Location:
RIVERS; WATER AND RELATED RESOURCES;
Scope:
Connecticut laws/regulations; Background;

OLR Research Report


December 3, 2010

 

2010-R-0458

STREAM FLOW LEGISLATION

By: Kristen L. Miller, Legislative Analyst II

You asked for a legislative history of PA 05-142, An Act Concerning (AAC) the Minimum Water Flow Regulations, and if the legislature intended to have the regulations apply to groundwater. You also asked a number of other questions related to the proposed regulations, which we listed and answered below.

SUMMARY

PA 05-142 (sSB 1294, as amended by Senate “A”) required the Department of Environmental Protection (DEP) commissioner to revise the department's water flow regulations for all rivers and streams where a dam or other structure impounds or diverts the water flow. Under prior law, the commissioner had to set minimum flow standards for rivers and streams (1) where a dam or other structure impounded or diverted flow, and (2) that were stocked with fish by DEP. Also, the regulations had to (1) provide for stream and river ecology, aquatic life, wildlife, and public recreation, and (2) be consistent with the needs and requirements of public health, flood control, industry, public utilities, water supply, public safety, agriculture, and other lawful water uses.

Under PA 05-142 (as codified at CGS 26-141a through c), the commissioner must revise the regulations to provide for such needs and base the regulations on the best available science and, to the greatest extent possible, on natural variations in water flow and water levels. It requires the regulations to apply to all river and stream systems, not just those DEP stocked with fish.

The bill that became the act was originally proposed by the Environment Committee and amended by the Senate. The original bill applied to a wider range of water bodies. Public hearing testimony centered on the adequacy of the current regulations and the need for the regulations to balance different needs and concerns. The committee favorably reported a substitute bill narrowing the bill's scope, adding exemptions and provisions to balance different needs, and providing factors to consider when developing regulations, among other things.

The Senate's amendment required DEP to consult with an advisory group when revising the regulations and exempted state-approved water management plans from complying with them. It also subjected municipalities to the regulations and specified what constitutes “best available science,” among other things.

The Senate and House discussions focused mainly on explaining and clarifying the regulations' application. One major concern was how dams or diversions regulated under other state laws such as the Water Diversion Act, may be affected. In the Senate debate, Senator Stillman said that whether dams would be grandfathered or need to comply with the new flow regulations would be addressed by DEP as it develops the regulations. In the House, Representative Mushinsky stated that the bill was not revisiting existing diversions, but the legislature will need to address that issue in the future. The governor signed the bill on June 24, 2005, and it took effect October 1, 2005.

During the floor debates, legislators did not explicitly say if the act applied to “groundwater,” but there was reference to “stratified drift aquifers,” geologic formations associated with groundwater, in the context of discussing “best available science.” DEP maintains that the statute's plain language authorizes it to regulate groundwater withdrawal affecting water flow in its proposed regulations.

LEGISLATIVE HISTORY OF PA 05-142

Environment Committee

SB 1294. PA 05-142 originated as SB 1294, AAC the Minimum Water Flow Regulations, which the Environment Committee raised. The original bill substantially changed the flow statute, expanding its scope to regulate all water bodies as opposed to only stocked rivers and streams.

It required the DEP commissioner to adopt regulations for dams or other structures impounding or diverting waters, which it broadly defined as “all rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other bodies of water, natural or artificial, vernal or intermittent, public or private, that are contained within, flow through or border upon this state or any portion thereof.” The bill required the commissioner to adopt interim regulations to provide sufficient water flow to preserve and protect natural aquatic life by January 1, 2006. The regulations had to be based on natural variation in flow and water level, and the bill allowed DEP to grant variances if the use still would protect water quality.

The bill required the commissioner to adopt permanent regulations by an unspecified date for dams or other structures impounding or diverting the waters. These regulations had to (1) provide for maximum sustainable use of state waters; (2) provide sufficient flow to preserve and protect natural aquatic life and the waters' biological, chemical, and physical integrity; and (3) be watershed-specific and based on natural variation of flows and water levels.

The bill required any person, firm, or corporation maintaining a dam or structure to comply with the regulations once adopted. The commissioner would order violators to comply with the regulations according to a specific schedule. If a violator failed to comply, the commissioner could ask the attorney general to pursue legal action.

The bill also replaced the statute's procedural requirements for adopting regulations with those of the Uniform Administrative Procedure Act (UAPA).

Public Hearing. The Environment Committee held a public hearing on SB 1294 on March 21, 2005.

Three public officials spoke in favor of the bill. Senator Roraback, citing the Waterbury v. Washington (260 Conn. 506 (2002)) litigation, stated, “…we have been stifled in our efforts [to update the regulations] by virtue of this pending litigation because everything was seen through the prism of choosing sides in pending litigation.” (In that case, the state Supreme Court held that Waterbury's diversion of the Shepaug River did not violate the Connecticut Environmental Protection Act because the decrease in the water level still met state minimum flow requirements. The court remanded the case to the Superior Court and the parties ultimately settled their dispute. OLR Report 2005-R-0213 summarizes the case.)

Senator Roraback added that the bill was needed to (1) ensure adequate water flow in all state streams to maintain stream health; (2) improve quality of life for people throughout the state; and (3) balance adequate and safe public drinking water supplies with maintaining stream flow levels.

Jane Stahl, Deputy Commissioner of DEP, and Dr. Vincent Ringrose, Chairman of the Fisheries Advisory Council, also supported the bill, citing the Waterbury litigation and settlement. Stahl addressed protecting state water bodies from impairment and acknowledged the issue's complexity due to state water basin differences. She cautioned that the bill, as written, (1) may prematurely remove existing stream flow standards from operation; (2) deletes criteria for developing regulations; and (3) requires significant DEP resources, which are unavailable without taking resources from other programs. Stahl suggested using an interim, scientifically-based, approach.

Six members of the public testified in support of the bill and seven in opposition.

Representatives of nonprofit environmental and river advocacy groups generally supported the bill. Much of their testimony focused on the inadequacy of current regulations to prevent ecological damage and the need to preserve water quality and quantity. For example, Dr. Marc Taylor, Chairman of the Pomperaug River Watershed Coalition and speaking as Vice President of Rivers Alliance of Connecticut, testified that without appropriate stream flow, concentrations of toxics could increase to levels that could harm plants, animals, and humans. Supporters were also concerned about whether DEP had enough resources to accomplish the bill's goals and removing current statutory criteria for developing the regulations that balance water needs.

Speakers supporting the bill included David Sutherland, Nature Conservancy; Curt Johnson, senior attorney with Connecticut Fund for the Environment; Kirt Mayland, Director of the Eastern Water Project at Trout Unlimited; Margaret Miner, Rivers Alliance of Connecticut; Taylor; and Marianne Corona, speaking as an individual.

Representatives of public and private water companies and other groups expressed concern that the bill would compromise the companies' ability to provide an adequate public water supply, an outcome that could also compromise public health. Many opposed the bill's language protecting aquatic life without addressing human needs, and some were concerned about eliminating the requirement that DEP consult with Departments of Public Health (DPH) and Public Utility Control (DPUC). Betsy Gara, Executive Director of the Connecticut Water Works Association, was particularly concerned about including all waters within the bill's scope, the adequacy of scientific information for regulating flows, and DEP's capacity to administer the regulations. Two speakers proposed implementing a more comprehensive water resource planning and allocation process that incorporates stream flow.

Speaking against the bill were Adrianne Vaughan, Director of Corporate Communications for Aquarion Water Company of Connecticut; Randolph Blackmer, President of Connecticut Farm Bureau; John Hudak, Environmental Planning Manager for the South Central Connecticut Regional Water Authority; James Randazzo, Acting Director of Water Treatment and Supply for the Metropolitan District; David Radka, Manager of Water Resources and Planning with Connecticut Water Services; Kenneth Skov, Superintendent of Water for the City of Waterbury Bureau of Water; and Gara (Environment Committee, Public Hearing Transcript, March 21, 2005).

The committee received written testimony from these speakers and others who did not speak at the hearing.

Joint Favorable Substitute. After the public hearing, the Environment Committee reported a substitute bill that restored much of the statutory language.

sSB 1294 required the DEP commissioner to adopt water flow regulations for all diverted or impounded rivers and streams (whether by a dam or other structure), regardless of whether DEP stocked them with fish, by December 31, 2006. Under current law, the regulations applied only to rivers and streams DEP stocked. Under the original bill, they applied to all water bodies, not just rivers and streams.

In adopting regulations, the commissioner had to consult with DPH, DPUC, and any other agency, board, or commission with whom she found it advisable.

As under current law, the regulations would (1) preserve and protect the natural aquatic life contained within such waters; (2) preserve and protect the natural and stocked wildlife dependent on the water flow; (3) promote and protect water use for public recreation; and (4) provide for the needs and requirements of public health, flood control, industry, public utilities, water supply, public safety, agriculture, and other lawful water uses. The substitute required the flow regulations be based on the best available science and on natural variation of flows and water levels.

Under the substitute bill, the regulations may provide special conditions or hardship exemptions, including (1) an economic hardship, (2) an extreme circumstance, (3) an agricultural diversion, (4) a river or stream subject to a DEP-approved flow management plan, (5) a water quality certification related to a Federal Energy Regulatory Commission license, and (6) a diversion necessary to comply with the Public Health Code.

As under original bill, the substitute (1) required any person, firm, or corporation maintaining a dam or structure to comply with the regulations; (2) authorized the commissioner to order anyone violating the regulations to comply with them according to a specific schedule; and (3) allowed her to ask the attorney general to take legal action against a violator.

And like the original bill, the substitute replaced the current notice and hearing procedure with the UAPA and specified that the current regulations would remain in effect until new ones were adopted.

The Environment Committee favorably reported the substitute bill to the Senate on April 1, 2005 by a 28 to 0 vote.

Senate Action

Public Health Committee Referral. The Senate referred the substitute bill to the Public Health Committee on April 20, 2005. The committee reported it favorably on April 25, 2005 by a vote of 21 to 0 with five members absent.

Senate Amendment “A.” The Senate took up the substitute bill on May 4, 2005, with Senator Stillman offering Senate Amendment “A.” The amendment (1) required the DEP commissioner to consult with an advisory group, in addition to DPH and DPUC, when adopting regulations; (2) exempted specific flow management plans from the regulations; (3) subjected municipalities to the regulations; and (4) provided examples of “best available science” (e.g., natural aquatic habitat, biota, subregional basin boundaries, and areas of stratified drift). It also made other changes.

Senator Stillman summarized the amendment and urged its adoption. Senators McKinney, Roraback, and Murphy supported the amendment with Senators Roraback and Murphy referencing the Waterbury v. Washington litigation and settlement. Senator Stillman also clarified that the bill “strictly addresses stream flow” and was not a water diversion bill.

Senate “A” was adopted on a voice vote.

Debate on Bill as Amended by Senate “A.” During the debate on the amended bill, Senators Fasano, Meyer, and Guglielmo asked clarifying questions or expressed concerns.

Senator Fasano asked Senator Stillman:

● if the bill gave DEP control over all rivers and streams, not just those stocked with fish (Senator Stillman said yes);

● how “best available science” and hardship exemptions are determined (Senator Stillman said DEP, with advice from the advisory group, would determine them);

● whether the old regulations would remain in place until new ones are adopted (Senator Stillman said yes); and

● whether existing dams would be grandfathered or must comply with the new regulations (Senator Stillman replied, “… I think that's yet to be determined by the agency,” adding, “[i]n terms of grandfathering, those will be some of those discussions as new regulations are adopted.”).

Senator Fasano also stated that he was troubled by the level of discretion the bill gave DEP, but acknowledged the need for a uniform system for regulating rivers and streams. He emphasized the need for a clear method to determine economic hardship and, in general, more communication from DEP about its standards.

Senators Meyer and Guglielmo were also concerned about DEP's discretion under the bill. Senator Meyer specifically referred to the economic hardship exemption as an “escape hatch” and hoped that DEP would not abuse the exemption provisions.

The Senate passed the amended bill by a vote of 34 to 1 with one member absent (Senate Transcript, May 4, 2005).

House Action

Planning and Development, Energy and Technology, and Judiciary Committee Referrals. The House referred the bill to the Planning and Development, Energy and Technology, and Judiciary committees, and each reported it favorably. The Planning and Development Committee vote was 14 to 3 with one member absent; the Energy and Technology Committee, 17 to 0; and the Judiciary Committee, 29 to 0 with 13 members absent.

Debate on Senate “A.” The House debated Senate “A” on May 27, 2005, with members asking mostly technical and clarifying questions.

Representative Mushinsky summarized Senate “A,” stating that the bill responds to 10 years of litigation over diversions and would “chang[e] from a convoluted approach to a science based, organized, orderly approach to river diversion.” An orderly process could avoid long and expensive court fights, she said. Throughout the debate, Representative Mushinsky said the bill's intent was to include all rivers and streams, not just those stocked with fish.

Three legislators asked questions about the advisory group.

Representative Powers asked about its composition and enforcement powers (Representative Mushinsky explained it would advise the commissioner about competing water interests and would consist of members from industry, utilities, government, and public interest). Representatives Chapin and Minor asked if the group would also include recreational users and municipalities (Representative Mushinsky stated the group would include these interested parties).

Representative Powers also asked if the current law did not already provide an orderly process (Representative Mushinsky said that the process was orderly with respect to stocked streams). Representative Powers also asked if the bill would reverse the Waterbury decision (Representative Mushinsky said no because the decision was exempt in the bill) and if there is an appeals process (Representative Mushinsky said yes).

Representative Chapin asked how DEP decides whether to stock a stream (Representative Mushinsky said she was unsure, but speculated that DEP decides based on requests from the public). He also asked why municipalities were included in the amendment (Representative Mushinsky said some municipal utilities impound water and not including them previously was an omission) and if they would be held to a different standard than private companies (Representative Mushinsky said no). Representative Chapin was concerned about including municipalities because his town was in the process of purchasing a declassified reservoir from a private water company.

Representative Witkos asked if the bill would change the process for conducting roadwork around bridges (Representative Mushinsky said no). He asked if the listed “best available science” methods are presently used, and what methods were used previously (Representative Mushinsky replied that the methods are new available scientific information and the previous method was based on single day consumption). Representative Witkos also asked if the bill would adversely affect recreational use of the Farmington River absent a public health problem or drought emergency (Representative Mushinsky said no).

Representative Miner asked several questions about existing stream flows and diversions. He asked if:

● some rivers are “oversubscribed” (that is, existing registrations or permits allow for more water to be withdrawn from a river than it has on a given day) (Representative Mushinsky confirmed this);

● DEP could take back or reduce existing diversion permits (Representative Mushinsky said the bill did not revisit existing permits, that they could not be unilaterally taken away, and existing diversions would have to be separately addressed by the legislature);

● diversions under 50,000 gallons would now be regulated because of the bill (Representative Mushinsky said no, that the bill did not change the current threshold for reviewing diversions); and

● pending diversion permits would be set aside by the bill (Representative Mushinksy said no).

Representative Wasserman asked if DEP would redefine water courses and if the regulations would apply to intermittent streams (Representative Mushinsky said only that they would not affect intermittent streams or small neighborhood water courses), and if the regulations would affect smaller municipally dammed bodies of water (Representative Mushinsky said they would).

Representative Alberts asked if the bill includes private utility hydropower projects (Representative Mushinsky said the bill would not change current law regarding these facilities).

Representative O'Neill summarized his experience with the Water Diversion Act, explaining why it is important to carefully consider scientifically-based knowledge when making legislation. He asked if it the bill intended to exempt future legal agreements and stipulations from the regulations (Representative Mushinsky said the intent is to exempt existing agreements, but future agreements may also be exempted).

The House passed Senate Amendment “A” on a voice vote.

Debate on House Amendment “A.” Planning and Development Committee chairman, Representative Wallace, offered House Amendment “A,” which would have curtailed DEP's discretion by requiring DEP to grant certain special conditions and exemptions. But after offering the amendment, Representative Wallace said he opposed it and urged its defeat.

Representative Miner explained that the Planning and Development Committee thought the amendment was necessary to communicate to DEP the importance of considering economic and human interests.

Representative Mushinsky opposed House “A,” saying it removed the discretion DEP needed to deal with “extreme conditions” and balance competing interests.

Representatives Boucher, O'Neill, Noujaim, and Cafero asked why Representative Wallace introduced the amendment and then opposed it.

House Amendment “A” was then defeated by voice vote.

Debate on sSB 1294, as Amended by Senate “A.” The House discussed the bill as amended by Senate “A.”

Representative Stripp asked about the bill's definition of a stream and expressed concern about regulating certain small streams. Representative Mushinsky stated that the bill affected impounded or diverted streams that flow year round.

The amended bill passed the House by a vote of 144 to 0 with seven members absent (House Transcript, May 27, 2005).

PROPOSED STREAM FLOW REGULATIONS

What is the Status of the Proposed Regulations?

DEP published its proposed stream flow regulations in October 2009 and held public informational meetings on them. These meetings were followed by a public hearing on the regulations, held on January 21, 2010. DEP heard oral testimony from 68 individuals and received 380 written comments. The required comment period ended on February 4, 2010. All written comments are available at http://www.ct.gov/dep/cwp/view.asp?a=2719&q=434018&depNav_GID=1654.

DEP revised the regulations and submitted final proposed regulations to the attorney general for review and then to the Legislative Regulations Review Committee for approval in August 2010. The final proposed regulations are available at http://www.ct.gov/dep/lib/dep/water/watershed_management/flowstandards/streamflow_standards_regulations_revised_8_27_10.pdf.

On October 26, 2010, the Legislative Regulation Review Committee acted on the final proposed regulations, rejecting them without prejudice and asking DEP to revise them.

Is there any legislative intent or authority included in PA 05-142 and its history allowing DEP to regulate groundwater?

There is little explicit discussion in the act or in its history about whether to include or exclude groundwater from the regulations to be adopted under the flow statute.

Written testimony provided by Connecticut Water Service, Inc. to the Environment Committee during the public hearing on SB 1294 expressed concern about the bill's language, saying that the bill, as written, could be construed as regulating groundwater withdrawals in the same manner as surface water. This concern stemmed from expanding the scope of regulations beyond stocked streams to include all state waters while simultaneously including all structures diverting water. (After the public hearing, the bill was substituted and amended in the Senate.)

DEP stated in its Hearing Report (responding to comments about the proposed regulations) that the flow statute already authorized it to regulate groundwater withdrawal that affects water flow in rivers and streams (DEP Hearing Report, August 16, 2010 available at http://www.ct.gov/dep/lib/dep/water/watershed_management/flowstandards/hearing_report_final_8_16_10.pdf). It bases its position on the statute's plain text which includes the term “other structure.” DEP stated that the plain meaning definition would include wells that divert groundwater hydrologically connected to surface water, such as rivers and streams.

The term “groundwater” was not explicitly used during the Senate or House debates, but Representative Mushinsky did refer to “aquifer(s)” several times when discussing “best available science” and determining the amount of water in “stratified drift.” Stratified drift aquifers are geologic formations associated with groundwater. Attached are excerpts from the floor debates where these terms were used, as prepared by the Legislative Library.

(“Aquifer” and “stratified drift” are defined in CGS 22a-354h (Ch. 446i Water Resources) with the former meaning, “a geologic formation, group of formations or part of a formation that contains sufficient saturated, permeable materials to yield significant quantities of water to wells and springs” and the latter meaning, “a predominantly sorted sediment laid down by or in meltwater from glaciers and includes sand, gravel, silt and clay arranged in layers.”)

How do the other New England states regulate stream flow?

Like Connecticut, the other New England states base their river and stream flow restrictions on natural flows and the need to balance competing recreational, environmental protection, and public water needs. Attached is OLR Report 2010-R-0436 which provides a brief summary of how the other New England states manage stream flow.

As discussed in that report, all the states directly or indirectly regulate river and stream flow.

● Maine's regulations establish river and stream flows and lake and pond levels to protect natural aquatic life and other designated uses based on natural flows and the uses and characteristics of waters.

● Massachusetts is currently developing stream flow regulations.

● Rhode Island manages stream flow through water quality rules and water diversion permitting processes.

● New Hampshire statutorily required the Department of Environmental Services commissioner to develop stream flow rules for designated rivers and is conducting a pilot study on two rivers.

● Vermont monitors stream flow through Water Quality Standards, permitting processes, and snowmaking regulations.

Is there a federal mandate associated with DEP's proposed regulations?

There is no federal requirement or mandate governing the state stream flow regulations. As explained by Ralph Abele, EPA Region 1, EPA acts more as a technical resource or advisor on specific stream flow

issues unless stream flow is a component of water quality rules which would need to be reviewed and approved at the federal level under the Clean Water Act.

For example, in 1996 the EPA Regional Administrator for Region 1, John DeVillars, issued a letter to state environmental protection agencies explaining the need to address water flow in addition to water quality. Reductions in water flow, he explained, can disrupt fish passage, reduce protective cover, increase accessibility for predators, and increase toxic chemical concentration, among other things. He recommended either a numeric or narrative flow standard.

Another example of the federal government's indirect advisory role is the U.S. Fish and Wildlife Service internal flow policy directive issued in the early 1980's for setting instream flow levels at water development projects (New England Flow Policy). The policy has also been used by some states for planning and permitting purposes and establishing their own flow rules. Again, this policy is not mandated upon the states, and some states have developed their own internal flow policies.

Does the small business impact statement for the proposed regulations put a dollar amount on the cost to businesses to make infrastructure upgrades such as dam repair?

No. DEP's October 13, 2009 Small Business Regulatory Impact and Regulatory Flexibility Analysis does not estimate how much it would cost businesses to comply with the proposed regulations, such as improving existing infrastructure or investing in new infrastructure. It is available at http://www.ct.gov/dep/lib/dep/water/watershed_management/flowstandards/proposedstreamflowstandardsregulations_smallbusinessimpact.pdf.

The document states that some small businesses owning or operating a dam or other structure that impounds or diverts water flow in a river or stream system may be required to comply with flow standards in the regulations. It also states that many small businesses will not be regulated because of exemptions or flexibility in the regulations. But the cost to any individual business would vary, depending on factors such as adequacy of current water supplies, water conservation, existing infrastructure condition, and resources dedicated to past system maintenance. Financial support such as low interest loans or grants may be available to offset costs for small water companies (but not businesses) through the Drinking Water State Revolving Fund.

The Small Business Regulatory Impact and Regulatory Flexibility Analysis was not updated after DEP revised and published the final proposed regulations in August 2010.

How much state and federal funding does DEP receive annually for dam repairs?

Table 1 shows the annual state appropriations for dam repairs for FYs 2005 through 2010. The state receives no federal funds for this purpose.

Table 1: State Dam Repair Funds FYs 2005-2010

Funding: DEP Dam Repairs

Fiscal Year (FY)

State Appropriation ($)

FY 10

132,489

FY 09

138,809

FY 08

137,940

FY 07

131,091

FY 06

129,314

FY 05

129,314

Source: Office of Fiscal Analysis

Could DEP's proposed regulations, if enacted in their present form, allow DEP to require impacted businesses to pay for dam or infrastructure repairs?

DEP has not yet submitted its revisions to the final proposed regulations, which the Legislative Regulations Review Committee rejected without prejudice on October 26, 2010. However, if the committee approved the current proposed regulations, they would apply to all river or stream systems in the state, and any person owning or operating a dam or other structure impounding or diverting water that affects the flow of water would have to comply with them.

Although the proposed regulations do not explicitly require businesses to pay for dam or infrastructure repairs, existing law could require them to do so. The stream flow statute requires DEP to enforce the regulations promulgated under it. Arguably, this authority includes requiring businesses to repair or upgrade dams to comply with the regulations.

Specifically, if the commissioner finds any person (including a business) or municipality in violation of the regulations, she is required to issue an order requiring compliance. The order must include a time schedule for accomplishing the steps necessary for achieving compliance. If the person or municipality does not comply, then the commissioner may ask the attorney general to bring a court action. This process could result in businesses having to pay for repairs to their dams or infrastructure to comply with the proposed regulations (CGS 26-141c).

Other statutes authorize DEP to require dam repairs. CGS 22a-402 requires it to investigate and inspect all dams and other structures that could cause death or property damage if parts were to break away. If DEP determines the dam or structure is unsafe, it must order the person owning or controlling it to place it in a safe condition or have it removed.

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