A delicate balance: Connecticut's minimum water flow statute.

• Author: Kaufman, Bryce

INTRODUCTION

In June 2005, the Connecticut General Assembly passed Public Act No. 05-142, An Act Concerning the Minimum Water Flow Regulations. Signed into law by Governor Jodi Rell, the act directs the Connecticut Department of Environmental Protection (DEP) to issue new minimum instream flow regulations. The current minimum instream flow regulations, requiring dam operators and water diverters to release water to maintain a minimum daily flow, are antiquated, not based on good science, and limited only to rivers and streams that the DEP stocks with fish for recreational angling. While maintaining a certain level of flowing water in a stocked fiver or stream is beneficial for fishing, there are many other benefits of expanded and better minimum instream flow standards, including water flow for natural fish species, other wildlife, the environment, aesthetic beauty, and recreational uses, such as canoeing or swimming. If not enough water is kept instream and flowing, non-consumptive beneficial uses of rivers and streams, such as those above, can become impaired or outright extinguished.

At the time of writing, the DEP has not yet finalized the new instream flow regulations. Proposed regulations were only recently published in October 2009 and were awaiting public comment at the end of January 2010. Even so, the legislation authorizing the DEP to issue the regulations provides guidance as to the content of the regulations. The statute offers an opportunity to assess a state's recent attempt to grapple with the delicate balance that must be struck between consumptive use of water and the need to keep water instream for ecological, recreational, and other beneficial uses.

1. BACKGROUND AND LEGISLATIVE HISTORY

   When thinking about water crises in the United States, Connecticut does not often come to mind. Generally, Connecticut has quite abundant water resources, with an average annual precipitation of forty-seven inches. (1) Nonetheless, Connecticut is not immune from problems relating to water. In August 2005, it experienced severe drought conditions. (2) A report in 2000 from the DEP highlighted "mounting concern and conflict regarding the quantity of water available to meet the state's needs." (3) Connecticut as a whole has enough water to meet water demand, but "water is not always available where or when it is needed." (4) Seasonal variation in water supply, particularly in the summer, coupled with growth and shifting demand means that "there is not always enough water supply to meet the demands of the public in certain areas" (5) and water users are left to compete for an "increasingly limited amount of water." (6) Also worrisome was the DEP's conclusion that "the short supply of water in certain areas has caused adverse environmental impacts, as there is often not enough water in particular water bodies to support a healthy fishery, resource, recreational boating, swimming, and other needs." (7) Connecticut's problems, however, are not limited to occasional water supply issues and instead reveal a more systematic defect in the state's water allocation scheme.

   1. Connecticut's Inadequate Water Allocation Regime

      When it comes to management of water resources, Connecticut is a "regulated riparian" state. (8) Connecticut originally was a common-law riparian (9) state when it came to water rights, but in 1982, the Connecticut General Assembly passed the Connecticut Water Diversion Act, which requires a permit from the DEP for "any activity which causes, allows or results in the withdrawal from or the alteration, modification or diminution of the instantaneous flow of the waters of the state." (10)

      On its face, the Diversion Act is a comprehensive water management scheme. Applicants for permits must justify their needs for the water, show that there are no reasonable alternatives, and show that they have a long-term water conservation plan. (11) The applicant is required to state the effect of the proposed diversion on other factors, including the environment, water quality, and recreation. (12) When deciding whether to grant the permit, the DEP has to consider the effect on other existing and proposed uses of water, existing water conditions, fish, wildlife, navigation, the necessity of the proposed diversion, and whether there are alternatives, including conservation, which would satisfy the need for water. (13) The DEP is also free to place any conditions on a permit. (14) Most permits run from five to ten years, (15) which allows the DEP to assess water uses over time and, as circumstances change, make alterations when permits are up for renewal.

      In reality, however, less than twenty percent of all water diverters in Connecticut have permits. When the Diversion Act was passed, it grandfathered in all water diversions held before July 1, 1982, so that they would have to register with the DEP but did not have to apply for permits. Therefore, an estimated eighty-four percent of water diversions are considered "registered diversions" (16) that are not subject to DEP regulation under the Diversion Act.

      The 2000 DEP report lamented that the "registered diversions may continue indefinitely, regardless of their environmental effects and their impact on the water needs of others." (17) While the DEP can limit negative impacts of permitted diversions, the report stated that the DEP does not have "the authority to prevent or stop a registered diverter from impacting or completely drying up a river, nor require registered diverters to avoid wasting water by metering, leak protection and repair, or other basic conservation measures." (18) The DEP even lacks the ability "to retire unused or defunct registrations." (19) This registration remains on the books even if abandoned and acts as a further obstacle to Connecticut's ability to issue new permits and implement a comprehensive water allocation policy. Furthermore, the DEP expressed frustration that it lacked the scientific information "necessary to engage in meaningful water use management and planning." (20) The 1982 Diversion Act may have created an effective regime to adequately control future water appropriators, but as the DEP Report highlights, serious problems with water flow continue to exist because of grandfathered registered diverters.

   2. Connecticut's Water Woes Lead to Litigation: Minimum Stream Flow Standards and Waterbury v. Washington

      The 2000 Report was not entirely accurate when it claimed that the DEP lacked the authority to stop a registered diverter from drying up a river. The DEP has the authority to require water diverters to keep a certain amount of flowing water in rivers and...