Water Allocation and Protection of the Environment: Is a Collaborative Approach Possible? William E. Cox Professor of Civil Engineering Virginia Tech

Why a Collaborative Approach? Allocation is the division of supplies among competing interests: Allocation is the division of supplies among competing interests: Among offstream uses. Among offstream uses. Between offstream and instream uses. Between offstream and instream uses. Among instream uses. Among instream uses. Allocation and environmental protection (EP) should be seen as components of a comprehensive decision process. Allocation and environmental protection (EP) should be seen as components of a comprehensive decision process.

The Current Situation Allocation decisions and decisions under various environmental controls that Operate independently and Operate independently and Often produce conflicting results. Often produce conflicting results.

Reasons for Separate Programs Allocation Long history Long history State function State function Focus on human needs (offstream) Focus on human needs (offstream) “Accommodation” philosophy “Accommodation” philosophy Environmental Protection Later beginnings Major federal role Focus on natural systems (instream) “Just say no” philosophy

Current Institutional Arrangements Allocation is a state responsibility implemented through a variety of institutional arrangements. Allocation is a state responsibility implemented through a variety of institutional arrangements. EP is a factor in decisions. EP is a factor in decisions. EP is more complex and includes EP is more complex and includes Federal/state programs under the Clean Water Act. Federal/state programs under the Clean Water Act. Federal permits / constraints on water development. Federal permits / constraints on water development. State permits / constraints. State permits / constraints.

CWA Water Quality Programs Point source wastewater controls Point source wastewater controls NPDES permit program NPDES permit program Water quality standards Water quality standards Limits on specific quality parameters Limits on specific quality parameters Protection of designated uses Protection of designated uses Water quality certification Water quality certification Allows state veto of certain federal permits Allows state veto of certain federal permits Total maximum daily load determinations Total maximum daily load determinations Potential basis for water use restrictions Potential basis for water use restrictions

Impact of CWA Water Quality Programs Substantial water allocation implications Substantial water allocation implications Backdoor approach to allocation? Backdoor approach to allocation? Largely within state control. Largely within state control. Distortion of state management priorities Distortion of state management priorities Substantial federal water quality assistance and mandates. Substantial federal water quality assistance and mandates. Lack of corresponding federal incentives relative to water supply. Lack of corresponding federal incentives relative to water supply. 1980s demise of water planning assistance under the Water Resources Planning Act of s demise of water planning assistance under the Water Resources Planning Act of 1965.

Current Institutional Arrangements Allocation is a state responsibility implemented through a variety of institutional arrangements. Allocation is a state responsibility implemented through a variety of institutional arrangements. EP is a factor in decisions. EP is a factor in decisions. EP is more complex and includes EP is more complex and includes Federal/state water quality programs under the Clean Water Act Federal/state water quality programs under the Clean Water Act Federal permits/approvals/constraints on water development Federal permits/approvals/constraints on water development State permits/approvals/constraints State permits/approvals/constraints

Federal Regulation of Water Development Several federal regulatory programs control water development (and therefore “trump” water allocation decisions): Several federal regulatory programs control water development (and therefore “trump” water allocation decisions): Permits and approvals Permits and approvals E.g., CWA sec. 404 E.g., CWA sec. 404 Constraints on approvals Constraints on approvals E.G., E.G., National Environmental Policy Act National Environmental Policy Act Endangered Species Act Endangered Species Act Fish and Wildlife Coordination Act Fish and Wildlife Coordination Act National Historic Preservation Act National Historic Preservation Act

Clean Water Act sec. 404 Permit Applies to discharge of dredged or fill materials: Applies to discharge of dredged or fill materials: Broad applicability to waters and activities. Broad applicability to waters and activities. Administered by Army Corps of Engineers subject to EPA veto. Administered by Army Corps of Engineers subject to EPA veto. Criterion for EPA veto is a finding of “unacceptable adverse effect....” Criterion for EPA veto is a finding of “unacceptable adverse effect....” Does not require consideration of the need for the project or the availability of alternatives. Does not require consideration of the need for the project or the availability of alternatives. CWA provides that state allocation authority “shall not be superseded….” CWA provides that state allocation authority “shall not be superseded….”

Is Sec. 404 an Appropriate Decision Process? Authority for veto of projects on environmental grounds is necessary. Authority for veto of projects on environmental grounds is necessary. However, the process is an example of fragmented, non-holistic decision making. However, the process is an example of fragmented, non-holistic decision making. Decision criterion does not include all dimensions of human welfare. Decision criterion does not include all dimensions of human welfare. Allows the deliberations of the allocation process to be ignored in the final decision. Allows the deliberations of the allocation process to be ignored in the final decision. Is discretionary restraint by the agency an adequate safeguard? Is discretionary restraint by the agency an adequate safeguard?

What Is Needed? Environmental protection requires attention to water quantity as well as quality. Environmental protection requires attention to water quantity as well as quality. EP is therefore an allocation issue. EP is therefore an allocation issue. EP should be an integral part of a comprehensive water allocation process and not an independent decision process. EP should be an integral part of a comprehensive water allocation process and not an independent decision process.

Recommended System Improvements Option A - Minor system enhancements: Option A - Minor system enhancements: Better collaborative planning in support of coordinated allocation / environmental protection. Better collaborative planning in support of coordinated allocation / environmental protection. Expansion of sec. 404 decision criteria to include broad consideration of the public interest. Expansion of sec. 404 decision criteria to include broad consideration of the public interest. Formal appeals process (similar to Endangered Species Committee procedure). Formal appeals process (similar to Endangered Species Committee procedure).

Recommended System Improvements Option B - Major System Overhaul: Option B - Major System Overhaul: Create comprehensive state water allocation programs that Create comprehensive state water allocation programs that Integrate EP considerations into water allocation. Integrate EP considerations into water allocation. Incorporate the results of collaborative federal/state water resources planning. Incorporate the results of collaborative federal/state water resources planning. Federal planning incentives? Federal planning incentives? Provide coordination for regulatory decisions. Provide coordination for regulatory decisions. Are subject to federal overrides only under extreme conditions. Are subject to federal overrides only under extreme conditions.