002). 2. See Susan S. Hutson et al., United States Geologic Survey, Circular 1268, Estimated Use of Water in the US in 2000, (revised Feb. 2005). 3. See generally id. 4. The Vermont regulation has now passed and is law. See addendum. 5. See E.C. Pielou, Fresh Water, in WATER RESOURCE MANAGEMENT 537 (A. Dan Tarlock et

2 Vermont Journal of Environmental Law [Vol. 8, Issue 1 material below the earth’s surface, but in Vermont the groundwater is generally contained in either bedrock fractures or glacial deposits of sand and gravel.6 The water in these layers fills all available interstices, or spaces, between the grains of sand or between the chunks of bedrock.7 An aquifer is another name for a saturated substrate that can hold and yield water in recoverable amounts.8 All aquifers have an impermeable base layer that prevents the water from percolating down to lower layers of rock, and which creates a reservoir of useable water.9 The porosity of an aquifer is the percentage of the substrate’s volume that is open space and is able to be filled by groundwater.10 Permeability is the speed at which groundwater can flow through a substrate.11 This can vary from a fraction of an inch to many feet per day.12 A more useful way of measuring the permeability of an aquifer is by its specific yield. Specific yield is the amount of water that can flow through a substrate minus the amount that is unrecoverable due to the residual molecular attraction between the water and the substrate material.13 Above the saturated layer is the unsaturated region made of soil or rock, with available interstices filled with both water and air.14 Depending on the geology, the unsaturated layer can be hundreds of feet thick or may not exist at all. The line between the saturated layer and the unsaturated layer is known as the water table.15 When the water table intersects with the earth’s surface, meaning that there is no unsaturated layer, the result is a spring or a wetland.16

A. Origin and Hydrology of Groundwater The groundwater that flows in our aquifers originated from different sources. Some deposits are ancient, formed by the original deposition of sedimentary rock layers (sometimes called fossil water) or during the

al., 5th ed. 2002). 6. Perry G. Olcott, Groundwater Atlas of the United States: Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island and Vermont, HA 730-M (1995), available at http://capp.water.usgs.gov/gwa/ch_m/index.html. 7. See E.C. Pielou, supra note 5, at 537. 8. See MARTIN JAFFE & FRANK DINOVO, LOCAL GROUNDWATER PROTECTION 8 (1987). 9. Gabriel Eckstein & Yoram Eckstein, A Hydrogeologic Approach to Transboundary Groundwater Resources and International Law, 19 AM. UNIV. INT’L L. REV. 201, 210 (2003). 10. See E.C. Pielou, supra note 5, at 538. 11. See JAFFE & DINOVO, supra note 8, at 8. 12. Id. at tbl. 3. 13. See E.C. Pielou, supra note 5, at 538–39. 14. Id. at 537. 15. Id. 16. Id.

2006] Groundwater Quantity in Vermont 3 cooling of magma.17 Other water deposits are more recent and result from the percolation of rain and snowmelt through the unsaturated layer; this downward percolation is known as recharge.18 Practically all surface waters interact with the groundwater in some way.19 Although the connections between streams and aquifers are complex and little-studied, there are generally two ways in which groundwater and surface water are connected. First, the surface water in some streams recharge’s the local groundwater table by means of seepage through the surface water body’s beds and banks.20 If a stream recharges the groundwater, it is known as a losing stream.21 The second type of connection is where water bodies are replenished by the discharge of groundwater to the surface.22 This is called a gaining stream, or spring-fed pond.23 The base flow of streams (the flow that is not due to precipitation runoff or snowmelt) is due to groundwater.24 Another way to conceptualize a gaining stream is to imagine a stream bed as below the level of the local water table. The groundwater would continually flow into the stream, seeping through the banks, as it would in a well dug below the water table. Although the simplification of groundwater to one water table level is useful for this type of conceptualization, in reality there are numerous flow regimes at different depths and speeds, possibly even flowing in different directions, due to varying levels of hydraulic pressure.25 Some aquifers are quite deep and practically unconnected to shallower aquifers.26

B. Vermont’s Groundwater Broadly, Vermont consists of a folded and faulted bedrock formation overlaid by glacial deposits of sand and gravel in river valleys and

17. Id. 18. JAFFE & DINOVO, supra note 8, at 9. 19. See E.C. Pielou, supra note 5, at 537. 20. See DAVID H. GETCHES, WATER LAW IN A NUTSHELL 272 (3d. ed. 1997). 21. Eckstein & Eckstein, supra note 9, at 210. 22. Nancy M. Trautmann et al., Groundwater: What It Is and How to Protect It (2005), available at http://pmep.cce.cornell.edu/facts-slides-self/facts/gr-wh-hw-grw85.html. 23. Eckstein & Eckstein, supra note 9, at 214. 24. Thomas C. Winter et al., United States Geologic Survey, Circular 1139, Groundwater and Surface Water: A Single Resource, Box B (1998), available at http://water.usgs.gov/pubs/circ/circ1139. This lengthy circular provides a good background on much of the material condensed above; see also DIV. OF GEOLOGY AND DIV. OF WATER SUPPLY, DEP’T OF ENVIRONMENTAL CONSERVATION, REPORT ON THE STATUS OF GROUNDWATER AND AQUIFER MAPPING IN THE STATE OF VERMONT 7 (Jan. 2003), available at http://www.anr.state.vt.us/dec/geo/pdfdocs/RptLeg.pdf. 25. See id. at 36. 26. See id. at Box A.

4 Vermont Journal of Environmental Law [Vol. 8, Issue 1 uplands.27 In some areas, the bedrock itself is exposed. Outside of the Green Mountain Range, much of the groundwater is contained in the bedrock itself in what are known as crystalline rock aquifers.28 In these formations, the rock itself (often gneiss and schist) is practically impermeable, and the water flows through fractures and joints in the rock.29 Relative to other types of aquifers, crystalline rock aquifers contain small quantities of water per volume of rock and are usually hydraulically connected to the overlying glacial deposit, so that wells pumping water from the overlying deposit may draw water from the lower crystalline rock aquifer.30 The flow of groundwater in these aquifers is usually from the uplands to the valleys, although, as noted above, the flow patterns can be complex, with different flow channels that may, for instance, bypass an intervening stream bed.31 Approximately 80% of privately drilled wells in Vermont draw water from this type of bedrock aquifer.32 In the Green Mountains, much of the groundwater is contained in carbonate rock aquifer.33 The rock of this formation is composed of limestone, dolomite, and marble; and is soluble, with groundwater found both in cracks in the rock and in cavities formed by the dissolution of the surrounding rock.34 It is permeable 300 to 500 feet down.35 Below that there is little recoverable water.36 There are few studies about this formation, but, in general, the direction of flow is also from the uplands to the valleys.37 In most places in Vermont, the bedrock aquifer is beneath superficial aquifers that consist of either till or stratified drift.38 Till is the unsorted sand and gravel mixed deposit remaining after the last glaciation.39 Stratified drift is of the same origin but is a gravel deposit which has been sorted and layered by particle size.40 These are sometimes found as

27. See generally Olcott, supra note 6. Most of this section of text is drawn from this source. 28. Id. 29. Id. 30. Id. 31. Winter, supra note 24, at Box H. 32. See VERMONT DEPARTMENT OF ENVIRONMENTAL CONSERVATION, WATER QUALITY DIVISION, VERMONT WATER QUALITY ASSESSMENT REPORT (305b Report) 65 (2004), available at www.vtwaterquality.org/planning/docs/305b/pl_305b04-toc.pdf. 33. Olcott, supra note 6. 34. Id. 35. Id. 36. Id. 37. Id. 38. Id. 39. Id. 40. LAURA MEDALIE & RICHARD B. MOORE, GROUNDWATER RESOURCES IN NEW HAMPSHIRE: STATIFIED DRIFT AQUIFERS 10 (1995), available at http://water.usgs.gov/pubs/wri/ wrir_95-4100/html/pdf.html.

2006] Groundwater Quantity in Vermont 5 terraces, or long ribbons known as eskers.41 These stratified deposits underlie 14% of New Hampshire.42 These water bearing formations are important for Vermont as well. For example, Brandon, Vermont draws much of its public water supply from a stratified drift aquifer.43 Similarly, 20% of private wells in the state draw water from sand and gravel aquifers.44 Although sand and gravel aquifers are generally shallower and have a higher yield than bedrock aquifers, they are under a more direct influence by surface water and are more likely to be contaminated.45 As is true for all aquifers, the only natural way water can enter the groundwater system in Vermont is through percolation of rain, snowmelt, and surface water down to the aquifer, a process known as recharge.46 Often, when a water table is artificially lowered through groundwater pumping, the level of water in a stream can be higher than the water table in the adjacent aquifer.47 As described above, this stream is a ‘losing stream’; some of the stream flow is lost to recharging the aquifer known as induced infiltration recharge.48

II. VERMONT’S GROUNDWATER MAPPING EFFORTS Three categories of mapping data currently exist regarding Vermont’s groundwater: (1) early maps, (2) more recent detailed maps, and (3) well logs of certified well drillers.49 Drought in the mid-1960s led to the first efforts of geologic mapping to ascertain favorable locations in which to drill for groundwater.50 By 1975, the Vermont Geologic Survey (VGS) completed groundwater potential maps for 66% of the land area of Vermont.51 These maps offered a general picture of groundwater potential for a large majority of Vermont residents. Between 1976 and 1982, four studies were completed with a greater level of detail: (1) White River Junction; (2) Barre-Montpelier, (3) Rutland, and (4) the Upper Winooski River Basin.52 According to the Water Supply Division, at least two of

41. Id. at 7. 42. Id. at vi. 43. Minutes of the Brandon Town Meeting (March 15, 2004) (on file with the Vermont Journal of Environmental Law), available at http://www.town.brandon.vt.us/Minutes/2004/minutes14.htm. 44. VERMONT WATER QUALITY ASSESSMENT REPORT (305b Report), supra note 32, at 65. 45. Interview with Dennis Nealon, Hydrogeologist, Department of Environmental Conservation in Waterbury, Vt. (April 7, 2005) (on file with author). 46. MEDALIE & MOORE, supra note 40, at 2. 47. Id. at 10. 48. Id. 49. See Groundwater and Aquifer Mapping, supra note 24. 50. Id. 51. Id. 52. Id.

6 Vermont Journal of Environmental Law [Vol. 8, Issue 1 these lack the level of detail needed to conduct planning for water development at the town level.53 Additionally, a significant number of wells have been drilled since 1982, further limiting the usefulness of the twenty-year-old maps. 54 Although increased funding for updated maps is scarce, in 2001 the VGS created a detailed groundwater map of Arlington, Vermont, which has been used by its local officials.55 The VGS, if allocated more money, would focus on more maps of this scale, as they believe that more of this type of research is needed to understand the aquifers of the state.56 The final source of groundwater data that is maintained by Vermont is the recorded logs of individual private well drillers. Since 1966, well drillers, as a condition of their license, have been required to report information about drilled wells to the Water Supply Division.57 This data includes the physical location of the well, the total depth, the depth to bedrock if applicable, and the yield in gallons per minute.58 About 90,000 such records exist with a wide range of accuracy and usefulness.59 None of this data, unfortunately, has been tabulated or analyzed and much of it remains in paper files in Waterbury, Vermont.60

III. VERMONT GROUNDWATER USE According to the United States Geologic Survey (USGS) in 2000, 43 million gallons of groundwater per day (mgd) were withdrawn from Vermont’s aquifers.61 Unlike western states where most groundwater is used for agriculture, the majority of the 43 mgd is withdrawn from wells supplying private individual domestic users and public water systems. Forty-one percent of Vermonters who are self-supplied withdraw 20.7 mgd,62 and municipal supplies withdraw 19.5 mgd.63 In total, 70% of 53. Id. 54. Id. 55. Interview with Larry Becker, Vermont State Geologist, in Waterbury, Vt. (Apr. 29, 2005) (on file with author). 56. Id. 57. Nealon, supra note 45. See also Environmental Protection Rules, Well Driller Licensing Rule, Chapter 15, § 701(b), available at http://www.anr.state.vt.us/dec/watersup/wdrule/ AdoptedWellDrillerLicensingRule8-26-02.pdf. 58. Id. at § 701(b). 59. Nealon, supra note 45. 60. Id. 61. Circular 1268, supra note 2. Unless other wise noted, all statistics in this section are from this Circular. 62. A negligible percentage of the private domestic use is from lakes and streams. 63. According to the USGS, total municipal use in Vermont is 60.1 mgd, meaning that 40.6 mgd of municipal supply is from lakes and streams. The City of Burlington draws all of its water from Lake Champlain. See United States Environmental Protection Agency, Local Source Water Protection

2006] Groundwater Quantity in Vermont 7 Vermont residents use groundwater in their households.64 Other users of groundwater in Vermont include: irrigation (0.33 mgd out of 3.78 mgd total of water used for irrigation in Vermont);65 industrial (2.05 mgd out of 6.91 mgd total);66 and power plants (0.33 mgd out of 355 mgd).67 Since, as will be discussed below, there are no permit or reporting requirements for groundwater withdrawal in Vermont, these numbers are necessarily estimates. In order to update the groundwater withdrawal figures for 2005, one must take into account the approximately two to three thousand new wells drilled each year for individual use.68

IV. POTENTIAL VERMONT GROUNDWATER QUANTITY PROBLEMS

Although most publicized groundwater problems in Vermont have been due to natural and introduced contaminants in the water supply, the likelihood for groundwater quantity problems will only increase as the demand on the supply grows. Vermont is blessed with ample precipitation in most years. Total yearly precipitation ranges from about 40 inches-per-year in the lowlands and valleys up to 50 or 70 inches-per-year along the Green Mountains.69 In addition, being a well-watered state, the population density has not yet reached the levels that could result in serious localized water shortages as has occurred in nearby New England states. For instance, towns in the Nashua River watershed in the Ipswich River Basin have withdrawn groundwater at a rate great enough to result in seasonal shortages and decreased stream flows in the local rivers.70 In fact, the Ipswich River has gone completely dry in recent years, a phenomenon resulting from

Program Case Studies: Burlington, Vermont, available at http://www.epa.gov/safewater/ protect/casesty/burlingtonx.html. 64. 305B REPORT, supra note 32, at 65. 65. Although the VT Department of Agriculture estimated in 2003 that 85 to 90% of VT farms use groundwater. Id. at tbl.7. 66. Industrial use includes water used for such purposes as fabricating, processing, washing, diluting, cooling, or transporting a product; incorporating water into a product; or for sanitation needs within the manufacturing facility. See generally Circular 1268, supra note 61. 67. Power plant use is limited to water converted to steam during production. Id. at tbl.10. 68. Nealon, supra note 45. 69. Oregon Climate Service, Oregon State University, Average Annual Precipitation: Vermont (2000), available at http://www.ocs.orst.edu/pub/maps/Precipitation/Total/States/VT/vt.gif (last visited Sept. 1, 2006). 70. See MICHAEL HEIDORN ET AL., SOURCE WATER STEWARDSHIP PROJECT EXCHANGE TEAM, NASHUA RIVER WATERSHED (SQUANNACOOK AND NISSITISSIT SUB-BASINS): SOURCE WATER STEWARDSHIP EXCHANGE TEAM REPORT 6–7 (July 2003), available at http://www.nashuariverwatershed.org/releases/sws_rpt.doc; see also GLENNON, supra note 1, at 99.

8 Vermont Journal of Environmental Law [Vol. 8, Issue 1 increased population pressures on the groundwater in the area.71 In recent years, localized shortages have occurred. In 2003, six public water supplies experienced a lack of sufficient water to meet their needs. These shortages occurred in Jericho Heights in Jericho, Oglewood in Milton, Magic Village in Londonderry, Deep Rock Water FD #8 in Barre Town, Eaton’s Mobile Home Park in Royalton, and Windy Hill Acres in Springfield.72 In 2004, shortages were reported in Westford Northridge Owners Association in Westford, Maple Leaf Farm in Underhill, Mount Snow Village Water System in Dover, Albany Water System in Albany, and Montgomery Center Water System in Montgomery.73 The Water Supply Division of the Department of Environmental Conservation acknowledges that these shortages exclude the possible effects that groundwater withdrawals may have on the health of Vermont’s ecosystems due to the little-studied interaction between groundwater and streams, lakes, and wetlands.74 Taking into account Vermont’s social and geologic characteristics, there are five broad types of problems which may affect groundwater quantity and should be considered when drafting new regulations. The first is localized aquifer draw downs in either bedrock or sand and gravel aquifers. When either too many new wells are drilled in a certain area, or the existing wells withdraw water at an increased rate, the local water table sinks in what is known as a cone of depression.75 Water may not be able to percolate downward fast enough nor flow laterally from adjoining aquifer sections quickly enough to replace the water withdrawn. Drilling deeper wells would solve this problem, but not perpetually. The second problem is similar to the first, but expanded to an entire aquifer or watershed. If more groundwater is withdrawn from a region than can be replaced by recharge, the aquifer will eventually be depleted. This might take a long time due to the slow speed at which groundwater flows through some aquifers, but with enough time and enough powerful wells, aquifers can be exhausted; even in New England. The third problem is decreased stream flow. This occurs when a high yielding well near a gaining stream creates a cone of depression that effectively reverses the direction of groundwater flow and draws water from the streambed towards the well, reducing or eliminating stream flow.76 This effect is intensified when the water used is either consumed or transferred out of the stream basin. To illustrate, a domestic or agricultural water user 71. GLENNON, supra note 1, at 101–9. 72. 305B REPORT, supra note 32, at 65. 73. Nealon, supra note 45. 74. Nealon, supra note 45. 75. JAFFE & DINOVO, supra note 8, at 78. 76. See generally GLENNON, supra note 1, at Ch. 7 (regarding the Ipswich River).

2006] Groundwater Quantity in Vermont 9 eventually discards the used water back into the nearby stream through field run-off or septic leachate, while the water used by a water bottler or other trans-basin transferor does not end up back in the system.77 The fourth problem is one that is often overlooked: reduced rates of recharge. In order for precipitation to recharge an aquifer, it must remain on the surface of the rock or soil long enough to percolate downwards; development, in the form of impervious surfacing like asphalt, roofing, sidewalks and patios, prevents aquifer recharge.78 Precipitation is channeled into sewers and flows directly into streams and lakes, bypassing the aquifer. It has been estimated that the average quarter acre residential lot results in an approximately 40% decrease in recharge rate.79 In some areas, this increased imperviousness is the leading cause of groundwater (and streamflow) quantity problems.80 Finally, groundwater quantity problems can exacerbate groundwater contamination problems. This can occur in two ways. First, by simply decreasing the amount of water in an aquifer, whether by pumping or by reducing recharge, the concentration of pollutant per unit of water will increase.81 Pumping tends to both draw contaminated water to the point of withdrawal and disperse contaminants through the aquifer.82 A more detailed understanding of the hydraulics of a specific aquifer would simplify the monitoring of contaminants and the prediction of where and how quickly they may flow in the aquifer.83

V. LEGAL FRAMEWORK FOR GROUNDWATER IN VERMONT

A. Common Law and Groundwater Protection Statute

For purposes of surface water, Vermont is a riparian state.84 Each person whose property abuts a lake or stream has common law rights to use the water in a reasonable way.85 The state government’s authority to

77. See Water Conservation Gets a Boost, N.H. UNION LEADER, April 24, 2005 (quoting New Hampshire state hydrologist Brandon Kernen) (“The stress on the resources is caused by sprawling communities that displace water, take it from one source and pipe it to another watershed and the commercial and industrial users where water is a main ingredient or discharged as steam.”). 78. CEI ENVIRONMENTAL EDGE, WATER WARS HEAT UP: STREAMFLOW DECLINES HAVE MANY CAUSES 1–3 (October 2003). 79. Id. 80. Id. 81. Alison M. Gregory, Groundwater and its Future, 11 STAN. ENVTL. L.J. 229, 233 (1992). 82. Nealon, supra note 45; see also Gregory, supra note 81, at 233. 83. Id. 84. Stephen Dycus, Vermont, in 6 WATERS AND WATER RIGHTS 815 (Robert E. Beck ed., 1994). 85. Getches, supra note 20, at 15.

10 Vermont Journal of Environmental Law [Vol. 8, Issue 1 regulate streamflow (and possibly groundwater flow) stems from Chapter II, Section 67, of the Vermont Constitution, as interpreted by the Vermont Supreme Court in Hazen v. Perkins.86 Under Hazen, the state’s power to regulate stream flow is based on the constitutional authority to regulate fisheries.87 This case also discusses and establishes precedent for the public trust doctrine. In Vermont, according to Hazen, and as codified by statute, the public trust extends to navigable water bodies and their beds and banks.88 Unlike New Hampshire, the public trust in Vermont does not encompass groundwater.89 Legislation to extend the public trust doctrine to Vermont’s groundwater was introduced during the 2005 legislative session, but is yet to be acted upon.90 It is unclear what would result from an act declaring that the groundwater of the state is part of the public trust. So far in New Hampshire there has been no reported case law interpreting the public’s trust in groundwater. Some critics argue that even without a statute, the public trust doctrine should be extended to any groundwater that affects surface water.91 Until 1985, groundwater use in Vermont was subject to the absolute ownership rule; there was no limit at all on an overlying landowner’s use of groundwater.92 As in other states, the common law did not recognize the interconnection between groundwater and surface water. Groundwater was considered part of one’s land, incident to ownership, while the use of surface water was only limited by the riparian rights doctrine.93 The riparian right was usufructory–a right to use. In 1985, the legislature passed the Groundwater Protection Act (GPA) which states:

It is the policy of the state of Vermont that it shall protect its groundwater resources to maintain high quality drinking water and shall manage its groundwater resources to minimize the risks of groundwater quality deterioration by limiting human activities that present unreasonable risks to the use

86. Joseph S. Maclean, Streamflow Policy in Vermont: Managing Conflicting Demands on the State’s Waters, 19 VT. L. REV. 191, 204–05 (1994); Hazen v. Perkins, 92 Vt. 414 (1918). 87. See Hazen v. Perkins, 92 Vt. 414, 420 (1918). 88. VT. STAT. ANN. tit. 29, § 401. 89. See N.H. REV. STAT. ANN. § 481-1 (2005) and N.H REV. STAT. ANN. § 485-C:1 (2005). 90. See H. 294, 2005-2006 Legislative Session (Vt. 2005); S. 151, 2005-2006 Legislative Session (Vt. 2005). 91. Eric Swensen, Pubic Trust Doctrine and Groundwater Rights, 53 U. MIAMI L.REV. 363, 380-81 (1999). 92. See generally Dycus, supra note 84. 93. See Dycus, supra note 84, at 815.

2006] Groundwater Quantity in Vermont 11

classifications of groundwater in the vicinities of such activities while balancing the state's groundwater policy with the need to maintain and promote a healthy and prosperous agricultural community.94

This groundwater quality statute calls for the classification of the state’s groundwater into four categories: Classes I through IV.95 Class I is defined as groundwater of “uniformly excellent” character which has “no exposure to activities that pose a risk to its use.”96 So far no aquifers have been designated Class I. Class II is also defined as groundwater of “uniformly excellent” character, but is “exposed to activities which may pose a risk… .”97 There are no aquifers currently classified as Class II, although this classification has been proposed for the groundwater of Brandon, Vermont.98 Class III is defined as groundwater suitable for household use.99 All groundwater in Vermont not otherwise designated falls in Class III by default.100 Class IV is defined as groundwater that is non-potable, but may be used for industry or agriculture or similar uses.101 There are eight designated Class IV aquifers in Vermont, including several landfills and the Pine Street Barge Canal area in Burlington.102 Although the main thrust of the GPA is source protection, the statute abolishes the common law rule of absolute ownership and declares that groundwater use is subject to the correlative rights rule.103 Additionally, the GPA established a cause of action for the “unreasonable harm caused by another person withdrawing, diverting, or altering the character or quality of groundwater.”104 So far, there have not been any reported cases under this statute, although it is likely that groundwater disputes have occurred and may have been settled without litigation, for instance, by drilling a deeper well.105 Due to the lack of litigated disputes, correlative rights in groundwater have not yet been interpreted by the courts in Vermont. According to the

94. VT. STAT. ANN. tit. 10, § 1390 (2004). 95. VT. STAT. ANN. tit. 10, § 1394(a) (2004). 96. Id. 97. Id. 98. Nealon, supra note 45. 99. VT. STAT. ANN. tit. § 10, 1394(a) (2004). 100. Id. 101. Id. 102. 305B REPORT, supra note 32, at 65. 103. VT. STAT. ANN. tit. 10, § 1410(a) (2004). 104. VT. STAT. ANN. tit. 10, § 1410(c)-(d). Note that the statute contains a preference for agriculture and silviculture. Agricultural and silvicultural users are only liable if they are shown to be negligent or reckless. All other users are subject to liability if their use is found to be unreasonable. 105. Nealon, supra note 45.

12 Vermont Journal of Environmental Law [Vol. 8, Issue 1 definition in the Second Restatement of Torts, correlative rights in groundwater are similar to riparian rights in surface waters.106 All landowners whose land overlies an aquifer have equal rights, and in times of scarcity, water is apportioned in a manner similar to stream apportionment for riparians.107 Another definition describes the proportionate share of each overlying landowner as “predicated…solely on his or her current…need for water.”108 Correlative rights are more restrictive than reasonable use. Under reasonable use, as long as there is no waste, one can apply groundwater on one’s own land without limitation.109 Correlative rights, in contrast, are limited by the quantity of available water in the aquifer and one’s need for its use.110

B. Groundwater Protection Rule and Strategy The Groundwater Protection Rule and Strategy was adopted by Vermont pursuant to VT. STAT. ANN. tit. 10, §1392(d), and is codified as Chapter 12 of the Environmental Protection Rules of Vermont.111 It contains detailed regulations on how to classify groundwater under the 1985 statute.112 These regulations make no mention of withdrawals or quantity concerns, even in terms of the effect intensive withdrawals may have on contamination movement or concentration

C. Water Supply Rule The Water Supply Rule deals with technical details of how to source water for public supplies and how to maintain uncontaminated drinking water.113 This rule was revised April 25, 2005, and now includes regulations concerning, among other things, bottled water and bulk water.114 Under this rule, the Vermont Department of Environmental Conservation

106. Geoffrey Commons, Vermont’s New Groundwater Law, 10 VT. L. REV. 479, 479 n.3 (1985) (citing Restatement Second of Torts 254-5 (1982)). 107. Id. 108. 93 C.J.S. Waters § 204 (2005). 109. Matt Berkowitz, Bottling the Water Bottlers, 22 TEMP. ENVTL. L. & TECH. J. 235, 243 (2004). 110. Id. at 244. 111. ENVIRONMENTAL PROTECTION RULES, CHAPTER 12, GROUNDWATER PROTECTION RULE AND STRATEGY (2005), available at http://www.anr.state.vt.us/dec/watersup/GWPRS/ GWPRS2005.pdf. 112. Id. 113. Agency of Natural Resources, Vermont Department of Environmental Conservation, Water Supply Rule, Environmental Protection Rules Ch. 21 (April 25, 2005), available at http://www.anr.state.vt.us/dec/watersup/wsrule/Vermont%20WSR%20April%202005.pdf. 114. Id. §§ 11.1, 11.2.

2006] Groundwater Quantity in Vermont 13 requires permits for public water supplies, nonpublic water supplies above a certain number of users, and bottled and bulk water suppliers.115 Permits required include source, construction, operating and water supply permits.116 There are only a few sections of this regulation that could be used to regulate groundwater withdrawals. For source permits, one of the criteria to be considered is the potential interference with other water supply withdrawals.117 In other words, if a new water supply source has the potential to decrease the yield of an existing water supply, a permit might not be issued. For operating permits, if a public supplier’s water demand exceeds the supply, the operator must look for more water.118 This seems to assume the perpetual availability of groundwater and ignores the possibility of over-withdrawal. The section on bottled water permits is solely concerned with purity and labeling; there is no mention of quantity or potential interference.119 A more promising section of the Water Supply Rule is contained in part three of Appendix A: Water Supply Source Development and Protection. An applicant for a source permit has to show that there will be adequate water available for the proposed use.120 Applicants for surface water use must identify the “existing uses” of the surface water, including the “minimum stream flow.”121 For groundwater users, the regulations state that if the development interferes with existing wells, the interference must be resolved.122 For example, the applicant must connect the neighboring well to the public source or drill the neighboring well deeper. Interestingly, the section on “groundwater under direct influence of surface water” does not regulate groundwater withdrawals to the extent they might affect nearby streams or lakes.123 Instead it solely concerns quality issues, such as bacterial contamination of the groundwater.124

115. Id. 116. Id. § 3.0. 117. Id. § 4.1.1.4, 4.1.1.5(e). 118. Id. § 7.7. 119. Id. § 11. 120. Id. app. A, § 3.0. 121. Id. app. A, § 3.2.5. 122. Id. app. A, § 3.3.5.5(a). 123. Id. Appendix A, § 3.4. 124. Id.

14 Vermont Journal of Environmental Law [Vol. 8, Issue 1

D. Vermont Water Quality Standards The Vermont Water Quality Standards (WQS) establish minimum flow rules for the rivers and streams of the state.125 The WQS are based on VT. STAT. ANN. tit. 10 § 1258.126 The flow rule requires a minimum water level, which is defined as the lowest mean flow for seven consecutive days that would occur in a drought that had a 10% probability of occurring in any given year.127 Section 2-02 details the “Natural Flow” regime, describing the calculations necessary to determine what amount of water can be withdrawn from a stream in each of the classes: A1, A2, and B1 through B3.128 For example, for streams in Class A1, the most restricted class, there can be no diminishment of the natural flow “by more than 5% of 7Q10 at any time.”129 Although the WQS do not explicitly mention groundwater withdrawals, it could be possible to regulate some withdrawals based on the effect of pumping near a spring or stream.

E. Snowmaking Withdrawal Rules The rules regulating water withdrawals for snowmaking purposes are the result of a 1995 rulemaking and can be found at Chapter 16 of the Vermont Environmental Protection Rules, promulgated pursuant to VT. STAT. ANN. tit. 10 §§ 1031, 1032.130 Before 1995, this chapter applied only to alterations in streams due to hydroelectric dams and permit requirements for the alteration of the course or flow of any stream with a drainage area of ten square miles or larger.131 In 1995, the chapter was amended to include rules “conservation flow standards” to analyze new surface water withdrawals for snowmaking expansions.132 Existing users were grandfathered in, subject to future review.133 The general standard for the winter flow limit is the February Median Flow (FMF); the FMF is 0.8 cubic feet per second per square mile of drainage area if site specific data is 125. State of Vermont Water Resources Board, Vermont Water Quality Standards (2000), available at http://www.state.vt.us/wtrboard/rules.htm. 126. VT. STAT. ANN. tit. 10, § 1258 (2005). The water level is known as 7Q10. 127. Agency of Natural Resources, Vermont Department of Environmental Conservation, Water Supply Rule, Environmental Protection Rules Ch. 21, § 1-01(B)(42). (April 25, 2005) available at http://www.anr.state.vt.us/dec/watersup/wsrule/Vermont%20WSR%20April%202005.pdf. 128. Id. § 2-02. 129. Id. § 3-01(C)(1). 130. Vermont Agency of Natural Resources, Environmental Protection Rules, Chapter 16, available at http://www.anr.state.vt.us/dec/rules/pdf/chap16.pdf. 131. VT. STAT. ANN. tit. 10, §§ 1001–1021 (2004). 132. VT. STAT. ANN. tit. 10, §§ 1031-1032 (2004). 133. Id.

2006] Groundwater Quantity in Vermont 15 unavailable.134 Under the rules, each user of surface water for snowmaking must report the pump rate and total water use.135 New proposed withdrawals are limited based on the FMF.136 It might be possible to construct a general groundwater withdrawal regulation to protect stream flows based on the snowmaking framework. Some potential impediments, however, may include the difficulty in determining the direct effect of an individual’s groundwater pumping on a stream or other water body. Such a regulation should focus on large commercial groundwater users since it would be easier to link intensive pumping with its effect on stream flow.

F. Vermont Wetland Rules The Vermont Wetland Rules were adopted in 1986 and re-authorized in January 2002.137 The only mention of groundwater in these rules pertains to wetlands, specifically that wetlands protect and recharge the groundwater.138

G. Act 250: Vermont’s Land Use and Development Law Chapter 151 of Title 10 of the Vermont Statutes is Vermont’s Land Use and Development Law, known as Act 250.139 Simply put, this Act requires that certain developers obtain a land use permit before construction.140 Act 250 has a broad reach and governs much development in the state. Although groundwater concerns are not commonly addressed in Act 250 proceedings, they may be in the future. Act 250 has a limited jurisdiction: the relevant categories of jurisdiction include: (a) any construction on more than ten acres, except for forestry or farming, and any construction on one acre if the town has not instituted zoning laws; (b) ten or more housing units in a five mile radius in five years; and (c) any development above 2,500 feet in elevation.141 Act 250 permits are granted as long as the development does not contravene the ten criteria listed in the Act.142 For groundwater withdrawals, three criteria are important: (1) streams, (2) water supply; and 134. Vermont Agency of Natural Resources, Environmental Protection Rules, 16 § 3 (1996). 135. Id. § 16-04. 136. Id. § 4. 137. Water Resources Board, Vermont Wetland Rules (Jan. 1, 2002), available at http://www.state.vt.us/wtrboard/wet/wetrule2002.pdf. 138. Id. at § 5.2. 139. VT. STAT. ANN. tit. 10, §§ 6001–6092 (2005). 140. Cindy C. Argentine, Vermont Act 205 Handbook 2 (1998). 141. VT. STAT. ANN. tit. 10, § 6001(3) (2004). 142. VT. STAT. ANN. tit. 10, §6086 (2004).

16 Vermont Journal of Environmental Law [Vol. 8, Issue 1 (3) impact on existing water supply.143 Statutory section (a)(1)(E) requires that development must maintain the natural condition of the stream when feasible.144 Criterion (2) requires a developer to have a sufficient water supply to meet its needs.145 Criterion (3) stipulates that the development must not cause an “unreasonable burden” on the existing water supply.146 A proposed commercial plant, for instance, that pumps large quantities of groundwater for cooling and production would likely be forced to show that its groundwater use would not affect stream flow or unreasonably burden nearby residential or public wells. Unfortunately, there has been little focus on groundwater quantity issues during Act 250 hearings, possibly due either to lack of actual interference or unorganized opposition.147 Furthermore, there has been little mapping, research, or understanding of the groundwater resource and its interaction with surface water.148 One of the more controversial users of groundwater in the North Eastern United States in the past ten years have been commercial bottlers. While discussion of ClearSource (formally Hidden Springs and then Vermont Pure) has not been as heated as the arguments over bottling in other states, some concern remains about both the effect of bottling on local streams and the conversion of a public good into private gain.149 ClearSource was originally granted an Act 250 Permit in 1988 to bottle up to 1000 gallons water per day from a privately owned spring.150 In 1993, the company was granted an amended permit, allowing expansion of the bottling operation.151 Interestingly, water supply was only considered under Criterion (2)–sufficient water available–and only for the water needs of the employees, not the water used for bottling.152 Criterion (3) was marked “N/A” on the application, meaning that no yield determination was needed and that assessment of interference was not applicable.153 The new permit can be read to require, however, continuous monitoring of the brook into which the spring otherwise would have flowed and periodic reports to the Vermont Department of Environmental Conservation under criteria (1)(A), stream flow.

143. Id. 144. Id. § 6086(a)(1)(E). 145. Id. § 6086(a)(2). 146. Id. § 6086(a)(3). 147. See generally VT ANR Act 250 database available at http://www.anr.state.vt.us/site/cfm/act250/. 148. Nealon, supra note 45. 149. Author’s discussion with members of Water First in Randolph, Vt. 150. Permit application #3R0578 (Vt. District Environmental Commission #3). 151. Id. 152. Id. 153. Id.

2006] Groundwater Quantity in Vermont 17 Another example is Vernon Senior Housing in Vernon, Vermont. When proposed, the development would have consisted of twenty-four apartments in a two-story building, requiring 3,625 gallons per day of groundwater.154 The developers had trouble locating a well with a yield high enough to allow the desired density. Despite a record of letters from abutting landowners concerned about the effect of the new well on their own water supplies, the Commission based its initial analysis on Criterion 9(B), the effect of septic fields and well drilling on prime agricultural soils, not Criterion 3, interference with nearby water sources.155 An Act 250 permit was granted in May 2005, but the Commission retained jurisdiction in case any impact develops on adjacent water supplies.156 Pike Industries, a proposed stone quarry in Williamstown, Vermont, was denied an Act 250 permit in June 2004.157 This is one of the few cases where the Commission took into account the potential effect of a project on the neighbors’ groundwater supplies. The Commission found that due to incomplete evidence and a lack of a clear test of the proposed quarry’s effect on the aquifer, the permit should be denied.158 A contrasting example is Barre Granite Quarry. In this instance, the commission granted the Act 250 permit despite the fact that the quarry’s operation involved dewatering, resulting in a reduction to the local aquifer.159 The Commission determined that nine peoples’ wells might be affected.160 As a condition of the permit, the company agreed to drill monitoring wells and, if necessary, drill deeper wells for those affected.161 The commissioner reached the opposite result of Pike Industries by granting the permit even though the quarry could have potentially burdened existing users’ water supply. A final example of the way the Commission analyzes Criterion (3) during the permitting process is George Boissoneault’s subdivision proposal. Boissoneault planned to subdivide a parcel into 25 single family lots.162 Although the permit was denied for other reasons, the Commission found the development to be in compliance with Criteria (2) and (3).163 That is, there was enough water to supply each lot with its own well, and

154. Permit application #2W1017-1 at 1,5 (May 24, 2005) (Vt. District Environmental Commission #2). 155. Id. at 2–3. 156. Id. at 6. 157. Permit application #5R1415 (Vt. District Environmental Commission #5). 158. Id. 159. Permit #7L1079 (Vt. District Environmental Commission #7). 160. Id. 161. Id. 162. Permit #6F0499 (Vt. District Environmental Commission #6). 163. Id.

18 Vermont Journal of Environmental Law [Vol. 8, Issue 1 there would be no unreasonable interference with the adjoining landowners’ supply. The Commission calculated the available water supply by multiplying the amount of yearly rainfall by the percentage likely to percolate down and recharge the aquifer.164 Although the Commission recognized that this was an estimate and that accurate predictions could not be made without drilling and testing, the Board relied on the estimate in determining compliance with Criteria (2) and (3). It is difficult to draw a conclusion from the Commission’s practice of analyzing the criteria which relate to groundwater withdrawals. What is clear however, is that more research into the hydraulics of the groundwater resource and the groundwater-surface water interaction would be useful for both parties in Act 250 hearings.165

VI. GROUNDWATER REGULATION IN OTHER STATES

A. New Hampshire New Hampshire is probably the state most similar to Vermont in terms of groundwater hydrology and size.166 New Hampshire, however, unlike Vermont, has a comprehensive system of regulations for the withdrawal of groundwater. Sixty percent of New Hampshire residents rely on groundwater for drinking.167 In 1995, 82 million gallons per day were withdrawn from the aquifers in the state.168 Of that 82 mgd, 31 mgd was used for private domestic supply, another 31 mgd for public supply, and 20 mgd for commercial and agricultural use.169 The New Hampshire legislature has determined that groundwater and surface water combined are an “invaluable public resource” to be conserved and managed for the public good.170 It codified the public trust as extending to all waters of the state above and below ground.171 No litigation has occurred so far regarding the public trust in groundwater, but a citizens group has used it as a cause of action in its suit against USA Springs, a New

164. Id. 165. See generally Nealon, supra note 45. (looking generally at all the maps created of the two states). 166. Olcott, supra note 6. 167. New Hampshire Department of Environmental Services, Guide to Groundwater Protection 2 (2004), available at http://www.des.state.nh.us/dwspp/pdf/des_guide_to_ground_water.pdf. 168. Id. 169. Id. 170. N.H. REV. STAT. ANN. § 481-1 (2004). 171. N.H. REV. STAT. ANN. § 481-1 (2004); See also 485-C (2004); See also Coakley v. Maine Bonding, 618 A.2d 777 (1993) (maintaining that the public has an ownership interest in groundwater).

2006] Groundwater Quantity in Vermont 19 Hampshire bottling company.172 Additionally, New Hampshire law sets up four classifications for its groundwater protection and management, which is similar to Vermont.173 Besides a classification system, New Hampshire regulates “large groundwater withdrawals.”174 This is defined as any withdrawal over 57,600 gallons in a 24-hour period.175 As of 1998, a permit is required for any “large withdrawal” of groundwater.176 Regulations set up a tiered system dividing large withdrawals into minor and major withdrawals.177 Minor large withdrawals are those between 57,600 and 144,000 gpd in an area with few other users or natural resources, while major large withdrawals are over 144,000 gpd or are in an area with significant users or natural resources.178 In order to receive a permit for any major large withdrawal, the state must find that the withdrawal would not result in adverse impacts, including (a) capacity reduction in private wells, (b) reduction below the designed flow rate in public water supplies, (c) reduction of surface water or river flows in violation of New Hampshire water quality rules, and (d) contamination of wells or surface waters resulting from a groundwater flow alteration.179 The state can grant a permit conditionally, or with a mitigation agreement.180 Essentially, New Hampshire uses similar criteria to those listed in Vermont’s Act 250, but puts specific emphasis on them by means of a separate permit. New Hampshire’s regulations also capture heavy groundwater users who might not meet the jurisdictional requirements of Act 250. So far there have been eleven large groundwater withdrawal permits granted since 1998, including four golf clubs, four municipal wells, and three water bottlers.181 No impacts were adverse enough to result in a denial of a permit application. New Hampshire granted the permits either directly, or with a condition or mitigation.182 172. See Brief for Petitioner-Appellant at 1, Save Our Groundwater v. New Hampshire Department of Environmental Services (2004), available at http://www.appealslawyer.net/briefs/ SOG_NOA_re_USA_Springs_Permit.pdf. 173. N.H. REV. STAT. ANN. § 485-C:5 (LexisNexis 2006). 174. Id. § 485-C:14-a. 175. Id. 176. Id. § 485-C:21. 177. New Hampshire Regulation Env-Es 387, available at http://www.des.state.nh.gov/ rules/adopt_387.pdf#search=%22nh%20administrative%20rules%20env-ws%20387%22; see also New Hampshire Regulation Env-Es 388, available at http://www.des.state.nh.us/ Rules/adopt_338.pdf#search=%22nh%20administrative%20rules%20env-ws%20387%33. 178. Id. 179. Id. 180. Id. 181. E-mail from Timothy Nowak, Hydrogeologist, New Hampshire Department of Environmental Services, to Evan Mulholland (May 2, 2005) (on file with author). 182. Id.

20 Vermont Journal of Environmental Law [Vol. 8, Issue 1 In addition to the withdrawal permit scheme, New Hampshire regulates bulk water withdrawals from surface water bodies.183 This put bulk water regulation on an equal footing with groundwater regulation. Among other things, bulk water in New Hampshire is used for filling swimming pools, hydroseeding, and dust control. According to the bulk water regulations, the user (a) must have the riparian right holder’s permission, (b) must not withdraw enough water to create an adverse impact to biota or recreation, and (c) the withdrawal must be reasonable; it must not adversely affect riparian landowners downstream.184 The volume trigger for state registration is either 20,000 gpd averaged over seven days or 600,000 gallons over 30 days.185 The New Hampshire legislature has addressed water use in the last two years. Two acts were passed at the end of the 2005 legislative session. The first, H.B. 215, requires, as of January 1, 2006, registration of any withdrawal or discharge of water over 20,000 gpd, or 600,000 gallons in a thirty day period.186 The second, H.B. 69, effective August 30, 2005187 and provides for public hearings in the municipalities affected by large groundwater withdrawals.188

B. Maine Maine is one of the last states in which the common law rule of absolute ownership of groundwater stands.189 The most recent case, Maddocks v. Giles, was decided in 1999 and involved a gravel excavation quarry that diminished the flow of a spring on nearby private land.190 The Court ruled that such a diminishment was not an actionable claim and that the rule of absolute dominion remained.191 The Court called on the legislature to act if it was dissatisfied with the result.192 Like Vermont, 183. New Hampshire Department of Environmental Services, Water, WD-WSEB-1-17 (2002 Supply Engineering, Water Withdrawals from Surface Waters for Bulk Transport and Delivery), available at http://www.des.nh.gov/factsheets/ws/ws-1-17.htm. 184. Id. 185. Id. 186. N.H. REV. STAT. ANN. § 488:3 (2005), available at http://www.gencourt.state.nh.us /legislation/2005/HB0215.html. 187. Amended § 485-C:21. 188. N.H. REV. STAT. ANN. § 485-C:21 (2005), available at http://www.gencourt.state.nh.us /legislation/2005/HB0069.html. 189. See Maddocks v. Giles, 728 A.2d 150 (Me. 1999). (holding that the absolute dominion rule was the correct instruction to the jury); see also ORLANDO E. DELOGU, MAINE IN 6 WATER AND WATER RIGHTS 405 (Robert E. Beck ed., 1994) (describing the proscription of negligent or malicious groundwater withdrawal in Maine, and describing the rejection of the absolute right to waste). 190. See Maddocks v. Giles, 728 A.2d 150 (Me. 1999). . 191. Id. at 153. 192. Id. at 154.

2006] Groundwater Quantity in Vermont 21 Maine receives abundant rainfall, however Maine has localized conflicts over water use. For instance, there has been seasonal competition between Maine’s blueberry farmers’ need for increased summer irrigation and the in-stream flow necessary to maintain wild salmon stocks.193 In 1987, Maine passed the Groundwater Protection Program which created a new cause of action against a person who withdrawals in excess of domestic beneficial use and interferes with another’s preexisting beneficial use.194 Although few cases address this statute, it appears the Maddocks Court ignored or overruled the statute. Also in 1987, Maine approved a prohibition against out-of-township transfers of water by pipe or container larger than 10 gallons, with an exception for transfers that would not harm health, safety or welfare.195 At least one critic claims that this law may not be valid and also may not be a reasonable policy for the protection of groundwater.196 A 1995 case applied this prohibition against out-of-township transfer, where the court ruled that a certain bulk transfer of water should not be authorized because the applicant did not show that the transferee (a commercial bottler) would bear a hardship if the water was not delivered. 197 More recently, in 2002, Maine adopted a New Water Use Reporting Program, which did not grant any new water use rights but merely required reporting of withdrawals beyond defined thresholds.198 Withdrawals of water must be reported if they are from a stream or brook (or groundwater within 500 feet of a stream or brook) and consist of 20,000 gpd in a watershed of less than 75 square miles, or a withdrawal in excess of the 7Q10 when the watershed exceeds 75 square miles.199 Withdrawals from a lake or pond that are 10 acres or less (or groundwater within 500 feet of the lake or pond) must be reported when they reach 30,000 gallons per week.200 The ratios are similar depending on the size of the pond or lake.201 Groundwater withdrawals of more than 50,000 gpd from a site more that 500 feet from a water body must also be reported.202 The following uses are exempt from the reporting requirement: non-consumptive uses (such as dams), household uses, public water supplies, withdrawals subject to existing reporting requirements, emergencies, and water from storage 193. GLENNON, supra note 1, at 127. 194. ME. REV. STAT. ANN. tit. 38, § 402(2) (1964). 195. ME. REV. STAT. ANN. tit. 22, § 2660-A(1), 2660-A(3)(A) (1964). 196. Delogu, supra note 188, at 405. 197. Centamore v. Dep’t of Human Services, 664 A.2d. 309 (Me. 1995). 198. ME. REV. STAT. ANN. tit. 38, §§ 470-A-G (1964). 199. Id. § 470-B. 200. Id. 201. Id. 202. Id.

22 Vermont Journal of Environmental Law [Vol. 8, Issue 1 ponds.203 Presumably, Maine is gathering information on water usage patterns and may institute a permitting system soon. According to the program, Maine should have drafted in-stream flow rules by January 1, 2005, but has not.204 State Representative Robert Duplessie proposed legislation to tax all water bottled in the state, based on the idea that bottlers are profiting from Maine’s natural resources.205

C. South Carolina Although South Carolina has a different geologic structure than Vermont, and different water needs, it has been regulating groundwater withdrawals since 1976.206 South Carolina passed the Groundwater Use and Reporting Act (Act), to set up a system to monitor and regulate the use of groundwater in the state. The Act requires only reporting of withdrawals, but in certain areas, mainly on the coast, a permit is needed for any groundwater withdrawal, except for emergencies, non-consumptive uses, and household non-commercial use.207 Another source of groundwater regulation is the South Carolina Drought Response Act of 1985 which gives state agencies substantial authority to regulate groundwater use in times of scarcity.208 South Carolina has not extended the public trust doctrine to its groundwater.

D. Massachusetts

Traditionally, landowners in Massachusetts have had absolute ownership over groundwater beneath their land, except when excessive withdrawals may cause subsidence of a neighbor’s property.209 In 1985, Massachusetts adopted the Water Management Act (WMA).210 Section 4 of the WMA requires the Massachusetts Department of Environmental Protection (DEP) to regulate new surface or groundwater withdrawals over 100,000 gpd, excluding non-consumptive uses which do not affect water

203. Id. § 470-C. 204. See Misty Edgecomb, Maine Water Allocation a Concern, BANGOR DAILY NEWS, January 20, 2005, at B1. 205. Maine Eyes Tax on Bottled Water, MONTPELIER TIMES ARGUS, April 17, 2005, available at http://www.timesargus.com/apps/pbcs.d11/article.AID=2005504M03252. 206. S.C. CODE ANN. §§ 49-5-10 to 150 (West 2005). 207. S.C. CODE ANN. §§ 49-5-60 to 70 (West 2005). 208. S.C. CODE ANN. §§ 49-23-10 to 10-100 (2004). 209. Denis Binder, Massachusetts, in 6 WATERS AND WATER RIGHTS 418 (Robert E. Beck ed., 1994). 210. MASS. GEN. LAWS ch. 21G, §§ 1-19 (2004).

2006] Groundwater Quantity in Vermont 23 quality or quantity.211 Under the WMA, new withdrawals of over 100,000 gpd are prohibited without a permit.212 The DEP determines if the proposed withdrawal is within the safe yield of the water body or aquifer.213 The statute also allows new applicants to negotiate restrictions on existing rights or to purchase existing rights, subject to approval by the DEP.214 Transfers of rights are permitted, again subject to the DEP’s approval.215 The criteria used by the DEP to deny or grant a new permit include need, environmental effects, alternatives, and proposed conservation measures.216 Unfortunately, the WMA has not been effective in preserving minimum stream flows in watersheds like the Ipswich River Basin.217 In 2000, the USGS determined that the combination of municipal and individual groundwater pumping and the export of sewer water to central treatment plants caused the Ipswich to dry up in the summer.218 Until recently, groundwater in Massachusetts has been excluded from the public trust doctrine. The public trust traditionally extended to beds and banks of navigable water bodies and to the coastal lands below the mean high tide line.219 In 2003, Massachusetts passed the Environmental Endangerment Act in which “natural resources” are defined as “land, fish, wildlife, biota, air, water, groundwater and drinking water supplies belonging to, managed by, held in trust by, appertaining to or otherwise controlled by the commonwealth or any local government.”220 Although this does not explicitly extend the public trust to groundwater, it may serve to limit the traditional common law rule of absolute ownership.

211. Id. § 4. However, section 4 also provides an option for the Department of Environmental Protection, by regulation, to establish a threshold volume lower than 100,000 gdp for any particular water source pursuant to findings that the water source “is in need of special protection” based on production demands. Furthermore, the term “non-consumptive use” is specifically defined by regulation. 310 Mass. Code Regs. 36.03 (2005) (“Non-consumptive use means any use of water which results in its being discharged back into the same water source at or near the withdrawal point in substantially unimpaired quality or quantity.”). 212. Id. 213. Lee P. Breckenridge, Massachusetts, in 6 WATERS AND WATER RIGHTS 664 (Robert E. Beck ed., repl. vol. 2005). 214. Id. 215. Note that interbasin transfers require a separate permit under the Interbasin Transfer Act of 1983. MASS. GEN. LAWS ch. 21, § 8C (2004). 216. Breckenridge, supra note 192, at 664–65. 217. GLENNON, supra note 1, at 105. 218. Id. at 107. 219. Denis Binder, Massachusetts, in 6 WATERS AND WATER RIGHTS 422 (Robert E. Beck ed., 1994). 220. MASS. GEN. LAWS ch. 21L, § 1 (2004).


E. Connecticut

Connecticut is a regulated riparian rights state for purposes of surface water.221 Connecticut has adopted a unified Water Diversion Policy Act requiring permits for all water users in the state, including groundwater.222 The permitting agency considers the proposed withdrawal’s effect on stream flow, on other users, and on wetlands, and is also required to look at alternatives to the proposal, including conservation measures.223 As in Massachusetts, interbasin transfers are subject to extra regulatory oversight.224 Certain uses are exempt from the permit requirement, such as withdrawals under 50,000 gpd, diversion of storm water in an area under 100 acres, emergencies, and dam repair.225 Fees are associated with the water diversion permits, varying between $1,200 and $4,000 depending on quantity of water diverted, in addition to a $500 annual fee.226 The state has the power to restrict permitted uses during water supply emergencies.227 A hierarchy of uses was proposed in 2000 to supplement the Water Diversion Act but has not been adopted.228 Connecticut has adopted minimum flow standards for the state streams, with water diversion permits partially based on these limits.229 The Connecticut Environmental Protection Act extended the public trust to groundwater, among other natural resources.230 It states that there is a “public trust in the air, water, and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same.”231 Although reversed on appeal, the trial court in 2000 in City of Waterbury v. Town of Washington held that a certain river diversion was a violation of the public trust in water.232

221. Ann Astarita, Connecticut, in 6 WATERS AND WATER RIGHTS 267 (Robert E. Beck ed., 1994); see also City of Waterbury v. Town of Washington, 800 A.2d 1102 (Conn. 2002) (recounting the history of Connecticut water law). 222. CONN. GEN. STAT. §§ 22a-365 to 387 (2004). 223. CONN. GEN. STAT. § 22a-373(b)(8) (2004). 224. CONN. GEN. STAT. § 22a-369(10) (2004). 225. CONN. GEN. STAT. § 22a-377 (2004). 226. CONN. GEN. STAT. § 22a-372(e) (2004). 227. CONN. GEN. STAT. § 22a-378 (2004). 228. CONNECTICUT DEPARTMENT OF ENVIRONMENTAL PROTECTION, REPORT TO THE GENERAL ASSEMBLY ON STATE WATER ALLOCATION POLICIES PURSUANT TO PUBLIC ACT 98-224 25 (2000), available at http://dep.state.ct.us/\wtr/div/wtrallc.pdf. 229. CONN. GEN. STAT. § 26-141(a) (2004). 230. CONN. GEN. STAT. § 22a-15 (1995). 231. Id. 232. City of Waterbury v. Town of Washington, X01UWYCV 97140886, 2000 Conn. Super. LEXIS 355, at 114-5 (Conn. Super. Ct., Feb. 16, 2000), rev’d, 800 A.2d 1102 (Conn. 2002).


F. Michigan Michigan has new groundwater legislation pending that may inform Vermont’s policy makers. In general, groundwater withdrawals in Michigan are subject by statute to the reasonable use rule.233 The public trust applies to the bed of navigable inland lakes and streams.234 The Michigan Constitution, although not mentioning groundwater explicitly, may be another source of authority for groundwater protection. It states that “the conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people.”235 In 1994, Michigan adopted the Natural Resource and Environmental Protection Act, which requires reports by users of surface and groundwater who have the capabality to withdraw over 100,000 gpd in a 30-day period, even if the actual amount withdrawn is less.236 This Act was passed mainly to guard against large diversions from the Great Lakes basin.237 Other laws affecting water use in Michigan include the Aquifer Protection and Dispute Resolution Act of 2003238 and the Federal Water Resources Development Act.239 Under the former, a citizen who suspects that a nearby high-capacity well is interfering with his water supply can request the state investigate the possible hydraulic connections between the two and propose solutions.240 Since 2003, 16 complaints have been investigated, all of which were resolved through voluntary remedial actions.241 The Federal Water Resources Development Act prohibits export of Great Lakes waters without consent of the eight governors of the Great Lakes states.242 A proposed annex would allow fewer restrictions on exports as long as the bottles are less than 5.6 gallons.243

233. MICH. COMP. LAWS § 600.2941 (2004). 234. Veryl N. Meyers, Michigan, in 6 WATERS AND WATER RIGHTS 429 (Robert E. Beck ed., 1994). 235. MICH. CONST. art. IV § 52. 236. MICH. COMP. LAWS § 324.32705 (2004). 237. MICH. COMP. LAWS § 324.32702 (2004). 238. MICH. COMP. LAWS §§ 324.31700-324.31713 (2004). 239. 42 U.S.C. § 1962d-20(d) (2000). 240. MICH. COMP. LAWS § 324.31702 (2005). 241. Russ Harding, Groundwater Regulation: An Assessment 12 (2005), available at http://www.mackinac.org/archives/2005/s2005-01.pdf. 242. 42 U.S.C. § 1962d-20(d) (2000). 243. Bill O’Brian, Michigan’s Fresh Water Remains on the Market, TRAVERSE CITY REC. EAGLE, March 9, 2005, available at http://www.record-eagle.com/2005/mar/0309edit.htm.

26 Vermont Journal of Environmental Law [Vol. 8, Issue 1 New legislation, the Water Legacy Act, was proposed in 2004 as a response to the ongoing Nestlé Waters dispute.244 A county judge in Michigan, in 2003, enjoined Nestlé’s subsidiary’s groundwater pumping based on the environmental effect of the water withdrawal.245 The appeals court stayed the injunction and allowed the pumping to continue. The original case against Nestlé is still pending. The Water Legacy Act would require permits for the following levels of water withdrawals from either ground or surface waters: a) any withdrawal of two million gpd in a 30 day period, or 100 million gallons per year; or b) any withdrawal in excess of 100,000 gpd in any thirty day period deemed by the Department of Environmental Quality (DEQ) to cause or likely to cause “an adverse impact to the (1) quantity or quality of the waters or water-dependent natural resources of the Great Lakes basin, (2) to the public health, safety, or welfare or the environment, or (3) to the public trust in the natural resources of the state or public rights in navigable waters.”246 On May 27, 2005, Michigan Governor Jennifer Granholm issued a moratorium on permits or approvals for new or increased bottled water operations until the legislature passes the new regulations.247 The moratorium does not apply if the bottler certifies that bottled water will be distributed within the Great Lakes Basin.248 The former director of the Michigan DEQ, Russ Harding, has criticized the Water Legacy Act as being too strict and for creating a needless, expensive regulatory scheme.249 Harding points out the difficulties in planning a project when the outcome of a permit hearing is uncertain and would rather permits be required only after an aquifer is shown to be in danger of significant irreversible depletion.250 He also argues for privatization and tradable water rights by which demand would be efficiently balanced with supply.251

244. S.B. 1087, 92d Leg., Reg. Sess. (Mich. 2004) (referred to Committee on March 10, 2004), available at http://www.legislature.mi.gov/documents/2003-2004/billintroduced/senate/pdf/2004-SIB-1087.pdf. 245. Harding, supra note 240, at 4. 246. CONN. GEN. STAT. §§ 22a-365 to 387 (2004). 247. Press Release, Office of the Governor, State of Mich., Granholm Issues Executive Directive Placing Moratorium on Bottled Water Permits (May 27, 2005), http://michigan.gov/gov/0,1607,7-168-23442_21974-119000--M_2005_5,00.html. 248. Id. 249. Press Release, Mackinac Center for Public Policy, Despite Governor’s Claims, Proposed Water Legacy Act Unnecessary, Existing Groundwater Laws Ample, Says Former DEQ Director (May 5, 2005), available at http://www.mackinac.org/article.asp?ID=7089. 250. Id. 251. Id.


G. Wisconsin Wisconsin is included in this section because of a unique provision in its groundwater regulations. Groundwater in Wisconsin is subject to the reasonable use rule.252 According to State v. Michels Pipeline Construction Inc., no user of groundwater in Wisconsin is subject to liability unless the withdrawal causes unreasonable harm, or the withdrawal has a direct influence on a surface water body.253 As of 2004, a permit is required for any new high capacity wells (capable of producing over 100,000 gpd).254 An additional level of environmental review is required for high capacity wells that: (a) are within 1,200 feet of an outstanding resource water; (b) have a significant environmental impact on a spring; (c) are in the area of a groundwater discharge greater than one cubic foot per second for 80% of the time (i.e., a spring); or (d) will divert or consume 95% of the withdrawal.255 These four categories of high capacity wells that are subject to more stringent environmental review seem to mirror the dangers of groundwater pumping for the purpose of bottling. Category (d), for example, seems especially targeted at bottlers, for who else would consume all the water withdrawn, with none reentering the watershed as run-off? Nonetheless, Wisconsin has not extended the public trust doctrine to groundwater, rather applying it only to navigable waterways.256

VII. ANALYSIS OF GROUNDWATER PROBLEMS AND SOLUTIONS:

VERMONT’S PERSPECTIVE Vermont has yet to face serious groundwater quantity issues. The few instances of local shortages can usually be solved by drilling more wells, deeper wells, or by extending the reach of the public water supply. Increased population pressures and increased groundwater demand by industry and agriculture, coupled with a drought year or three, may bring groundwater quantity to the forefront. There are two types of groundwater quantity problems Vermont may face in the future, both of which will be worsened by the lack of research, mapping, and adequate understanding of the resource.

252. Michael J. Cain, Wisconsin, in 6 WATERS AND WATER RIGHTS 857 (Robert E. Beck ed., 1994). 253. State v. Michel’s Pipeline Construction Inc., 217 N.W. 2d. 339, 350–51 (Wis. 1974). 254. WIS. STAT. ANN. § 281.34(2) (West 2005). 255. Wis. STAT. ANN. § 281.34(4)(a) (West 2005). 256. Caine, supra note 251, at 860.

28 Vermont Journal of Environmental Law [Vol. 8, Issue 1 The first problem is groundwater shortages on a local level. This problem can manifest itself in two ways. Individual groundwater users could interfere with existing wells, or alternatively, with surface water resources. The first is the problem envisaged by Criterion (3) of Act 250, requiring that new development not adversely affect existing water supplies.257 High capacity wells may not be covered by Act 250, however, if they are not associated with a development that meets the 10-acre jurisdictional threshold.258 If Act 250 does apply, lack of knowledge and testing of the groundwater and of its flow direction and speed may make consideration of Criterion (3) difficult. Additionally, the impacted well owners may not know to intervene in the hearing in a timely manner. The second type of local groundwater shortage–pumping enough groundwater to adversely affect nearby springs or streams–is the danger contemplated by the Wisconsin statute. It may be possible to regulate groundwater withdrawals that have such effect on surface waters through Act 250’s Criterion 1(E) streams,259 or by means of extending the Water Quality Standards (WQS) minimum flow rule to groundwater withdrawals within a certain distance from the stream.260 There are limitations to both techniques. The jurisdictional requirement of Act 250 might allow some groundwater users to avoid state overview of their effect on stream flow. As for extending WQS standards to groundwater withdrawals, it would be especially difficult without intensive sampling and monitoring, to determine accurately which groundwater users adversely affect a diminished stream or spring. Furthermore, the issue of which groundwater user to target for administrative action requires attention. If many users are contributing to the problem, the application of the WQS minimum flow standards may not be equitable. Appealing to Vermont’s correlative rights framework may help, but would require administrative staff to decide which users need to limit pumping and to enforce those limitations. Another problem would be groundwater shortages on a region-wide scale. Simply put, if enough wells are drilled, and the pumping rate exceeds the recharge rate, the groundwater level will drop and the resource will diminish. This problem is also exacerbated by limited groundwater mapping and knowledge of recharge potential, aquifer boundaries, flow rates, etc. Any attempt to rectify region-wide groundwater quantity problems by requiring permits for new wells runs into a causation problem. That is, why should a new well user be penalized for a basin-wide situation

257. VT. STAT. ANN. tit. 10, § 6086(a)(3). 258. VT. STAT. ANN. tit. 10, § 6001(3)(A). 259. VT. STAT. ANN tit. 10, § 6086(a)(1)(E). 260. Vermont Water Quality Standards, supra note 125.

2006] Groundwater Quantity in Vermont 29 he or she did not cause? Using the correlative rights framework to solve the problem has the same deficiencies as described above. Another aspect of the region-wide problem is the increased imperviousness of towns and cities and the resulting drop in recharge rate. Other factors decreasing the recharge rate are consumptive uses, such as bottling and the export of sewage waste downstream from the basin. Both of these factors should be considered when crafting a solution to the potential problem of basin-wide groundwater shortages. Solutions for some of these potential problems were proposed in twin bills in 2004 in the Vermont Legislature. House Bill 722 called for the public trust doctrine to be extended to groundwater and would set up a system of five year permits for withdrawals in excess of 100,000 gpd, excluding domestic use, agricultural use, and public water supplies.261 The decision to grant or deny a permit was to be made according to the “public good” and permit fees would have been levied of $20 per 10,000 gpd pumped, up to $1,000, using the proceeds for a mapping fund. The 2005 groundwater bill in the Senate would have just extended the public trust to groundwater and set aside funds for increased groundwater mapping.262 The 2004 House proposed bill can be criticized in a few ways. It exempts three of the biggest users of groundwater from any regulation at all, leaving the bill to only apply to commercial and industrial users. While a hierarchy of uses is beneficial to make sure that certain uses are given preferential treatment by the agency granting the permit, excluding them entirely even from reporting does not seem to serve the purpose of fair use of the groundwater resource. Also, it is likely that the fees paid would barely dent the estimated cost of effective groundwater mapping.263 Any groundwater legislation ought to earmark funds for mapping beyond what is taken in as fees.264 Any groundwater legislation effort must also take a critical look at the 100,000 gpd threshold for requiring a permit. This commonly used limit was criticized by a 2004 report published by the Water Policy Center and focused on Georgia’s 100,000 threshold.265 The author of this paper consider decreasing the limit, pointing out that 100,000 gpd is large enough 261. H.0722, 2003-2004 Leg. Sess. (Vt. 2004), available at http://www.leg.state.vt.us/ docs/legdoc.cfm?URL=/docs/2004/bills/intro/H-722.HTM. 262. S.0151, 2005-2006 Leg. Sess. (Vt. 2005), available at http://www.leg.state.vt.us/ docs/legdoc.cfm?URL=/docs/2006/bills/intro/S-151.HTM. 263. Vermont’s Department of Environmental Conservation estimated that the least expensive four year mapping effort would cost $2.7 million. See Status of Groundwater, supra note 49, at 11. 264. A groundwater bill was passed on May 2006; See addendum. 265. JENNIFER ADAMS ET AL., MINIMUM WATER USER LEVELS REQUIRING STATE PERMITS: IS GEORGIA’S 100,000 GALLONS/DAY APPROPRIATE? Paper No. 2004-003 (2004), available at http://www.h2opolicycenter.org/pdf_documents/water_workingpapers/2004-003.pdf.

30 Vermont Journal of Environmental Law [Vol. 8, Issue 1 water to supply 250 to 300 four-person homes or irrigate more than 100 acres.266 Additionally, without a reporting requirement for smaller users, the State has no way of calculating the cumulative effect on an aquifer of a cluster of users pumping at less than 100,000 gpd each.

Bottled Water Solutions

Conflicts over the consumption of the groundwater resource by bottled water companies have flared up in several states in the past decade, most notably in New Hampshire, Michigan, and Wisconsin. Although similar conflicts have not yet occurred in Vermont, demand for bottled water continues to rise and such conflict seems inevitable. In 1990, bottled water was a $2.7 billion dollar market in the United States, and by 2001 sales reached $6.5 billion and show no signs of leveling.267 “Bottled water is consumed by 60% of Americans and it is America’s second largest non-alcoholic beverage expenditure.”268 The market is such that each bottler has an incentive to extract as much of the resource as possible, since the company does not have to bear the externalities of reduced stream flow or interference with nearby wells. The bottlers’ only costs, besides operational costs, are the costs of drilling deeper wells if necessary and of relocating if an aquifer is drawn down below a useable level. Tara Boldt-van Rooy suggests as a first step extending the public trust to all natural resources, including groundwater.269 Next, she would restrict bulk withdrawals and require a permit limiting extraction to a rate that is sustainable in a given water management district.270 As an alternative to a government-controlled permit system, Rooy would encourage states to experiment with eco-labeling or a consumer tax on bottled water.271 Presumably, eco-labeling would direct consumers to bottlers who adopt environmentally sound practices, weeding out abusive pumpers. In addition, states could impose a tax on consumers, rather than producers, the revenue from which would be used “to preserve springs and their environments.”272 Matt Berkowitz emphasizes the difficulty of implementing regulations when agency staffers base decisions on whether to grant permits on

266. Id. at 1. 267. Tara Boldt-van Rooy, Bottling Up Our Natural Resources: The Fight over Bottled Water Extraction in the United States, 18 J. LAND USE & ENVTL. LAW 267, 270 (2003). 268. Matt Berkowitz, supra note 109, at 236. Soft drinks are number one. Id. 269. Rooy, supra note 266, at 295. 270. Id. at 296. 271. Id. at 297. 272. Id.

2006] Groundwater Quantity in Vermont 31 imprecise balancing tests and lists of factors.273 Instead, Berkowitz proposes drafting specific numeric guidelines directly addressing how much water can be taken from a spring without adversely affecting an ecosystem that relies on a continued stream flow.274 This concept is similar to Vermont’s minimum flow rules for surface water withdrawals in that it sets a calculable limit to how much water can be diverted from a given stream. A final idea Berkowitz proposes to defray the cost of the staff needed to administer and monitor an expanded system is a tax on groundwater extraction.275 The tax would be on a sliding scale based on quantity pumped and on proximity to a valuable spring or stream.276 The more water withdrawn and the closer to a water body, the higher the tax. This would serve both to limit the amount of water that could be profitably pumped and to provide funds for the state agencies charged with administering the program.

VIII. VERMONT SOLUTIONS AND CONCLUSION In order to draft an effective groundwater quantity protection statute and regulation, one must first ask which problem or problems the statute will be intended to solve. Also, one should ask if the statute is meant to address existing problems or problems that may occur in the future. The best place to start is by funding more monitoring wells, more research, and more mapping of the groundwater in Vermont. It is hard to regulate the effects of unknown processes and interactions. Additionally, all major users of groundwater (and surface water) should be required to report how much water they have withdrawn, on what days, from what location, and from what depth. This data would be invaluable, but only if the DEC is adequately funded to analyze the information. A good and workable model may be the Maine reporting statute. If the statute is intended to address the problem of localized shortages and well interference with neighboring wells, springs, or stream flow, a good place to start regulation may be to limit groundwater pumping. Another way of attacking this problem would be to mandate a review of all new wells over a certain size, limiting withdrawal amounts as a condition of the permit. This would have to be coupled with a review of existing users to ensure that groundwater is not being pumped wastefully or unreasonably. For a basin-wide groundwater shortage, one solution would be to increase the recharge

273. Berkowitz, supra note 109, at 257. 274. Id. 275. Id. at 258. 276. Id.

32 Vermont Journal of Environmental Law [Vol. 8, Issue 1 rate by either limiting the percentage of impervious cover or engineering a method to slow storm water run-off so that it percolates through the soil instead of running directly into a river or lake. Another solution would be a tax structure similar to Berkowitz’s idea could work for both the local problem and the region-wide problem. As long as domestic users were excluded, tax that increased as a rate of withdrawal increase would encourage conservation. It would also internalize the cost of diminished groundwater on the most prolific users and help pay for the intensive mapping needed for all regulatory proposals. No matter which path Vermont chooses, the discussion of how to deal with the increasing use of Vermont’s groundwater resource will be sure to continue.


2006 ADDENDUM During the 2006 legislative session, the State of Vermont passed Act 144, “[a]n Act relating to groundwater management” (the “Act”).277 The whole of the Act expires on July 1, 2011.278 First, this Act prohibits the withdrawal of more than 50,000 gallons of groundwater per day from any well drilled after July 1, 2006, without an interim permit issued by the secretary of the Agency of Natural Resources (ANR). Withdrawals for fire safety, agriculture, agricultural or dairy processing, dewatering operations during building construction, geothermal energy production, or public sanitation are specifically exempted from the interim permit program. Withdrawals from existing sources are not affected by the Act.279 Second, effective July 1, 2006, any water bottler applying for a permit to bottle more than 50,000 gallons per day (gpd) from a single source must provide a geologic cross section and groundwater contour map of an area surrounding the proposed source. This water bottler provision applies to the expansion of existing sources as well as new sources, and applies regardless of whether the source is above or below ground.280 Third, the Act establishes a committee to study potential programs for the regulation of groundwater in Vermont, with a final report to be submitted to the legislature on January 15, 2008. This committee is also charged with investigating the legal consequences of declaring groundwater to be a public trust resource.281 Fourth, the Act requires ANR to investigate sources of funding for the completion of the mapping of Vermont’s groundwater resources.282 This project has recently been estimated to cost approximately ten million dollars.283 Last, the Act requires ANR to report to the legislature on the Agency’s efforts to collect and analyze data on the groundwater resource in the State, including an analysis of any localized links between water supply shortages 277. An Act Relating to Groundwater Management (Act 144), 10 VT.STAT.ANN. §§ 1415, 1675(g), 8003(a)(6) (2006) available at http://www.leg.state.vt.us/docs/lefdoc.cfm?URL=/ docs/2006/acts/ACT144.HTM. 278. Id. § 7. 279. Id. § 1. As of July 26, 2006, no individuals or companies had applied for an interim permit from the Vermont Agency of Natural Resources pursuant to section 1 of the Act. Email from Dennis Nealon, Hydrogeologist, Vermont Department of Environmental Conservation to Evan Mulholland (July 26, 2006) (on file with author). 280. 10 VT.STAT.ANN. § 2. 281. Id. § 3. 282. Id. at § 4. 283. See, Ken Picard, Retaining Water, SEVEN DAYS, July 5, 2006, available at http://www.sevendaysvt.com/features/2006/retaining-water.html.

34 Vermont Journal of Environmental Law [Vol. 8, Issue 1 and groundwater withdrawals and an accounting of the amount of water permitted to be bottled daily by Vermont’s commercial bottlers.284 During the Spring 2006 legislative session, there was significant opposition to the temporary moratorium contained in the bill. The president of Vermont Pure, a large water bottler in Randolph, Vermont, thought that the moratorium could hurt his business’s prospects for expansion and testified against the bill.285 On the other hand, environmentalists and some legislators supported the bill, understanding that regulation is needed to ensure the protection of the groundwater resource.286 Several stated that what most concerned them were large out-of-state or international corporations taking selling massive quantities of Vermont’s groundwater in the global marketplace.287 Notably, the final bill deferred for two years the decision to declare groundwater a public trust resource. During floor debate on the bill, House members expressed opposing views as to whether the public trust should include groundwater. One member even argued that the bill would constitute an unconstitutional taking of private property without compensation.288 Section five of the Act, calling for a comprehensive report to the legislature on actual groundwater withdrawals in the state and any effects resulting from these withdrawals, is at the heart of Act 144. Once an accurate assessment is made of how much water is being extracted in Vermont and by whom, along with a picture of the regional and local impacts of groundwater withdrawals, wise and efficient regulation will be more likely. It remains to be seen if any interim groundwater permits will be granted during the five-year moratorium that began on July 1st of this year. As of the July 26, 2006, no interim permit applications have been filed with the Vermont Agency of Natural Resources.289

284. VT. STAT. ANN. tit. 10, §6086(a)(1)E (2004). 285. John Dillion, Senate Committee Looks at Water Extraction Moratorium, VERMONT PUBLIC RADIO, April 5, 2006, http://www.publicbroadcasting.net/vpr/newsmain?action=article &ARTICLE_ID=898472 (last visited April 7, 2006). 286. Id. 287. Picard, supra note 282. 288. See H.R. 294, JOURNAL OF THE HOUSE (Vt. 2006). 289. Id.

2006] Groundwater Quantity in Vermont 35 The complete text of the Act follows:

NO. 144. AN ACT RELATING TO GROUNDWATER

MANAGEMENT. (H.294)

It is hereby enacted by the General Assembly of the State of Vermont: Sec. 1. 10 V.S.A. chapter 48, subchapter 5 is added to read:

Subchapter 5. Interim Groundwater Withdrawal Permit § 1415. INTERIM GROUNDWATER WITHDRAWAL PERMIT

(a) As used in this section: (1) “Groundwater” means water below the land surface. (2) “Person” means any individual, partnership, company, corporation, cooperative, association, unincorporated association, joint venture, trust, the state of Vermont or any department, agency, subdivision, or municipality, the United States government or any department, agency, or subdivision, or any other legal or commercial entity. (3) “Withdraw” means the removal of groundwater by any method or instrument. (b) No person shall withdraw more than 50,000 gallons of groundwater a day from a well drilled after July 1, 2006, for commercial or industrial purposes without first receiving from the secretary of natural resources an interim groundwater withdrawal permit under this section. Prior to issuance of a permit under this section: (1) The secretary shall determine that such withdrawal meets the applicable requirements of section 1675 of this title and any applicable rules adopted thereunder or the requirements adopted pursuant to subsection (e) of this section; and (2) the applicant shall submit to the Vermont state geologist and the department of environmental conservation a geologic cross section and groundwater contour map of an area, the size of which shall be in conformance with appendix A, part 3, subsection 3.3.5.2 of the Vermont water supply rule, surrounding the proposed source of the groundwater withdrawal. (c) Groundwater withdrawal by a public water system, as that term is defined in section 1671 of this title, or for use for fire safety, agriculture, agricultural or dairy processing, dewatering operations during building

36 Vermont Journal of Environmental Law [Vol. 8, Issue 1 construction, geothermal energy production, or public sanitation shall be exempt from the requirements of this section. (d) A permit issued under this section shall be valid for the period of time specified in the permit but not more than five years. (e) The secretary of natural resources may adopt rules to implement the provisions of this section and to establish criteria for the issuance of a permit under section 1675 of this title for commercial or industrial groundwater withdrawals from a well drilled after July 1, 2006. Sec. 2. 10 V.S.A. § 1675(g) is added to read: (g)(1) Effective July 1, 2006, a public water system applying for a permit under this section for the bottling of more than 50,000 gallons of drinking water a day from a single source for public distribution and sale shall, in addition to complying with the requirements of this chapter and any rules adopted thereunder, submit to the Vermont state geologist and the department of environmental conservation a geologic cross section and groundwater contour map of an area, the size of which shall be in conformance with appendix A, part 3, subsection 3.3.5.2 of the Vermont water supply rule, surrounding the proposed source. (2) The requirements of subdivision (1) of this subsection shall apply to a public water system permitted under this section when the system proposes to expand the bottling of drinking water from a single source such that the total gallons of water bottled from the single source would exceed 50,000 gallons a day.

Sec. 3. STUDY OF GROUNDWATER REGULATION AND FUNDING (a) A committee is established to examine potential regulatory programs to protect the groundwater resources of the state. The committee shall issue a preliminary report of its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2007. The committee shall issue a final report of its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2008. The final report shall include: (1) A recommendation from the committee as to whether the groundwater resources of the state of Vermont should be declared a public trust resource. (2) An analysis of the regulatory implications of declaring the groundwater of the state to be a public trust resource if the committee so recommends under subdivision (1) of this subsection.

2006] Groundwater Quantity in Vermont 37 (3) A proposed schedule for the groundwater mapping of the state by the agency of natural resources. (4) A proposed appropriation to the agency of natural resources for the groundwater mapping of the state, including any proposed new or existing revenue sources that may be used by the agency to aid in funding the groundwater mapping. (5) Proposed legislation for the regulation of groundwater withdrawal in the state, addressing: (A) The type of groundwater withdrawals subject to regulation; (B) A threshold amount or amounts of groundwater withdrawal subject to regulation; (C) Groundwater users exempt from regulation; (D) The regulation of interbasin groundwater transfers; (E) The fee to be charged for regulated groundwater withdrawal; (F) Monitoring, reporting, or recordkeeping requirements for regulated groundwater withdrawal; and (G) Any other issues deemed relevant by the committee. (b) The committee shall consist of the following members: (1) the secretary of natural resources or his or her designee; (2) the state geologist or his or her designee; (3) the secretary of agriculture, food and markets or his or her designee; (4) one member each from the house committees on agriculture and on fish, wildlife and water resources and the senate committees on agriculture and on natural resources and energy as appointed respectively by the speaker of the house and the committee on committees; (5) a representative appointed by the governor from each of the following: the business community, municipalities, a local environmental organization, a regional or statewide environmental organization, and the general public; (6) two representatives of the agricultural community appointed by the governor. (c) The committee may elect a chair and a vice chair and may hold public hearings. Legislative council shall provide support for the committee. (d) All members of the committee shall serve on the committee for the duration of the study unless circumstances dictate a permanent replacement. Vacancies shall be appointed in the same manner as original appointments. (e) Legislative members are entitled to per diem payment and reimbursement for expenses pursuant to 2 V.S.A. § 406. Sec. 4. GROUNDWATER MAPPING

38 Vermont Journal of Environmental Law [Vol. 8, Issue 1 The agency of natural resources shall explore all available alternatives for the immediate initiation of groundwater mapping in the state, including working in cooperation with the U.S. Geologic Survey and obtaining the necessary funding from the U.S. Environmental Protection Agency. The agency shall report its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2007. Sec. 5. AGENCY OF NATURAL RESOURCES GROUNDWATER REPORT On or before January 15, 2008, the agency of natural resources shall submit a report to the senate committee on natural resources and energy and the house committee on fish, wildlife and water resources regarding the status of the agency’s efforts to collect and analyze information regarding the groundwater resources of the state. The report shall include: (1) An analysis by the agency of natural resources of whether the withdrawal of groundwater or bottling of drinking water in certain geographic areas of the state has impacted the use or quality of groundwater or surface water for domestic drinking water or other purposes; (2) A listing of any areas identified under subdivision (1) of this section, a summary of how the agency of natural resources responded to groundwater or surface water shortages in those areas, and agency recommendations on how to avoid similar impact areas in the future; (3) A compilation of groundwater supply information included in the well completion or closure reports submitted to the agency of natural resources in the last 15 years by licensed well drillers; (4) The amount of drinking water approved for bottling per day from each source in the state permitted under 10 V.S.A. § 1675 for use by a bottled water facility; (5) Any groundwater mapping completed by the agency; and (6) Any other information deemed relevant by the agency. Sec. 6. 10 V.S.A. § 8003(a)(6) is amended to read: (6) 10 V.S.A. chapter 48, relating to well drillers and groundwater withdrawal; Sec. 7. SUNSET 10 V.S.A. chapter 48, subchapter 5 (interim groundwater withdrawal permit) is repealed July 1, 2011. Approved: May 15, 2006.

Realizing the Promise of the Great Lakes Compact: A Policy Analysis for State Implementation

Melissa Kwaterski Scanlan,∗ Jodi Habush Sinykin,**

and James Krohelski***

I. INTRODUCTION

The Great Lakes are a world-class resource that fuels the economy and quality of life in the Great Lakes States and Provinces. Containing about 95% of the United States’ fresh surface-water supply and 20% of the earth’s fresh surface water supply, the Great Lakes are vast.1 This water abundance has been a source of economic growth and prosperity, yet with only one percent of the Great Lakes water renewed annually, and increasing demands on Great Lakes water,2 the future of this vulnerable and valuable resource is in question. With water levels in the Great Lakes hitting record lows at the turn of the millennium3 and water-intensive communities waiting in the wings for out-of-basin diversions,4 it is time to ask whether, and in what manner, water withdrawals from the Great Lakes should be restricted.

∗ Melissa Kwaterski Scanlan is an attorney and the Executive Director of Midwest Environmental Advocates, Wisconsin’s first and only non-profit environmental law center. She holds a law degree from University of California Berkeley (Boalt Hall) and Master of Science in Environmental Science, Policy and Management from University of California Berkeley. ** Jodi Habush Sinykin is an attorney and is Of Counsel to Midwest Environmental Advocates. She holds a law degree from Harvard Law School. *** James Krohelski is a U.S. Geological Survey hydrologist who for the past 25 years has worked to increase the understanding of Wisconsin’s regional groundwater flow systems through development of groundwater flow models and field studies. **** The authors would like to thank George Kraft, a professor of water resources at the University of Wisconsin-Stevens Point College of Natural Resources, the Director of the Center for Watershed Science and Education, and the Director of the Central Wisconsin Groundwater Center. ***** This article is an adaptation of a report published by the Midwest Environmental Advocates in 2006, available at http://www.midwestadvocates.org/media/publications/ Realizing%20the%20Promise%20of%20the%20Great%20Lakes%20Compact.pdf 1. INT’L JOINT COMM’N, A GUIDE TO THE GREAT LAKES WATER QUALITY AGREEMENT, at iv (2006), available at http://www.ijc.org/en/activities/consultations/glwqa/guide2bw.pdf; David Naftzger, Council of Great Lakes Governors, The First of the Governors’ Priorities: Annex 2001, in STATE OF THE GREAT LAKES ANNUAL REPORT: 2003, 6, available at http://www.deq.state.mi.us/documents/deq-ogl-SOGL03.pdf. 2. INT’L JOINT COMM’N, supra note 1, at iv. 3. See MAUDE BARLOW & TONY CLARK, BLUE GOLD: THE FIGHT TO STOP THE CORPORATE THEFT OF THE WORLD’S WATER 9 (The New Press 2002) (“In 2001, the water was more than a meter below its seasonal average in the Port of Montreal, and Lakes Michigan and Huron were down by 57 centimeters (about 22 inches).”). 4. See, e.g., Darryl Enriquez, Selling Water to Waukesha Could Be Liquid Gold Mine, MILWAUKEE JOURNAL SENTINEL, July 22, 2006 (“[T]he Waukesha Water Utility is considering buying up to 2.9 billion gallons of Lake Michigan water from Milwaukee each year.”).

40 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Likewise, with the Great Lakes providing the backbone for the communities who use water in the Great Lakes Basin, this shared resource should be managed uniformly by the states and provinces to protect public and private rights to use water. This article first provides an overview of the Great Lakes as both a shared commons and a public trust. It outlines the challenges facing management of any commons and highlights the importance of the Public Trust Doctrine as a way to manage shared waters. This provides a backdrop for understanding and assessing the agreements and laws the Great Lakes States and Canadian Provinces have created to manage the Great Lakes Basin. The article starts with the Boundary Waters Treaty of 1909 and ends with the Great Lakes-St. Lawrence River Basin Water Resources Compact and Agreement of 2005 (Compact), identifying progress and gaps. The signing of the Compact by the Great Lakes governors and premiers on December 13, 2005, marked the beginning, not the end, of an historic process. To become effective law, each of the eight Great Lakes States must pass the Compact into their state laws and then Congress must consent to the Compact. The Compact is a compromise document, which represents a floor—not a ceiling—with respect to the management of the Great Lakes. To fulfill their duties as trustees of the Great Lakes, each of the Great Lakes States should commit to strengthening the Compact when they pass their respective state legislation. The article identifies four areas where states should improve protections for the Great Lakes and the people who rely on them:

1. Eliminate loopholes that encourage privatizing Great Lakes water. Each state and province should eliminate the bottled-water loophole, which allows the diversion of Great Lakes water into containers 5.7 gallons or less.

2. Strengthen the ban on diversions. To ensure that diversions occur only in absolutely necessary situations and will not damage the Great Lakes, the provisions concerning diversions outside of the basin must be strengthened to require conservation prior to allowing new diversions, require water to be returned to its initial point of withdrawal, and set the political boundaries for “straddling communities” and “communities within straddling counties” as of December 13, 2005.

3. Set a meaningful regulatory level for in-basin users of Great Lakes water. For the first time, the Compact establishes a uniform standard to apply to in-basin water uses, but it allows each jurisdiction to set the withdrawal level at which this standard will

2006] Realizing the Promise of the Great Lakes Compact 41

apply. States and provinces should set this regulatory level at a place that captures most of the water users within its jurisdiction.

4. Require strong water conservation standards. States and provinces need to take steps to safeguard their water wealth by requiring each permit holder to implement water conservation measures, setting mandatory statewide and provincial conservation programs with measurable goals, and allowing any member of the public to enforce conservation requirements contained in permits.

From southeastern Wisconsin to northern Ohio, there are communities just outside the Great Lakes Basin that could apply to divert water to fuel growth outside the Basin. By all accounts, the City of Waukesha, Wisconsin, is the community most likely to apply for a diversion first. This article examines the water supply issues that pertain to perceived water problems in Waukesha, assesses Waukesha’s past and present land and water uses, and highlights the policy questions that should be answered prior to acting on an application for a diversion. The Waukesha example is significant because it is likely to serve as an important precedent for diversions in other parts of the Great Lakes region.

II. THE GREAT LAKES AS A WATER COMMONS AND A PUBLIC TRUST The notion of the commons is “the idea that through our public institutions we recognize shared humanity and natural resources to be preserved for future generations.”5 The Great Lakes are the quintessential shared commons. Bordered by eight Great Lakes States and two Canadian Provinces, they sustain the lives of forty million people.6 This shared commons is under pressure from within and without.7 There are no uniform and comprehensive rules for management of water uses within the Great Lakes Basin and there are increasing pressures to export and exploit the Great Lakes by private industries. What will prevent a tragedy of the commons? One way to shore up protections for the Great Lakes is to reinforce and affirm the historic existence of the Great Lakes Basin as a trust, managed by a variety of governments for the benefit of the public. This section will discuss the Great Lakes as a commons and a public trust. 5. BARLOW & CLARK, supra note 3, at xiv. 6. INT’L JOINT COMM’N, supra note 1, at iv. 7. See Little Traverse Bay Bands of Odawa Indians v. Great Spring Waters of America, 203 F. Supp. 2d 853, 858 (W.D. Mich. 2002) (describing diversions to the High Plains states as well as proposed efforts to export Great Lakes’ water to Asia).


A. The Great Lakes Commons “Water is a commons because it is the ecological basis of all life and because its sustainability and equitable allocation depend on cooperation among community members.”8 The public trust doctrine is an important tool for protecting the future of the Great Lakes, and is rooted in the notion that the Great Lakes constitute a common resource, or “commons,” to be shared by all.9 Commons are resources that are not individually owned, but instead are shared by a community.10 The commons can include international lakes and rivers, oceans, global climate, the internet, genetics, and sidewalks. The Great Lakes have been and remain today an economically and ecologically valuable commons. These vast bodies of water and the waters feeding them (both surface and ground) pay no attention to political borders and supply the water needs of people, plants, and wildlife. Questions abound about who should control the water commons:

• To whom does water belong? • Who has rights to use water and who does not? • What are the rights of corporations and commercial interests? • Is water a human need or a human right? • Is water a good to be bought and sold or a public trust to be

managed for the benefit of the public and future generations? Like a free flowing river, water law has meandered and changed from the founding of the United States until the present, yet never before have we been poised like we are at the beginning of the 21st century to disregard fundamental concepts over rights and ownership in water. In dispute are those who argue in favor of thousands of years of precedent throughout the world, in which water is a commons that is held in trust for the public, versus those who argue in favor of a new system that would allow water to be owned and traded as a good or service.11

8. VANDANA SHIVA, WATER WARS: PRIVATIZATION, POLLUTION, AND PROFIT 24 (South End Press 2002). 9. Council of Great Lakes Governors, The Great Lakes Charter: Principles for the Management of Great Lakes Water Resources 1 (Feb. 11th, 1985), available at http://www.cglg.org/ projects/water/docs/GreatLakesCharter.pdf#search=%22great%20lakes%20charter%22. 10. SHIVA, supra note 8, at 24. 11. See BARLOW & CLARK, supra note 3, at xii (describing the growing number of governments that advocate for the privatization and commoditization of water resources).

2006] Realizing the Promise of the Great Lakes Compact 43 “A human need can be supplied in many ways,” most often by purchasing a good to supply the need, while a human right need not be purchased and cannot be sold.12 According to the World Bank, water is a human need and not a human right.13 Others counter that “access to clean water for basic needs is a fundamental human right; this vital resource cannot become a commodity sold to the highest bidder. Each generation must ensure that the abundance and quality of water is not diminished as a result of its activities.”14 They further argue that corporate control of water is a threat to the well-being of humans.15 This clash over fundamental rights arises amid the backdrop of a world in which access to clean and safe drinking water is growing increasingly scarce, and where a handful of multinational corporations are growing increasingly wealthy by acquiring water rights.16 A multinational corporate push to turn the water commons into a private good that can be bought and sold is gaining momentum. Multinational companies that provide water services are engaged in a more than $1 trillion per year industry, which does not even include revenues generated from bottled water.17 It is important to see what is driving this push to privatize the water commons. Garrett Hardin, in his well-known essay Tragedy of the Commons provides a theoretical argument in support of privatizing natural resources.18 Hardin’s tragedy thesis posits that when there is open and unregulated access to a resource, individuals will seek to maximize their individual gain and overexploit the common resource; things that are not privately owned will be overexploited, resulting in a tragedy of the commons.19 However, some view this tragedy thesis as inherently flawed because historically the commons were not a free for all; instead they were often part of local, social institutions that were governed by rules of use and regulated access.20

12. Id. 13. Id. 14. Id. at xiv. 15. Id. at 4. 16. Id. at 7, 85. 17. TONY CLARKE, INSIDE THE BOTTLE 9 (Polaris Institute 2005) (citing Beverage Marketing Corp). 18. See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243, 1245 (1968), available at www.sciencemag.org/cgi/reprint/162/3859/1243.pdf (suggesting a private property solution to the tragedy of the commons with respect to the pollution of air and water resources). 19. Id. at 1244. 20. ERIC T. FREYFOGLE, THE LAND WE SHARE, PRIVATE PROPERTY AND THE COMMON GOOD (2003).

44 Vermont Journal of Environmental Law [Vol. 8, Issue 1 A misperception about the commons is that they must be privatized in order to be protected.21 However, privatization is only one of at least three options. The other two are management by local residents, as has historically been the case, or management by a government agency.22 In most places in the United States, we have lost the strong social fabric that could facilitate management of the commons by local residents without enforceable local ordinances. The privatization option is also untenable. Privatization of the commons carries with it the risk of unjustly enriching the few, while depriving the many; it allows the commons to be taken out of the public domain and given to the few who by fortuity have the ability to enclose the commons and profit off of them. This leaves the last option for preserving the commons: management by the government. One model for government management of the water commons that has deep historic roots is the public trust doctrine, whereby the government holds the common water resource in trust for the public and regulates the commons in the public interest.23 For the trust relationship to function well, the following requirements should be present: transparency of the trustees’ actions; adequate regulations governing shared access and use of the trust property; and public participation by the trust beneficiaries, including the ability to enforce and to call for routine accounting of the trust to ensure the government is managing it in the public interest.

B. The Public Trust Doctrine “[W]ater is and always has been a public resource.”24 In the United States, the public trust doctrine has long guided decisions about Great Lakes Basin water.25 Each of the Great Lakes States holds navigable waters in trust and should manage those waters for the benefit of the public.26 The public trust doctrine has evolved in the common law in a variety of ways throughout the Basin states. Although a description of these variations is beyond the scope of this article, we can emphasize common principles from the key judicial decisions. The public trust doctrine embodies the time-honored concept that the state holds all navigable waters in trust for the public.27 The state is the 21. See generally FREDRIK SEGERFELDT, WATER FOR SALE (2005). 22. FREYFOGLE, supra note 20. 23. Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 435 (1892). 24. Joseph L. Sax, The Limits of Private Rights in Public Waters, 19 ENVTL. L. 473, 475 (1989) [hereinafter Sax, Limits of Private Rights]. 25. Ill. Cent. R.R., 146 U.S. at 435. 26. Id. at 436–37. 27. See id. at 435 (permitting use of waters so long as that use does not substantially impair the

2006] Realizing the Promise of the Great Lakes Compact 45 trustee, every member of the public is a beneficiary, and the waters are the trust property.28 Each state in the Northwest Territory of the United States was allowed into the Union on the condition that it incorporates the public trust doctrine into the laws of the newly-formed state.29 Water is not like other types of property.30 Water’s unique legal status militates against defining it as a product or commodity that can be bought and sold. It also carries with it a duty on the states to manage waters in a way that benefits the public’s use consistent with the purposes of the trust. Surface water rights are generally considered usufructuary—one can use but not own water.

[P]roperty rights in water have been delineated in very limited terms. Water has been described as merely usufructuary; as belonging to the public; as subject to public servitudes; as incapable of full ownership; as subject to constraints that it be used nonwastefully, reasonably, beneficially, etc.31

These concepts have long been found in judicial decisions in the Great Lakes States.32 For example, it is well-established in Wisconsin that a riparian landowner may make reasonable use of the water that passes by his or her property; however, the landowner does not possess a property right to “the particles of water flowing in a stream.”33

The roots of private property in water have simply never been deep enough to vest in water users a compensable right to diminish lakes and rivers or to destroy the marine

public’s interest in the water). 28. See Melissa K. Scanlan, The Evolution of the Public Trust Doctrine and the Degradation of Trust Resources, 27 ECOLOGY L.Q. 135 (2000) (discussing the history of the evolution of the Public Trust Doctrine in Wisconsin). 29. See, e.g., WIS. CONST. art. IX, § 1 (“[T]he river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefore.”). 30. See Sax, Limits of Private Rights, supra note 24, at 475 (explaining that water is a public resource incapable of private ownership). 31. See Joseph L. Sax, Rights that ‘Inhere in the Title Itself’: The Impact of the Lucas Case on Western Water Law, 26 LOY. L.A. L. REV. 943, 944 (1993). 32. E.g., Bradshaw v. Duluth Imperial Mill Co., 53 N.W.1066, 1068 (Minn. 1892); People ex rel. Attorney Gen. v. Kirk, 45 N.E. 830, 833 (Ill. 1896); Scranton v. Wheeler, 57 F. 803, 813 (6th Cir. 1893); Bodi v. Winous Point Shooting Club, 48 N.E. 944, 944, (Ohio 1897); Coxe v. State, 39 N.E. 400, 402 (Ct. App. 1895). 33. Willow River Club v. Wade, 76 N.W. 273, 277 (Wis. 1898).


life within them. Water is not like a pocket watch or a piece of furniture, which an owner may destroy with impunity. The rights of use in water, however long standing, should never be confused with more personal, more fully owned, property.34

The United States Supreme Court in Illinois Central Railroad v. Illinois first observed, as a matter of trust obligation, that “the general control of the State over lands under the navigable waters of an entire harbor or bay, or of a sea or lake” cannot be abdicated and “cannot be relinquished by a transfer of the property.”35 This case involved Lake Michigan’s lakebed at Chicago and established that the State of Illinois could not abandon its trust responsibilities by granting the lakebed to a railroad.36 During the same time period, at the end of the 1800s, a variety of Great Lakes state courts came to the same conclusion.37 They uniformly discussed water as something that is held by the state that cannot be sold, unless it is clearly for a public benefit.38 “[T]he rights of the state in navigable waters and their beds are sovereign, and not proprietary, and are held in trust for the public as a highway, and are incapable of alienation.”39 In one of the earliest United States Supreme Court cases to deal with water diversions, the Court in Hudson County Water Co. v. McCarter upheld the right of New Jersey to prohibit the diversion of water from the Passaic River to consumers on Staten Island, New York.40 This keystone case is as relevant today as it was 100 years ago, and can speak to contemporary questions about diversions and privatizing water.

[F]ew public interests are more obvious, indisputable and independent of particular theory than the interest of the public of a State to maintain the rivers that are wholly within it substantially undiminished, except by such drafts upon them as the guardian of the public welfare may permit for the purpose of turning them to a more perfect use. This public interest is omnipresent wherever there is a State, and

34. Sax, Limits of Private Rights, supra note 24, at 482. 35. Ill. Cent. R.R., 145 U.S. at 452-53. 36. Id. 37. E.g., Bradshaw, 53 N.W. at 1068; Kirk, 45 N.E. at 835; Scranton v. Wheeler, 57 F. at 813; Bodi, 48 N.E. at 944; Coxe v. State, 39 N.E. at 402. 38. Id. 39. Bradshaw, 53 N.W. at 1068. 40. Hudson County Water Co. v. McCarter, 209 U.S. 349, 356–57 (1908).


grows more pressing as population grows. It is fundamental, and we are of opinion that the private property of riparian proprietors cannot be supposed to have deeper roots. . . . The private right to appropriate is subject not only to the rights of lower owners but to the initial limitation that it may not substantially diminish one of the great foundations of public welfare and health.41

According to public trust expert, Joseph Sax, “[t]his may be the most important statement the Court has ever made about the constitutional status of water rights.”42 The Court clarified that “the State was warranted in prohibiting the acquisition of the title to water on a larger scale.”43 By the time the governors and premiers signed the Great Lakes Charter (Charter) in 1985, the public trust doctrine was well developed in the common law of the United States.44 The Charter clearly echoes the public trust doctrine by defining the role of the Great Lakes States and Provinces as trustees of the Great Lakes.45 This public trust orientation is key to understanding the rights and responsibilities of the governments, riparians, and the general public beneficiaries when conflicting uses of Great Lakes water emerge. Consistent with this longstanding legal doctrine, the very first finding in the Charter declares, “[t]he water resources of the Great Lakes Basin are precious public natural resources, shared and held in trust by the Great Lakes States and Provinces.”46

41. Id. at 356. 42. Sax, supra note 24, at 480. 43. Hudson County Water Co., 209 U.S. at 354. Some have argued that water has already been defined as a “commodity” in the United States Supreme Court case of Sporhase v. Nebraska. Sporhase v. Nebraska, 458 U.S. 941, 954 (1982). However, that holding is limited to groundwater, which has historically (for better and for worse) not been widely recognized as a public trust water. Moreover, Sporhase v. Nebraska did not overrule Hudson County Water Co. v. McCarter, which upheld a surface water diversion prohibition. The importance of Sporhase is that it clarified that management of water needed to be done in a way that was even-handed and treated in and out of state users similarly. Regulatory controls should apply to both in basin consumptive uses and out-of-basin (and out of state) diversions. See also, James Olson, Conference on the National Groundwater Water Crisis, The Future Gradient of Water Law, Toledo College of Law (2003). 44. See generally Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention 68 MICH. L. REV. 471, 475-89 (1970) (discussing the historical development and conceptual underpinnings of the Public Trust Doctrine); JAMES M. OLSON, DECISION TIME: WATER DIVERSION POLICY IN THE GREAT LAKES BASIN 8 (2004), available at http://www.wilsoncenter.org/ events/docs/water.pdf. 45. See Great Lakes Charter, supra note 9, at 1 (describing the roles and responsibilities of the states and provinces as trustees of the Basin’s natural resources). 46. Id.

48 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Like the Charter, the Great Lakes Charter Annex 2001 reaffirms the public trust doctrine in its first finding: “The Great Lakes are a bi-national public treasure and are held in trust by the Great Lakes States and Provinces.”47 Similarly, the Great Lakes-St. Lawrence River Basin Water Resources Compact (Compact) echoes the finding that Great Lakes Basin waters are “precious public natural resources shared and held in trust” by the states.48 It also explains the public trust duty this places on the states and provinces for purposes of the Compact:

As trustees of the Basin's natural resources, the Great Lakes States and Provinces have a shared duty to protect, conserve, and manage the renewable but finite waters of the Great Lakes Basin for the use, benefit, and enjoyment of all their citizens, including generations yet to come.49

C. Does the Public Trust Doctrine Apply to Groundwater?

The public trust doctrine has evolved as human uses of water have changed.50 Originally, it only applied to tidal waters.51 When the United States adapted the doctrine from England, the United States Supreme Court expanded the doctrine to all navigable waters, regardless of whether they were tidal.52 Some states have expanded the doctrine to waters that directly impact navigable waters, such as non-navigable tributaries53 and wetlands.54 At least one state has expanded the trust to groundwater irrespective of its impact on navigable waters.55

47. Great Lakes Charter Annex 1, June 18, 2001, available at http://www.cglg.org/projects/ water/docs/GreatLakesCharterAnnex.pdf. 48. Great Lakes-St. Lawrence River Basin Water Resources Compact, § 1.3, Dec. 13, 2005, available at http://www.cglg.org/projects/water/docs/12-13-05/Great_Lakes-St_Lawrence_ River_Basin_Water_Resources_Compact.pdf. 49. Id. 50. Scanlan, supra note 28, at 137. 51. The Daniel Ball, 77 U.S. 557, 563-64, 19 L. Ed. 999, 1001 (1871). 52. In 1871, the United States Supreme Court clarified that the public trust doctrine is applicable to all navigable waters, tidal or fresh. Previously, in English common law and states that followed it, the trust had only applied to tidal waters. However, in The Daniel Ball, the Court held that the test for navigability is whether the waters are “navigable in fact.” Id. 53. Nat'l Audubon Soc'y v. Superior Court of Alpine County, 658 P.2d 709, 721, 33 Cal. 3d 419, 437 (1983); Omernik v. State, 218 N.W.2d 734, 739, 64 Wis. 2d 6, 12-13 (1974). 54. See Just v. Marinette County, 201 N.W.2d 761, 769, 56 Wis. 2d 7, 19-20 (1972). 55. HAW. CONST. art. XI, § 7; Robinson v. Ariyoshi, 658 P.2d 287, 310, 65 Haw. 641, 674 (1982). Hawaii may go even further and apply the public trust doctrine to groundwater regardless of any connection or direct impact on navigable waters.

2006] Realizing the Promise of the Great Lakes Compact 49 With little fanfare, the Charter and the Compact both recognized that the public trust doctrine applies to groundwater as well as surface water.56 This recognition reflects the developments of scientific understanding of the interconnectedness of water. As stated above, the Charter’s very first Finding declares, “The water resources of the Great Lakes Basin are . . . held in trust by the Great Lakes States and Provinces.”57 The Charter defines “Great Lakes Basin water resources” to include “all streams, rivers, lakes, connecting channels, and other bodies of water, including tributary groundwater, within the Great Lakes Basin.”58 Since Great Lakes Basin water resources are defined to include groundwater, the Charter extends the public trust doctrine to “tributary groundwater.”59 This is consistent with the governors’ and premiers’ finding and agreed upon principle that the waters of the Great Lakes Basin are interconnected and part of a single hydrologic system.60 Reaffirming the Charter, the Compact also extends the public trust doctrine to groundwater and all surface waters, regardless of navigability.61 Recognizing the legal existence of the Great Lakes as a public trust could help protect the lakes from global and local pressures. If water is a public trust held by the government for the public benefit, then private ownership of water for primarily a private purpose is precluded and water will need to be managed within the Basin in a way that upholds the public interest and protects the water commons.

III. OVERVIEW OF THE LAWS GOVERNING THE WITHDRAWAL OF WATER FROM THE GREAT LAKES

While the idea of the Great Lakes as a commons and a public trust form the theoretical underpinnings for protecting the Great Lakes, there are a variety of laws and policies that influence how water withdrawals are regulated. This section provides an overview and highlights the shortcomings of these laws, including the Boundary Waters Treaty, the Great Lakes Charter, the Water Resources Development Act, the Great Lakes Charter Annex 2001, and the Great Lakes-St. Lawrence River Basin Water Resources Compact and Agreement. 56. Great Lakes Charter, supra note 9; Great Lakes Compact, supra note 48, at § 1.3(1)(a). 57. Id. (emphasis added). 58. Id. 59. Id. 60. Id. 61. Great Lakes Charter, supra note 9 (applying Compact to the “waters of the Great Lakes Basin,” which are defined as, “the Great Lakes and all streams, rivers, lakes, connecting channels and other bodies of Water, including tributary groundwater, within the Basin.”).

50 Vermont Journal of Environmental Law [Vol. 8, Issue 1 These laws set a regional management structure that is crucial for a commons, such as the Great Lakes, that spans a variety of governmental jurisdictions. The Great Lakes can only be effectively managed jointly by all the Great Lakes States and Canadian Provinces; otherwise, protections attempted by one could be undermined by the actions of others.62 While each state and province has the authority to provide protections, regional management is needed and the public trust doctrine should serve as a common basis for these protections. In assessing whether existing laws are sufficient to govern the management of the shared commons and public trust of the Great Lakes, one should ask whether they set up a management system that provides: transparency of the trustees’ actions; adequate regulations governing shared access and use of the trust property; and public participation by the trust beneficiaries, including the ability to enforce and to call for routine accounting of the trust to ensure the government is managing it in the public interest.

A. Boundary Waters Treaty of 1909 The Boundary Waters Treaty of 1909 (Treaty) was created at the beginning of the twentieth century when the Great Lakes’ importance was dominated by its use to transport goods to market.63 The Treaty established the International Joint Commission and set out a legal structure for regulating the Great Lakes as boundary waters between Canada and the United States.64 The Treaty did not prohibit diversions per se, but required approval for diversions and other water uses that affected the “natural flow or level” of the lake on the other side of the boundary.65 Hence, the Treaty reserved to each respective national or state and provincial government the exclusive jurisdiction over diversions on its side of the boundary, subject to party claims that a diversion would produce a “material injury” to navigation interests.66 A proposal for any water uses impacting the natural level or flow of boundary waters was to be reviewed by the International Joint Commission

62. Little Traverse Bay Bands of Odawa Indians, 203 F. Supp.2d at 859. 63. Treaty Between the United States and Great Britain Relating to Border Waters Between the United States and Canada, Jan. 11, 1909, 36 Stat. 2448 (1909). 64. Id. at 2451. 65. Id. at 2449. 66. Id.

2006] Realizing the Promise of the Great Lakes Compact 51 (Commission).67 Significantly, in the history of the Commission, the governments have never referred any cases to it for a binding decision.68 While the Treaty clearly articulated a process to review uses of water that changed the natural level or flow of the lake, it set the bar so high that many water uses that do not rise to the level of impacting the “natural flow or level” of the lake are not reviewed by the Commission.69 Further, the Treaty only applies to waters through which the international boundary passes, ignoring tributary streams and groundwater in the Great Lakes Basin, as well as Lake Michigan.70 Lastly, the Treaty failed to establish any standards (beyond material harm) for reviewing a water use proposal.

B. The Great Lakes Charter of 1985 Recognizing the limits of the Boundary Waters Treaty of 1909, the governors of the eight Great Lakes States and the premiers of the Canadian Provinces of Quebec and Ontario entered into the Great Lakes Charter in 1985.71 Although legally unenforceable, the Charter establishes “good faith” arrangements and sets a policy for managing the Great Lakes.72 The governors and premiers recognized that the waters of the Great Lakes Basin are interconnected and part of a single hydrologic system.73 Thus, any management and regulation of the Great Lakes needs to encompass all tributary groundwater and surface water within the Great Lakes Basin. The signatories were aware of studies showing that diversions and consumptive uses could have “significant adverse impacts on the environment, economy, and welfare of the Great Lakes region,” and used the Charter to establish a process for managing water withdrawals.74 The governors and premiers agreed to:

67. Id. at 2451–52. 68. Mark J. Dinsmore, Comment, Like a Mirage in the Desert: Great Lakes Water Quantity Preservation Efforts and Their Punitive Effects, 24 U. TOL. L. REV. 449, 456 (1993). 69. Id. at 457. 70. Id. 71. Great Lakes Charter, supra note 9. 72. Little Traverse Bay Bands of Odawa Indians, 203 F. Supp.2d at 858. 73. Great Lakes Charter, supra note 9, at 1. The purposes of the Great Lakes Charter are to conserve the levels and flows of the Great Lakes and their tributary and connecting waters; to protect and conserve the environmental balance of the Great Lakes Basin ecosystem; to provide for cooperative programs and management of the water resources of the Great Lakes Basin by the signatory States and Provinces; to make secure and protect present developments within the region; and, to provide a secure foundation for future investment and development within the region. Id. 74. Id.


• Disallow “any major new or increased diversion or consumptive use of the water resources of the Great Lakes Basin” exceeding five million gallons per day average in any 30 day period without notifying, consulting, and “seeking the consent” of “all affected Great Lakes States and Provinces.”75

• Demonstrate the “authority to manage and regulate water withdrawals involving a total diversion or consumptive use of Great Lakes Basin water resources in excess of 2,000,000 gallons . . . per day average in any 30-day period.”76

• Enact legislation to facilitate the gathering of needed data on “new or increased withdrawal of Great Lakes Basin water resources in excess of 100,000 gallons . . . per day average in any 30-day period.”77

• Provide “accurate and comparable” information on withdrawals over 100,000 gallons per day.78

Despite these impressive program goals, the Great Lakes Charter has significant limitations and flaws. Although the signatories agreed to implement the Charter policy through state and provincial laws, most failed to do this.79 The combination of the states and provinces lacking the political will to implement the Charter, and the failure to include any mechanism to force the implementation of the Charter, has resulted in the Great Lakes commons not being managed as envisioned by the Charter. Further, the Charter’s trigger for requiring regional review of consumptive uses of five million gallons per day was set so high that only one in-basin consumptive use of water has ever been subject to a regional review.80

75. Id. at 2, 4. The Charter created a decision-making standard to apply to diversions of five million or more gallons per day: “diversions of Basin water resources will not be allowed if individually or cumulatively they would have any significant adverse impacts on lake levels, in-basin uses, and the Great Lakes Ecosystem.” Id. at 2. The Charter standard applies broadly to assess harm not only to lake levels but to the ecosystem as a whole, which is defined as “air, land, water, and living organisms, including humankind. . .” Id. at 7. The Charter also envisioned creating a Water Resources Management Committee to design formal procedures to carry out the notice and consultation requirement. Id. at 3. 76. Id. at 6. 77. Id. 78. A signatory had to provide information on withdrawals of over 100,000 gallons per day and of regulating withdrawals of more than 2 million gallons per day in order to participate in the notice and consultation process. Id. 79. Steven E. Chester, Great Lakes Legacy Act, in STATE OF THE GREAT LAKES ANNUAL REPORT 5 (2003), available at http://www.deq.state.mi.us/documents/deq-ogl-SOGL03.pdf (stating that “[i]n the almost 20 years that have passed since we signed the [1985 Great Lakes] Charter, we have yet to implement policies that truly protect our water resources.”). 80. Letter from John Engler, Governor of Michigan, to George Voinovich, Chair of the

2006] Realizing the Promise of the Great Lakes Compact 53 Similarly, the Charter’s trigger for requiring management by each state and province (consumptive uses of two or more million gallons per day) was set too high to be meaningful. For example, Wisconsin incorporated the entire Charter into its state law and regulates consumptive uses at the two million gallon level.81 However, as demonstrated in the Brown County example below, only a handful of projects in Wisconsin have triggered this regulation. In fact, the only applicants that have ever been required to obtain a water loss permit in Wisconsin are those constructing large thermoelectric power plants.82 Regrettably, the Great Lakes Charter set the regulatory threshold at a level that fails to cover most of the water uses in the Basin. This failure makes the Charter meaningless as a vehicle for encouraging states to implement regulatory programs that will effectively prevent local water shortages, deal with water conflicts and, ultimately, protect public rights in water. Hence, the Great Lakes Charter fails to require adequate regulations governing shared access and use of the trust property.

C. Water Resources Development Act of 1986, 42 U.S.C. § 1962d-20, Amended 2000

One year after the governors and premiers created the Great Lakes Charter, the United States Congress enacted the Water Resources Development Act of 1986 (WRDA), requiring unanimous consent of the Great Lakes States’ governors before a state can allow a diversion of any amount of water out of the Great Lakes Basin.83 In so doing, Congress declared the Great Lakes as the “most important natural resource” to the Great Lakes States and Canadian Provinces.84 Congress found that “any new diversions of Great Lakes water for use Council of Great Lakes Governors (Jan. 20, 1993). 81. WIS. STAT. ANN. § 281.35(4)(b) (West 2005); WIS. ADMIN. CODE NR § 142.06 (2006), available at http://www.legis.state.wi.us/rsb/code/nr/nr142.pdf (using substantially the same regulatory language as the Great Lakes Charter to regulate consumptive use); see also Great Lakes Charter, supra note 14, at 6. 82. JODI HABUSH SINYKIN, ET AL, PROTECTING WISCONSIN’S WATER: A CONSERVATION REPORT AND TOOLKIT 5 (2005), available at http://www.midwestadvocates.org/media/ publications/index.html. In the last two years, a number of power plants that use cooling towers, rather than once-through cooling systems, have exceeded the threshold and thereby required water loss permits. The DNR did not require conservation measures as part of their approval, explaining that such measures do not readily lend themselves to water use for power production as the primary use of the water is for cooling purposes.. Id. 83. 42 U.S.C. § 1962d-20(b)(3) (2003); see also § 1962d-20(d). 84. Id. at § 1962d-20(a)(1) (recognizing several important uses of Great Lakes water, including: water supply for domestic and industrial use, hydropower, transportation for commerce, and recreation).

54 Vermont Journal of Environmental Law [Vol. 8, Issue 1 outside of the Great Lakes basin will have significant economic and environmental impacts, adversely affecting the use of this resource by the [sic] and Canadian Provinces.”85 In order to avoid these adverse impacts, Congress declared its “purpose and policy” to “prohibit any diversion of Great Lakes water . . . outside the Great Lakes basin unless such diversion is approved by the Governor of each of the Great Lakes States.”86 Unlike the Great Lakes Charter, which used a five million gallon per day trigger, WRDA “contains no quantity requirement for triggering a need for member approval.”87 Additionally, unlike the Charter, WRDA is legally binding and enforceable.88 However, WRDA comes with limitations and flaws. Although the Great Lakes Charter requires unanimous consent for consumptive uses of five or more million gallons per day, WRDA is silent on consumptive uses of water. WRDA is also silent on whether it applies to groundwater. Congress amended WRDA in 2000 after the Nova Group in Canada received a permit (that was subsequently withdrawn) for bulk exports of water to Asia. The company planned to “ship 3 billion liters of water from Lake Superior over 5 years and sell it to Asia.”89 During the debates over the 2000 amendment of WRDA, Michigan Senator Carl Levin argued that:

We currently have an effective veto over bulk removals of Great Lakes water outside of the Great Lakes basin. When we passed WRDA in 1986, we acted to make sure that each Great Lakes governor would have a veto over such removals. This protection is legally sufficient and we should do nothing to imply otherwise.90

Although that Senator thought WRDA was sufficient, currently a question looms about whether WRDA applies to diversions of groundwater. More specifically, it is an open question whether WRDA prohibits the export of groundwater that is being packaged in bottles for sale outside the Basin. Analysts and litigants have identified aspects of WRDA that may make the statute vulnerable to constitutional challenges.91 Although many 85. Id. at § 1962d-20(a)(3). 86. Id. at § 1962d-20(b)(3); see also § 1962d-20(d). 87. Little Traverse Bay Bands of Odawa Indians, 203 F. Supp. 2d at 858. 88. Id. 89. Id. at 859. 90. Id. at 860 (quoting from the legislative history). 91. Dinsmore, supra note 68, at 467. For example, some commentators argue that WRDA’s focus on diversions from the Basin as opposed to from the state that is riparian to the Great Lakes departed from both the Charter and the original bills introduced into Congress. WRDA, so the argument

2006] Realizing the Promise of the Great Lakes Compact 55 of these arguments have been debunked by legal experts, Nestlè/Perrier filed a lawsuit in 2005 challenging the constitutionality of WRDA on numerous grounds, given its concern that WRDA may impede the company’s ability to bottle and export water from the Great Lakes Basin.92 In March of 2006, Nestlè/Perrier voluntarily dismissed this case and is not pursuing the constitutional challenge to WRDA. Additionally, it is unclear whether WRDA is sufficiently enforceable. Prior to the Nestlè/Perrier case challenging WRDA’s constitutionality, water users in Michigan brought the first case that decided whether WRDA provides a private right of action.93 This case arose out of Nestlè/Perrier’s proposal to bottle and divert 576,000 gallons per day of spring water out of the Great Lakes Basin in Michigan.94 The court held in Little Traverse Bay Bands of Odawa Indians v. Great Spring Waters of America that WRDA contains no express or implied private right of action to enforce its terms.95 In reaching its decision, the Court reasoned that the statutory scheme of WRDA endorses “decision making by the Governors” and places “authority as to these decisions in the hands of the Governors.”96 Part of the Court’s analysis revolved around the fact that WRDA was meant to benefit the public at large, so the Court was unable to conclude that Congress intended to imply a private cause of action for the narrow class of riparian plaintiffs.97 What the Court did not address was whether a private litigant could enforce WRDA based on his or her status as a beneficiary of the public trust. Due to its well-established public trust case law, a similar case initiated in Wisconsin, involving private litigants trying to enforce WRDA based on their status as public trust beneficiaries, might turn out differently.98

goes, is counter to the common law doctrine of Equitable Apportionment. Still others focus on due process and commerce clause concerns. Id. 92. Id. at 468. (recognizing that due to natural geography there is one state that lies entirely within the Great Lakes Basin: the State of Michigan. Unlike all the other Great Lakes states, Michigan’s governor may “unilaterally prohibit any other Great Lakes state from diverting water within its own borders, but outside the basin, for any purpose, without fear of suffering any reciprocal consequences.”). 93. Little Traverse Bay Bands of Odawa Indians, 203 F. Supp. 2d at 856. 94. Id. at 854. 95. Id. at 856, 865. 96. Id. at 864. Clearly, a Governor can enforce the provisions of WRDA. However, this enforcement measure may prove to be inadequate when states fail to take action to enforce WRDA against a wayward governor, such as the situation in Michigan. When Governor Engler of Michigan refused to submit the Nestlè/Perrier proposal to all of the Great Lakes Governors for approval, the other Great Lakes Governors failed to act, which is what led to the private litigants filing suit in Little Traverse Bay Bands of Odawa Indians. Id. 97. Id. at 863. 98. See generally Gillen v. City of Neenah, 580 N.W.2d 628, 633 (Wis. 1998) (“The public trust doctrine allows a person to sue on behalf of, and in the name of, the State ‘for the purpose of

56 Vermont Journal of Environmental Law [Vol. 8, Issue 1 In summary, WRDA creates an absolute prohibition on diversions of Great Lakes water unless there is unanimous consent of the Great Lakes governors, but does not provide any clear decision-making standards for governors to follow. There is some evidence that Congress intended WRDA to be a legally sufficient veto power over exports of Great Lakes water; however, it is unclear whether this applies to groundwater.99 Although one court has held that private litigant riparians cannot enforce WRDA, courts in other states may hold otherwise and ground their decision in the rights of trust beneficiaries to protect public trust waters.100

D. The Great Lakes Charter Annex of 2001

In 2001, the Great Lakes Governors and Premiers again gathered to sign an additional policy statement on the Great Lakes: the Great Lakes Charter Annex of 2001 (Annex).101 The Annex contains directives meant to further the principles of the Great Lakes Charter.102 The legally-binding decision-making standard upon which decisions concerning water management should be based is, “[p]rotecting, conserving, restoring, and improving the Great Lakes. . . .”103 Directive III outlines principles for establishing the decision-making standard for new or increased withdrawals from the Great Lakes Basin. The principles are: to prevent or minimize Great Lakes Basin water loss by requiring return flow and conservation measures; to have no significant adverse impact on Great Lakes water quality or quantity and water-dependent resources; to improve the water and water-dependent resources of the basin; and to comply with all applicable laws and treaties.104 In the interim, before the states and provinces have binding agreements in place to implement the Annex, Directive IV commits the states to consult with the premiers for any diversion covered by WRDA.105 Since WRDA prohibits any diversions, even de minimus ones, without the unanimous consent of all of the Great Lakes governors, the status quo at present

vindicating the public trust.’”) (citing State v. Deetz, 224 N.W.2d 407 (Wis. 1974)). This holding is limited, however, to enforcing the public trust doctrine as it has been codified in Wisconsin’s Chapter 30. Id. at 831. So even under Wisconsin’s public trust law, it would be very difficult to prevail when asserting a private right of action under WRDA. 99. Little Traverse Bay Bands of Odawa Indians, 203 F. Supp. 2d at 860. 100. Id. at 865. 101. Great Lakes Charter Annex, supra note 47. 102. Id. at 2–3. 103. Id. at 1. 104. Id. at 2. 105. Id. at 2–3.

2006] Realizing the Promise of the Great Lakes Compact 57 dictates that no diversions of Great Lakes’ water shall be allowed without the approval of all of the Great Lakes governors and consultation with the two Canadian premiers.106

E. Great Lakes-St. Lawrence River Basin Water Resources Compact and Agreement

On December 13, 2005, the Great Lakes Governors and the Canadian Premiers gathered in Milwaukee, Wisconsin, and signed the Great Lakes-St. Lawrence River Basin Water Resources Compact and Agreement (Compact).107 Prior to the Compact becoming effective and enforceable, each Great Lakes state must pass legislation adopting the Compact, and then Congress must give its consent.108 An historic agreement that sets a floor for regulating water withdrawals in the Great Lakes, the Compact recognizes that the waters of the Great Lakes are “precious” and “interconnected.”109 The Compact reaffirms the Great Lakes Charter’s vision of an integrated system that looks at ground and surface water as a unified whole.110 Although states are free to regulate existing water uses as they see fit, the Great Lakes Compact prohibits new or increased diversions of water out of the Great Lakes Basin, with four exceptions:111

1. Diversion of any amount of water by a “straddling community” for a public water supply;112

2. Diversion of any amount of water to a community within a straddling county that is used solely for a public water

106. Little Traverse Bay Bands of Odawa Indians, 203 F. Supp.2d at 857, 858. 107. Great Lakes Compact, supra note 48. The two documents that were created and signed are the Compact and the Agreement. The Compact is intended to be legally binding between the eight Great Lakes states. The Agreement is a commitment by the Canadian provinces to develop similar laws. Council of Great Lakes Governors, Great Lakes-St. Lawrence River Basin Water Resources Compact Implementation: Background, available at http://www.cglg.org/projects/water/ CompactImplementation.asp. 108. Great Lakes Compact, supra note 48, at §§ 1.3(1)(a)–(b). 109. Id. 110. Id. at § 1.2 (“Water means ground or surface water contained within the Basin. Waters of the Basin or Basin Water means the Great Lakes and all streams, rivers, lakes, connecting channels and other bodies of water, including tributary groundwater, within the Basin.”). 111. Id. at § 4.8 (emphasis added). 112. Id. at §§ 4.9(1), 1.2 (defining a “straddling community” as “any incorporated city, town or the equivalent thereof, wholly within any County that lies partly or completely within the Basin, whose corporate boundary existing as of the effective date of this Compact, is partly within the Basin or partly within two Great Lakes watersheds.”).


supply, undergoes a Regional Review, and meets other requirements;113

3. Diversion of certain intra-basin transfers, e.g., transferring water from Lake Superior to Lake Michigan;114 and

4. Diversion of Lake Michigan for Chicago’s use.115 Additionally, whether bottled water is a prohibited diversion has not been settled. Although the Compact clearly defines removing water in containers greater than 5.7 gallons as a prohibited diversion, it leaves it up to each state to decide whether exports of water in 5.7 gallon or smaller containers will be prohibited diversions.116 Combining riparian and public trust common law and statutory provisions from the Great Lakes States, the Compact takes a significant step forward by creating a uniform minimum standard that applies to all withdrawals and consumptive uses of Basin water as follows:

Uniform Management Standard for In-Basin Water Uses: 1. All of the water shall be returned to the “Source

Watershed” less an allowance for consumptive use; 2. Implementation of the use “shall result in no significant

individual or cumulative adverse impacts to the quantity or quality of the Waters and Water Dependent Natural Resources and the applicable Source Watershed”;

3. Implementation of the use shall “incorporate Environmentally Sound and Economically Feasible Water Conservation Measures”;

4. Implementation of the use must comply with all applicable laws; and,

5. The use is “reasonable” based on whether the use is planned in a way that avoids or minimizes wasting water; efficient use is being made of existing water; economic and social development are in balance with environmental protection; the supply potential of the water source; degree and duration of adverse impacts and whether they can be

113. Id. at § 4.9(3). 114. Id. at § 4.9(2). 115. Id. at § 4.14 (applying United States Supreme Court decree in Wisconsin v. Illinois instead of Compact to withdrawals, consumptive uses, and diversions by the State of Illinois). 116. Id. at § 4.12.


avoided or mitigated; and whether it includes restoration in the source watershed.117

Although the Compact establishes a decision-making standard, it leaves it up to each state to decide which withdrawals must meet the standard.118 This decision must be made “through a considered process” and must ensure an effective and efficient management program; that overall uses are reasonable; and that overall withdrawals will not result in significant impacts to water and water-dependent natural resources.119 If a state fails to set a regulatory trigger to apply the standard, the state will have to meet the default level, which applies the standard to each new or increased withdrawal of 100,000 or more gallons per day averaged over 90 days.120 The Compact presents an opportunity to shore up protections for the Great Lakes. As the Compact establishes minimum standards, providing a floor, not a ceiling, for the protection of the waters, each state and province should carefully consider its role as trustee of the Great Lakes and its tributary waters and strive to enact implementing legislation that strengthens the Compact’s provisions accordingly. IV. UPHOLDING THE PUBLIC TRUST: STRENGHTENING THE GREAT LAKES

COMPACT DURING STATE ENACTMENT

A. States Can and Should Strengthen the Compact Now, more than at any time in recent memory, there is a chance to guarantee the long-term protection and sound management of Great Lakes water, ensuring that it is not sold to the highest bidder and that it is protected for generations to come. When the Great Lakes Governors signed the Compact in 2005, they took the first of many steps on a path to creating enforceable, uniform standards for managing the Great Lakes. The Compact calls for the responsible use and protection of Great Lakes waters.121 To make the Compact enforceable, and offer much needed protections for our Great Lakes, the legislatures in each state must pass legislation endorsing the Compact. When enacting this legislation, a state

117. Id. at § 4.11. 118. Id. at § 4.10(1). 119. Id. 120. Id. at § 4.10(2). 121. Id. at §1.3.

60 Vermont Journal of Environmental Law [Vol. 8, Issue 1 can include additional provisions that strengthen and clarify the Compact.122 Thereafter, Congress must give its consent before the Compact will take legal effect.

B. State Legislation Should Improve the Compact in Four Areas Consistent with the state’s duty under the public trust doctrine, the state legislation implementing the Compact should include provisions to strengthen the rules governing: (1) out-of-basin diversions, (2) in-basin uses, (3) water conservation, and (4) bottled water.

1. Strengthen the Ban on Diversions.

To ensure that diversions occur only in absolutely necessary situations and will not damage the Great Lakes Basin waters (including tributaries and groundwater), the provisions concerning diversions to straddling communities and counties should be strengthened in the following ways:

a) Establish the boundaries for “straddling communities” and communities within “straddling counties” as of December 13, 2005. The failure to do so may allow a community to continue to annex land outside the Basin and serve those areas with Great Lakes Basin waters;

b) Require that all water diverted from a Great Lakes watershed be returned to the point of its initial withdrawal, with consideration for natural flow regimes and prevention of any significant adverse environmental impacts; and

c) Require the implementation of measurable water conservation programs, including water recycling and reuse, prior to any application for a diversion of Great Lakes water.

a. Set the Boundaries

The Compact allows “straddling communities” and communities within “straddling counties” to apply for an exception to the prohibition on diversions of water out of the Great Lakes Basin. Although the Compact establishes the boundaries for “straddling counties” to be fixed as of

122. Id. at §§ 4.12(1), 8.4.

2006] Realizing the Promise of the Great Lakes Compact 61 December 13, 2005, it fails to fix the boundaries for “straddling communities” and for communities within “straddling counties.”123 This allows a “straddling community,” for instance, to obtain approval to use Great Lakes water in the part of its community that lies outside the Basin. However, because the boundaries of the community are not fixed as of a certain date, the community will have an incentive to annex water-poor land outside the Basin and expand the use of Basin waters. This drafting error in the Compact should be corrected in state legislation to fix the boundaries of the “straddling communities” and communities within “straddling counties” that existed as of December 13, 2005. This will harmonize the definitions with the one for counties and will uphold the intent of the Compact to prohibit diversions in most situations.124 b. Require Return Flow to Point of Initial Withdrawal Requiring the return of water diverted out of the Basin has been part of Great Lakes water policy for at least the past twenty years.125 Diversions represent some of the pressures facing the Great Lakes currently and could increase with global and local pressures on the lakes. It is important to understand the scope of the current diversions and how they have been regulated to put future requests for Great Lakes water in perspective. Since the enactment of the WRDA and the Charter in the mid-1980s, two formal diversion requests have been approved and one has been vetoed. Pleasant Prairie, Wisconsin, and Akron, Ohio, were approved, while Michigan’s Governor, John Engler, vetoed the Lowell, Indiana, diversion because “once one diversion is allowed, it is more difficult to stop others.”126

Although the diversion requests for Pleasant Prairie, Wisconsin, and Akron, Ohio, were considered well before the Great Lakes Compact was drafted to require return flow, the states and provinces recognized the need for return flow even in these earlier diversions. Several governors did not object to these diversions only on the

123. Id. at § 1.2 (comparing definitions for county, which fixes the date, to the definition for straddling community and community within a straddling county). 124. Id. at § 4.8. 125. INT’L JOINT COMM., BOUNDARY WATERS TREATY, PROTECTION OF THE WATER OF THE GREAT LAKES 12 (2000). 126. Dinsmore, supra note 68, at 469.


condition that each municipality return an equivalent volume of water to the Great Lakes system.127

As the practice of diversion approvals under WRDA shows, the Compact’s return flow requirement is merely an articulation of a principle that has been in force since 1985.128 However, the Compact’s return flow requirement should be refined to protect existing riparian and public water rights. The Compact requires Great Lakes water to be used and then returned to the “source watershed.” The definition of “source watershed” gives a “preference” for returning the water to the “direct tributary stream watershed from which it was [w]ithdrawn,”129 but otherwise defines the watershed broadly so that, for example, a withdrawal from Lake Michigan could be returned to any other part of the Lake Michigan Basin and still be within the “source watershed.”130 State legislation should turn this “preference” into a requirement that water be returned to the point of initial withdrawal. Without greater clarity, a water user could argue that it should be allowed to take water from one river and return it to another river within the same watershed. This could result in harm to the existing riparian, and public rights in the stream, where water was taken but not returned. In Wisconsin, the Supreme Court has already recognized the ability and duty of the state to regulate diversions from even non-navigable streams to protect riparian and public rights, because without this regulation “there might be a rather dry riverbed downstream.”131 Similarly, a water user could take groundwater and return it to a trout stream in the same watershed, thus increasing the flow and changing the water quality of the trout stream, and increasing the risk of flooding. To avoid harm to riparians and the public, state law should clarify that water must be returned to the point of initial withdrawal, with consideration for natural flow regimes and prevention of significant adverse environmental impacts.

127. BOUNDARY WATERS TREATY, supra note 125, at 12. 128. Id. 129. Great Lakes Compact, supra note 48, at § 1.2. 130. Id. 131. Omernik v. State, 218 N.W.2d 734, 739, 64 Wis.2d 6, 14 (1974).


c. Require Conservation as a Condition Precedent to a Diversion Application

Only by requiring communities to implement conservation measures and programs demonstrating measurable savings prior to an application for an exception to the diversion prohibition can a state be assured that the Compact’s conservation goals will be realized. In keeping with its core conservation ethic, the Compact requires applicants for an excepted diversion to implement conservation measures.132 This clear imperative lies at risk of being compromised, however, by the inclusion of the caveat that conservation measures be “economically feasible.”133 To avoid the costly litigation likely to result from this vague condition and to prevent communities from using it as a way to circumvent the conservation condition precedent, state legislation should remove the feasibility language and simply require that all applications for diversions be evaluated on the effectiveness and the extent of the water conservation measures implemented prior to the date of application.

2. Set a Protective Regulatory Trigger for In-Basin Users.

For the first time, the Great Lakes Compact establishes a uniform standard to apply to in-basin uses of water, but allows each jurisdiction to set the withdrawal level at which this standard will apply.134 Ensuring the reasonable and efficient use of our water resources by in-basin users allows the state and region to legally defend its restrictions on out-of-basin users, avoid costly water conflicts, and provide water users with consistency. Each state has to set this regulatory trigger level to ensure “uses overall are reasonable,” avoid cumulative significant impacts, and achieve all the objectives of the Compact.135 Since signing the Charter in 1985, almost all of the Great Lakes States have enacted legislation requiring the registration of all new or increased withdrawals of Great Lakes Basin waters in excess of 100,000 gallons per day averaged over any 30-day period. Some states have set the threshold for actually requiring permits and regulating in-basin uses at a water loss or consumptive use of two million or more gallons per day, which is consistent with the Great Lakes Charter.136 132. Great Lakes Compact, supra note 48, at §§ 4.9(4)(e), 4.11(3). 133. Id. 134. Id. at § 4.10. 135. Id. at § 4.10(1). 136. Id.

64 Vermont Journal of Environmental Law [Vol. 8, Issue 1 However, the two million gallon per day trigger level is too high to be meaningful in Wisconsin, and other states may have a similar experience. For example, the request by Manitowoc Public Utilities in Wisconsin to increase the utility’s current rate of withdrawal of Lake Michigan water to up to 30 million gallons per day illustrates that the regulatory trigger is not set at a meaningful level; this is because this withdrawal does not initiate the water loss or consumptive use permit requirements.137 The utility sought to increase its water withdrawal in order to supply water to the Central Brown County Water Authority, which requested Lake Michigan water to replace its own contaminated groundwater.138 Even with a project of this magnitude, the Wisconsin Department of Natural Resources (WDNR) concluded that the two million gallon per day water loss threshold was not exceeded.139 The WDNR thus informed the utility that it could proceed with the increased withdrawal without obtaining a water loss permit.140 As a result, with no water loss permit under consideration, neither the utility supplying the water nor the water authority receiving the water was required to comply with any of the public trust or conservation provisions in Wisconsin’s enactment of the Great Lakes Charter policy. As this was one of the largest intra-basin water transfers Wisconsin had ever seen, this case surely demonstrates that regulating water losses at or above the two million gallon per day consumptive use threshold sets a regulatory trigger which is too high to be effective. Wisconsin law already requires approvals for all withdrawals of 100,000 gallons per day or more of groundwater and requires registration of all water withdrawals (surface and ground) at that level.141 Unlike the two million gallon per day level, the 100,000 gallon per day level appears to cover a large portion of the state’s water users. Consistent with the 137. WISC. DEP’T OF NATURAL RESOURCES, MANITOWOC WATER WITHDRAWAL EVALUATION (2004) (on file with author). 138. Central Brown County’s groundwater problems are both water quantity and quality problems. The groundwater aquifer has been drawn down to the point that the water is increasingly contaminated with naturally-occurring radium. Central Brown County Water Authority, Commonly Asked Questions, available at http://www.cbcwaterauthority.com/common.htm. 139. WISC. DEP’T OF NATURAL RESOURCES, supra note 137. 140. Id. 141. WIS. STAT. §§ 281.34(5)(e)(2) (requiring location and annual pumping report for all high capacity wells pumping 100,000 gallons per day or more), 281.35(3) (requiring registration for all withdrawals of 100,000 gallons per day or more in a 30 day period). Although the registration requirement exists in the state statute, Wisconsin stopped collecting data in the mid-1990s. Email from Todd Ambs, WDNR, to Melissa Scanlan, Midwest Environmental Advocates (Jan. 23, 2006). Under a separate law, Act 310 (otherwise known as Wisconsin’s Groundwater Protection Act), Wisconsin once again started collecting usage data for users pumping 100,000 or more gallons per day from groundwater supplies. Id.; WIS. STAT. § 281.34(5)(e)(2).

2006] Realizing the Promise of the Great Lakes Compact 65 Compact’s recognition that surface and groundwater are part of an interconnected system, Wisconsin should regulate surface water withdrawals at the same 100,000 gallon per day level at which it is currently regulating groundwater withdrawals. Other Great Lakes States may have local conditions that argue in favor of setting thresholds differently.

3. Require Strong Water Conservation Standards. While the Great Lakes States may be perceived as water-rich compared to other parts of the country and world, certain areas are, nonetheless, facing challenges to their water supplies, including drawdown of groundwater aquifers, problems with water quality, and water demands rapidly exceeding available supplies. In order to ensure that water supplies continue to meet each state’s escalating water demands, we must act before it is too late to conserve and protect our waters. Prior to the Great Lakes Compact, there was no uniform conservation requirement in the Great Lakes States. The Pleasant Prairie, Wisconsin diversion application presents a good example of this regulatory void. In the late 1980s, Pleasant Prairie, Wisconsin, which is partially located in the Mississippi River Basin, sought a new source of water in order to replace existing groundwater supplies contaminated by naturally-occurring radium and to comply with radium standards for drinking water. The City of Kenosha, which is in the Lake Michigan Basin, agreed to allow Pleasant Prairie to tap into Lake Michigan water through the city water supply system, and they jointly applied to the WDNR to send 3.2 million gallons per day from the Lake Michigan Basin to the Mississippi River Basin. Although none of the eight Great Lakes States opposed the diversion, they did express concerns.142 The Canadian Consulate General urged Wisconsin to focus on water conservation: 142. Minnesota, Illinois, Ohio, Indiana and Michigan submitted written responses. Donna McGee interview with Chuck Ledin (July 28, 2005). Michigan, New York and Pennsylvania insisted that the diversion be a temporary one; the other five states did not object to a permanent diversion. Although not required under WRDA, Quebec approved the diversion. Memorandum from Claude Pesanting, Directeur de L’hydraulique, Gouvernement du Quebec, Ministre de L’Environnement, to Bonnie Koenig, Executive Director, Council of Great Lakes Governors (June 2, 1989); Letter from Rudy Perpich, Governor of the State of Minnesota to Bonnie Koenig, Executive Director, Council of Great Lakes Governors (May 30, 1989) (Minnesota letter); Letter from James R. Thompson, Governor of the State of Illinois to Bonnie Koenig, Executive Director, Council of the Great Lakes Governors (June 26, 1989) (Illinois letter); Letter from Richard F. Celeste, Governor of the State of Ohio to Bonnie Koenig, Executive Director, Council of Great Lakes Governors (June 26, 1989) (Ohio letter); Letter from Evan Bayh, Governor of the State of Indiana to Governor Richard F. Celeste, Chairman, Council of Great Lakes Governors (July 27, 1989) (Indiana letter); Letter from David F. Hales, Director,


[T]here is reason to believe that the problem in Pleasant Prairie stems from overuse of local water systems for development. We are concerned that diversions from the Great Lakes, rather than water conservation and management, should be seen as the answer to local problems of this sort. We would like to encourage the State of Wisconsin to explore all alternative solutions before proceeding with this diversion.143

However, there were no relevant regulations that required Pleasant Prairie to conserve water prior to applying for a diversion of Great Lakes water. At the beginning of 1990, the diversion was approved without any requirements for water conservation.144 The Compact, by contrast, does require conservation.145 However, the language is loose. Each state needs to take steps to be responsible stewards of its water wealth. State officials and policymakers would be wise to rectify the existing gaps in state laws and regulatory systems that effectively forestall the implementation of water conservation measures on a local and statewide basis by enacting a state-wide mandatory water conservation program that:

a) Requires specific conservation goals for each sector (e.g., residential, commercial, agricultural) and then monitor and report progress;

b) Identifies best available technologies and practices;

Department of Natural Resources, State of Michigan to the Honorable Tommy G. Thompson, Governor of the State of Wisconsin (December 12, 1989) (Michigan letter); Letter from C. D. Besadny, Secretary, WDNR to the Hon. Brian Burke, Wisconsin Senator (undated reply to Senator Burke’s Mar. 13, 1992 letter to the WDNR, stating that New York and Pennsylvania verbally approved the diversion and that Michigan, New York and Pennsylvania insisted that the diversion be only temporary). Ontario opposed the diversion in writing, as did Great Lakes United, a coalition of 180 groups, and the Canadian Consulate General, G. Douglas Valentine. Letter from M.G. Lewis, Director, Conservation Authorities and Water Management Branch, Ministry of Nat. Res., Province of Ontario, Canada, to Mr. Van Esser, Council of Great Lakes Governors (June 1, 1989); Letter from G. Douglas Valentine, Canadian Consulate General to the Hon. Tommy Thompson, Governor of the State of Wisconsin (Mar. 7, 1990). 143. Letter from G. Douglas Valentine, Canadian Consulate General, to Governor Tommy Thompson (Mar. 7, 1990). 144. Telephone interview between Chuck Ledin, Bureau Director, Office of the Great Lakes, WI DNR, and Donna McGee, Midwest Environmental Advocates (July 28, 2005). As a result of this conversation, Ms. McGee did not believe that any conservation requirements were in place at the time of this approval. 145. Great Lakes Compact, supra note 48, § 4.2.


c) Includes the implementation of water conservation measures as an enforceable permit condition that is documented through monitoring and reporting;

d) Requires conservation for all large water users and eliminates opt out;

e) Includes a provision providing that the conservation requirements and measures are enforceable by any member of the public.

a. The State Water Conservation Plan Should Require Specific Conservation Goals and then Monitor and Report Progress

State policymakers should require measurable water conservation goals and objectives which can be monitored and evaluated annually. In places where this approach has been applied, the water savings are also fiscal savings; in places where this approach has been ignored, conservation has made little progress. Wisconsin’s Wellhead Protection Law provides a case in point. Wisconsin law, at present, has no mechanism to require and monitor measurable conservation goals. With the exception of Wisconsin’s Wellhead Protection Program, the state lacks any specific program to promote water conservation.146 The state’s Wellhead Protection Program, however, is by no means structured or funded to accomplish far-reaching conservation objectives. The state’s role is limited to reviewing the “reasonableness” of the community’s proposed water conservation program for a new municipal well. Beyond that, there are no state-wide goals articulated, no financial incentives provided, and no database developed to track implementation of the conservation programs.147 Without these components, the conservation element of the state’s Wellhead Protection Program has been relegated to a mere paperwork requirement. By contrast, an instructive model of effective goal-setting and monitoring is the Great Lakes community of Waterloo, Ontario, which is

146. WIS. ADMIN. CODE NR § 811.16(5) (2006), available at http://www.legis.state.wi.us/rsb/ code/nr/nr811.pdf (stating that, Wisconsin’s Wellhead Protection Program, designed to protect public water supply wells, requires that all communities installing a new municipal water supply well after May 1, 1992, must complete a Wellhead Protection Plan containing nine elements, including the development of a “water conservation program.”). 147. Email from Jill Jonas, Bureau Director, Drinking Water and Groundwater, WI DNR, to Jodi Habush Sinykin, Midwest Environmental Advocates (May 3, 2005); Email from Jill Jonas to Jodi Habush Sinykin (April 20, 2005).

68 Vermont Journal of Environmental Law [Vol. 8, Issue 1 located in the center of a triangle formed by Lakes Ontario, Erie, and Huron.148 The Regional Municipality of Waterloo has developed an extensive water conservation program, which focuses on the residential water consumption of its population of approximately 465,000 people.149 This has been necessitated by recent drought conditions and projected population increases that have pushed the region’s water system to near capacity.150 In 1998, Waterloo established the goal of reducing its water consumption by 1.5 million gallons of water per day by 2009 via its Water Efficiency Master Plan (Master Plan).151 In addition to this short-term overall reduction goal, the Master Plan provides cumulative efficiency targets for each program on an annual basis and sets long-term goals for water conservation through the year 2041.152 By setting these short- and long-term goals, and following them up with monitoring and reporting, Waterloo’s water conservation efforts since 1994 have saved the region over one million gallons of water per day.153 These savings have allowed Waterloo to defer the costs of building, and maintaining, the infrastructure needed to supply this quantity of water; as well as to treat, pump, and distribute it on an ongoing basis. This one million gallon per day savings became even more valuable in 2004, when Waterloo lost 2.5 million gallons per day of pumping capacity after five groundwater wells were shut down due to contamination.154

b. The State Water Conservation Plan Should Identify Best Available Technologies and Practices

In order to ensure that water supplies continue to meet ever-increasing water demands, each state should work toward the development of an integrated water conservation plan that incorporates conservation measures that have proven both cost-effective and water efficient. In general, water conservation measures aim to preserve quantities of water sufficient to

148. REBECCA LAMEKA, GREAT LAKES COMMISSION, REGIONAL CASE STUDIES: BEST PRACTICES FOR WATER CONSERVATION IN THE GREAT LAKES–ST. LAWRENCE REGION 17-19 (2004), available at http://www.glc.org/wateruse/conservation/pdf/CaseStudie6_18_04.pdf. 149. Id. 150. Id. at 19. 151. TRANSP. AND ENVTL. SERVS., REP. E-06-066.1, PROPOSED WATER EFFICIENCY MASTER PLAN, 2007-2015 2 (2006). 152. Id. 153. Email from Steve Gombos, Region of Waterloo, to Donna McGee, Midwest Environmental Advocates (July 12, 2005). 154. Id.

2006] Realizing the Promise of the Great Lakes Compact 69 sustain economic and agricultural uses, drinking water supplies, and water-dependent ecosystems within our environment. Water conservation is commonly associated with strategies which aim to reduce human consumption and demand for water. Another less common, but valuable, approach to water conservation is directed towards the re-use and reclamation of water as an alternative to standard “once-through” water systems to optimize the numerous beneficial uses of treated wastewater or “gray water” for groundwater recharge, irrigation, wetlands restoration and industry. A community’s selection of conservation measures and best management practices comprise the backbone of any successful conservation plan, therefore state policymakers need to determine which measures and practices lend themselves most readily to local and statewide conditions. First, policymakers should create a water-use profile for the state and its sub-regions, identifying conservation opportunities statewide and those areas where water quality, or quantity, may become an issue. Understanding both the historic and projected water supplies and demands can help communities develop water budgets and set realistic conservation goals to help balance these budgets. Similarly, understanding how water is being used, and in what quantities, can help decision-makers select conservation measures and incentives that will prove most effective. For example, data indicates that conservation measures aimed at reducing residential water use, particularly in the bathroom, which accounts for more than half of all indoor water use in some places, have the potential to lead to considerable water savings. Likewise, utility records demonstrating significantly higher water use during the summer months on the part of certain communities or portions of the state indicate that it would be wise to recommend conservation measures and incentives targeting outdoor water use. Second, policymakers need to explore the array of best management practices and water conservation programs currently implemented in other states—programs that can be used as models for water conservation in Wisconsin. A timely resource for this is Protecting Wisconsin’s Waters: A Conservation Report and Toolkit, which identifies numerous models of conservation initiatives and practices.155 The state water conservation plan should incorporate the best management practices that are most likely to have a measurable impact given local and statewide water uses. 155. Midwest Environmental Advocates, Protecting Wisconsin’s Waters: A Conservation Report and Toolkit, available at http://www.midwestadvocates.org/media/publications/ Protecting%20Wisconsin%27s%20Waters%20Report%20MEA.pdf.


c. The State Water Conservation Plan Should Include the Implementation of Water Conservation Measures as an Enforceable Permit Condition

In order to ensure that water conservation is incorporated into the regular practices of a state’s large water users, water use permits should include conservation as a permit condition. The permit conditions could require a set percentage reduction that helps the state or locality achieve its overall water conservation goal and allow each permit holder to choose the best practices that would be most effective for reaching the goal. The requirements should involve monitoring, reporting and enforcement to ensure they are implemented.

d. The State Water Conservation Plan Should Require Conservation for all Large Water Users and Eliminate Opt-Out of Municipal Supply Systems

Some states, such as Wisconsin, do not require all water users within a municipal water system’s boundaries to hook up to the system.156 This allows large water users to opt-out of a municipal water system and seek its own water supply (via private high capacity well, for instance) to avoid water conservation requirements. This scenario would result in a smaller pool of utility customers for the same fixed operating costs, creating fiscal difficulties for the municipal water utility.157 While it remains unclear to what extent large-scale water users are opting out of municipal systems, the opportunity afforded these users to opt out may serve, in effect, to deter municipal utilities from initiating conservation pricing and undermine implementation of system-wide water conservation initiatives, especially in light of the buying power yielded by large industrial users. To counter this and promote conservation, states and localities should create mandatory conservation programs for all water users, particularly targeting large users—irrespective of whether their water source is municipal or private—and enact ordinances and regulations that will effectively prohibit large water users from opting-out of the available municipal water supply.

156. Id. at 16. 157. Id.


e. State Legislation Should Enable Comprehensive Citizen Enforcement.

In order to have a functioning public trust, the public beneficiaries must be able to call for an accounting of the trust in order to monitor how well the government is carrying out its duty as trustee. Similarly, the beneficiary should be allowed to enforce the rules governing how the trust is managed when the government fails to take action. Citizen suit provisions, comparable to those provided under the federal Clean Water Act or the Michigan Environmental Protection Act,158 are an important component to state legislation implementing the Compact’s conservation requirements. While it appears that the Compact already allows any member of the public to initiate proceedings against the state for failure to establish a conservation program or for failure to require conservation as a condition of a permit,159 the Compact is silent on the ability of the public to enforce the failure of a permittee to heed the conservation requirements required under its permit. This lapse may serve to undermine the consistent implementation and enforcement of conservation measures. To fully implement water conservation in the Great Lakes States, each state should create measurable goals, identify best management practices, require monitoring, and provide adequate enforcement mechanisms, including an avenue for any member of the public to enforce permit provisions.

4. Eliminate Loopholes that Encourage Privatizing Great Lakes Water. The Compact clearly prohibits the bulk transfer of water out of the Basin in any container larger than 5.7 gallons.160 However, the Compact allows each state to decide whether exporting water in containers less than 5.7 gallons is prohibited.161 States should eliminate the bottled water loophole that allows the diversion of Great Lakes water based on the size of the container being used to transport the water out of the Great Lakes Basin. This would not impact or apply to water incorporated into products, such as beer, soda, canned goods, or juice.

158. Clean Water Act of 1972, 33 U.S.C. §§ 1251, 1365 (2001); MICH. COMP. LAWS § 324.1701 (2001). 159. Great Lakes Compact, supra note 48, at § 7.3. 160. Id. at § 4.12(10). 161. Id.

72 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Increases in the world’s population, coupled with increased pollution, are straining the world’s water resources. Global consumption of water is doubling every twenty years, outpacing population growth.162 Meanwhile, a child dies every eight seconds from drinking contaminated water. In fact, half of the people on Earth lack basic sanitation services and are exposed to water-borne diseases.163 Billions of people are caught between the “twin realities of water scarcity and water pollution.”164 While some find this unjust, the private sector has increasingly taken advantage of this scarcity as an opportunity to make a profit. “Water promises to be to the 21st century what oil was to the 20th century: the precious commodity that determines the wealth of nations.”165 A handful of multinational corporations are growing increasingly wealthy by privatizing water through a number of avenues, including the management and control of municipal water distribution systems and the taking of water out of the public trust—at no cost—and bottling it for sale around the world. Multinational companies providing water services represent a more than $1 trillion per year industry, not including the more than $35 billion bottled water industry.166 A small group of companies currently control much of the international water market. Two French-based transnational corporations, Vivendi and Suez, own or have controlling interests in water companies in over 130 countries serving more than 100 million people.167 Private corporations take public water and privatize it for profit in two basic ways: they take over delivering water through municipal water systems, or they take water from the public domain and export it in bulk out of its basin of origin. Bottled water is the most familiar bulk export of water. The industry has grown tremendously since the 1970s, with unprecedented growth in the past decade.168 In the 1970s, the volume of water bottled and traded worldwide was 300 million gallons (about 1 billion liters) per year.169 In 1980, the volume increased to 650 million gallons (about 2.5 billion liters) per year.170 In

162. BARLOW & CLARK, supra note 3, at 7. 163. Id. at 52. 164. Id. at 51. 165. SHIVA, supra note 8, at 88 (citing Shawn Tully, Water, Water, Everywhere, FORTUNE, May 15, 2000). 166. CLARKE, supra note 17, at 9. 167. BARLOW & CLARK, supra note 3, at 85. 168. Anne Christiansen Bullers, Bottled Water: Better than the Tap?, available at http://www.fda.gov/fdac/features/2002/402_h2o.html. 169. Id. at 142. 170. Id.

2006] Realizing the Promise of the Great Lakes Compact 73 2000, the volume increased to 22.3 billion gallons (84 billion liters) per year.171 In 2004, the volume increased to 40.8 billion gallons (154.3 billion liters) per year.172 Wisconsin faced a significant privatization threat in 2000 when Nestlè/Perrier173 attempted to obtain permits to bottle the spring waters feeding the Mecan River in Waushara County, Wisconsin.174 When the public outcry thwarted the company, it turned to the spring waters feeding the Big Springs area of Adams County, Wisconsin. In a display of local community concern that combined local organizing, town hall meetings, media outreach, local resolutions, state legislation, and litigation, Wisconsin residents effectively forced Nestlè/Perrier to abandon its project.175 But this episode highlighted Wisconsin’s lack of legal protections to prevent private companies from taking and privatizing public waters. Nestlè/Perrier then tried to obtain spring water in Michigan. In Michigan, Citizens for Water Conservation filed a lawsuit against Nestlè/Perrier. As a result, a Mecosta County trial court shut down four large production wells with a total capacity of 210 million gallons a year for bottled water, because the diversion of water for sale violated riparian common law principles restricting water use to watersheds.176 In a recent decision in late November 2005, the Michigan Court of Appeals affirmed the trial court, finding that the amount of water Nestlè/Perrier was diverting was unreasonable under the common law because of its interference with riparian rights.177 Following the decision, Nestlè/Perrier negotiated an agreement forty miles from the Mecosta County bottling plant, acquiring

171. Id. 172. EARTH POLICY INSTITUTE, ECO-ECONOMY REPORT ON BOTTLED WATER (2006), available at http://www.earth-policy.org/Updates/2006/Update51.htm (citing Beverage Marketing Corporation, cited in John G. Rodwan, Jr., Bottled Water 2004: U.S. and International Statistics and Developments, Bottled Water Reporter, April/May 2005). 173. Nestlè merged with Perrier in 1992. The Nestlè Story, available at http://www.ir.Nestlè.com/NR/rdonlyres/0722C4BE-065D-496E-9EB7-9D7FAE89794A/0/GeneralInformation.pdf. 174. See Tom Vanden Brook, Perrier Wants to Draw Water on State Land: Bottler’s Proposal Sparks Concern for Trout Stream, MILWAUKEE JOURNAL SENTINEL, Dec. 19, 1999, available at http://www.jsonline.com/news/state/dec99/river19121899.asp (last visited July 24, 2006). 175. See Kevin Murphy, Nestlè Waters Won’t Develop Big Spring Site: Company Says Project is Dead, Letting High-Capacity Well Permits Expire, MILWAUKEE JOURNAL SENTINEL, Sept. 18, 2002, available at http://www.jsonline.com/story/?id=80699. 176. Michigan Citizens for Water Conservation v. Nestlè Waters North America Inc., No. 01-014563-CE (Mecosta County Mich. Cir. Ct. 2003), available at http://www.envlaw.com/decisions/ MCWC%20decision.pdf. 177. Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc., 709 N.W.2d 174, 196 Mich. App. 25 (2005).

74 Vermont Journal of Environmental Law [Vol. 8, Issue 1 part of a municipal well field in Evart, Michigan.178 Nestlè/Perrier now trucks the water from Evart to its bottling plant in Mecosta County.179 Although bottled water is the most common form of bulk export, water can also be exported via water bags, tankers, canals, and pipelines. Turkey has already used water bags to ship water internationally.180 In 2000, Nordic Water Supply, a Norwegian corporation, used five-million-gallon bags to export water from Turkey to northern Cyprus.181 Government reaction to attempts to privatize water has been mixed. Some governments are banning bulk water exports, while others are promoting them. In 1993, British Columbia banned bulk water exports.182 Prior to the ban, several companies planned to transport water by supertanker along the Pacific Coast. According to one account, “[u]nder one contract, the annual volume to be shipped to California was equivalent to the total annual water consumption of the City of Vancouver in Canada.”183 Alaska, on the other hand, is promoting water privatization and export. Although it is unclear whether the project is viable, Global H2O, a Canadian-based company, has a 30 year agreement with Sitka, Alaska, to export 18.2 billion gallons of water per year.184 According to one account, Global H2O worked with Signet Shipping Group to obtain supertankers to export this water to China for bottling.185 As markets for privately-supplied water grow, so do concerns about whether we will be able to protect and conserve water in its natural state.186 The Great Lakes contain about 20% of the world’s fresh surface water resources. As such, it could become a source of future wealth for a few private corporations, at the expense of the public. In the late 1990s, the Nova Group in Canada received a permit (which was subsequently withdrawn) for bulk exports of water to Asia. The 178. Ed White, Water, Water Everywhere, THE GRAND RAPIDS PRESS, Dec. 1, 2005, at A12. 179. Id. 180. Mark Clayton, Forget OPEC. The Next Cartel May Export Drinking Water, THE CHRISTIAN SCIENCE MONITOR, Dec. 30, 2004, available at http://www.csmonitor.com/2004/1230/ p13s01-sten.htm. 181. Id. 182. BARLOW & CLARK, supra note 3, at 134. 183. Id. at 135. 184. Miguel Simhon, Water Supertankers, available at http://academic.evergreen.edu/g/ grossmaz/SIMHONM/. 185. Id. 186. See, e.g., Memorandum from Steven Shrybman, Executive Director, West Coast Environmental Law, to Maude Barlow, Volunteer Nat’l Chairperson, Council of Canadians § 6.1 (Aug. 17, 1999), available at http://www.canadians.org/documents/Water_Export_Controls_Aug_99.pdf (“[N]o matter how carefully designed, Canadian measures to prevent bulk water exports or diversion projects would still be vulnerable to trade challenges and/or investor-state claims.”).

2006] Realizing the Promise of the Great Lakes Compact 75 company planned to “ship 3 billion liters of water from Lake Superior over 5 years and sell it to Asia.”187 In part, this proposal exposed the vulnerabilities in the laws governing exports of water from the Great Lakes. Proposals like the Nova Group’s serve as an impetus for articulating a responsible legal structure for the region. The ongoing push to privatize and allow multinational corporations to control water should be seen as a break from longstanding precedent. The public trust doctrine, which predates the Great Lakes States and Canadian Provinces, has long held that water cannot be privately owned and is instead held in trust by the government for the public’s use and enjoyment.188 Each state should eliminate the bottled water loophole when it enacts the Great Lakes Compact. Doing so will recognize and reaffirm the existence of the Great Lakes and the waters feeding them as a public trust, managed by a variety of governments for the benefit of the trustee public. When the Great Lakes governors signed the Compact in 2005, they took the first of many steps on a path to creating enforceable, uniform standards for managing the Great Lakes. Yet, to make the Compact enforceable, the legislatures of each state must pass legislation endorsing the Compact. When enacting this implementing legislation, the states should strengthen and clarify the Compact in the four key areas set forth above to fulfill the state’s duty under the public trust doctrine and to protect the Great Lakes resource for generations to come.

V. UNDERSTANDING GREAT LAKES WATER SUPPLY: THE WISCONSIN

EXAMPLE Given the vital interplay between science, law, and public policy in devising and evaluating water resource management approaches; this next section presents an overview of the impact that groundwater pumping has had on Wisconsin’s ground and surface water systems. With an improved understanding of the state’s groundwater systems, and the correction of certain misconceptions, policymakers will be far better equipped to address present and future management challenges at the state and local level.

A. Wisconsin Groundwater Groundwater is the water beneath the earth’s surface that flows freely through the pores, between sand grains and cracks in rock, and which can

187. Little Traverse Bay Bands of Odawa Indians, 203 F. Supp.2d at 859. 188. Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453 (1892).

76 Vermont Journal of Environmental Law [Vol. 8, Issue 1 be pumped from wells.189 The term “aquifer” refers to certain kinds of underground rocks or rock formations which can store and transmit water in usable quantities to wells.190 Groundwater originates as precipitation that infiltrates past plant roots (“recharge”). It moves through the subsurface under forces of gravity and pressure, and leaves the aquifer when it discharges to streams and lakes. Groundwater provides 70% of the water used in Wisconsin households; provides water for industry and agriculture; and serves 608 cities and villages. Groundwater is also vital to the landscape because it nourishes and sustains streams, wetlands, springs, and lakes.191 Four aquifer systems exist in Wisconsin: the sandstone aquifer; the Silurian dolomite aquifer; the Precambrian aquifer; and the sand and gravel aquifer. In the eastern part of the state the sandstone aquifer, frequently referred to as the “deep sandstone aquifer,” is confined beneath Maquoketa shale and dense Sinnipee dolomite.192 When aquifers are present above the sandstone aquifer, they are referred to as shallow aquifers. High capacity municipal or industrial wells that withdraw water from the sandstone aquifer are typically several hundred feet deep. Domestic wells are generally drilled into the shallow aquifer and reach 100-300 feet in depth.193 Human use of groundwater in Wisconsin totals about 800 million gallons per day (mgd) and is distributed among the aquifer systems as follows: sandstone aquifer—380 mgd; sand and gravel—363 mgd; Silurian Dolomite—48.02 mgd; and Precambrian—12.94 mgd.194 Forty percent of the estimated 800 mgd is pumped from municipal wells and 60% is pumped from private supply wells.195 Approximate percentages of groundwater use by category are: agricultural—35% (22% is

189. Wisconsin Natural Resources Magazine, Groundwater: Wisconsin’s Buried Treasure, available at http://www.wnrmag.com/supps/2006/apr06/understand.htm. 190. Natural Resources Conservation Service, Water Glossary, available at http://www.mt.nrcs.usda.gov/technical/ecs/watersheds/galsourcebook/gscbkgl.html. 191. University of Wisconsin Water Resources Institute, Groundwater Drawdown, available at http://www.wri.wisc.edu/GroundwaterDrawdown.pdf. 192. P.A. KAMMERER, JR., GROUND-WATER FLOW AND QUALITY IN WISCONSIN’S SHALLOW AQUIFER SYSTEM: U.S. GEOLOGICAL SURVEY WATER-RESOURCES INVESTIGATIONS REPORT 90-4171 (1995). 193. Presentation, K.R. Bradbury, Wisconsin Geological and Natural History Survey, Groundwater Use and its Consequences in Wisconsin (Apr. 1, 2005); K.R. Bradbury, G. Kraft, & J.T. Krohelski, Uncovering the Quality and Quantity Issues of Wisconsin’s Buried Treasure, available at http://www.dnr.wi.gov/org/water/dwg/gcc/GW-Summit-KKB.pdf. 194. B.R. ELLEFSON, G.D. MUELLER & C.A. BUCHWALD, WATER USE IN WISCONSIN, U.S. GEOLOGICAL SURVEY OPEN-FILE REPORT 01-445 (2000). 195. Email from Cheryl A Buchwald, U.S. Geological Survey, to James T. Krohelski U.S. Geological Survey, (Sept. 2, 2005).

2006] Realizing the Promise of the Great Lakes Compact 77 irrigation); domestic—25%; industrial—20%; commercial—20%; and energy production and other miscellaneous uses—less than one percent.196

B. The Effect of Pumping on Groundwater Levels and Surface Water Flow

In a pre-development or natural condition, a groundwater system is in equilibrium because there are no water wells pumping groundwater. The amount of water entering the system (“recharge”) is equal to the amount of water leaving (“discharge”). Groundwater discharge is responsible for sustaining streams, springs, and wetlands during periods of little or no rainfall. When a groundwater system is disrupted by a pumping well, a non-equilibrium condition occurs. The water level in a well, referred to as the hydraulic head, declines as water is pumped from the well. Groundwater flows down-gradient from high to low head. As pumping continues, the water level in the well falls below that of the surrounding aquifer, causing water to move from the aquifer to the well. This eventually results in a decline or drawdown in the aquifer, which continues until the rate of flow into the well equals the amount of water supplied from the larger groundwater system. Water flows to the well from the aquifer in all directions. The hydraulic gradient (the change in water level over a specified distance in a given direction), is steeper close to the well than further away, thereby forming a cone of depression.197 As groundwater is removed from storage, where it had collected in aquifer pores and openings, the cone of depression spreads until the amount of water pumped is equal to the amount of water captured. In most cases the captured water is groundwater that would have discharged to surface water under natural conditions.198 In extreme cases, high pumping rates will induce the gradient in the vicinity of a surface water body to reverse, and the surface water body will recharge the groundwater system.199

196. Id. 197. W.M. ALLEY, T.E. REILLY, & O.L. FRANKE, SUSTAINABILITY OF GROUND-WATER RESOURCES: U.S. GEOLOGICAL SURVEY CIRCULAR 1186 (1999). 198. Id. 199. N.G GRANNEMANN, R.J. HUNT, J.R. NICHOLAS, T.E. REILLY & T.C. WINTER, THE IMPORTANCE OF GROUND WATER IN THE GREAT LAKES REGION: U.S. GEOLOGICAL SURVEY WATER RESOURCES INVESTIGATIONS REPORT 00-4008 7 (2000).


C. Wisconsin Regional Groundwater Drawdowns Even though the statewide recharge rate is about thirty times the usage rate,200 groundwater quantity issues present an increasing concern for many communities in Wisconsin. Some of Wisconsin’s major metropolitan areas have developed extensive groundwater withdrawal systems, whose closely spaced high-capacity wells have caused excessive drawdown of the deep sandstone aquifer and shifted groundwater divides. This, in turn, has reduced individual well yields and induced poor water quality in certain municipal well systems. Moreover, due to the hydraulic connection between surface water and groundwater, an additional concern raised by drawdown is the risk of surface water depletion in nearby streams, springs, lakes, and surrounding wetlands.201 The results from three groundwater flow models show extensive water level declines from pre-development conditions.202 Large groundwater withdrawals from Central Brown County and the Waukesha areas have resulted in extensive cones of depression that have coalesced and extended past the Illinois border.203 The declines are large, with a maximum of approximately 350 feet in Central Brown County and 450 feet in the Waukesha area. These declines are the result of a confined aquifer where water is obtained from leakage originating in overlying rock units, lateral flow from distant sources, and aquifer storage.204 The Dane County cone of 200. A long-term statewide water budget consists of average inputs and outputs to the hydrologic system. In Wisconsin, precipitation averages 30-32 inches per year (in/yr); however, because the evapotranspiration rate is about 20 in/yr, only 12 in/yr remain to recharge the groundwater system or flow into surface water bodies. Wisconsin’s Buried Treasure, supra note 193. In eastern Wisconsin, where surficial deposits are clayey, recharge rates may be less than 1 in/yr. FEINSTEIN et al, supra note 193. In the sandy surficial deposits of central Wisconsin, recharge rates may exceed 10 in/yr. E.P. WEEKS AND H.G. STANGLAND, EFFECTS OF IRRIGATION ON STREAMFLOW IN THE CENTRAL SAND PLAIN OF WISCONSIN, U.S. GEOLOGICAL SURVEY OPEN-FILE REPORT (1971). As such, a reasonable statewide recharge average is about 6 to 10 in/yr and is supported by statewide long-term base flow measurements. If a 10 in/yr recharge rate is applied to the land-surface area of Wisconsin, the annual recharge rate is about 25,000 mgd, which is approximately 30 times the groundwater use rate. 201. ALLEY ET AL., supra note 197. 202. T.D. CONLON, HYDROGEOLOGY AND SIMULATION OF GROUND-WATER FLOW IN THE SANDSTONE AQUIFER, NORTHEASTERN WISCONSIN: U.S. GEOLOGICAL SURVEY WATER-RESOURCES INVESTIGATIONS REPORT 97-4096 (2000); J.T. KROHELSKI, K.R. BRADBURY, R.J. HUNT & S.K. SWANSON, NUMERICAL SIMULATION OF GROUND WATER FLOW IN DANE COUNTY, WISCONSIN: WISCONSIN GEOLOGICAL AND NATURAL HISTORY SURVEY BULLETIN 98 (2000); D.T. FEINSTEIN, D.J. HART, T.T. EATON, J.T. KROHELSKI & K.R. BRADBURY, SIMULATION OF REGIONAL GROUND-WATER FLOW IN SOUTHEASTERN WISCONSIN: WISCONSIN GEOLOGICAL AND NATURAL HISTORY SURVEY OPEN-FILE REPORT 2004-01 (2004). 203. CONLON, supra note 202. 204. Id.

2006] Realizing the Promise of the Great Lakes Compact 79 depression is smaller because withdrawals are primarily fed by local sources of water (such as lakes, stream, and wetlands) directly in contact with the aquifer.205

D. Groundwater Drawdown Case Study: Southeastern Wisconsin Southeastern Wisconsin, which encompasses Washington, Ozaukee, Waukesha, Milwaukee, Racine, Kenosha, and Walworth counties, is one of the fastest growing regions in the state. About 37% of the resident population of southeast Wisconsin, approximately about 700,000 people, uses groundwater.206 The remaining 63% of the population uses water withdrawn directly from Lake Michigan and reside mainly in the lakeshore counties of Ozaukee, Milwaukee, Racine, and Kenosha, located principally within the Great Lakes Basin.207 The counties of Washington, Waukesha, and Walworth, located principally within the Mississippi River Basin, have long relied on groundwater to meet their domestic and agricultural needs. This reliance is due to the fact that they formerly had easy and “cheap” access to plentiful groundwater sources directly below their municipal or political boundaries.208 Despite the rising water quality problems in this area, these counties have continued to rely on groundwater to meet their needs in part, due largely to longstanding legal constraints on the transfer of water from the Great Lakes Basin to the Mississippi River Basin.209 Early researchers conceptualized the deep groundwater system in Southeastern Wisconsin as a sandstone aquifer comprised of sedimentary rock confined by the Maquoketa shale.210 Recent research supports a 205. KROHELSKI ET AL, supra note 202. 206. SE. WIS. REG’L PLANNING COMM’N, WIS. GEOLOGICAL AND NATURAL HISTORY SURVEY, GROUNDWATER RESOURCES OF SOUTHEASTERN WISCONSIN 1 (2002), available at http://www.sewrpc. org/publications/techrep/tr-037_groundwater_resources.pdf. 207. Id. at 1–2. 208. Id. at 3. 209. U.S. Geological Survey, Overview of Ground-Water Flow System in Southeastern Wisconsin, available at http://wi.water.usgs.gov/glpf/cs_set_hydro.htm. 210. W.J. DRESCHER, RESULTS OF PUMPING TESTS ON ARTESIAN WELLS IN THE MILWAUKEE-WAUKESHA AREA, WISCONSIN: U.S. GEOLOGICAL SURVEY OPEN-FILE REPORT (1948); F.C.FOLEY, W.D. WALTON & W.J. DRESCHER, GROUND-WATER CONDITIONS IN THE MILWAUKEE-WAUKESHA AREA, WISCONSIN: U.S. GEOLOGICAL SURVEY WATER-SUPPLY PAPER 1229 (1953); H.L.YOUNG, DIGITAL-COMPUTER MODEL OF THE SANDSTONE AQUIFER IN SOUTHEASTERN WISCONSIN: SOUTHEASTERN WISCONSIN REGIONAL PLANNING COMMISSION TECHNICAL REPORT 16 (1976); H.L.YOUNG, HYDROGEOLOGY OF THE CAMBRIAN-ORDOVICIAN AQUIFER SYSTEM IN THE NORTHERN MIDWEST, UNITED STATES, U.S. GEOLOGICAL SURVEY PROFESSIONAL PAPER 1405-B (1992b); H.L.YOUNG, SUMMARY OF GROUND-WATER HYDROLOGY OF THE CAMBRIAN-ORDOVICIAN AQUIFER SYSTEM IN THE NORTHERN MIDWEST, UNITED STATES, U.S. GEOLOGICAL SURVEY PROFESSIONAL

80 Vermont Journal of Environmental Law [Vol. 8, Issue 1 groundwater flow model of the sandstone aquifer, which divides the aquifer into multiple shallow and deep aquifers and depicts their interaction with surface water bodies.211 Over the past 50 years, water levels in the deep sandstone aquifer have declined from five to ten feet per year. Cones of depression centered on Waukesha and Chicago have intersected, so that pumping in one area can affect water levels in the other. With a projected increase in pumping,212 simulations indicate that there could be an additional 150 feet of drawdown at the center of the cone of depression in the sandstone aquifer by the year 2020.213 As earlier stated, an important factor of aquifer sustainability in southeast Wisconsin is the presence of the Maquoketa-Sinnipee confining unit, which is a layer of shale and dolomite with very low permeability. The Sinnipee is part of the confining unit only when the shale overlies it. The confining unit is thin or absent in much of western Waukesha County but thickens to the east until, in the vicinity of the western Lake Michigan shoreline, it reaches about 400 feet in thickness. Continuing eastward, the confining unit becomes progressively thicker as it plunges under Lake Michigan.214 Importantly, the confining unit functionally serves to separate the sandstone aquifer from the shallow groundwater system above it, in the sense that very little groundwater can permeate through the confining unit either up into the surface waters of Lake Michigan or downward out of the surface waters of Lake Michigan. Thus, the Maquoketa-Sinnipee confining unit not only influences the extent of sandstone aquifer drawdown, but also influences the position of the groundwater divide’s western boundary.215 Another important consideration in southeastern Wisconsin is that groundwater pumping in the region has moved groundwater divides in the sandstone aquifer. Both the pre-development and current groundwater divides of the sandstone aquifer occur west of the Lake Michigan water table divide in southeastern Wisconsin.216 The water table divide generally PAPER 1405-A (1992a). 211. FEINSTEIN ET AL, supra note 202. 212. Assuming an increase in groundwater usage proportional to increases in population levels, groundwater usage in Southeastern Wisconsin could be expected to increase from about 90 mgd (about 70 mgd from high-capacity wells) in 1995 to about 140 mgd by the year 2020 (FEINSTEIN, supra note 135). These current projections are based on current trends continuing unabated (i.e., no change in land use patterns, little or no conservation, and no reuse or recycling). 213. FEINSTEIN ET AL, supra note 202. 214. U.S. GEOLOGICAL SURVEY, THE IMPORTANCE OF GROUND WATER IN THE GREAT LAKES REGION, WATER-RESOURCES INVESTIGATIONS REPORT 00-4008, available at http://water.usgs.gov’ /orh/nrwww/wrir_00-4008.pdf. 215. Modified from: K.R. Bradbury, Wisconsin Geological and Natural History Survey. 216. CONLON, supra note 202; KAMMERER, supra note 192; M.G. MUDREY, B.A. BROWN &

2006] Realizing the Promise of the Great Lakes Compact 81 coincides with the surface-water divide, also known as the sub-continental divide.217 In southeastern Wisconsin, water table divides generally dictate divides in the shallow groundwater system. By contrast, the sandstone aquifer divide in southeastern Wisconsin occurs much farther west than the water table divide due to the presence and effect of the Maquoketa-Sinnipee confining unit. Additionally, mounting evidence has shown that over pumping by high-capacity wells drawing from the sandstone aquifer has adversely affected groundwater quality in portions of southeastern Wisconsin. For example, analyses of groundwater from the three highest-producing Waukesha Water Utility wells (Wells 5, 9 and 10) indicate that total dissolved solids (TDS) concentration has been increasing since the mid-1980s.218 In addition to increases in TDS, naturally occurring radium exceeds EPA drinking water standards in some sandstone aquifer wells.219 Due in large part to these quantity and quality issues, groundwater has been a frequent subject both in the media and in the remarks of public officials, especially with regard to the City of Waukesha’s (City or Waukesha) current efforts to replace the deep sandstone aquifer water source with water taken from Lake Michigan. Given the complexity of the subject in the eyes of the general public and the emerging science, it is no surprise that a number of misconceptions have emerged with regard to groundwater and surface water systems in southeastern Wisconsin. These shall be identified and corrected below: Misconception #1: The draining of the deep sandstone aquifer has created a cone of depression under Waukesha “that is pulling water out of the Great Lakes like a black hole.”220 The fact is: Southeastern Wisconsin wells are primarily withdrawing water from Mississippi River Basin sources J.K. GREENBURG, BEDROCK GEOLOGIC MAP OF WISCONSIN: WISCONSIN GEOLOGICAL AND NATURAL HISTORY SURVEY, SCALE 1:1000000 (1982); FEINSTEIN ET AL, supra note 202. 217. CONLON, supra note 202; KAMMERER, supra note 192; FEINSTEIN ET AL, supra note 202; MUDREY ET AL, supra note 216. 218. Based on a geophysical survey it appears likely that high TDS water occurs at depth in the sandstone aquifer and is being induced to flow to high capacity wells as increased groundwater development takes place. J. JANSEN & R. TAYLOR (2001). Time Domain Electromagnetic induction survey of eastern Waukesha County and selected locations. WRI GRR 01-05. WATER RESOURCES INSTITUTE, UW-MADISON. 219. Waukesha Water Utility, 2006 Consumer Confidence Report, available at http://www.ci.waukesha.wi.us/WaterUtility/Documents/ccr2006.pdf. 220. Sean Ryan, Waukesha's Water Woes: Taking a Closer Look, THE DAILY REPORTER, Oct. 18, 2005.

82 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Based on results from the groundwater flow model, in 2000, 33.33 million gallons per day (mgd) of water were pumped from the deep sandstone aquifer, and 32.5 mgd from the shallow aquifer, by the southeastern counties of Racine, Kenosha, Walworth, Milwaukee, Waukesha, Ozaukee and Washington.221 Sandstone aquifer wells located in southeast Wisconsin are largely fed by groundwater that would have circulated through the shallow flow system to streams, but is now being diverted downward toward the deep wells.222 Unlike pre-development conditions, where groundwater in the sandstone aquifer east of the sandstone aquifer divide ultimately discharged to the Lake Michigan basin, current groundwater conditions have led to a situation in which groundwater east of the sandstone aquifer divide is captured by Waukesha County wells that tap the sandstone aquifer.223 As explained in the following paragraph, the amount of groundwater captured east of the sandstone aquifer divide is very minor compared to the amount of groundwater captured west of the sandstone aquifer divide. Simulation of the groundwater flow system indicates that “71% of the water that replenishes discharge from deep wells in southeastern Wisconsin is ground water diverted from streams (captured base flow) within the Mississippi River Basin even though the wells themselves are located in the Lake Michigan ground-water basin.”224 The remaining sources of groundwater to sandstone aquifer wells includes storage release below Lake Michigan (8%), water that once flowed toward rocks under Lake Michigan (8%), captured base flow within the Great Lakes Basin (6%), water flowing out of Lake Michigan itself (4%), and storage release below Southeastern Wisconsin (3%).225 Thus, water originating from the Mississippi River Basin and from storage release within the sandstone aquifer provides the primary sources of water for Southeastern Wisconsin sandstone aquifer wells.226 Misconception #2: The deep sandstone aquifer wells of the City of Waukesha and other Waukesha County communities are already withdrawing Lake Michigan water.

221. See U.S. Geological Survey, Groundwater in the Great Lakes Basin: The Case of Southeastern Wisconsin, available at http://wi.water.usgs.gov/glpf. 222. Id. 223. Id. 224. U.S. Geological Survey, supra note 209. 225. Id. 226. Id.

2006] Realizing the Promise of the Great Lakes Compact 83 The fact is: The Lake Michigan Water Budget is only nominally affected by pumping from the sandstone aquifer system. Important sources of groundwater to the water budget for Lake Michigan include direct groundwater discharge to the lake and groundwater discharge to streams entering the lake. When analyzing inputs and outputs of water to the entire lake, groundwater that discharges directly to the lake comprises about three percent of the total input, while groundwater discharge to streams entering the lake comprises about 31%.227 The amount of groundwater that enters a stream or a lake depends on the degree of hydraulic connection between the aquifer and the lake. In southeast Wisconsin, Lake Michigan is separated from the sandstone aquifer by the Maquoketa-Sinnipee confining unit, which causes an extremely poor hydraulic connection between the sandstone aquifer and Lake Michigan.228 Even without pumping the sandstone aquifer, only a small amount of groundwater would discharge from the sandstone aquifer into Lake Michigan or the streams tributary to the lake, because groundwater first would have to flow through a 400-foot thick sequence of shale and dolomite that forms the Maquoketa-Sinnipee confining unit.229 As such, groundwater contributions to Lake Michigan generally originate from the shallow aquifers. At pre-development (non-pumping) conditions, the recent groundwater flow model of southeast Wisconsin indicates that the shallow system contributes about 158 mgd of groundwater to Lake Michigan while the deep sandstone aquifer contributes only about 1.9 mgd.230 Moreover, streams, lakes and wetlands located west of the confining unit (where it is absent in the Mississippi River Basin) probably have a much better hydraulic connection to the sandstone aquifer than areas where the confining unit is present, which permits water that would normally discharge to these streams to be captured by sandstone aquifer wells located in Waukesha.231 Consequently, pumping groundwater from the sandstone aquifer, as is the case with the City of Waukesha, has a nominal effect on the Lake Michigan water budget.232 Likewise, in accordance with the groundwater simulation model discussed immediately above, only four percent of the water sources captured by sandstone aquifer wells comprise water that has leaked through the Maquoketa shale from

227. GRANNEMANN ET AL, supra note 199, at 9–11. 228. Id. at 7. 229. FEINSTEIN ET AL, supra note 202. 230. U.S. Geological Survey, supra note 209. 231. Id. 232. Id.

84 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Lake Michigan. It is estimated that the amount of time that this Lake Michigan water would take to reach Waukesha sandstone aquifer wells ranges anywhere from 100 to 500 years.233 Misconception #3: It makes no difference what kinds of wells are being utilized by communities in eastern Waukesha County as both shallow aquifer systems and sandstone aquifer systems fall within the Mississippi River Basin. The fact is: The sandstone aquifer wells of communities in eastern Waukesha County are within the Lake Michigan Basin, whereas most of Waukesha County’s shallow wells are in the Mississippi River Basin. As explained above, in southeastern Wisconsin, the “sandstone aquifer divide” defines the boundary in the sandstone aquifer between groundwater flowing toward Lake Michigan and groundwater flowing toward the Mississippi River. The “water table divide” or “subcontinental divide” defines the boundary for both shallow groundwater and surface water either flowing toward Lake Michigan or the Mississippi River. As also noted, in southeastern Wisconsin, the sandstone aquifer divide occurs farther west than the water table divide, due to the presence of the Maquoketa-Sinnipee confining unit. Accordingly, existing Waukesha wells reaching down into the sandstone aquifer are within the Lake Michigan basin as defined by the sandstone aquifer divide.234 If these same wells, however, were to tap the shallow aquifer system above the deep sandstone aquifer, they would be located within the Mississippi River Basin as defined by the water-table divide. It follows, then, that while the sandstone aquifer wells located in eastern Waukesha County are within the Lake Michigan Basin, most of the county’s shallow wells are in the Mississippi River Basin, with the exception of those along the county’s far eastern edge.235 Understanding groundwater systems and awareness of water budgets is vital to the sound management of our ground and surface waters. In order to achieve an intelligent and sustainable groundwater management approach in Wisconsin, especially in those areas like southeastern Wisconsin which are beginning to experience groundwater quality and supply issues, it is imperative that decisions be based on sound science to the maximum extent possible. With this basis in mind, considering the preceding overview of

233. FEINSTEIN ET AL., supra note 202. 234. U.S. Geological Survey, supra note 209. 235. Id.

2006] Realizing the Promise of the Great Lakes Compact 85 Wisconsin water rights and diversions, we will move the focus of inquiry closer—to the City of Waukesha, Wisconsin. Given its well-publicized water quality problems and desire for a diversion of Lake Michigan water, this southeastern Wisconsin community provides an instructive example of the difficulties and unresolved issues certain to face state and local policy makers in the immediate future.

VI. IF SPRING CITY RUNS DRY . . .

The Compact allows diversions of Great Lakes water to straddling counties that meet certain requirements.236 While there may be similar proposals for diversions on the horizon from other parts of southeastern Wisconsin, northern Illinois, Indiana, New York, and Ohio, this section examines the City of Waukesha, Wisconsin, as an example of a population center lying outside the Great Lakes Basin that will likely be the first “straddling county” community to apply to divert Great Lakes Water.237 The handling of Waukesha’s request for Lake Michigan water will set a precedent for all future diversion requests from the Great Lakes Basin. In order to appreciate the extent and complexity of the issues involved, this part of the article will first explain how Waukesha’s water use fits into Wisconsin’s overall water supply, followed by an overview of Waukesha’s water and land use trends, water supply alternatives, demand projections, and conservation initiative. Next, the article will identify the policy questions that must be decided prior to approving any prospective request on the part of Waukesha for a diversion of Great Lakes water.

A. Analysis of Waukesha, Wisconsin’s Water Woes 1. The City of Waukesha’s Water Supply Waukesha is about sixteen miles from the Lake Michigan shore, but despite its relative proximity, it lies outside the surface water divide of the Great Lakes Basin.238 Precipitation in Waukesha eventually ends up in the Fox River and ultimately flows into the Mississippi River and not into the Great Lakes.239 Similarly, water in the shallow aquifer in the vicinity of

236. Great Lakes Compact, supra note 48, at § 4.9. 237. Great Lakes Water Institute, Our Waters: Fast Facts: Regional Ground Water Supplies, available at http://www.glwi.uwm.edu/ourwaters/documents/RegionalWaterSupply2BWeb.pdf. 238. CH2M HILL & RUEKERT-MIELKE, WAUKESHA WATER UTILITY: FUTURE WATER SUPPLY (Mar. 2002). 239. Id.

86 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Waukesha generally discharges into rivers and streams that ultimately flow into the Mississippi River.240 Historically, Waukesha, once known as “Spring City,” benefited from a wealth of natural springs that supplied the City’s drinking water and supported a health resort industry.241 However, as the City grew, surface water sources were replaced by shallow wells to produce more water. Following the first deep sandstone well drilled in 1935,242 the City used the deep sandstone aquifer to supply its municipal water needs with wells ranging from 1,660 to 2,266 feet deep.243 To give that depth some perspective, “the tallest buildings in Milwaukee are 600 feet, or about one-third the distance of the wells.”244 The Waukesha Water Utility (Utility) serves the City of Waukesha and currently has a distribution system with 17 million gallons of ground and elevated storage capacity.245 The Utility supplies the City of Waukesha with water obtained from ten wells which draw from the sandstone aquifer.246 Together, these wells have a combined capacity of nearly 15 mgd.247 At the present time, the Utility is developing two shallow wells south of the city along the Fox River.248 This will bring the Utility’s total combined capacity up to 16.6 mgd.249 Additionally, plans to develop up to four shallower aquifer wells are under consideration.250 Once water is used, it is discharged to the City’s sanitary sewer system where it is treated at the City’s wastewater treatment facilities. The treatment facility processes 10-12 mgd, which it then discharges to the Fox River, in the Mississippi River Basin.251 240. Id. 241. Id. 242. Id. at 4-1. 243. WAUKESHA WATER UTIL., 2004 CONSUMER CONFIDENCE REPORT (2004), available at http://www.ci.Waukesha.wi.us/Water Utility/Documents/cCR2004pg1.pdf. 244. Dennis Shook, Water, Water Everywhere, But None to Drink, WAUKESHA FREEMAN, Feb. 22, 2005. 245. CH2M HILL, supra note 238, at 1-1, 1-5. 246. Id. 247. Id. 248. Id. at 2-4. The deep sandstone aquifer provides all the water for the ten WWU wells. Additionally, the aquifer provides water to fifty or so other communities and 200 industries in southeastern Wisconsin. This aquifer further provides 95% of Waukesha County’s municipal supply. 249. Interview between Dan Duchniak, Waukesha Water Utility Manager, and Jodi Habush Sinykin, Midwest Environmental Advocates (June 6, 2005). 250. Interview between Dan Duchniak, Waukesha Water Utility Manager, and Jodi Habush Sinykin, Midwest Environmental Advocates (Feb. 14, 2006). As a result, Waukesha Water Utility’s total water capacity may increase to 24 mgd. Telephone message by Dan Duchniak, Waukesha Water Utility Manager, to Jodi Habush Sinykin, Midwest Environmental Advocates (Apr. 5, 2006). 251. City of Waukesha, Wastewater Treatment Mission: Overview, available at http://www.ci.waukesha.wi.us/wastewater/mission.html.

2006] Realizing the Promise of the Great Lakes Compact 87 As discussed in greater detail in the preceding Wisconsin water supply section, the deep sandstone aquifer underlying the City of Waukesha is covered by a low-permeability shale unit known as the Maquoketa shale, which serves to isolate the deep sandstone aquifer from the shallow aquifer above.252 As a result of the confined nature of the aquifer in this vicinity, decades of heavy pumping in and around the City for municipal and industrial uses have resulted in the formation of an underlying cone of depression, which has continued to deepen and expand over recent years.253 Currently, the center of the regional cone of depression lies in eastern Waukesha County, just a few miles east of the City.254 With water levels in the deep aquifer dropping more than five feet per year, the Utility’s withdrawal of water has exceeded aquifer recharge rates for decades.255 Not surprisingly, the declining water levels have been a focus of increasing public concern. The groundwater level in the sandstone aquifer near Waukesha is currently about 450 feet below the ground surface and declining.256 A major consequence of the declining head of the deep sandstone aquifer has been the presence of radium and total dissolved solids (TDS) in the Utility’s water supplies in violation of state and federal standards. As acknowledged by the Utility in 2003, “the water quality isn’t getting better as the water table gets lower; it’s getting worse and worse.”257 Indeed, tests of the City’s water confirmed levels of radium at twice the legal limit.258 Radium, which is a naturally occurring radioactive substance, has been linked to increased rates of bone cancer. Under the terms of a federal consent decree, the City, along with 53 other Wisconsin communities, must reduce radium levels in their public water supply in compliance with the EPA limit of five picocuries per liter by December 8, 2006 or face potential fines of up to $5,000 per day.259 While the City 252. CH2M HILL, supra note 238, at 2-4. The recharge area for the deep sandstone aquifer is located west of the City of Waukesha where the Maquoketa shale is absent. 253. See DANIEL FEINSTEIN, ET AL., THE VALUE OF LONG-TERM MONITORING IN THE DEVELOPMENT OF GROUND-WATER-FLOW MODELS, fig.8 (2004) (showing a simulated drawdown in southeastern Wisconsin from 2000 to 2020). 254. See id. at fig. 7 (showing the migration in the center of the cone of depression). 255. WAUKESHA WATER UTIL., supra note 232; see also, CH2M HILL, supra note 238, at 2-9. 256. CH2M HILL, supra note 238. 257. Dan Egan, Water Pressures Divide a Great Lake State, MILWAUKEE JOURNAL SENTINEL, Nov. 23, 2003, available at http://www.jsonline.com/story/index.aspx?id=187257. 258. See Waukesha Water Utility Public Notice (Feb. 25, 2004), available at http://www.ci.waukesha.wi.us/WaterUtility/Documents/publicNoticeLetterhead.pdf. Per the EPA requirement, the Waukesha Water Utility has been required to provide a public notice to its customers informing them of the Waukesha water supply’s violation of the state and federal contaminant levels for gross alpha and radium. Id. 259. Egan, supra note 257; see also, U.S. Water News Online, Wisconsin Communities Could

88 Vermont Journal of Environmental Law [Vol. 8, Issue 1 steadfastly challenged the radium standard over the course of many years at a legal expense of over $1 million, the City was ultimately unsuccessful and has since been pursuing treatment alternatives necessary to meet the radium standard.260 While efforts in this respect are underway, compliance by December 8, 2006 is unlikely.261

2. The City’s Water Supply Alternatives and Demand Projections

In response to the foregoing water quality problems and declining deep aquifer water levels, the City underwent an evaluation of its current water supply sources, culminating in the Utility’s Future Water Supply Report released in March 2002, co-authored by CH2M Hill and Ruekert-Milke.262 Over the course of one hundred-plus pages, the report identified and assessed potential water source alternatives to the Utility’s then exclusive use of the confined deep sandstone aquifer. Beginning with over 14 potential water sources, these alternatives were screened and combined to form seven new alternatives, which after consideration of capital and operating costs, were thereafter winnowed down to two: Lake Michigan water and shallow aquifer water.263 Underpinning this conclusion as well as many of the other findings of the 2002 Future Water Supply Report were the Utility’s water demand projections.264 An August 2003 CH2M Hill Waukesha case study and draft diversion application, prepared for and funded by the Great Lakes Protection Fund, plainly acknowledged that along with water supply and conservation, “Waukesha’s water need is defined by their water quantity demand.”265 The City’s average daily demand was identified as

Spend Millions to Comply with Radium Standards, Dec. 2003, http://www.uswaternews.com/archives/ arcquality/3wiscom12.html; Interview between Dan Duchniak, Waukesha Water Utility Manager, and Jodi Habush Sinykin, Midwest Environmental Advocates (Feb. 14, 2006). 260. Colleen Krantz, Communities Prepare to Battle Radium Standard, MILWAUKEE JOURNAL SENTINEL, Jan. 5, 1999, § A News. The city is presently engaged in the development of two new shallow aquifer wells in order to blend that radium-free water with its municipal supply from the deep aquifer in order to meet the EPA standard. See Shook, supra note 244; Egan, supra note 257. 261. Telephone Interview between Dan Duchniak, Waukesha Water Utility Manager, and Jodi Habush Sinykin, Midwest Environmental Advocates (Feb. 14, 2006). 262. CH2M HILL, supra note 238. 263. Id. 264. Waukesha population projections and SEWRPC service area forecasts were also taken into account. The WWU’s 2000 Water Utility Master Plan Update “established a 2000 population of 64,000, and forecasted a 2020 Utility Service Area Boundary and population of 78,000” based upon a 1993 SEWRPC land use plan and a 1999 SEWRPC sewer service area plan. Id. at 1-3. The WWU Future Water Supply report extended these projections to the year 2050 in reaching its 104,950 City of Waukesha population estimate. Id. at 1-4, tbl.1-1. 265. CH2M HILL, EXAMPLE ANNEX 2001 APPLICATION, MAKING A DECISION ON

2006] Realizing the Promise of the Great Lakes Compact 89 approximately eight mgd. The City’s maximum daily demand was stated as 13 mgd.266 Anticipated increases in water needs have been estimated to reach an average daily demand of 13 mgd, with a maximum daily demand of 22 mgd over the next 50 years.267 These projected water demand figures, especially the maximum daily demand figures of 13 mgd and 22 mgd respectively, are what the City has consistently communicated to the public, as set forth within the CH2MHILL reports and draft diversion application referenced above.268 Interestingly, the City recently increased its “water source goal” for a prospective diversion of Great Lakes water to 24 mgd.269 These numbers, however, call for a closer look. As explained by the Utility, it appears that the currently operative 13 mgd maximum daily demand figure likely originated from “the highest demand [day] on record in Waukesha.”270 And, yet, upon further inquiry, it appears that the last day on record where water demand exceeded 13 mgd was June 11, 1992, nearly 14 years ago.271 The Utility’s records dating back to 2000 indicate that not one day during the height of summer, including the drought in the summer of 2005, required a 13 mgd water demand.272 In fact, only eight days in the last six years even registered a 12 mgd maximum daily demand.273

IMPROVEMENT: AN ANNEX 2001 CASE STUDY DEMONSTRATION INVOLVING WAUKESHA WATER SUPPLY, VOLUME 2, CASE STUDY APPENDICES (Aug. 2003) (emphasis added). This case study and draft Annex 2001 Application, prepared by CH2M Hill in association with Great Lakes United, Lake Michigan Federation, Policy Solutions, Pollution Probe, and Ruekert & Mielke, was intended, as part of a grant project funded by The Great Lakes Protection Fund, to explore the issues of Annex 2001 through the use of a case study patterned after a potential real-life scenario. 266. Id. As for Waukesha County, total estimated water use has jumped from an average rate of under 28 mgd in 1985 to 40 mgd more recently. Dan Egan, Water Pressures Divide a Great Lake State, MILWAUKEE JOURNAL SENTINEL, Nov. 23, 2003, § A News. 267. Id.; CH2M HILL ANNEX, supra note 265, at 2, tbl. “Historic and Projected Waukesha Water Pumpage,”; see also CH2M HILL, supra note 238, at 1-7; Interview between John Meland, SEWRPC Chief Economic Development Planner, and Jodi Habush Sinykin, Midwest Environmental Advocates (June 1, 2005). 268. CH2M HILL ANNEX, supra note 265, at 2, tbl. “Historic and Projected Waukesha Water Pumpage”; Email from Dan Duchniak, Waukesha Water Utility Manager, to Jodi Habush Sinykin, Midwest Environmental Advocates (June 7, 2005); see also, CH2M HILL, supra note 238, at 1-7 (indicating a factor of 1.65 times the average daily pumpage was applied to establish maximum daily pumpage for reasons unexplained). 269. Telephone message by Dan Duchniak, Waukesha Water Utility, to Jodi Habush Sinykin, Midwest Environmental Advocates (Apr. 5, 2006). 270. Email from Dan Duchniak, Waukesha Water Utility, to Jodi Habush Sinykin, Midwest Environmental Advocates (June 7, 2005). 271. Waukesha Water Utility Records documenting Daily Flows Exceeding 9, 10, 11, 12, 13 mgd for 2000, 2001, 2002, 2003, 2004, and 2005; see also email from Dan Duchniak, Waukesha Water Utility, to Jodi Habush Sinykin, Midwest Environmental Advocates (June 9, 2005). 272. Id. 273. Id.

90 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Thus, these data suggest that the projected maximum daily demand of 22 mgd for the year 2050, as well as the 13 mgd demand amount, have been overstated. Moreover, these demands could be significantly reduced through the implementation of conservation measures, such as seasonal limitations on water use for lawns, and inclining, or seasonal, water rate structures.274 In addition, while most of the public’s attention has been directed to the Lake Michigan option, the Utility’s Future Water Supply report effectively identified a number of other viable water source alternatives that warrant consideration. For one, the report found that the shallow sand and gravel aquifer could provide many strong advantages, with several areas near the City identified as having the potential to produce sufficient water quantities to meet water supply needs.275 Moreover, at least two promising areas were identified as “particularly suitable” in the Waukesha area for the development of an alluvial wellfield along the Fox River.276 The Fox River was also found to comprise a suitable water source, or supplemental contributing source to the Utility, so long as a reservoir such as a large lake, quarry, or aquifer storage is constructed to bridge the dry weather period and related seasonal variations in flow.277 From a cost perspective, the shallow sand and gravel aquifer alternatives were found to have the lowest total costs, notwithstanding their low-to-high range from the $62 million shallow aquifer wellfield south of Waukesha to the $83 million Fox River alluvium-south Waukesha wellfield combination.278 By comparison, the Lake Michigan alternative was determined to have an estimated total cost of $90 million, with the stated assumption that a permit would be issued that would allow the use of Lake Michigan water without its return to the Great Lakes Basin.279 The Utility’s literature and public officials’ statements consistently challenge the feasibility of the City’s use of Lake Michigan water with a return flow requirement.280 Cost is identified repeatedly as the 274. See Earth Tech Chart, “Required Reliable Supply and Conservation” (identifying the reductions in maximum daily demand based on 10% Conservation and 20% Conservation objectives through the year 2015) (on file with authors). 275. CH2M HILL, supra note 247, at 2-3. 276. Alluvial wellfields, also called riverbank filtration systems, common in much of the U.S., are located in the permeable river sands immediately adjacent to a river, which induces higher recharge rates and enables the storage of large volumes of water without the necessity of a reservoir. CH2M HILL, supra note 247, at 2 -11 to 12. 277. CH2M HILL, supra note 238, at 2-13 to14. 278. CH2M HILL, supra note 238, at 6-1. 279. Id. 280. Id.

2006] Realizing the Promise of the Great Lakes Compact 91 determinative consideration, with pipe construction costs and user fees seemingly of greatest concern. The Future Water Supply report provided a rough guess that if Waukesha is required to return water to the Lake Michigan Basin it will cost “double” the $90 million amount (or $180 million).281 More recent estimates place the costs associated with a diversion of Great Lakes water, depending upon return flow specifications, in the hundreds of millions of dollars.282 Consideration of these prospective costs, together with the Compact’s clear return flow requirement for communities like Waukesha, within straddling counties, suggests that Waukesha may be best served by aggressively investing in water conservation, limiting future growth, and managing local water supplies through recharge protection and recycling.

3. Water Rates in the City of Waukesha Regardless of which water supply alternatives are ultimately pursued by the Utility in the upcoming years, the attendant costs will necessitate rate increases for City residents. At present, the City’s average net water bill amounts to $48 per quarter or $194 per year.283 However, as stated by the Utility, if the City is forced to treat existing water supplies, “In eight or ten years from now, we’re looking at doubling or tripling the rates.”284 That level of rate increase would bring Waukesha in line with many other Wisconsin communities’ current rates. Surprisingly, even with its current water quantity and quality problems, Waukesha’s water rates remain lower than over half of the state’s 72 entries for Class A/B water utilities.285

281. Id. More recent estimates place the costs associated with a diversion of Great Lakes water, depending upon return flow specifications, in the hundreds of millions of dollars. Telephone Interview between Dan Duchniak, Waukesha Water Utility Manager, and Jodi Habush Sinykin, Midwest Environmental Advocates (Feb. 14, 2006). 282. Telephone Interview between Dan Duchniak, Waukesha Water Utility Manager, and Jodi Habush Sinykin, Midwest Environmental Advocates (Feb. 14, 2006). 283. Comparison of Net Quarterly Bills of Wisconsin Water Utilities Using Rates in Effect as of February 13, 2006, Public Service Commission of Wisconsin Division of Water, Compliance and Consumer Affairs, Bulletin 25, February 2006, available at http//www.psc.wi.gov/apps/waterbill/ bulletin25/bulletin.asp. These rate amounts do not include sewer or public fire protection. Email from Dan Duchniak, Waukesha Water Utility, to Jodi Habush Sinykin, Midwest Environmental Advocates (Mar. 20, 2006). 284. Shook, supra note 244. 285. Water utilities are broken down into three classes: Class A/B (4,000 or more customers); Class C (between 4,000 and 1,000 customers); and Class D (1,000 customers). PUBLIC SERVICE COMMISSION OF WISCONSIN, ANNUAL REPORT (2002), http://psc.wi.gov/apps/annlreport/reportclass.htm (last visited Nov. 12, 2006). The comparison is of net quarterly bills of Class A/B water utilities for 5/8 meter connections per 18,750 gallons of water, for residential and small commercial services. Utilities charging more than one rate for Class AB meter connections are listed as multiple entries. Public

92 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Similarly, from a national perspective, Waukesha’s water rates remain some of the lowest in the country. As such, even if the City’s average net quarterly water bill were to double, as suggested above, the Utility’s rates would still fall in the range of those paid by Wisconsin residents served by the Appleton Water Department or the Superior Water Light and Power Company and fall far beneath those paid by residents of states in the Northeast and Western United States.286 To put this in perspective, the average annual residential utility water bill of $194 would have to triple, and then some, to even approach the $707 that the average American household spends per year on carbonated and non-carbonated beverages.287 In any event, the extensive and costly efforts previously and currently undertaken by the City to develop water demand projections and ascertain water supply alternatives naturally lead one to inquire whether comparable efforts have been made in recent years to limit demand for water through the pursuit of land use planning and water conservation measures. 4. The City’s Population and Land Use Trends Located in the center of Waukesha County, the City of Waukesha is both the county seat of Waukesha and the county’s largest city. According to the 2000 Census, the City of Waukesha has reached a population of 64,825 people, making it the state’s seventh-largest city. 288 The City’s growth over recent decades has been dramatic and shows no signs of abating. According to data published by the Wisconsin Department of Administration, the City experienced population growth of nearly 13% between 1980 and 1990, and nearly 14% between 1990 and 2000.289 Projections based on City of Waukesha Community Development data demonstrate additional estimated growth of 7.7% for the period from 2000

Service Commission of Wisconsin, Water Bill Comparison, available at http://psc.wi.gov /apps/waterbill/bulletin25/default.asp; see also, Interview between Bruce Schmidt, Wisconsin Public Service Commission Cost Engineer, and Jodi Habush Sinykin, Midwest Environmental Advocates (July 29, 2005)). 286. AMERICAN WATER WORKS ASSOCIATION (AWWA), U.S. WATER RATES BY REGION-MEDIAN 103 (2004); see also, Interview between Bruce Schmidt, Wisconsin Public Service Commission Cost Engineer and Jodi Habush Sinykin, Midwest Environmental Advocates (July 29, 2005). 287. U.S. EPA, WATER AND WASTE WATER PRICING, available at http://www.epa.gov /water/infrastructure/pricing/index.htm (citing Raftelis Financial Consulting, 2002 Water and Wastewater Rate Survey, available at http://www.raftelis.com/ratessurvey.html). 288. Corissa Jansen, County Population Booms, MILWAUKEE JOURNAL SENTINEL, Mar. 9, 2001, § B News. 289. Waukesha, Wisconsin Water System Master Plan, § 2.1 (2005).

2006] Realizing the Promise of the Great Lakes Compact 93 to 2010.290 By the year 2030, the city’s population is estimated to reach 85,000 people, a 27% increase of more than 20,000 people since 2000.291 In pace with these population projections, the amount of land within the City of Waukesha has grown significantly through annexation in recent years. Data provided from the City of Waukesha Department of Community Development’s Planning Division demonstrates that the City, over the past 20 years has increased in size from 15.5 square miles to 23.6 square miles, reflecting a 52% expansion. At the same time, demand trends assessed by the Waukesha Water Utility have demonstrated the steady growth of residential, institutional, and commercial demand for water.292 Is this trend expected to continue? The answer is a resounding yes. In fact, over the next 25 years, the total residential acreage in the City of Waukesha is expected to grow by over 130%.293 Low-density residential development, consisting of one to two homes per acre,294 is predicted to experience the most explosive growth within the residential sector, with projected acreage at build-out greater than 1,000% of the acreage in 2004.295 Likewise, major expansions are planned for the water service boundaries of the Waukesha Water Utility consistent with the areas demarcated for “urban growth” or sprawl.296 Indeed, rather than seeking to limit expansion of the service area in consideration of the city’s growing water problems, the Utility’s Master Plan provides for the expansion of the city’s service boundaries both south and west of the city’s current corporate limits to provide for an additional 13 square miles of developable land to facilitate the City’s population growth and expansion.297 Absent coordinated efforts on the part of the Utility and the City’s economic planners, Waukesha’s expansion will certainly continue in upcoming years. For one, land-use planning that establishes open space goals, identifies groundwater recharge opportunities, or advances other conservation-minded objectives has yet to become a priority for the City.

290. Id. 291. Id. 292. Id.; see also CH2M HILL, supra note 238, at 1-6; Interview between Dan Duchniak, Waukesha Water Utility Manager, and Jodi Habush Sinykin, Midwest Environmental Advocates (Apr. 25, 2005). Notwithstanding rising water needs overall, Mr. Duchniak did point out the significant decline in industrial demand experienced by the Waukesha Water Utility in recent years. 293. Waukesha, Master Plan, supra note 289, at §2.3. 294. These homes are expected to range in costs between $400,000 and $700,000. Interview between Steve Crandel & Doug Koehler, City of Waukesha Economic Planners, and Jodi Habush Sinykin, Midwest Environmental Advocates (July 20, 2005). 295. Waukesha, Master Plan, supra note 289, at § 2.3. 296. Id. at § 2.4 (defining the service area as the area that is expected to require Waukesha Water Utility water services over the planning period). 297. CH2M HILL, supra note 238, at 1-6.

94 Vermont Journal of Environmental Law [Vol. 8, Issue 1 City economic planners concede that consideration of such land use ordinances is still, at best, in the “infant stages,” notwithstanding their recognition of the sheer number of residential developments to be constructed in upcoming years.298 Moreover, City planners concede that annexations of property bordering the City occur on a regular basis, as developers continue to buy up farmland and then petition the City for annexation. In the last five years alone, over 1,300 total acres have been annexed by the City of Waukesha, with over 4,413 total acres annexed in the past 15 years.299 Unlike other cities whose expansion is limited by the existence of other neighboring cities, there exists no immediate impediment to Waukesha’s expansion.300 Rather, the annexation process is simple and driven by land developers, who, after buying up neighboring farmland,301 initiate the process by petitioning the City Clerk for annexation. Thereafter, following State Department of Administration review and approval by the City Plan commission, the City’s Common Council invariably accepts the petition for annexation.302 While talk of a Waukesha annexation moratorium has been circulated, to date, no such policy directive has been formally or publicly announced. Until such time as the City undertakes appropriate containment measures, the City’s outward sprawl will continue unabated, property by property, acre by acre, development by development. The result: an ever growing demand for water at odds with an ever declining supply.

298. Interview between Steven Crandell, City of Waukesha Community Development Director, and Doug Koehler, City of Waukesha Department of Community Development Planner, and Jodi Habush Sinykin, Midwest Environmental Advocates (July 20, 2005). 299. Email from Doug Koehler, City of Waukesha Planner, with chart attachment “City of Waukesha-Area: Year End totals From Annexations” (July 26, 2005); Telephone Interview between Doug Koehler and Jodi Habush Sinykin, Midwest Environmental Advocates (July 27, 2005). 300. Indeed, other than a DNR sewer service allocation, which can be modified and expanded upon request, no barriers exist to Waukesha’s expansion until such time as its growth brings it into proximity to other growing municipalities like the Town of Genesee and Delafield. Interview between City Planner Doug Koehler and Jodi Habush Sinykin, Midwest Environmental Advocates (July 25, 2005). 301. This is consistent with the observation of Rod Nilsestuen, Secretary of the Wisconsin Department of Agriculture, Trade and Consumer Protection, that the triangle between Madison, Milwaukee and Chicago is losing prime farmland, some of the nation’s best, at the third fastest rate in the country. According to the US Department of Agriculture, the amount of farmland in the state has dropped 14% over the last 20 years. Jason Stein, Keeping Farms from Vanishing, WIS. ST. J., June 4, 2005, at A1, available at http://www.madison.com/archives/read.php?ref=wsj:2005:06:04:425765. 302. To the best of their recollection, neither City planner could recall of an instance when a petition for annexation was refused, either by the City Common Council or the Department of Administration. Interview between Steve Crandel & Doug Koehler, City of Waukesha Department of Community Development, and Jodi Habush Sinykin, Midwest Environmental Advocates (July 20, 2005).


5. Conservation in the City of Waukesha The Vision Statement of the Utility sets forth the wish to be a utility that “applies conscientious stewardship of area groundwater resources.”303 Until last year, the Utility had shown very little interest in the pursuit of conservation measures beyond its compliance with federally mandated plumbing codes, a leak detection program, and outreach to fifth grade schoolchildren.304 However, on April 20, 2005, the Utility announced a conservation initiative, which states as its goal a 20% reduction of the City’s water use over the next 15 years.305 The plan is to include a number of water use restrictions and incentives to meet this goal. The Utility identified the following objectives: (1) review of source water protection plans in coordination with surrounding Waukesha County communities; (2) pursuit of storm-water management practices to maximize infiltration; and (3) revision of planning and zoning ordinances to require that new developments have minimal impact on the groundwater infiltration through low-impact design, open space goals, and conservation planning. 306 Under the leadership of Waukesha Water Utility Manager Dan Duchniak and Mayor Carol Lombardi, these and other conservation measures are being actively pursued. In 2005, the Utility sought, albeit without success, the Wisconsin Public Service Commission’s approval to institute conservation water rates for the utility’s service area.307 More recently, in an effort to illustrate the conservation gains that would be reaped if owners of single-family homes in the city of Waukesha updated their toilets to “low-flow” models—estimated as a savings of a half-million gallons of water per day—Waukesha has been working with the Wisconsin-based Kohler Company, through a grant from the firm, to replace Waukesha City Hall fixtures.308 Moreover, as recently announced, the Waukesha Water Utility Board of Commissioners has asked and received the approval of the city attorney’s office to draft a water restriction ordinance to be in

303. See Waukesha Water Utility Vision Statement, available at www.ci.waukesha.wi.us/ WaterUtility/about.html. 304. The Waukesha Water Utility’s website’s conservation page was formerly limited to a sole link to lawn watering tips. 305. Kollin Kosmicki, City Strives to Cut Water Use by 20 Percent, WAUKESHA FREEMAN, Apr. 20, 2005. 306. Id. 307. Interview between Dan Duchniak, Waukesha Water Utility Manager, and Jodi Habush Sinykin, Midwest Environmental Advocates (Apr. 25, 2005). 308. Darryl Enriquez, Updated Toilets Would Save 500,000 Gallons of Water, MILWAUKEE JOURNAL SENTINEL, Jan. 25, 2006, § B News.

96 Vermont Journal of Environmental Law [Vol. 8, Issue 1 effect from May to October that would restrict water sprinkling to early morning and evenings on specified days of the week.309 Further, on March 16, 2006, the Waukesha Water Utility Commission approved adoption of a water conservation plan that outlines short, medium and long-range goals for a list of conservation measures, which include a public education campaign, elimination of sewer credit meters,310 and organization of a stakeholder group.311 While these initiatives are certainly praiseworthy, Waukesha’s conservation initiative will need continued public support and commitment on the part of city officials, together with Waukesha County officials, to realize its objectives. As detailed in the conservation toolkit custom-fit for Waukesha included in Protecting Wisconsin’s Water: A Conservation Report and Toolkit,312 another conservation opportunity regards the development of systems promoting increased use of reclaimed water for industrial, irrigation, or landscape uses in Waukesha.313 Moreover, in view of the high rate of development and near maximal build-out discussed above, it will be important for Waukesha to make meaningful headway with respect to the development and enactment of land-use ordinances mindful of shallow aquifer groundwater recharge concerns, especially in consideration of the Utility’s plans to develop a number of additional shallow aquifer wellfields.

309. Darryl Enriquez, Waukesha May Restrict Lawn, Garden Sprinkling, MILWAUKEE JOURNAL SENTINEL, Feb. 6, 2006, § B News. Under the proposed ordinance, violating the proposed regulations would cost $50 for the first violation, $100 and $500 for the second and third offenses, and each subsequent violation at a cost of $1000. One exemption to the proposed restrictions that has raised concerns from a conservation perspective applies to that afforded hand-held watering devices like garden hoses and watering cans. After review by the city attorney, the draft ordinance must return back to the Water Commission and the License and Ordinance Committee for revisions before obtaining final approval from the Common Council. 310. Sewer credit meters represent a means by which Utility customers can avoid charges for water that is used that does not go down the wastewater system, for example, water used to irrigate lawns or wash cars from outside spigots. Elimination of sewer credit meters would remove this exemption. Voicemail message of Dan Duchniak, Waukesha Water Utility Manager, to Jodi Habush Sinykin, Midwest Environmental Advocates (Apr. 5, 2006). 311. GeoSyntec Consultants, Waukesha Water Utility Water Conservation and Protection Plan 2-3 (Mar. 2006). As recommended in the plan’s executive summary, “[r]egardless of the source [i.e. Lake Michigan or local groundwater], the conservation program should be comprehensive in protecting water resources throughout the water cycle.” Id. at 2. 312. Midwest Environmental Advocates, supra note 155, at 28. 313. As stated in the Waukesha Water Utility Water Conservation and Protection Plan, presented to the Waukesha Common Council for adoption on February 3, 2006, the Utility plans to investigate the feasibility of wastewater reuse and has retained the services of GeoSyntec to gather data, conduct tests, and prepare a wastewater reuse proposal for review by the WDNR. GeoSyntec Consultants, supra note 311.

2006] Realizing the Promise of the Great Lakes Compact 97 Under the Compact, diversions of Great Lakes water will be permitted to communities within straddling counties that meet certain requirements. As a community likely to be one of the first “straddling county” communities to apply to divert Great Lakes Water, the City of Waukesha, Wisconsin provides an informative case study. The preceding examination of Waukesha provided the range of historic and present day water and land use issues shaping this community’s water supply situation. Next, the article will identify the policy questions that must be decided prior to approving any request on the part of Waukesha for a diversion of Great Lakes water. Moving water from one place to another has inherent tradeoffs. Will the water diversion spur development in one area at the expense of the other? Will jobs be lost in the community where the water originated? Who bears the liability for such a water transfer? Additionally, sustainable water supplies necessarily involve ensuring that proper land use controls are in place to maximize protections for the water supply, as well as ensuring that all reasonable efforts to conserve existing water supplies have been fully implemented. Although Waukesha released a conservation plan in 2005, which has set in motion a number of valuable conservation measures in recent months, the City, together with Waukesha County, has far to go to implement the plan and to offset the development and water use choices it has made in previous decades.

VII. CONCLUSION The Great Lakes have long provided a vital source of economic growth and prosperity to the people within its Basin and continue to play an undeniably critical role in sustaining the communities, industries and wildlife dependent upon its fresh water supply. In an increasingly thirsty world, with water shortages and droughts an ever-growing problem, this world class resource, which contains nearly 20% of the earth’s fresh surface water supply, must be protected. In view of the recent signing of the Compact on December 13, 2005, and the numbers of communities waiting in the wings for out-of-basin diversions, now is the critical time to focus on how to manage this shared resource to protect public and private rights in water and to ask whether, and in what manner, water withdrawals from the Great Lakes should be restricted. By laying the foundation of the Great Lakes as both a shared commons and a public trust, this article first demonstrated the historical and present day importance of the public trust doctrine. As articulated by the United

98 Vermont Journal of Environmental Law [Vol. 8, Issue 1 States Supreme Court in its keystone Illinois Central ruling, and echoed in 1985 within the Great Lakes Charter and, again, within the Great Lakes Compact 20 years later, the Great Lakes States and Provinces have been deemed the trustees of the Great Lakes waters. As trustees of this vital resource for the public benefit, governments are duty bound to manage Great Lakes waters in a manner that upholds the public interest, an undeniably challenging task in the face of ever-increasing private demands for Great Lakes water. Starting with the Boundary Waters Treaty of 1909 and ending with the Great Lakes Compact of 2005, this article provided an overview of the agreements and laws that the Great Lakes States and Canadian Provinces have created to manage the Great Lakes Basin over the past century. Gaps within these laws and agreements have been identified and assessed, laying the groundwork for the article’s examination thereafter of the opportunities and correctible shortfalls of Great Lakes Compact of 2005. Before the Compact can become effective law, each Great Lakes state must pass the Compact into state law and then the United States Congress must consent to the Compact. As this process moves forward, the legislatures of the eight Great Lakes States should recognize that the Compact, as a compromise document, represents a floor and not a ceiling pertaining to the management of the Great Lakes. As such, in order to appropriately carry out their duties as trustees of the shared resource, the Great Lakes States would be wise to strengthen the Compact when they pass their respective state legislation implementing the Compact. The article identifies four areas where state legislatures should enact changes to the Compact floor, namely, provisions that improve the rules governing: (1) out-of-basin diversions; (2) in-basin uses; (3) water conservation; and (4) bottled water. Through implementing legislation of this kind, the Great Lakes States will be in a better position to ensure the protection of the Great Lakes for the benefit of the people relying on them at present and into the future. From southeastern Wisconsin to northern Ohio, there are communities lying just outside the Great Lakes Basin eligible under the Compact to apply for the diversion of Great Lakes water outside the Basin. How to respond appropriately to the demand for out-of-basin water diversions and to concerns relating to the fueling of out-of-basin growth remains an important consideration that will need to be addressed. The City of Waukesha, Wisconsin, appears to be the “straddling county” community most likely to apply for the next diversion of Great Lakes water. Given its well-publicized water quality problems and interest in obtaining Lake Michigan water, this southeastern Wisconsin community

2006] Realizing the Promise of the Great Lakes Compact 99 provides an instructive example of the difficulties and unresolved issues certain to face state and local policy makers in the immediate future. Yet, with an eye to the precedent-setting potential of Waukesha’s diversion request, a number of critical policy questions must be answered prior to acting on any prospective application for a diversion. Given the incredible value and vulnerability of the Great Lakes, the legal responsibility under the public trust doctrine, and the promise of the Great Lakes Compact, the Great Lakes States must act now to enact legislation strong enough to manage and preserve this shared resource for generations to come.

Energy Efficiency and Conservation: Opportunities, Obstacles, and Experiences

Sandra Levine* and Katie Kendall**

Energy efficiency and conservation can bring to mind many images, including the one of President Jimmy Carter in 1977, wearing a cardigan sweater and leveling with the American public on the urgent need for conservation. He announced, “[W]ith the exception of preventing war, [the energy crisis] is the greatest challenge our country will face during our lifetimes.”1 Nearly thirty years later, with skyrocketing oil prices, the mounting effects of global warming, and an uncertain energy future, we still face this great challenge. Today, as in the 1970s, energy efficiency and conservation offer some of the best and most cost-effective solutions to this mounting crisis. This paper offers an introduction to the benefits and current opportunities for energy efficiency and conservation, as well as identifies obstacles and examples to help inform future action and advocacy.

I. BENEFITS OF ENERGY EFFICIENCY AND CONSERVATION There are many benefits to meeting our power needs with less energy. Some are obvious. Using less power avoids the cost and pollution of new power plants.2 It also lowers overall energy costs and improves system reliability.3 Investing in energy efficiency results in achieving energy needs

* Senior Attorney Conservation Law Foundation (CLF) in Montpelier, Vermont. Prior to joining CLF, Sandra practiced privately, taught at Vermont Law School, worked for the Vermont Prisoner's Rights Office, and worked for the Vermont Department of Public Service. She earned her BA at the University of Vermont and her J.D. at Suffolk University Law School. Sandra works on smart growth, anti-sprawl initiatives, clean energy, and agriculture. Sandra's admissions include: State of Vermont and Federal District Court for the District of Vermont. ** Ralph C. Menapace Fellow in Environmental and Land Use Law, The Municipal Art Society (MAS) in New York, New York. Prior to joining MAS, Katie clerked for the Honorable J. Garvan Murtha, U.S. District Judge for the District of Vermont and interned at CLF in Montpelier, Vermont. She earned her BA at Wittenberg University and JD at Brooklyn Law School, and recently completed her LLM in Environmental Law at Vermont Law School. 1. President Jimmy Carter, The President’s Proposed Energy Policy Speech, (Apr. 18, 1977), available at http://www.pbs.org/wgbh/amex/carter/filmmore/ps_energy.html. 2. See, e.g., Edan Rotenberg, Energy Efficiency in Regulated and Deregulated Markets, 24 UCLA J. ENVTL. L. & POL'Y 259, 263–64 (2006), available at http://lsr.nellco.org/cgi/viewcontent.cgi? article=1013&context=yale/student (incorporating environmental and economic benefits in the definition of energy efficiency). 3. See, e.g., PAUL PETERSON ET. AL., SYNAPSE ENERGY ECONOMICS INC., INCORPORATING ENERGY EFFICIENCY INTO THE ISO NEW ENGLAND FORWARD CAPACITY MARKET: ENSURING CAPACITY MARKET PROPERLY VALUES ENERGY EFFICIENCY RESOURCES 10–11 (June 5, 2006), available at http://www.iso-ne.com/committees/comm_wkgrps/othr/drg/mtrls/06-05-06_synapse_ report_energy-efficiency-in-new-england-fcm-rev06-012-report.pdf (discussing greater reliability of the

102 Vermont Journal of Environmental Law [Vol. 8, Issue 1 for about one-third to one-half the cost of buying more power on the open market.4 More efficiency also reduces load, wear, and maintenance needs on the entire electrical system, allowing improved reliability of our power grid.5 The benefits from energy efficiency and conservation also extend beyond benefits to those who reduce consumption and have lower energy bills. Improving efficiency lowers overall demand on the system and can thereby lower the wholesale market clearing price for electricity because less energy is needed.6 A lower clearing price allows lower electric prices for all customers.7 This is particularly important in places like Vermont where the long-term contracts for two-thirds of the State’s energy supply, from Hydro Quebec and Vermont Yankee, will expire in the next decade, and will most likely be replaced with more expensive power from the wholesale market.8 Energy efficiency and conservation also reduces pollution and other negative environmental effects.9 Forty percent of the carbon pollution in the United States is produced by power plants.10 Achieving a high standard of energy efficiency avoids burning the fossil fuels normally needed to meet increasing power needs, and therefore, allows our energy needs to be met at

grid system and lower capacity costs as benefits of energy efficiency). 4. See, e.g., CYNTHIA ROGERS ET AL., FUNDING AND SAVINGS FOR ENERGY EFFICIENCY PROGRAMS FOR PROGRAM YEARS 2000 THROUGH 2004 10 (2005), http://www.fypower.org/ pdf/CEC%20_Trends2000-04.pdf (comparing the average costs of an energy efficiency program with the costs of three supply generation alternatives in California); see also Energy Conservation: Program for Consumer Products Representative Average Unit Cost of Energy, 71 Fed. Reg. 9806 (Dep’t of Energy Feb. 27, 2006) (providing price data on the average unit costs of energy for five residential energy sources, with electricity as the most costly, and natural gas as the least costly source). 5. E.g., PAUL PETERSON ET. AL., supra note 5, at 8–11(discussing the benefits of energy efficiency on load serving entities in terms of reductions in transmission loads and capacity costs, as well as increased reliability of transmission grids). 6. See id. at 10 (discussing the “downward pressure on the capacity clear price” as a result of including energy efficiency measures in the bidding portfolios of customers and energy service companies). 7. Id. 8. See, e.g., The McGraw-Hill Companies, Vermont Regulators Looks to Head off 'NIMBY' to Avert Possible Strife Over Future Contracts, ELECTRIC UTILITY WEEK, Aug. 21, 2006, Supply § at 24, available at 2006 WLNR 15435141 (noting that “energy insiders have become anxious about what Vermont will do when 600 [megawatts] of power contracts expire between Vermont’s utilities and its two major suppliers, Vermont Yankee and Hydro Quebec.”). 9. See, e.g., Union of Concern Scientists, http://www.ucsusa.org/clean_energy /fossil_fuels/the-hidden-cost-of-fossil-fuels.html (last visited Oct. 10, 2006) (discussing the hidden costs and environmental impacts of fossil fuels). 10. National Environmental Trust, Ignoring Carbon Pollution Means More Global Warming and Higher Costs, http://www.net.org/proactive/newsroom/release.vtml?id=27277 (last visited Nov. 14, 2006).

2006] Energy Efficiency and Conservation 103 a lower cost and with less environmental impact than continuing to build and buy more supply from new generation.11

II. BARRIERS TO ENERGY EFFICIENCY If energy efficiency and conservation have so many benefits, why is its use limited? Despite expansion of efficiency and conservation efforts over the past thirty years, many regulatory and market barriers still exist that deter greater reliance on efficiency. The structure for buying and selling power does not reward efficiency. Most consumers and utilities are “rational” beings and act to minimize costs and maximize profits.12 Generators make money from selling electricity.13 If demand is reduced, they sell less electricity and make less money.14 Generators are also paid for having capacity available, as well as simply supplying energy.15 Similar capacity payments are not available for efficiency, but efforts are underway in some regions to develop a Forward Capacity Market (FCM) that would allow efficiency to fairly compete with generation to meet a region’s energy needs.16 Additionally, some generators also receive a premium in the form of Reliability Must Run (RMR) contracts. These contracts ensure local reliability by giving the 11. See e.g., Union of Concern Scientists, supra note 11 (identifying costs associated with the extraction, generation, transportation, and supply protection of fossil fuel, along with the less monetized environmental impacts, including global warming, and air, water, land, and heat pollution). 12. See Edan Rotenberg, supra note 2, at 284 (explaining that “from an economic point of view, the information gap between consumers and utilities is economically efficient, a rational response to the cost of that information.”). 13. See id. at 268–69 (discussing how in monopolistic markets without regulation, electric utilities will rationally act to “increase price and maximize total revenue by underproducing relative to market demand.”). 14. See id. (noting that cost-based ratemaking tries to undo the incentives for utilities to earn increased profits through increased consumption); see also RICHARD COWART, REGULATORY ASSISTANCE PROJECT, EFFICIENT RELIABILITY: THE CRITICAL ROLE OF DEMAND-SIDE RESOURCES IN POWER SYSTEMS AND MARKETS 29–32 (2001), http://www.raponline.org/showpdf.asp?PDF_ URL='Pubs/General/EffReli%2Epdf’ (discussing the impact of energy efficiency on utility profits). 15. See, e.g., Gürcan Gülen, Resource Adequacy and Capacity Schemes, CENTER FOR ENERGY ECONOMICS THINKCORNER (2002), http://www.beg.utexas.edu/energyecon/thinkcorner/ Capacity_payments.pdf (analyzing capacity markets, capacity payments, and energy only markets as solutions for maintaining grid reliability and decreasing price volatility); see also Energy Information Administration Glossary, http://www.eia.doe.gov/glossary/glossary_g.htm#gen_nameplate (last visited Oct. 10, 2006) (defining generator capacity as “[t]he maximum output, commonly expressed in megawatts (MW), that generating equipment can supply to system load, adjusted for ambient conditions.”). 16. See, e.g., ISO New England, Demand Resources Group http://www.iso-ne.com/ committees/comm_wkgrps/othr/drg/index.html (last visited Oct. 10, 2006) (noting the NE-ISO Demand Resources Group’s effort to develop recommendations for rules governing the treatment and evaluation of energy efficiency in a FCM).

104 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Independent System Operator (ISO)17 “the right to call on the [power plant] units” in return for fixed payments to the generators.18 While these payments benefit generators, they make electricity more expensive for everyone and discourage efficiency even when it can meet capacity needs at a lower cost.19 Most utility regulation also fails to reward efficiency. Traditionally, electric utility rates are a function of the cost of providing electric service to customers.20 A rate proceeding establishes the revenue requirement for the utility to meet electricity needs in its service territory, and sets rates based on that revenue requirement.21 A utility’s profit is then linked to the amount of electricity it sells.22 As soon as rates are set, the utility’s actual revenues and profits are driven by sales.23 The more electricity a utility sells, the more money it makes–generally an additional five cents per kilowatt-hour (kWh) to its bottom-line profits.24 In the wholesale market, selling more electricity also often equals more profit, creating a disincentive for efficiency.25 Base load and intermediate load generators benefit from being able to sell all of their output at a high market-clearing price.26 To the 17. See EnerNoc, Inc., Glossary of Terms, http://www.enernoc.com/resources/glossary.htm (last visited Oct. 10, 2006) (defining an ISO as “[a]n independent organization that is responsible for coordinating, controlling, and monitoring the operation of the electrical power system in a particular geographic area.”). 18. CALIFORNIA ISO, RELIABILITY MUST-RUN (“RMR”) STUDY METHODOLOGY 2 (2004), http://www.caiso.com/docs/2004/05/20/2004052011155626868.pdf. 19. See, e.g., Gülen supra note 15 (concluding that capacity payments result in incorrect price signals and promote market inefficiency); see also Connecticut Power and Light Glossary, http://www.cl-p.com/clpcommon/pdfs/companyinfo/RestructuringGlossary.pdf (explaining that in southwest Connecticut, where transmission congestion prevents cost efficient generation, RMR contracts require consumers to make additional payments to the utilities based on taxes and maintenance and operating costs, to ensure reliable operation “even if only for a few peak demand periods.”). 20. See, e.g., JAMES C. BONBRIGHT ET AL., PRINCIPLES OF PUBLIC UTILITY RATES 68 (Public Utilities Reports, Inc. 2d ed. 1988) (explaining how the public utility concept of ratemaking “implies that the service should be offered for sale . . . [and] that the sale prices should bear a fairly definite relationship to cost . . . .”). 21. See id. at 10 (noting that a characteristic of public utilities involves supplying a “given geographic area” and providing services at “prescribed, regulated prices”). 22. See id. at 68, 180 (discussing the relationship between sales and returns, and the role of profits in a regulated industry). 23. See id. at 68 (explaining that sale prices should bear a definite relationship to profits as well as cost of services). 24. See, e.g., Regulatory Reform: Removing the Disincentives to Utility Investment in Energy Efficiency ISSUELETTER (Regulatory Assistance Project, Montpellier, V.T.) Sept. 2005, at 2, available at http://www.raponline.org/Pubs/IssueLtr/RAP2005%2D09%2Epdf [hereinafter Regulatory Assistance Project, Removing the Disincentives] (noting the traditional regulatory system’s incentive for utilities increase profits by selling more energy). 25. See id. at 1–3 (discussing how traditional ratemaking results in disincentives for acquiring energy efficiency). 26. See COWART, supra note 14, at 32 (discussing the “indirect” interaction between “price,

2006] Energy Efficiency and Conservation 105 extent efficiency measures lower demand, and thus lower market-clearing prices, a generator’s profits will also be lower and it will not have any incentive to encourage energy efficiency.27 Rate structures and the price of electricity also often fail to encourage efficiency. The cost of power varies by season, time of day, weather, type of power and location, as well as by the economy and politics in places both near and far from where either power or fuel originate.28 Most of these variables are not specifically reflected in rates that would allow a customer to adjust demand or energy use based on the cost of power.29 Instead, most bills have a stable price for power that provides no incentive to use less power.30 For example, there is no economic incentive to use less power on a hot summer day when power is expensive, or to avoid running all electrical equipment at the same time, even if such use forces a utility to acquire more and higher-cost power to meet the demand. Better alignment of electricity prices with the real cost of power would encourage efficiency because customers would be paying more when it costs more to supply electricity, such as during peak hours or seasons.31 Custom, practice, and utility expertise also result in less reliance on efficiency and conservation to meet power needs. If more power is needed, the general practice has been to build a new generation plant, purchase more power, and build more transmission capability to meet those needs.32 These are what electricity suppliers know best how to do, and it is often the first or only solution proffered.33

supply, and demand” in wholesale power markets). 27. See PAUL PETERSON ET AL., supra note 3, at 9–11 (discussing the effects of energy efficiency on load and capacity clearing prices). 28. See, e.g., Texas-New Mexico Power Company, http://www.tnpe.com/nm/energy.asp (last visited Oct. 10, 2006) (providing examples of factors that affect customers’ electric bills). 29. See id. (offering customers guidance on how to estimate and reduce energy costs). 30. See, e.g., GALEN BARBOSE ET AL., KILLING TWO BIRDS WITH ONE STONE: CAN REAL-TIME PRICING SUPPORT RETAIL COMPETITION AND DEMAND RESPONSE? ES-1 (2006), http://drrc.lbl.gov/pubs/59739.pdf (noting the utilities’ traditional practice of fixing prices over months or years in a manner that represents average supply costs). 31. See id. at 1 (hailing RTP for its ability to result in more accurate price signaling). 32. See, e.g., Removing the Disincentives, supra note 24, at 2–3 (noting how lost revenues deter a commission’s willingness to mandate energy efficiency as opposed to “more costly new generation.”). 33. See, e.g., Petition of Vermont Electric Power Co., Docket No. 6860 (VT PSB Jan. 28, 2005) (final order), available at http://www.state.vt.us/psb/6860fnl012805.pdf (permitting a large scale transmission project despite analysis showing that efficiency investments could meet needs at lower societal cost. Due to uncertainty of availability of facilities, the Public Service Board did not pursue efficiency and distributed generation alternatives because the Board determined that region’s power needs could not be met in a timely manner to avoid the transmission project).


III. TOOLS FOR EFFICIENCY While there are many barriers to having efficiency and conservation resources meet more of our energy needs, these barriers are not insurmountable and there are many tools available to use less power. These tools fall into two categories. The first includes “gadgets” or “better mousetraps.” These are more efficient technologies that allow us to have the same or comparable service while using less power. The second includes various regulatory and market structures that encourage more efficiency.

A. More Efficient Technologies Available efficiency technologies allow for a significant reduction in energy consumption. These technologies require consumers to perform simple actions, such as replacing home appliances, home or commercial lighting, and industrial engines and fans with more efficient models. In almost every instance, the same service is provided–lighting to the same lumens standard, cooling or heating to the same temperature, or meeting the same industrial output.34 Improved technology allows these activities while using less power. Energy Star, a joint program set up by the United States Environmental Protection Agency and United States Department of Energy to promote energy efficiency, explains the significant effect of using efficient technologies:

If every American home changed out just 5 high-use light fixtures or the bulbs in them with ones that have earned the ENERGY STAR [label], each family would save more than $60 every year in energy costs, and together we'd keep more than one trillion pounds of greenhouse gases out of our air–equal to the emissions of 8 million cars. That's a $6 billion energy savings for Americans, equivalent to the annual output of more than 21 power plants.35

These technological tools reduce electricity use, and while important, are but one component in improving efficiency on the demand and supply side.

34. Energy Star, Compact Florescent Light Bulbs, http://www.energystar.gov/index. cfm?c=cfls.pr_cfls (last visited October 10, 2006). 35. See Energy Star, Light Bulbs and Fixtures, http://www.energystar.gov/index.cfm?c= lighting.pr_lighting (last visited Oct. 10, 2006) (noting that Energy Star compact fluorescent light bulbs generate 70% less heat than conventional bulbs, which leads to lower home cooling costs).

2006] Energy Efficiency and Conservation 107 Another example of a tool for reducing electricity demand is the growing use by some businesses and municipalities of energy services contracts to implement comprehensive energy efficiency systems. Under these contracts, a business provides energy services and is paid based on performance.36 For instance, the Montpelier School District in Montpelier, Vermont, recently contracted with a consulting firm to make major energy-saving improvements in the heating and cooling systems at its schools.37 The total cost for the efficiency investments is $1,200,006, and will pay for itself through energy savings and reduced operating costs over a period of 10 years.38 An innovation regarding supply-side efficiency is Combined Heat and Power (CHP), which is local, on-site generation that provides heat & electricity. Proponents of CHP point out that conventional electricity generation is “inherently inefficient, [and] convert[s] only about a third of the fuel's potential energy into usable energy.”39 They go on to explain that CHP incorporates more “intrinsic efficiency” and provides a better option for “the bottom line and the environment” because it “produces both electricity and useable heat–convert[ing] as much as 90% of the fuel into usable energy.”40 The significant increase in efficiency with CHP results in lower fuel consumption and reduced emissions compared with the separate generation of heat and power.41 For example, the North Country Hospital in Newport, Vermont, installed a CHP in the form of a wood chip co-generation system.42 Because of the skyrocketing prices of oil and gas, the anticipated monetary savings for installing this CHP system will be about $328,000 per year.43 In addition, this system will reduce stress on the grid,

36. See e.g., CAL. DEP’T OF GENERAL SERVICES, STATE ADMIN. MANUAL ENERGY: SERVICE CONTRACTS, 6876 (1998), available at http://sam.dgs.ca.gov/TOC/6000/6867.htm (“The energy service contract is the legal loan agreement that defines the project and ensures repayment of the borrowed monies. The [Department of General Services] is required to repay the loan regardless of the success of the project. This is necessary to assure bondholders they will be repaid.”). 37. Kelly Sullivan, Montpelier Schools Adopt $1.2Million Energy Contract, TIMES ARGUS, Feb. 17, 2006, § NEWS. 38. Id. 39. Tina Kaarsberg & R. Neal Elliott, Combined Heat and Power: Saving Energy and the Environment, NORTHEAST MIDWEST INSTITUTE, Apr. 1, 2001, http://www.nemw.org/ERheatpower.htm. 40. Id. 41. See id. (noting that CHP has the potential to reduce energy costs by 40% and greenhouse gas emissions by 50%). 42. Press Release, North County Health System, North Country Hospital: A Small Hospital Attracting Big Attention (Dec. 2, 2005), available at http://www.nchsi.org/press_releases/for_ immediate_release_20051202.htm. 43. Id.

108 Vermont Journal of Environmental Law [Vol. 8, Issue 1 save countless gallons of oil and gas, and avoid significant pollution and greenhouse gas emissions.44 A technological tool to help reduce or shift a consumer’s electricity usage is the use of sophisticated smart meters that can closely track usage and power cost.45 Smart meters look similar to standard digital meters and fit into a standard meter base. They “measure and store electricity consumption data over short time periods, usually an hour.”46 This kind of advanced metering infrastructure is a necessary condition for implementing Real Time Pricing (RTP) and other time-sensitive rate structures discussed below in Part IV.47 Smart meters allow for the control of certain appliances so that energy use is curtailed during times of high electricity demand or high prices.48 Some forms of smart meters can connect to appliances, such as clothes dryers, that signal when energy prices are high, allowing a consumer to avoid using such appliances when their use will be more costly.49 Another alternative is to program smart meters to shut off connected appliances when prices are high, giving the consumer an overall better match between power cost and power price.50

IV. WHOLESALE AND REGULATORY TOOLS TO PROMOTE EFFICIENCY In addition to technological tools, regulatory and market structures can also help overcome barriers to acquiring more efficiency resources. One tool to acquire efficiency resources is the establishment of an energy

44. Id.; see also Tina Kaarsberg & R. Neal Elliott, supra note 39 (noting that CHP will reduce greenhouse gas emissions and help satisfy “future needs for electricity generating capacity.”). 45. See, e.g., Jürgen Weiss, Time Based Rates in Vermont, (March 15, 2006), (Workshop on Smart Meters and Time Based Rates presentation), available at http://www.state.vt.us/psb/ document/ElectricInitiatives/WeissTimeSensitiveRatesinVT.ppt. 46. Id. 47. See id. (declaring that “RTP and smart metering will come, so let us figure out not ‘if’ but ‘how’!”). 48. See, e.g., California Energy Commission’s Public Interest Energy Research (PIER) Program, Energy Efficient and Affordable Small Commercial and Residential Building Research Program, http://www.archenergy.com/cec-eeb/P3-LoadControls/index.htm (last visited Oct. 10, 2006) (describing a “smart controller” designed to detect a peak demand event and, in response, turn off or turn down the connected appliance); see also Patrick Mazza, Northwest Utilities Looking at Smart Energy Technologies to Control Bills and Improve Service, CLIMATE SOLUTIONS SMART ENERGY BULLETIN #4, http://www.climatesolutions.org/pubs/pdfs/SmartEnergy4.pdf (comparing supply-side utility radio control measures to demand-side smart meters). 49. See, e.g., Katherine Wang et al., Power from the People: Demand Response Comes Home, ROCKY MOUNTAIN INSTITUTE, http://www.rmi.org/sitepages/pid1090.php (describing the “GoodWatts” home management system, which uses broadband technology to send signals from the utility to smart meters, informing owners the occurrence of critical peak-electricity usage). 50. See id. (explaining that the “GoodWatts” technology also allows the owner to preprogram the smart meter to shut-off appliances upon receiving a critical peak-electricity usage signal).

2006] Energy Efficiency and Conservation 109 efficiency program, funded by a systems benefit charge (SBC). An SBC is defined as a non-bypassable charge on a consumer's electric bill to pay for the costs of certain public benefits, such as low-income assistance and energy efficiency.51 The amount of the SBC can vary state to state, and ranges from less than one-tenth of a cent per kWh to up to four-tenths of a cent per kWh.52 Approximately 20 states have an efficiency program funded by an SBC, but many fund only a small portion of the available and cost-effective energy efficiency resources.53 For example, a 2002 study in Vermont found that increasing the current spending on energy efficiency by a multiple of 10 over the next 10 years would still acquire cost-effective energy efficiency resources.54 Likewise, when California significantly increased its funding for an efficiency program, it determined the efficiency measures would save enough electricity to avoid building three 500 MW power plants.55 Other regulatory or market tools in the form of “demand response” are available to reduce energy use at key times.56 Demand response reshapes the load over a day to take the stress out of the system for peak hours of demand.57 Demand response could be used to reduce the barriers to efficiency created by RMR contracts.58 Contracts for demand response

51. See, e.g., THE BUSINESS COUNCIL FOR SUSTAINABLE ENERGY, ENERGY AT THE STATE LEVEL 22–23 (2004), http://www.energycommission.org/files/finalReport/IV.3.a%20-%20Energy%20 at%20State%20Level.pdf (discussing various state SBC programs). 52. HOWARD GELLER, UTILITY ENERGY EFFICIENCY PROGRAMS AND SYSTEMS BENEFIT CHARGES IN THE SOUTHWEST, SOUTHWEST ENERGY EFFICIENCY PROJECT 4 (2002), www.swenergy. org/pubs/system_benefit_charges.pdf. 53. Id. 54. OPTIMAL ENERGY, INC., VERMONT DEPARTMENT OF PUBLIC SERVICE, ELECTRIC AND ECONOMIC IMPACTS OF MAXIMUM ACHIEVABLE STATEWIDE EFFICIENCY SAVINGS 2003–2012, RESULTS ANALYSIS AND SUMMARY, PUBLIC REVIEW OF DRAFT 2–3, tbl.6 (2003), http://publicservice. vermont.gov/energy-efficiency/ee_files/efficiency/eval/eeu_2002report/att1.pdf (noting that spending up to $150 million in 2003 dollars, almost ten times the $17.5 million budget under 30 VT. STAT. ANN. § 209(d)(4) prior to 2005, is both cost effective and achievable). 55. Brian Prusnek, Energy Efficiency in California: Energy for the Future (Dec. 6, 2005) (Presentation to the Minnesota Public Utilities Commission), available at http://www.raponline.org/ Conferences/Minnesota/Presentations/PrusnekCAEEMinnesota.pdf. 56. See, e.g., EDISON ELECTRIC INSTITUTE, COMMENTS TO U.S. DOE DEMAND RESPONSE REPORT TO CONGRESS 1–2 (2005), http://www.eei.org/about_EEI/advocacy_activities/U.S._ Department_of_Energy/051122DOE-DR-Comments-v4.pdf (explaining the fundamental properties of demand response). 57. See, e.g., COWART supra note 14, at 65 (providing a graphical example of the “[i]mpact of demand reductions on wholesale energy clearing prices in the New England Regional Power Pool on June 7, 1999.”). 58. See Devon Power, LLC et al., 103 FERC ¶ 61,082 at 9 (April 25, 2003 Order) available at http://www.caiso.com/docs/2003/04/29/2003042911470312232.pdf (denying power company’s request to recover full cost-of-service cost through an RMR contract, and condemning RMR contracts because they “suppress market-clearing prices, increase uplift payments, and make it difficult for new generators

110 Vermont Journal of Environmental Law [Vol. 8, Issue 1 mechanisms can be formed by an industry or large consumer contracting with an ISO to shut down on request for the sake of reliability, thereby reducing or eliminating the need and cost of RMR contracts.59 Another set of available market tools currently being developed by Independent System Operator-New England (ISO-NE) are rules for the Forward Capacity Market (FCM).60 As the result of a Federal Energy Regulatory Commission (FERC) settlement proceeding involving charges for Locational Installed Capacity (LICAP), the FCM must include a distinct methodology to fully integrate energy efficiency as a resource for meeting the region’s capacity needs.61 ISO-NE Demand Resource Group has drafted FCM rules to define various kinds of Demand Resources (DR) and their respective capacity values and to determine criteria to ensure financial assurance and performance mechanisms.62 Once developed, efficiency resources should be able to fairly compete and be compensated for the capacity they provide, just as generators are now paid for providing capacity.63 Locational Marginal Pricing (LMP) is another tool that encourages efficiency by aligning prices with higher costs incurred as a result of transmission congestion.64 LMP is a market pricing approach used to

to profitably enter the market . . . . In short, extensive use of RMR contracts undermines effective market performance.”). 59. See id. at 10 (encouraging demand response mechanisms to reduce to promote competitive market behavior and emphasizing that RMR contracts “should be a last resort” for suppliers to recover costs). 60. ISO New England, Demand Resources Group’s Proposed Measurement and Verification Provisions for FCM Rule (Final Draft), http://www.iso-ne.com/committees/comm_wkgrps/othr /drg/mtrls/FCM_DR_Measurement_and_Verification_092106.doc (last visited Oct. 10, 2006) [hereinafter Draft FCM Rule]. 61. Devon Power LLC, et al, 115 FERC ¶ 61340 at 6–7 (June 16, 2006), available at http://www.iso-ne.com/regulatory/ferc/orders/2006/jun/er03-563-030_er03-563-055_6-16-06.pdf. 62. Draft FCM Rule, supra note 60; see also Forward Capacity Market Includes Opportunity for Energy Efficiency, NEWSLETTER (Northeast Energy Efficiency Partnerships, Inc., Lexington, M.A.) (3d Quarter 2006), http://www.neep.org/newsletter/3Q2006/FCM.html (providing a short summary on the market rules ISO Demand Resource Group). 63. Draft FCM Rule, supra note 60; see also Devon Power LLC, et al, supra note 61, at 7 (discussing Forwards Capacity Auctions that will enable the FCM to secure capacity three years in advance of the commitment period to “provide a planning period for new entry and allow potential new capacity to compete in the auctions.”). 64. See e.g., KARL MEEUSEN & R. SCOTT POTTER, THE NATIONAL REGULATORY RESEARCH INSTITUTE, COMMISSION PRIMER: LOCATIONAL MARGINAL PRICING 1 (2004), http://www.nrri.ohio-state.edu/dspace/bitstream/2068/3/4/04-16.pdf (providing a “basic overview of LMP” designed for state public utility commissioners ); see also ISO NEW ENGLAND, STANDARD MARKET DESIGN: WHOLESALE ELECTRICITY TRADING 2 (2003), http://www.ksg.harvard.edu/hepg/Standard_Mkt_dsgn/ISO. New.Eng_100_hour_Report_3-7-03.pdf (describing LMP as one component of ISO-NE’s Standard Market Design, a “major redesign of New England’s wholesale electricity marketplace” that aims offer a more accurate reflection of wholesale power cost while providing “guidance for infrastructure

2006] Energy Efficiency and Conservation 111 manage efficient use of the transmission system when congestion occurs on the bulk power grid.65 LMP identifies areas of high congestion and enables regulators to assign a cost of transmission to these locations, which will be higher than transmission to non-congested areas.66 This price signal allows consumers to know what their power really costs and can encourage the acquisition of efficiency resources and a more efficient use of power. Real Time Pricing (RTP) is another tool that closely aligns electricity prices with the real cost of providing electricity to a customer. Unlike conventional fixed pricing that relies on the average supply cost over time, RTP enables utilities to charge consumers energy prices that contemporaneously reflect the marginal supply costs.67 Since higher prices generally occur during peak times, the use of RTP encourages efficiency and allows customers to benefit economically according to their individual energy choices.68 As a result, RTP sends price signals to encourage consumers to shift power use from peak to off-peak in order to save money.69 This shift in use would not only save the consumer money, it would lower peak demand; and therefore, lower prices of peak power and the need for additional peak generation in the long run.70 The Federal Energy Policy Act of 2005 requires each state public utility commission to consider and make a determination regarding certain standards:

[E]ach electric utility shall offer each of its customer classes, and provide individual customers upon customer request, a time-based rate schedule under which the rate charged by the electric utility varies during different time periods and reflects the variance, if any, in the utility's costs of generating and purchasing electricity at the wholesale level. The time-based rate schedule shall enable the electric consumer to manage energy use and cost through advanced

investment”). 65. KARL MEEUSEN & R. SCOTT POTTER, supra note 64, at 9 (defining LMP simply as “the cost of providing the next MW to a specific location in the least-cost manner given transmission constraints.”). 66. Id. at 9–11. 67. See, e.g., GALEN BARBOSE ET AL., supra note 30, at 1 (noting that RTP enables utilities to charge consumers prices that “vary over short time intervals (typically hourly) and are quoted one day or less in advance, to reflect contemporaneous marginal supply costs.”). 68. See id. (explaining the price incentive RTP provides to consumers to reduce their energy usage when wholesale prices are high). 69. See id. at 1 (referring to economists’ long held belief that RTP promotes economic efficiency by providing more accurate price signaling to consumers). 70. See id. at 11 (discussing peak demand reduction as one of the goals of the RTP program).


metering and communications technology . . . . Each electric utility . . . shall provide each customer requesting a time-based rate with a time-based meter capable of enabling the utility and customer to offer and receive such rate, respectively.71

Under this mandate, the Public Service Board in Vermont recently opened an investigation into the viability of RTP in Vermont and examined opportunities for using smart metering and time-based rate standards.72 Apart from RTP, other rate design measures can also support efficiency and conservation. For instance, inclining block rates discourage energy waste by pricing an initial block of energy usage at a specific rate, and the subsequent blocks of usage at correspondingly higher rates.73 A seasonal rate is another form of rate design that offers different rates by month to reflect the differences in average monthly costs by season.74 Finally, under a time-of-use (TOU) rate design, prices for peak power are higher than off-peak power.75 Absent RTP, these rate design measures still work to better align prices with costs and encourage efficiency by providing more accurate price signals to consumers.76 Separating utility profits from the amount of electricity sold, or “decoupling,” is another tool to eliminate barriers that discourage efficiency and conservation.77 Decoupling encourages cost-cutting and improves efficiency by removing the disincentive to promote energy efficiency created by the utility’s incentive to earn more profits by selling more 71. 16 U.S.C. § 2621(d)(14)(A), (C) (Supp. I 2006). 72. See Vermont Public Service Board, Implementation of the Federal Energy Policy Act of 2005 http://www.state.vt.us/psb/document/ElectricInitiatives/ImplementFEPA2005.htm (last visited Oct. 10, 2006) (noting the Public Service Board “issued a memorandum setting forth the next steps in its process for considering the smart metering and time-based rate standard.”). 73. E.g., FREDERICK WESTON & JIM LAZAR, THE REGULATORY ASSISTANCE PROJECT FRAMING PAPER #3: METERING AND RETAIL PRICING 8–9 (2002), http://nedri.raabassociates.org/ Articles/NEDRIpaper3final.doc. 74. See id. at 9, 19 (discussing seasonally differentiated rates as a “simple and effective, if blunt” tool to encourage consumers to reduce energy consumption during periods of greater demand). 75. See id. at 9 (providing an informative discussion on TOU rates). 76. See id. at 10 (explaining that “[m]ulti-part rates have in many cases been time-of-use and/or seasonally differentiated as well. The more closely these types of rate designs isolate customer behavior at the time of the system peak demand, the more accurately they convey meaningful pricing information to consumers.”). 77. See e.g., Mark Newton Lowry & Lawrence Kaufmann, Performance-Based Regulation of Utilities, 23 ENERGY L. J. 399, 422 (2002) (describing the impact of revenue caps on utilities by “a revenue decoupling mechanism”); see also Hoff Stauffer & Jürgen Weiss, A Simple Solution to a Very Old Problem, THE ELECTRICITY JOURNAL, May, 2006, http://www.energylibrary.org.nz/documents/ EnergyLibraryUpdateJune.pdf (calling for “shift[ing] the sales-volume risk from the shareholder to the ratepayer, who can directly control the use of electricity.”).

2006] Energy Efficiency and Conservation 113 energy.78 To illustrate, Puget Sound Power and Light (now Puget Sound Energy), in the State of Washington, ran under a decoupling rule prior to deregulation, from 1991 to 1996.79 During its first year of decoupling, the company’s energy savings equaled almost as much as the energy savings attributable to the three previous years combined.80 In the second year of decoupling, the company’s energy savings increased by another 60%.81 And in Vermont, the State Legislature recently passed a law allowing the Public Service Board to approve alternative forms of regulation, including the decoupling of electricity profits from the volume of sales, as a way to foster energy efficiency.82 One utility, Green Mountain Power, has already filed a request for approval of an alternative regulation plan that includes decoupling.83 This is currently being considered by the Vermont Public Service Board.84

VI. CONCLUSION As the world economy grows, we can choose to meet our energy needs with more dirty power, or we can choose to utilize the power we have in the most efficient manner possible. The cleanest and least-cost solution is the latter. Taking action now to acquire all cost-effective efficiency resources through well-funded efficiency programs, combined with regulatory and market tools to encourage efficiency, will allow us to take a big step towards responsibly meeting our energy needs.

78. See, e.g., Mark Newton Lowry & Lawrence Kaufmann, supra note 77, at 422—23 (describing decoupling as a mechanism that “serves the link between revenue and efforts to market regulated services.”). 79. Alan Durning, Current Thinking: Vigilant Efficiency, NORTHWEST CURRENT, Feb. 28, 2005, http://www.nwcurrent.com/commentary/1309682.html. 80. Id. 81. Id. 82. VT. STAT. ANN. tit. 30, § 218d(a)(4) (Supp. 2005). 83. Petition of Green Mountain Power Corp, Docket No. 7176 (VT PSB Apr. 14, 2006), available at http://www.gmpvt.com/atyourservice/2006ratefiling.shtml. 84. Id.

EPA Gives Animal Feeding Operations Immunity From Environmental Statutes in a “Sweetheart Deal”1

Laura Karvosky∗

INTRODUCTION

In the United States the farming industry has shifted from small, family-owned farms to corporate conglomerates manufacturing large concentrations of animals in confined spaces. These operations are referred to as Animal Feeding Operations (AFOs) or factory farms.2 Hog farming is a prime example of the current trend across the agriculture sector towards a more intensive and industrialized system of farming. It is estimated that 80% of the hogs grown in the United States are on farms which produce 5,000 or more hogs per year.3 The hog population in North Carolina dramatically increased from an average population of about 4.5 million in 1991 to 8.2 million in 1995, and grew to almost 10 million in 1997.4 These massive hog facilities, along with other AFOs located throughout the United States, generate vast amounts of manure and produce large amounts of dangerous air pollutants, including particulate matter (PM), hydrogen sulfide (H2S), ammonia (NH3) and volatile organic compounds (VOCs).5 As AFOs continue to dramatically increase in size, communities are left to deal with the negative impacts these intensive facilities have on their health and the environment. A study conducted by the University of North Carolina found that people living near hog farms reported a decreased quality of life and more physical health symptoms than those located in communities with no livestock operations.6 The symptoms reported more frequently in communities with hog farms included headaches, runny nose,

1. Michael Janofsky, E.P.A. Offers an Amnesty if Big Farms Are Monitored, N.Y. TIMES, Jan. 22, 2005 (quoting a statement by Joe Rudek, a senior scientist with Environmental Defense, who called the Agreement “a sweetheart deal”). ∗ J.D. Candidate, Vermont Law School, 2007. 2. U.S. Environmental Protection Agency, Animal Feeding Operations Overview, http://cfpub1.epa.gov/npdes/home.cfm?program_id=7 (last visited Aug. 17, 2006). 3. National Pork Producers Council, http://www.nppc.org/about/pork_today.html (last visited Aug. 17, 2006). 4. NAT’L RISK MGMT RESEARCH LABORATORY, REVIEW OF EMISSION FACTORS AND METHODOLOGIES TO ESTIMATE AMMONIA EMISSIONS FROM ANIMAL WASTE HANDLING 1 (2002), available at http://www.epa.gov/ORD/NRMRL/Pubs/600R02017/600R02017.pdf. 5. National Academy of Sciences, Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs 16 (2003), available at http://www.nap.edu/books/0309087058/html. 6. Steve Wing & Susanne Wolf, Intensive Livestock Operations, Health, and Quality of Life among Eastern North Carolina Residents, 108 Environmental Health Perspective (2000), available at http://www.ehponline.org/members/2000/108p233-238wing/wing2-full.html.

116 Vermont Journal of Environmental Law [Vol. 8, Issue 1 sore throat, excessive coughing, diarrhea, and burning eyes.7 The researchers concluded that the study “supports previous research suggesting that community members experience health problems due to airborne emissions from intensive swine operations.”8 This study illustrates the negative impacts large farming operations have on local residents, reveals the reasoning behind citizen action to keep AFOs out of their communities and demonstrates why there is pressure on the Environmental Protection Agency (EPA) to regulate these facilities. Although the EPA began regulating pollution from AFOs under the Clean Water Act (CWA), the agency has seldom brought enforcement actions against AFOs under the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and Emergency Planning and Community Right-to-Know Act (EPCRA). As the problems associated with AFOs increase, pressure is mounting for the EPA to use its authority under the CAA, CERCLA, and EPCRA to control AFO pollution. Instead of taking enforcement action, however, the EPA negotiated a deal with AFOs under the Animal Feeding Operations Consent Agreement (“Agreement”) to offer participating AFOs immunity from provisions of CAA, CERCLA, and EPCRA, while the EPA monitors emissions from their facilities.9 Members of Congress and environmental groups have expressed concern over this agreement, and anger with the EPA’s lack of enforcement actions against AFOs.10 Part I of this article provides background information regarding AFOs, describes the air pollutants emitted from AFOs, and the potential harm resulting from those emissions. Part II examines federal environmental statutes authorizing the EPA to regulate AFO emissions. Part III analyzes the Agreement and monitoring study, and discusses the benefits AFOs will receive from the Agreement. Part IV describes case law that demonstrates the EPA’s ability to enforce AFO compliance with the CAA, CERCLA, and EPCRA regardless of the Agreement. Finally, Part V details potential problems with the Agreement from the perspective of harmed citizens and environmental groups opposing the Agreement. This part argues that if the EPA is going to provide immunity to AFOs, then the EPA must incorporate

7. Id. 8. Id. 9. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. 4958 (Jan. 31, 2005). 10. See Letter from Joseph Lieberman, to the Honorable Marianne Lamont Horinko, Acting Administrator, U.S. EPA (Oct. 2, 2003), available at http://www.senate.gov/~gov_affairs/index.cfm? Fuseaction=PressReleases.View&PressRelease_id=502&Affiliation=R (“EPA’s unwillingness to exercise its authority to address even the most serious emissions problems is a disservice to the American public and has serious consequences for the public.”).

2006] “Sweetheart Deal” 117 specific safeguards into the Agreement to ensure the mitigation of pollution and AFO compliance with federal environmental statutes in the future.

I. BACKGROUND INFORMATION ON ANIMAL FEEDING OPERATIONS

The number of farms in the United States decreased from 6.5 million in 1935 to 1.91 million farms in 1997, while the annual production of livestock and livestock products increased.11 Large AFOs containing a threshold number of animals are classified by the EPA as concentrated animal feeding operations (CAFOs).12 The EPA estimates that there are approximately 450,000 AFOs operating in the United States,13 of which 18,000 are defined as CAFOs.14 Large CAFOs contain over 700 dairy cattle, 30,000 broilers or laying hens, 10,000 swine weighing less than 55 pounds, and 2,500 swine weighing more than 55 pounds.15 The congregation of animals on a smaller number of farms creates operations quite different than the rural family farms of the past. Presently, a few large corporations are responsible for the production of a high percentage of farm animals in the United States. For example, four companies, Smithfield Foods, Premium Standard Farms, Seaboard Corporation, and Prestage Farms, are responsible for 49% of the pork produced in the United States.16 Smithfield Foods is the largest owner of hogs with an estimated 825,000 heads.17 Similarly, Tyson Foods, Pilgrim’s Pride, Gold Kist, and Perdue produce 56% of the broiler chickens.18 Cargill Turkey Products, Hormel Foods, ConAgra (Butterball Turkey Co.), and Carolina Turkeys produce 51% of the turkeys in the U.S.19 These large, corporate owned and operated farming facilities are not only criticized as

11. National Academy of Sciences, supra note 5, at 29. 12. Id. An important difference between AFOs and CAFOs is that CAFOs are potentially regulated as point sources and required to obtain National Pollutant Discharge Elimination System (NPDES) permits under the CWA. National Academy of Sciences, supra note 5, at 34. 13. U.S. Environmental Protection Agency, Animal Feeding Operations Frequently Asked Questions, http://cfpub.epa.gov/npdes/faqs.cfm?program_id=7 (last visited Aug. 17, 2006). 14. Office of Enforcement and Compliance, U.S. EPA, Compliance and Enforcement National Priority: Clean Water Act, Wet Weather, Concentrated Animal Feeding Operations 2 (2004), available at http://www.epa.gov/compliance/resources/publications/data/planning/priorities/fy2005prioritycwa cafo.pdf. 15. U.S. Environmental Protection Agency, Regulatory Definitions of Large CAFOs, Medium CAFO, and Small CAFOs, http://www.epa.gov/npdes/pubs/sector_table.pdf (last visited Aug. 17, 2006). 16. Mary Hendrickson & William Heffernan, Univ. of Missouri Dep’t of Rural Sociology, Concentration of Agricultural Markets 1 (2005), available at http://www.agribusinesscenter.org/docs/ Kraft_1.pdf. 17. Id. 18. Id. at 2. 19. Id.

118 Vermont Journal of Environmental Law [Vol. 8, Issue 1 cruel and inhumane establishments to raise animals, but they also emit significant amounts of pollutants which adversely affect human health and the environment. The main pollutants released from AFOs are particulate matter (PM), hydrogen sulfide (H2S), ammonia (NH3), and volatile organic compounds (VOCs).20 CAFOs account for more than 575 billion pounds of manure yearly.21 Manure runoff and spills contribute to surface water pollution, which results in fish kills and reduced biodiversity; increased nitrogen and phosphorus, which contribute to eutrophication and associated algae blooms; and increased pathogens, which contaminate drinking water.22 Air pollutants are emitted from manure storage areas, such as lagoons or pits, confinement buildings, and land application sites.23 Concern over the level of emissions from AFOs in Iowa caused the Governor to request that two universities conduct a comprehensive study regarding the public health and environmental impacts of CAFOs.24 The group of researchers determined that “CAFO air emissions may constitute a public health hazard and that precautions should be taken to minimize both specific chemical exposures (hydrogen sulfide and ammonia) and mixed exposures (including odor) arising from CAFOs.”25 The high concentration of particulate matter in the air surrounding AFOs raises concern over the health and safety of people living in communities where AFOs are located.26 The particles are composed of many components from AFOs, including: fecal matter, feed materials, skin cells, bioaerosols, and products from bacteria and fungi.27 The health effects from particulate matter vary depending on the size of the particles. Larger particles settle in the upper airways and are associated with asthma and bronchitis.28 Smaller particles may be absorbed into the lungs and

20. National Academy of Sciences, supra note 5, at 16. 21. David Wallinga, Institute for Agriculture and Trade Policy, Concentrated Animal Feeding Operations: Health Risks from Air Pollution 1 (2004), available at http://www.environmental observatory.org/library.cfm?RefID=37388. 22. U.S. Environmental Protection Agency, Animal Feeding Operations Frequently Asked Questions, http://cfpub.epa.gov/npdes/faqs.cfm?program_id=7 (last visited Aug. 17, 2006). 23. Wallinga, supra note 21. 24. Environmental Health Sciences Research Center, University of Iowa, Iowa Concentrated Feeding Operations Air Quality Study 5 (Feb. 2002), available at http://www.public-health.uiowa.edu/ ehsrc/CAFOstudy.htm [hereinafter Iowa Study]. 25. Id. at 7. 26. Id. at 126. 27. Id. at 37. 28. Id. at 126.

2006] “Sweetheart Deal” 119 produce increased rates of cardiac deaths.29 In addition, smaller particles play a role in the formation of regional haze.30 AFOs also release hydrogen sulfide into the environment as a result of the storage, handling, and decomposition of animal wastes.31 Exposure to low levels of hydrogen sulfide are associated with shortness of breath, cough, eye irritation, nausea, and loss of sleep.32 Exposure to high levels of hydrogen sulfide can cause loss of consciousness and levels greater than 100 parts per million (ppm) are considered immediately hazardous to life and health.33 At one AFO, levels as high as 1,000 ppm were reported from manure lagoons, illustrating the type of emission levels AFOs are capable of releasing.34 Additionally, hydrogen sulfide produces a strong odor of rotten eggs and has a low odor threshold of less than 1 ppm, which affects the quality of life in communities where AFOs are located.35 Ammonia is another substance released from AFOs and is formed from nitrogen in manure.36 Ammonia is considered a human toxin.37 It is estimated that approximately 80% of ammonia emissions in the United States come from agricultural operations.38 At low levels ammonia produces irritation of the eyes, sinuses, and skin, and can lead to severe cough and mucous production.39 Higher concentrations of ammonia causes scarring of the upper and lower airways, chemical burns to the skin and eyes, and can result in death.40 Furthermore, ammonia in the air contributes to the formation of particulate matter associated with ecosystem fertilization, acidification, and eutrophication.41 AFOs are also responsible for releasing VOCs into the air. VOCs are associated with irritation of the skin, eyes, nose, and throat.42 In addition, VOCs contribute to the formation of ozone and particulate matter, both of which have negative consequences on public health and the environment.43

29. Id. 30. National Academy of Sciences, supra note 5, at 55. 31. Iowa Study, supra note 24, at 124. 32. Id. 33. Id. 34. Id. 35. Id. 36. National Academy of Sciences, supra note 5, at 52. 37. Id. at 123. 38. Wallinga, supra note 21, at 1. 39. Iowa Study, supra note 24, at 123. 40. Id. 41. National Academy of Sciences, supra note 5, at 52. 42. Iowa Study, supra note 24, at 130. 43. U.S. Environmental Protection Agency, Criteria Pollutants, http://www.epa.gov/oar/oaqps/ greenbk/o3co.html (last visited Nov. 6, 2006).

120 Vermont Journal of Environmental Law [Vol. 8, Issue 1 Many organizations and agencies recognize the adverse health effects of the pollutants emitted from AFOs. Specifically, the World Health Organization lists hydrogen sulfide as a toxic substance and the Agency for Toxic Substances and Disease Registry lists both hydrogen sulfide and ammonia as toxic substances.44 These organizations recommend minimum exposure levels to protect the public health.45 In addition, the EPA identifies hydrogen sulfide and ammonia as hazardous substances under CERCLA,46 and as extremely hazardous substances under EPCRA.47 Furthermore, the final report published in the Iowa study concluded that regulatory actions should be considered for hydrogen sulfide and ammonia.48

II. FEDERAL ENVIRONMENTAL STATUTES

As communities across the United States are increasingly impacted by air and water pollution resulting from AFOs, they are looking for different approaches to control and mitigate AFO pollution and to maintain their quality of life. The EPA began regulating AFO emissions under the CWA, however, the EPA has remained complacent in regulating and prosecuting AFOs under the CAA, CERCLA, and EPCRA. Only a few cases exist, some of which are discussed in Part IV of this Note, where the EPA took enforcement action against an AFO for failure to comply with provisions of these statutes. As concern over AFO emissions grows, there is increasing pressure on the EPA to use its authority under the CAA, CERCLA, and EPCRA to regulate the pollution emitted from concentrated farming operations.

A. Clean Air Act Permitting Requirements Relating to AFOs

The CAA is a federal environmental statute that regulates ambient air quality, stationary source emissions, and hazardous air pollutants.49 Historically, agricultural facilities were not regulated under the CAA, because their emissions were not large enough to trigger the permitting requirements of the statute. However, with the consolidation of the livestock industry and the increase in farm size, AFO facilities are emitting significantly more pollution. This makes it possible for AFOs to meet the 44. Iowa Study, supra note 24, at 7. 45. Id. 46. 40 C.F.R. § 302.4. 47. 40 C.F.R. § 355, Appendix A. 48. Iowa Study, supra note 24, at 8. 49. 42 U.S.C. §§ 7401-7671q.

2006] “Sweetheart Deal” 121 threshold level of pollution under the CAA that allows the EPA to regulate their emissions. The CAA sets forth permitting requirements to control ambient air quality and stationary source emissions. The two permitting provisions in the CAA are the preconstruction permits under Title I, Parts C and D,50 and the operating permit under Title V.51 The preconstruction permit provision applies to the construction of new sources or the modification of existing sources emitting a threshold level of pollutants.52 The permit requirements specifically address air quality criteria, established by the EPA administrator, for specific criteria pollutants, “[the] emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare . . . [and] the presence of which in the ambient air results from numerous or diverse mobile or stationary sources.”53 The EPA identified six criteria pollutants under section 108, including: sulfur dioxide (SO2), particulate matter (PM), carbon monoxide (CO2), ozone (O3), nitrogen dioxide (N2O), and lead (Pb).54 The EPA is required to promulgate both primary and secondary national ambient air quality standards (NAAQS) for those air pollutants listed under section 108.55 The national primary air quality standards must allow an “adequate margin of safety” and must be “requisite to protect the public health,” and the national secondary air quality standards must “protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air.”56 The NAAQs are implemented by the states through a State Implementation Plan (SIP) pursuant to section 110.57 Each SIP must include “enforceable emission limitations and other control measures, means, or techniques” to satisfy the requirements of the CAA.58 The preconstruction permit requirements of Title I, Parts C and D are implemented by states to achieve the national ambient air quality standards. There are two types of preconstruction permits, permits issued for the Prevention of Significant Deterioration (PSD) in areas where NAAQS have

50. Id. §§ 7475, 7503. 51. Id. § 7661-7661(f). 52. Id. § 7475. 53. Id. § 7408(a)(1)(A)–(B). 54. See generally 40 C.F.R. §§ 50.4-50.12 (2006). 55. Id. § 7409(a)(1)(A). 56. Id. § 7409(b)(1) (discussing the national primary air quality standards); Id. § 7409(b)(2) (discussing the national secondary air quality standards). 57. Id. § 7410(a)(1). 58. Id. § 7410(a)(2)(A).

122 Vermont Journal of Environmental Law [Vol. 8, Issue 1 been met59 and permits for nonattainment areas where NAAQS have not been met.60 Title I, Part C sets forth the preconstruction permit requirements for the PSD areas.61 The CAA requires a permit for the construction or modification of a “major emitting facility.”62 Included within the definition of a “major emitting facility” are any “source[s] with the potential to emit two hundred and fifty tons per year [(tpy)] or more of any air pollutant.”63 When determining whether a source is a “major emitting facility,” fugitive emissions are not included in the calculation.64 Under these provisions, the main air pollutant regulated by this section and released by AFOs is particulate matter, a criteria air pollutant. Therefore, AFOs emitting more than two hundred and fifty tpy of a regulated air pollutant are required to obtain a permit under Title I, Part C before the construction or modification of a facility. A significant requirement under the permitting requirements of Title I, Part C authorizes the EPA to mandate that facilities located in attainment areas monitor their own emissions. Specifically, Title I states that,

[T]he person who owns or operates, or proposes to own or operate, a major emitting facility for which a permit is required under this part agrees to conduct such monitoring as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any area which may be affected by emissions from such source.65

Based on this provision, the EPA is authorized to require AFOs releasing more than 250 tpy of an air pollutant to monitor emissions from their

59. See Id. § 7475. 60. Id. § 7503. A nonattainment area is “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” Id. § 7407(d)(1)(A)(i). 61. Id. § 7475(a). 62. Id. 63. Id. § 7479(1). “Air pollutant” is broadly defined in CAA § 302(g), 42 U.S.C. § 7602(g), to include “any air pollution . . . which is emitted into or otherwise enters the ambient air” and “includes any precursors to the formation of any air pollutant” described to the EPA. EPA issued a guidance document to limit the definition of “air pollutant,” for the purposes of § 302(j), 42 U.S.C. § 7602(j), to include only “pollutants subject to regulation under the Act.” Memorandum from Lydia N. Wegman, Deputy Director, EPA Office of Air Quality and Standards, to Air Division Director, Regions I-X, Definition of Regulated Air Pollutant for Purposes of Title V, at 4 (Mar. 26, 1993), available at http://www.epa.gov/Region7/programs/artd/air/title5/t5memos/rapdef.pdf. 64. 40 C.F.R. § 51.166(b)(1)(iii). Fugitive emissions are defined as emissions “which could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening.” 40 C.F.R. § 51.165(a)(1)(ix). 65. 42 U.S.C. § 7475(a)(7).

2006] “Sweetheart Deal” 123 facilities. If the EPA enforced this provision and required applicable AFOs to monitor their own emissions, then the EPA and the agriculture industry would not only gain a better understanding of AFO emissions in general, but would also learn about the methodologies needed to measure those emissions. Another requirement a facility must satisfy to obtain a PSD permit is that a proposed facility must install the best available control technology (BACT) for each pollutant subject to regulation.66 BACT is the “emission limitation based on the maximum degree of reduction of each pollutant subject to regulation.”67 BACT is determined on a case-by-case basis by the permitting authority who, “taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, systems, and techniques.”68 Under this requirement, AFOs seeking a permit under Title I would be required to install BACT at their facilities, thereby ensuring that AFOs implement a pollution control mechanism and mitigate their releases of air pollutants. The second type of preconstruction permit, which also regulates particulate matter, is for facilities located in nonattainment areas where NAAQS have not been met.69 The state in which a “nonattainment area” is located must submit a plan to the administrator of the EPA,70 which “shall require permits for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area.”71 The definition of “major” differs between attainment and nonattainment areas. Specifically, a “major stationary source” in a nonattainment area means “any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant.”72 This definition includes “any major emitting facility or source of fugitive emissions of any such pollutant, as determined by rule by the Administrator.”73 Therefore, an AFO located in a nonattainment area, which emits or has the potential to emit 100 tpy or more of particulate matter, must apply for a permit under Title I, Part D.

66. Id. § 7475(a)(4). 67. Id. § 7479(3). 68. Id. 69. Id. § 7503. 70. Id. § 7502(b). 71. Id. § 7502(c)(5). 72. Id. § 7602(c)(j).; see 42 U.S.C. § 7479(1) (defining “air pollutant”). 73. Id. § 7602(c)(j).

124 Vermont Journal of Environmental Law [Vol. 8, Issue 1 A source receiving a permit in a nonattainment area is required to comply with the lowest achievable emission rate (LAER)74 and facilities must provide for sufficient offsetting of emissions reductions.75 As a result, an AFO that is defined as a new or modified major stationary source and is located in a nonattainment area must comply with applicable permitting requirements. In addition to Title I preconstruction permitting requirements, Title V requires all facilities defined as a “major source” to obtain an operating permit.76 Title V permitting requirements apply to major sources, which are stationary sources that have the potential to emit either (1) ten tpy or more of any hazardous air pollutant (HAP), (2) twenty five tpy of any combination of HAPs,77 or (3) 100 tpy or more of any air pollutant, as defined in section 302.78 Based on the definition of a “major source,” an AFO emitting more than 100 tpy of VOCs or particulate matter must comply with the permitting requirements of Title V. An AFO falling within the definition of a “major source” under Title V cannot be exempt from the Title V permitting requirements.79 Although section 502(a) of Title V allows the administrator of the EPA to provide facilities exemptions from the permitting requirements, the provision specifically states that major sources can never be exempted from the

74. Id. § 7503(a)(2). 75. Id. § 7503(a)(1)(A). 76. Id. § 7661a(a). 77. 40 C.F.R. § 70.2(1)(i) (2005). 78. 40 C.F.R. § 70.2; see 42 U.S.C. § 7479(1) (defining “air pollutant”). “Regulated air pollutant” includes the following:

(1) Nitrogen oxides or any volatile organic compounds; (2) Any pollutant for which a national ambient air quality standard has been promulgated; (3) Any pollutant that is subject to any standard promulgated under section 111 of the Act; (4) Any Class I or II substance subject to a standard promulgated under or established by title VI of the Act; or (5) Any pollutant subject to a standard promulgated under section 112 or other requirements established under section 112 of the Act, including sections 112(g), (j), and (r) of the Act, including the following: (i) Any pollutant subject to requirements under section 112(j) of the Act. If the Administrator fails to promulgate a standard by the date established pursuant to section 112(e) of the Act, any pollutant for which a subject source would be major shall be considered to be regulated on the date 18 months after the applicable date established pursuant to section 112(e) of the Act; and (ii) Any pollutant for which the requirements of section 112(g)(2) of the Act have been met, but only with respect to the individual source subject to section 112(g)(2) requirement. 40 C.F.R. § 70.2.

79. See 42 U.S.C. § 7661a(a).

2006] “Sweetheart Deal” 125 permit requirements.80 Therefore, large scale farming facilities that are a major source of pollution must obtain the requisite permit to operate. The above analysis emphasizes the EPA’s statutory authority under the CAA to regulate emissions of particulate matter, ammonia, VOCs, and hydrogen sulfide emitted from AFOs. Furthermore, certain provisions of the permitting requirements allow the EPA to compel an AFO to monitor its own pollution releases, and to require the installation of pollution control technology. Thus, the EPA has the power to control AFO emissions through the CAA permitting requirements.

B. CERCLA and EPCRA Reporting Requirements Relating to AFOs

CERCLA81 and EPCRA82 are environmental statutes providing the EPA authority to regulate hazardous substances. Both statutes contain reporting requirements that are triggered when a facility emits certain levels of a hazardous substance. The term “hazardous substance” is broadly defined under CERCLA and includes hydrogen sulfide and ammonia, two substances emitted from AFOs.83 The reporting requirements allow local, state, and federal officials to take action in response to releases of hazardous substances, thereby mitigating possible damage to public health and the environment. CERCLA and EPCRA reporting requirements can play a significant role in reducing negative impacts to local communities when large levels of hydrogen sulfide or ammonia are released from an AFO. CERCLA was enacted in 1980 to address the cleanup and liability of hazardous substances released into the environment and to authorize the federal government to respond to releases or potential releases of hazardous substances.84 One component of CERCLA is the establishment of federal reporting requirements under section 103, which requires a person in charge of a facility to immediately report any release, including air emissions, of a hazardous substance from the facility if the release is equal to or greater than the reportable quantity (RQ) for that substance.85 80. Id. 81. Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (2000). 82. Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §§ 11001-11050 (2000). 83. See 42 U.S.C. § 9601(14). 84. U.S. Environmental Protection Agency, CERCLA Overview, http://www.epa.gov/super fund/action/law/cercla.htm (last visited Aug. 17, 2006). A “release” is defined as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” 42 U.S.C. § 9601(22). 85. 42 U.S.C. § 9603(a).

126 Vermont Journal of Environmental Law [Vol. 8, Issue 1 In accordance with the EPA’s statutory mandate, the EPA compiled a list of nearly 800 hazardous substances and their corresponding reportable quantities.86 The EPA listed both ammonia and hydrogen sulfide as hazardous substances under section 102 of CERCLA and set their reporting requirements at 100 pounds per day.87 Therefore, when 100 pounds per day of hydrogen sulfide or ammonia are released from a facility, the person in charge of the facility must immediately report the release to the National Response Center (NRC) under CERCLA section 103.88 The reporting requirements allow government officials to evaluate the release of hazardous substances and to determine whether action is needed in response to a release. EPCRA was promulgated to provide notification systems at the local and state levels for the storage and handling of toxic chemicals and the release of “extremely hazardous substances” into the environment.89 EPCRA reporting requirements are triggered by the release of an RQ of “extremely hazardous substances” listed under EPCRA regulations and by the release an RQ of “hazardous substances” under CERCLA.90 Thus, CERCLA section 103 reporting requirements trigger EPCRA section 304 requirements. Therefore, EPCRA reporting requirements must be followed when 100 pounds per day of hydrogen sulfide or ammonia are released from a facility. The notification requirements under CERCLA and EPCRA are reduced if a release is labeled as “continuous.”91 A continuous release is “a release that occurs without interruption or abatement or that is routine, anticipated, and intermittent and incidental to normal operations or treatment processes.”92 Specifically, “no notification is required for any release of a hazardous substance that is . . . continuous and stable in quantity and rate.”93 Although the reporting requirements are relaxed, the following notification must still be provided: (1) an initial telephone notification; (2) an initial written notification within thirty days of the initial telephone 86. 40 C.F.R. § 302.4, tbl. 302.4 (2005). 87. Id. 88. Id. 89. U.S. Environmental Protection Agency, EPCRA, http://www.epa.gov/region5/defs/html/ epcra.htm (last visited Aug. 17, 2006); EPA requires that “[n]otice . . . be given immediately after the release by the owner or operator of a facility (by such means as telephone, radio, or in person) to the community emergency coordinator for the local emergency planning committees . . . and to the State emergency planning commission of any State likely to be affected by the release.” 42 U.S.C. § 11004(b)(1). 90. 42 U.S.C. § 11004(a)(1)-(2). 91. 42 U.S.C. § 9603(f)(2) (2000); 40 C.F.R. § 355.40(a)(2)(iii) (2005). 92. 40 C.F.R. § 302.8(b). 93. Id. § 302.8(a).

2006] “Sweetheart Deal” 127 notification; and (3) a follow-up notification within thirty days of the first anniversary date of the initial written notification.94 In addition, notification must occur if there is a change in the composition or source of the release or in the other information submitted in the initial written notification. Notification is also required when there is a statistically significant increase in the quantity of the hazardous substance being released during any twenty four hour period.95 Therefore, although the release of hydrogen sulfide and ammonia from an AFO may be labeled as “continuous,” the reporting requirements are not eliminated, but are only reduced. Thus, the EPA is still authorized under CERCLA and EPCRA to require qualifying AFOs to report their emissions of hydrogen sulfide or ammonia that are over 100 pounds per day, regardless of whether the release is continuous or episodic. An AFO is only required to report releases of hazardous substances under CERCLA and EPCRA if it meets the definition of a facility.96 The definition of a “facility” differs between CERCLA and EPCRA. A facility is defined under EPCRA to include “all buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person.”97 However, under CERCLA, a “facility” is defined as “(A) any building, structure, installation, . . . well, pit, pond, lagoon, impoundment, ditch, landfill, storage container . . . or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.”98 Disputes have arisen regarding whether emissions from a farm site should be aggregated before determining whether the reportable quantity for a hazardous substance has been reached or exceeded, or whether emissions from buildings and structures should be calculated individually. In response, courts have broadly interpreted the term “facility” under CERCLA and EPCRA, causing more AFOs to fall within CERCLA and EPCRA reporting requirements. First, in Sierra Club v. Seaboard Farms Inc., the Tenth Circuit interpreted the term “facility” under CERCLA to include the whole farm complex in the aggregate and not each individual barn, lagoon, and land application as an individual facility.99 The court emphasized that prior case law had interpreted CERCLA liberally to carry out its purpose, and therefore, consistent with this reasoning, the court

94. Id. § 302.8(c). 95. Id. 96. 42 U.S.C. § 9603(a); 40 C.F.R. § 355.40(a). 97. 42 U.S.C. § 11049(4) (emphasis added). 98. 42 U.S.C. § 9601(9) (2000) (emphasis added). 99. Sierra Club v. Seaboard Farms Inc., 387 F.3d 1167, 1168 (10th Cir. 2004).

128 Vermont Journal of Environmental Law [Vol. 8, Issue 1 needed to broadly construe the term “facility.”100 Similarly, in Sierra Club v. Tyson Food Inc., the court found that the term “facility” under CERCLA included the whole farm site and not just individual poultry houses, and emphasized that AFOs are not exempt from the reporting requirements under CERCLA and EPCRA.101 Based on these interpretations, emissions from a barn, holding facility, waste lagoon, or manure pit located in an AFO will be looked at in the aggregate to determine whether an AFO release exceeds the reportable quantity for a specific substance. Thus, when an AFO releases one hundred pounds per day of ammonia or hydrogen sulfide the reporting requirements under CERCLA and EPCRA are triggered. The EPA is authorized to enforce the notification requirements of CERCLA under section 103. Any person who fails to comply with the reporting requirements set forth in CERCLA is subject to civil penalties of up to $32,500 per day for continuing violations, and in the case of a second or subsequent violation, the amount of such penalty may be up to $97,500 for each day during which the violation continues.102 In addition, failure to follow notification requirements and the submittal of false or misleading information may result in possible fines according to Title 18 of the U.S. Criminal Code and up to three years imprisonment for the first offense or five years imprisonment for subsequent offenses.103 Furthermore, EPCRA section 325 provides the EPA with the authority to enforce the reporting requirements of section 304.104 The EPA “may order a facility owner or operator (except an owner or operator of a facility designated under section 11002(b)(2) of this title) to comply with section 11002(c) of this title and section 11003(d) of this title.”105 Any person who fails to comply with the order is subject to civil penalties of up to $32,500 for each day during which the violation continues, in accordance with section 325(b)(2) of the Act, and up to $97,500 for each day the violation continues in the case of a second or subsequent violation.106 Furthermore, those who fail to report a release may face criminal penalties and up to two

100. Id. at 1172 (citing United States v. Bestfoods, 524 U.S. 51, 55 (1998)). 101. Sierra Club v. Tyson Food Inc., 299 F.Supp.2d 693, 708 (W.D.Ky. 2003). 102. Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4, tbl.1 (2004) (increasing the penalties under 42 U.S.C. § 9609(b) (2000) from $25,000 to $32,500 and from $75,000 to $97,500). 103. 42 U.S.C. § 9603(b) (2000). 104. 42 U.S.C. § 11045(a) (2000). 105. Id. 106. 40 C.F.R. § 19.4, tbl.1 (increasing the penalties under 40 C.F.R. § 355.50(b) (2005) from $25,000 to $32,500 and from $75,000 to $97,500).

2006] “Sweetheart Deal” 129 years imprisonment for the first offense or five years imprisonment for subsequent offenses.107 In the past, smaller farms have not been regulated under the reporting requirements of CERCLA and EPCRA because their emissions of hydrogen sulfide and ammonia have not met the threshold levels required under the statutes. However, with the expansion of AFO facilities, emission levels are greatly increasing, thereby permitting more AFOs to be regulated under CERCLA and EPCRA. These requirements provide a safety mechanism to members of the community, allowing them to respond to high levels of pollutants emitted into the environment. Based on the information the communities receive, they can make individualized decisions regarding their health and welfare, and protect themselves from large levels of hydrogen sulfide or ammonia released from AFOs.

III. ANIMAL FEEDING OPERATIONS CONSENT AGREEMENT AND MONITORING STUDY

As pressure increased for the EPA to regulate AFOs, the EPA, along with the United States Department of Agriculture (USDA), commissioned the National Academy of Sciences (NAS) to review and evaluate the scientific basis for estimating AFO emissions.108 A sixteen member Committee on Air Emissions from Animal Feeding Operations (“the Committee”) was formed and published its findings and recommendations in 2003.109 The Committee found that “USDA and EPA have not devoted the necessary financial or technical resources to estimate air emissions from AFOs and develop mitigation technologies.”110 In response, the Committee recommended that “[f]or the short term, USDA and EPA should initiate and conduct a coordinated research program designed to produce a scientifically sound basis for measuring and estimating air emissions from AFOs on local, regional, and national scales.”111 At the same time the National Academy of Sciences compiled its findings and recommendations on AFO emissions, the agriculture community began to respond to emerging pressure for the EPA to regulate AFOs.112 Representatives of the agriculture industry approached EPA 107. 40 C.F.R. § 355.50(c) (2005). 108. National Academy of Sciences, supra note 5, at 14. 109. See generally National Academy of Sciences, supra note 5. 110. Id. at 11. 111. Id. at 12. 112. See generally, National Pork Producers Council, Questions and Answers on the Air Emissions Consent Agreement and National Monitoring Study (2005), http://www.nppc.org/hot_topics/ airemissionsQ&A.html (“[t]he pork industry saw the emerging legal liability as a critical issue for pork

130 Vermont Journal of Environmental Law [Vol. 8, Issue 1 officials with an “Outline for a Possible Livestock & Poultry Monitoring and Safe Harbor Agreement.”113 The proposal set forth a program to provide AFOs immunity from CERCLA and CAA enforcement actions based on their air emissions and to conduct an air emission monitoring study.114 This outline, created by the agriculture industry, provided the substantive framework for what later became the Consent Agreement. News of a possible consent agreement between the EPA and the AFO industry spread to environmental groups and raised significant concern. The environmental groups requested documents regarding this agreement in May 2003 under the Freedom of Information Act.115 The EPA denied the existence of the agreement and asserted that there were no “draft or other underlying records relating to the topics described above at any stage of development.”116 However, a copy of the proposed safe harbor agreement was leaked in September of 2003 proving that the EPA was in fact negotiating with representatives of the agriculture industry.117 Despite the concerns and objections regarding negotiations for a proposed safe harbor agreement between EPA and AFOs, the EPA set forth a comprehensive agreement and monitoring study in 2005 called the Animal Feeding Operations Consent Agreement.118

A. The Agreement

On January 31, 2005, the EPA published a notice in the Federal Register announcing the Consent Agreement between the EPA and participating AFOs.119 In general, the Agreement allows the EPA to

producers of all sizes and [National Pork Producers Council] engaged in the efforts of a coalition of agricultural organizations to bring [the Consent Agreement] about.”). 113. Memorandum from John Thorne and Richard Schwartz, to David A. Nielsen, Director, Multimedia Enforcement Division, U.S. EPA and Sally Shaver, Director, Air Quality Strategies and Standards Division, U.S. EPA, Outline for a Possible Livestock and Poultry Monitoring and Safe Harbor Agreement (June 11, 2002), available at http://www.sierraclub.org/pressroom/cafo_papers/2003/safe_harbor_proposal.pdf. 114. Id. 115. Letter from Brent Newell, Center on Race, Poverty & the Environment, Pat Gallagher, Sierra Club et. al., to Freedom of Information Officers, U.S. EPA (May 5, 2003), available at http://www.sierraclub.org/pressroom/cafo_papers/2003/2003sept_foia_request.pdf. 116. Letter from Sally Shaver, Director, Emission Standards Division to Pat Gallagher, Sierra Club (June 3, 2003), available at http://www.sierraclub.org/pressroom/cafo_papers/2003/2003sept_foia _denial.pdf. 117. Sierra Club, Press Room, Leaked Documents Reveal Deal, http://www.sierraclub.org/press room/cafo_papers/2003. 118. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. 4958 (Jan. 31, 2005). 119. Id.

2006] “Sweetheart Deal” 131 provide AFOs immunity from liability under Title I, Parts C and D and Title V of the CAA; section 103 of CERCLA; and section 304 of EPCRA. In exchange, AFOs must allow the EPA to monitor emissions at selected facilities.120 The goal of the Agreement is to “reduce pollution,”121 “to ensure that all animal feeding operations are in compliance with applicable [CAA], CERCLA and EPCRA requirements,”122 and to “generate scientifically credible data to provide for the characterization of emissions from all major types of AFOs.”123 The Agreement is a voluntary agreement between the EPA and eligible AFOs, and applies to emissions from agricultural waste at emission units.124 To participate in the program, a farm must meet the definition of an AFO as defined by the Clean Water Act.125 Only AFOs in “the egg, broiler chicken, turkey, dairy, and swine industries” are eligible to participate in the Agreement.126 Cattle feedlots are not eligible because the study will not monitor open-air feedlots.127 The EPA can refuse to enter into an agreement with an AFO if the AFO has been “notified by the EPA or a State that they may be currently subject to a CAA, CERCLA section 103, or EPCRA section 304(a) enforcement action.”128 Sign-up for the Agreement began when notice was published in the Federal Register.129 Originally, AFOs had 90 days to sign-up and the EPA gave the public thirty days to submit their comments on the Agreement.130

120. Id. 121. U.S. Environmental Protection Agency, Animal Feeding Operations Air Agreements, http://www.epa.gov/compliance/resources/agreements/caa/cafo-agr-0604.html (last visited Aug. 17, 2006). 122. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4962. 123. Id. at 4960. 124. Id. at 4963. “Emission Units” include “any part of a Farm that emits or may emit Volatile Organic Compounds (VOCs), Hydrogen Sulfide (H2S), Ammonia (NH3), or Particulate Matter (TSP, PM10 and PM2.5) and is either: (a) a building, enclosure, or structure that permanently or temporarily houses Agricultural Livestock; or (b) a lagoon or installation that is used for storage and/or treatment of Agricultural Waste.” Id. 125. The CWA defines an AFO as:

a lot or facility (other than an aquatic animal production facility) where the following conditions are met: (i)Animals . . . have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and (ii) Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. 40 C.F.R. § 122.23(b)(1) (2005).

126. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4959. 127. Claudia Copeland, CRS Report, Air Quality Issues and Animal Agriculture: EPA’s Air Compliance Agreement 4 (RL32947, 2005), available at http://www.ncseonline.org/nle/crsreports/ 05jul/RL32947.pdf. 128. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4962. 129. Id. at 4958. 130. Id.

132 Vermont Journal of Environmental Law [Vol. 8, Issue 1 However, the sign up period was extended twice to allow AFOs additional time “to make informed decisions about participation.”131 The sign-up period ended on August 12, 2005132 and the comment period concluded on May 2, 2005.133 In exchange for immunity, participating AFOs are obligated to comply with five main provisions under the terms of the Agreement. First, each AFO participating in the Agreement must pay a civil penalty based on the size of their AFO.134 The EPA clearly states that “payment of a penalty will not be an admission of liability by an AFO.”135 The penalties range from $200 to $1,000 per AFO and total penalties are capped at $10,000 for a participant with 10 farms or less, and $100,000 for a participant with over 200 farms.136 The penalties are minor when compared with the penalties authorized for violating the reporting requirements under CERCLA section 103 or EPCRA section 304, which allow fines up to $32,500 per day for a continuous violation.137 Second, each participant must pay up to $2500 to fund a nationwide emissions monitoring study.138 Third, participants must make their facilities available for monitoring if they are chosen as a sample facility.139 Although only a small number of facilities will be monitored, the EPA will still grant all facilities immunity under the Agreement.140 Fourth, AFOs must “comply with all final actions and final orders issued by the State or local authority that address a nuisance arising from air emissions at the AFO.”141 Finally, at the conclusion of the monitoring study, participating AFOs are obligated to determine their emissions and

131. Animal Feeding Operations Consent Agreement and Final Order, Supplemental Notice, 70 Fed. Reg. 16266-01 (Mar. 30, 2005). The sign-up period was first extended to July 1, 2005, and subsequently to July 29, 2005. See id.; see also Animal Feeding Operations Consent Agreement and Final Order, Supplemental Notice, 70 Fed. Reg. 40016-01 (July 12, 2005). 132. Animal Feeding Operations Consent Agreement and Final Order, Supplemental Notice, 70 Fed. Reg. 44631-01 (Aug. 3, 2005). 133. Animal Feeding Operations Consent Agreement and Final Order, Supplemental Notice, 70 Fed. Reg. 16266-01 (Mar. 30, 2005). 134. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4959. 135. Id. The Agreement also makes clear that an AFO entering into the Agreement “neither admits or denies that any of its Farms is subject to CERCLA or EPCRA reporting or Clean Air Act permitting requirements, or is in violation of any provision of CERCLA, EPCRA or the Clean Air Act.” Id. at 4962. 136. Id. at 4959. 137. 42 U.S.C. § 9609(b) (2000); 40 C.F.R. § 355.50(b) (2005). 138. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4966. 139. Id. 140. Id. at 4962. 141. Id. at 4958.

2006] “Sweetheart Deal” 133 comply with all applicable CAA permitting and reporting requirements under CERCLA and EPCRA.142 When the monitoring study is concluded, the EPA will have eighteen months to publish the Emissions-Estimating Methodologies.143 “Emissions-Estimating Methodologies” are defined as “those procedures that will be developed by the EPA, based on data from the national air emissions monitoring study and any other relevant data and information, to estimate daily and total annual emissions from individual Emission Units and/or Sources.” 144 Once these methodologies are published, participating AFOs have 120 days to calculate their emissions and comply with the permitting requirements of Title I, Parts C and D and Title V of the CAA and the reporting requirements of CERCLA section 103 and EPCRA section 304.145 If an AFO’s emissions are not great enough to require permits or notification, then an AFO must certify that to the EPA within sixty days after the Emissions-Estimating Methodologies are published.146 AFOs that participate in the Agreement and abide by its terms will receive from the EPA a release and covenant not to sue for certain past, present and ongoing civil violations of the CAA, CERCLA, and EPCRA.147 Specifically, AFOs will not be liable for any civil violations of permitting requirements contained in Title I, Parts C and D and Title V of the CAA, and any other civil violations of federally enforceable State Implementation Plan (SIP) requirements.148 Participating AFOs will also be immune from all civil violations of the reporting requirements under CERCLA section 103 and EPCRA section 304 for air emissions of hydrogen sulfide and ammonia.149 However, the EPA will continue to prosecute all cases that present “an imminent and substantial endangerment to public health, welfare or the environment.”150 The EPA will grant participating AFOs immunity from liability for violations occurring prior to the study, during the study, and until a specified time after the EPA publishes the Emissions-Estimating Methodologies.151 Once the Emissions-Estimating Methodologies are published, immunity will end at either the time an individual AFO submits

142. Id. at 4963–4964. 143. Id. at 4963. 144. Id. 145. Id. 146. Id. 147. Id. 148. Id. 149. Id. 150. Id. 151. Id. at 4965.

134 Vermont Journal of Environmental Law [Vol. 8, Issue 1 its last required certification under the Agreement or two years after it submits any permit applications under the CAA, whichever is earlier.152 However, after these two applicable time periods are reached, the final rule allows an extension of immunity for up to six months.153 Therefore, AFOs can extend their immunity from liability for over two years after the monitoring study concludes and almost four years from when the Agreement is executed. Following the termination of the sign up period, all agreements were forwarded to the EPA’s Environmental Appeals Board (EAB) for final approval.154 In total, the EPA received signed agreements from “2,681 AFOs, representing more than 6,700 farms in 42 states.”155 The EAB approved the first 20 agreements on January 30, 2006, which consisted of 10 AFOs in the swine industry and 10 egg-laying operations.156 On April 17, 2006, EAB approved an additional 702 agreements, which consisted of 48 AFOs in the egg-laying industry, representing 333 farms and 654 swine-raising operations, representing 2,143 farms.157

B. The Monitoring Study

A major element of the Agreement is the nationwide emissions monitoring study (“the study”). The study will monitor the emission of particulate matter, hydrogen sulfide, volatile organic compounds, and ammonia from buildings and waste lagoons at AFOs.158 The goal of the study is to collect data from different industries (i.e., swine, dairy and poultry) and geographical locations, and to use that data to develop Emissions-Estimating Methodologies for AFOs.159 The monitoring study is the result of the National Academy of Sciences (NAS) 2003 report recommending that the EPA and USDA coordinate a research program

152. Id. AFOs have 120 days after EPA publishes Emissions-Estimating Methodologies to submit all CAA permit applications. Id. at 4964. 153. Id. at 4964. 154. Id. at 4962. 155. Press Release, Environmental Appeals Board Approves First Air Compliance Agreements with Animal Feeding Operations (Jan. 30, 2006), http://yosemite.epa.gov/opa/admpress.nsf/ 198a007cc57e64d3852570210055f3f6/85b299fbd0ab3894852571060071f0ae. 156. Id. 157. U.S. Environmental Protection Agency, Animal Feeding Operations Air Agreements, http://www.epa.gov/compliance/resources/agreements/caa/cafo-agr-0604.html (last visited Aug. 17, 2006). 158. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4960. 159. Id.

2006] “Sweetheart Deal” 135 designed to produce “a scientifically sound basis for measuring and estimating air emissions from AFOs.”160 The agriculture industry will play a large role in carrying out the study. An Agricultural Air Research Council (AARC), a nonprofit organization, will be created by the industry to handle the monitoring fee each participating AFO is required to contribute.161 The AARC “will be comprised of representatives from the various animal husbandry industries who are knowledgeable of actual farming operations as related to the farm sites proposed for monitoring.”162 The AARC is also responsible for choosing and subcontracting a Science Advisor and an Independent Monitoring Contractor (IMC) to run the nationwide monitoring study, holding and dispersing funds to the IMC as needed for the study, and communicating the progress of the study to the industry and public.163 The AARC will select AFOs from the list of all participating AFOs to be candidates for monitoring.164 Once the AARC compiles a list of AFO candidates, the Science Advisor will select the AFOs to be monitored.165 In the selection process, the Science Advisor will analyze “differing regional and climatic conditions, number of animals, different manure handling practices, and types of ventilation (natural vs. forced air).”166 The Science Advisor is responsible for overseeing the study and selecting and advising principal investigators to conduct the monitoring.167 The Science Advisor is also responsible for drafting the comprehensive study design and the Quality Assurance Project Plan (QAPP), and submitting these plans to the EPA for final approval.168 Although the IMC will be a separate organization from the industry, the IMC will be chosen by the agriculture representatives in the AARC.169 The IMC will be responsible for overseeing the performance of the Science Advisor.170 In addition, the IMC will purchase equipment and develop contracts for the principal investigators, supervise budgets and monitoring

160. Id. 161. Id. at 4969. 162. Id. at 4970. 163. Id. 164. Id. 165. Id. at 4970–4971. 166. Id. at 4971. 167. Id. 168. Id. “The QAAP will outline appropriate procedures to ensure acceptable accuracy, precisions, representativeness, and comparability of the data.” Id. at 4968. 169. See supra notes 161–62. 170. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4970.

136 Vermont Journal of Environmental Law [Vol. 8, Issue 1 expenditures, and audit all financial statements.171 The IMC is responsible for reporting back to the EPA and the AARC on the progress of the study, including the study’s financial status.172 The EPA predicts the study will begin in 2006 and continue for two years.173 During this time, the IMC will monitor emissions of ammonia, hydrogen sulfide, particulate matter (PM) (TSP, PM10 and PM2.5), and volatile organic compounds (VOCs) from buildings and waste lagoons.174 Following the conclusion of the study, the EPA will develop and publish the Emissions-Estimating Methodologies for AFOs. The purpose of these methodologies is to provide guidance to AFOs to assist them in complying with the CAA, CERCLA, and EPCRA and to provide the EPA with the information they need to regulate AFOs.

IV. EPA ENFORCEMENT ACTIONS AGAINST ANIMAL FEEDING

OPERATIONS UNDER THE CAA, CERCLA, AND EPCRA The EPA claims the lack of enforcement actions against AFOs is the result of a need for greater scientific knowledge about emissions monitoring technologies at AFOs. However, there are examples discussed below of the EPA enforcement of AFOs under the CAA, CERCLA, and EPCRA. These examples demonstrate that it is not necessary for the EPA to grant full immunity to participating AFOs for them to achieve compliance with federal environmental statutes; rather, the EPA is already authorized to enforce compliance with these federal environmental statutes. In 1997, Citizens Legal Environmental Action Network, Inc. (CLEAN) filed suit against Premium Standard Farms, Inc. (PSF), an AFO, alleging violations of the CAA, CWA, and CERCLA.175 PSF is a hog operation in northern Missouri, which holds an average of 900,000 hogs at fifteen facilities.176 In 1999, the EPA intervened, filing a complaint against PSF for violations of the CWA.177 Subsequently, the EPA issued Notices of Violation for failure to apply for preconstruction and operating permits

171. Id. 172. Id. 173. EPA Response to Public Comments, 70 Fed. Reg. 40016, 40018 (July 12, 2005). 174. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4966. 175. Consent Decree, Citizens Legal Environmental Action Network, Inc. v. Premium Standard Farms, Inc., No. 97-6073-CV-SJ-6, at 4 (W.D. Mo.), available at http://www.epa.gov/oecaerth/resource s/decrees/civil/mm/psfcd.pdf [hereinafter PSF Consent Decree]. 176. Complaint, Citizens Legal Environmental Action Network, Inc. and U.S. Environmental Protection Agency v. Premium Standard Farms, Inc., No. 97-6073-CV-SJ-6, at 7 (W.D. Mo. Apr. 26, 2000), available at http://www.epa.gov/compliance/resources/cases/civil/mm/psfcp.pdf. 177. Id. at 1.

2006] “Sweetheart Deal” 137 under the CAA,178 and for failure to follow the reporting requirements for ammonia under CERCLA section 103.179 The parties settled and entered into a consent degree which was “unprecedented” in the CAFO industry.180 Key terms of the settlement agreement require PSF to pay the United States a civil penalty of $350,000 and install wastewater treatment technology that will reduce the nitrogen content of the wastewater by at least 50% and “substantially eliminate” emissions of hydrogen sulfide and ammonia from treatment systems, fields, and lagoons.181 Additionally, PSF must monitor emissions of particulate matter, volatile organic compounds, hydrogen sulfide, and ammonia from barns and lagoons before and after control technology is implemented, and install an oil sprinkling system to control particulate matter emissions and odor from barns.182 Although CLEAN representatives criticized the settlement,183 it illustrates the EPA is equipped to enforce current environmental laws against AFOs without providing them immunity from past and present violations. Through the settlement agreement, PSF was required to reduce and monitor air emissions from its facilities, and test new technology to fulfill these requirements. The end result of the PSF settlement agreement calls into question the logic behind the Consent Agreement between the EPA and participating AFOs. If the EPA can mandate enforcement and monitoring for PSF under current statutes and scientific knowledge, then the EPA can use that same authority to regulate other AFOs. Another example of the EPA enforcement action against an AFO under the CAA occurred against Buckeye Egg Farms.184 Buckeye, the largest egg producer in Ohio, produced 2.6 billion eggs or four percent of the nation’s total in 2002.185 The company’s facilities are equipped to house “more than

178. PSF Consent Decree, supra note 175, at 5-6. (EPA, Notice of Violation issued to Premium Standard Farms (April 2000); EPA, Clarification of Notice of Violation (September 2000)). 179. Id. 180. “PSF is the first CAFO to agree to conduct source-specific emissions monitoring of its barns and lagoons.” Rockefeller Family Funds, Raising a Stink: Air Emissions from Factory Farms 9–10 (July 1, 2002), available at http://www.environmentalintegrity.org/pubs/ CAFOAirEmissions_white_paper.pdf. 181. PSF Consent Decree, supra note 175, at 13–14. 182. Id. at 12, 67. 183. Press Release, Citizens Legal Environmental Action Network (CLEAN), PSF-ContiGroup Fined $350,000 for Environmental Violations (Nov. 20, 2001), available at http://www.pmac.net/AM/ CLEAN_PR.html (CLEAN representatives described the settlement as “very weak and disappointing” complaining the agreement did not accomplish its goal of providing “immediate, real and lasting relief to those families that must live next to its filth and stench.”). 184. Press Release, Dep’t of Justice, Ohio’s Largest Producer Agrees to Dramatic Air Pollution Reductions from Three Giant Facilities (Feb. 23, 2004), available at http://www.usdoj.gov/opa/pr/2004/ February/04_enrd_105.htm [hereinafter DOJ Press Release]. 185. Id.

138 Vermont Journal of Environmental Law [Vol. 8, Issue 1 12 million chickens in over 100 barns.”186 In 2001, the EPA filed a Notice and Finding of Violation against Buckeye alleging that Buckeye failed to obtain necessary air permits under the CAA for three of its facilities in Ohio.187 The results of preliminary testing conducted at the facilities showed emission levels of particulate matter between 550 and 700 tpy.188 Ammonia emissions were also reported at levels of 275, 375 and 800 tpy.189 Buckeye failed to comply with the EPA’s request for information and an administrative order under sections 114 and 113 of the CAA and violated PSD regulations and the Ohio SIP.190 The Department of Justice (DOJ) initiated enforcement proceedings on behalf of the EPA and in 2004, the parties entered a Consent Decree requiring Buckeye to pay a civil penalty of $880,598.191 Additionally, Buckeye was required to invest more than $1.6 million to install and test innovative pollution controls to reduce emissions of particulate matter and ammonia from its facilities.192 This case is not only an excellent example of the magnitude of pollution emitted from AFOs, but also demonstrates the EPA’s ability to enforce pollution control laws against AFOs. The cases against PSF and Buckeye illustrate that the EPA is authorized under current federal statutes to regulate pollutants emitted from AFOs. The EPA argues that enforcement action through litigation will be lengthy, and, by comparison, the Agreement will provide quicker data results and will bring AFOs into compliance with environmental statutes sooner.193 However, the Consent Decree entered into by PSF was executed only four years after CLEAN filed its initial complaint and only one year after the EPA filed a Notice of Violation.194 Similarly, the settlement agreement between the EPA and Buckeye occurred only three years after the EPA filed a Notice and Finding of Violation against Buckeye.195 In comparison, AFOs can extend their immunity from liability for over two years after the monitoring study concludes and almost four years from when the Agreement is executed.196 Thus, the EPA Consent Agreement does not provide the EPA with a shorter time period to bring AFOs into 186. Id. 187. Id. 188. Id. 189. Id. 190. Notice of Lodging of Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act, 69 Fed. Reg. 11649 (Mar. 11, 2004). 191. Id. 192. Id. 193. EPA Response to Public Comments, 70 Fed. Reg. at 40018. 194. See PSF Consent Decree, supra note 174, at 2–3. 195. DOJ Press Release, supra note 184. 196. See supra notes 152–153.

2006] “Sweetheart Deal” 139 compliance with applicable federal laws. Based on the prior enforcement cases, the EPA not only has the authority to enforce pollution control regulations, but enforcement action is also a practical and timely option. V. PROBLEMS WITH THE CONSENT AGREEMENT AND MONITORING STUDY Critics of the Agreement raise a number of concerns regarding possible outcomes of the study, fearing that the Agreement might not further the purposes of the environmental statutes. Specifically, EPA officials failed to define whether emissions from AFOs will be labeled fugitive or nonfugitive under the CAA, stating that these terms will be defined after the conclusion of the study.197 This leaves open the possibility that the EPA could define AFO emissions in such a way as to exclude them from regulation under the CAA. Also, there is concern that a study by industry representatives might present a conflict of interest, producing biased results in the monitoring study.198 Finally, the study focuses on monitoring emissions, but does not implement mitigation techniques to reduce pollution in the future.199 Development of emission controls at these facilities would achieve the ultimate goal of compliance with federal environmental laws. The EPA should consider concurrently researching mitigation techniques while conducting the monitoring study. In the Agreement, the EPA fails to define AFO emissions as nonfugitive. There is a debate, even within the EPA, over whether emissions from AFOs should be treated as fugitive or nonfugitive.200 Fugitive emissions are defined as emissions “which could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening.”201 Fugitive emissions of a stationary source are not taken into consideration when determining whether a facility is a “major source”

197. See Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4959 (“The Agency plans to issue regulations and/or guidance on [whether emissions from different areas at AFOs should be treated as fugitive or non fugitive] after the conclusion of the monitoring study.”). 198. See Letter from Nancy L. Seidman, President, State and Territorial Air Pollution Program Administrators (STAPPA) and Dennis McLerran, President, Association of Local Air Pollution Control Officials (ALAPCO), to the U.S. Environmental Protection Agency (March 2, 2005). 199. Id. 200. Joel A. Mintz, “Treading Water”: A Preliminary Assessment of EPA Enforcement During the Bush II Administration, SK057 ALI-ABA 183, 193 (discussing interview with J.P. Suarez from the Office of Enforcement and Compliance Assurance (OECA) of the EPA, who describes that right before negotiations of the Agreement were almost complete between OECA and the industries, the office of Air and Radiation indicated they were drafting regulations that would treat all CAFO emissions as “fugitive emissions”). 201. 40 C.F.R. § 51.165(a)(1)(ix).

140 Vermont Journal of Environmental Law [Vol. 8, Issue 1 under the CAA.202 Therefore, there is concern that if emissions from AFOs are classified as “fugitive,” many AFOs would not be classified as a “major source” regulated by the CAA.203 In 1999, the EPA issued a memorandum interpreting the definition of “fugitive emissions” for 40 CFR Parts 70 and 71 relating to Part V of the CAA.204 The EPA relied upon previous memorandums and concluded that emissions which “are actually collected” are not fugitive emissions.205 The EPA went on to state that, “where emissions are not actually collected at a particular site, the question of whether the emissions are fugitive or nonfugitive should be based on a factual, case-by-case determination made by the permitting authority.”206 The EPA noted that,

In determining whether emissions could reasonably be collected (or if any emissions source could reasonably pass through a stack, etc.), “reasonableness” should be construed broadly. The existence of collection technology in use by other sources in the source category creates a presumption that collection is reasonable. Furthermore, in certain circumstances, the collection of emissions from a specific pollutant emitting activity can create a presumption that collection is reasonable for a similar pollutant-emitting activity, even if that activity is located within a different source category.207

Based on the EPA’s interpretation of nonfugitive emissions, there are two arguments as to why AFO emissions are nonfugitive and should therefore be labeled as such by the EPA.208 First, emissions from barns are nonfugitive because they pass through “exhaust vents typical of enclosed

202. 40 C.F.R. § 51.166 (b)(1)(iii) (exempts fugitive emissions from being considered in Title I, Part C); 40 CFR § 51.165(a)(1)(iv)(C) (exempts fugitive emissions from being considered in Title I, Part D); and 40 CFR § 70.2(2) (excludes fugitive sources from being considered in Title V). 203. Letter from Lloyd Eagan, President, State and Territorial Air Pollution Program Administrators (STAPPA) and Ellen Garvey, President, Association of Local Air Pollution Control Officials (ALAPCO), to the Honorable Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency (April 7, 2003). 204. Letter From Thomas C. Curran, Director, Information Transfer and Program Integration Division, to Judith M. Katz, Director, Air Protection Division, Region III (Feb. 10, 1999) (Interpretation of the Definition of Fugitive Emissions in Parts 70 and 71) [hereinafter Interpretation Memorandum]. 205. Id. 206. Id. 207. Id. 208. See Letter from Association of Irritated Residents, Center on Race, Poverty & the Environment, Environmental Defense, Environmental Integrity Project, NRDC & Sierra Club to Christine Todd Whitman, EPA (May 5, 2003) [hereinafter Environmental Defense Letter].

2006] “Sweetheart Deal” 141 animal production systems.”209 These exhaust vents normally found at AFOs are considered to be “other functionally equivalent openings” which pollutants pass through under the definition of fugitive emissions.210 Second, waste lagoons and distribution systems are analogous to operations whose emissions are treated as nonfugitive, such as landfills,211 and barns are analogous to whiskey warehouses and paint manufacturing facilities, whose emissions are also treated as nonfugitive.212 With regards to whiskey warehouses, even though it is uncommon for these facilities to install collection devices, the EPA presumed emissions could reasonably be collected because emissions from warehouses in other source categories are collected and therefore labeled emissions from these facilities as nonfugitive.213 In 1994, the EPA overturned a prior decision which labeled landfill gas emissions as fugitive. Since then, the EPA has treated landfill emissions as nonfugitive.214 The EPA concluded that landfill emissions are nonfugitive because the use of collection technology by other landfill sources . . . creates a presumption that collection of the emissions is reasonable at other similar sources.”215 Emissions from lagoons and distribution systems can also be “reasonably collected” using “existing capture and treatment technology employed nationally at CAFOs.”216 Since there is technology available to collect AFO emissions at some sites, the EPA should presume that this technology is reasonable at other sites and label AFO emissions as nonfugitive. The EPA’s failure to label AFO emissions as nonfugitive in the Consent Agreement prolongs a vital determination and calls into question the purpose of the Agreement. If the EPA labels AFO emissions as “fugitive” at the conclusion of the study, then a majority of AFO emissions will be exempt from regulation under the CAA. If the EPA makes this determination, it would appear that the EPA is buying time and avoiding

209. Id. 210. Id. 211. Environmental Defense Letter, supra note 209. 212. Interpretation Memorandum, supra note 205. 213. Id. 214. Memorandum from John S. Seitz, Office of Air Quality Planning and Standards, to Air Division Directors, Regions I-X, (Oct. 21, 1994) (entitled Classification of Emissions from Landfills for NSR Applicability Purposes). 215. Id. 216. Environmental Defense Letter, supra note 209 (“Biogas recovery systems are a proven technology. Currently, more than 30 digester systems are in operation at commercial U.S. livestock farms, and an additional 30 are expected to be in operation by 2003”) (quoting Managing Manure with Biogas Recovery Systems: Improved Performance at Competitive Costs, The AgSTAR Program, Office of Air and Radiation, EPA-430-F-02-004, Winter 2002).

142 Vermont Journal of Environmental Law [Vol. 8, Issue 1 political pressure from industry while appeasing, or trying to appease, AFO critics. However, if the purpose of the study is in fact to decrease emissions from AFOs, then the EPA needs to guarantee this will happen by defining AFO emissions as nonfugitive. Critics have also expressed concern that the Agreement gives AFO representatives “too much control” over the monitoring study.217 The EPA is allowing “representatives from the various animal husbandry industries” to form a nonprofit organization called the AARC with the specific purpose of managing the monitoring study.218 The AARC will hire the IMC and Science Advisor, and will choose the candidate farms to be monitored.219 There is concern that because the IMC and Science advisor receive their funding from the AFOs, it could impair their objectivity and therefore lead to biased results.220 A study this significant needs the involvement of both industry officials and critics to ensure that all sides are adequately represented and that the results are neutral and unbiased. In addition, there are concerns regarding the number of sites that will be selected for monitoring. Critics have argued that the study will not monitor a sufficient number of sites to provide “scientifically defensible emission estimates” and that the sample size will not be representative of the many different farm traits and practices.221 In response, the EPA stated that it expects approximately twenty-eight farms to be monitored, and that those farms will be “representative of the broadest population of participating animal feeding operations.”222 However, many believe that “the number of sites is too limited to account for all of the differences in types of manure management systems, buildings, ventilation rates, feeding practices, animal type/age, animal management practices, geography, and climate.”223 Therefore, the EPA should monitor a larger number of farms to ensure that the sample size adequately represents AFOs throughout the country.

217. See Letter from Nancy L. Seidman, President, State and Territorial Air Pollution Program Administrators (STAPPA) and Dennis McLerran, President, Association of Local Air Pollution Control Officials (ALAPCO) to the U.S. Environmental Protection Agency (March 2, 2005). 218. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4970. 219. Id. 220. See Letter from Nancy L. Seidman, President, State and Territorial Air Pollution Program Administrators (STAPPA) and Dennis McLerran, President, Association of Local Air Pollution Control Officials (ALAPCO) to the U.S. Environmental Protection Agency (March 2, 2005). 221. EPA Response to Public Comments, 70 Fed. Reg. at 40020. 222. Id. 223. Id.; Comments, Brian Cleghorn, Clean Air Council, Comments on US EPA Waiver for Certain Animal Feeding Operations 6 (Mar. 2, 2005), available at http://www.cleanair.org/pressRoom/ comments%20-%20CAFOmar05.htm.

2006] “Sweetheart Deal” 143 Finally, the EPA should consider concurrently researching and implementing mitigation techniques while conducting the monitoring study. The Agreement does not require AFOs to reduce emissions of pollutants during the monitoring study.224 The 2003 report published by the NAS not only recommended that the EPA coordinate a research program to study air emissions, but also recommended mitigation of AFO air emissions.225 Specifically, the NAS found that “the implementation of technically and economically feasible management practices (e.g., manure incorporation into soil) designed to decrease emissions should not be delayed,” and recommended that “best management practices (BMPs) aimed at mitigating AFO air emissions should continue to be improved and applied as new information is developed.”226 In accordance with the recommendations made by the NAS and in furtherance of the goals of the Consent Agreement, the EPA should require the development and installation of mitigation technology at participating AFOs.

CONCLUSION

The trend towards large-scale animal production operations raises novel problems for communities located near AFOs and the government agencies charged with regulating these facilities. These intensive agriculture operations generate substantial amounts of waste that release high levels of dangerous air pollutants into the environment. The harmful effects of particulate matter, hydrogen sulfide, ammonia, and volatile organic compounds released from AFOs are being studied across the country. As discussed in this Note, researchers in North Carolina and Iowa have reported the negative impacts AFO emissions have on human health and the environment. As the pollution increases and as more information is known about the dangers of these substances, more pressure is put on EPA to use its authority to control and mitigate the release of air pollutants from these facilities. Although EPA is authorized under federal environmental statutes to regulate AFO air emissions, EPA has relinquished its authority under the Animal Feeding Operations Consent Agreement. This Agreement, which was heavily influenced by representatives from the agriculture industry, allows AFOs to continue to release pollutants into the air without any

224. See Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. at 4959 (participating AFOs are not required to determine their emissions and comply with CAA, CERCLA and EPCRA requirements until the emissions estimating methodologies are published). 225. National Academy of Sciences, supra note 5, at 12. 226. National Academy of Sciences, supra note 5, at 6.

144 Vermont Journal of Environmental Law [Vol. 8, Issue 1 requirement to report those releases to local, state, or federal authorities or to comply with permitting requirements under the CAA. The lack of reporting and permitting requirements will leave communities uninformed as to the severity and frequency of air pollution emitted from AFOs, and will diminish the power of states to achieve their ambient air quality standards. EPA’s justification for negotiating the Consent Agreement with AFOs is based on the NAS recommendation that EPA work with the USDA to conduct research establishing a scientific basis for measuring and estimating air emissions from AFOs. However, EPA failed to consider other important recommendations made by the NAS. Namely, NAS also recommended mitigation of AFO air emissions and the implementation of best management practices. Therefore, if EPA follows through with the Agreement and monitoring study, EPA must ensure that the Agreement furthers the goals of both the NAS recommendations and the federal environmental statutes. Thus, the EPA should require the implementation of mitigation techniques during the monitoring study and mandate peer review of the study to prevent biased results. EPA should also define AFO emissions as nonfugitive to ensure that AFOs will be covered under provisions of the CAA. Only if EPA establishes these requirements will the Consent Agreement curtail AFO emissions in the future.