Understanding Water Withdrawal Regulations

The Natural Resources and Environmental Protection Act, Act 451 of 1994, deals with the preservation of the Great Lakes resource. The additions made to the act in 2009 introduced the requirement for registration and permitting for large quantity water withdrawals (LQW) within the Great Lakes region. For ease of understanding to prepare owners, designers and contractors for the requirements dictated within Part 327 and Act 451, here are requirements for registration and permitting. Prior to breaking ground on a new project, one of the steps involved is determining and completing all the necessary permits per federal, state and local regulations. In the Great Lakes region, including Michigan and neighboring states, one regulation that is not well known—but is gaining attention—is water withdrawal. Water is a valuable resource and with the shortages over the last few years, attention is shifting to the Great Lakes in the St. Lawrence basin region, one of the most colossal freshwater systems in the world. The five Great Lakes contain about 6 quadrillion gallons of fresh water, amounting to 84 percent of North America’s freshwater, and 21 percent of the world’s freshwater. Growing worldwide demand on freshwater threatens this supply, warranting its protection.

States bordering the Great Lakes—including Michigan, New York, Minnesota, Wisconsin, Illinois, Indiana, Ohio and Pennsylvania—acknowledged this concern and came together to create the Great Lakes Region Compact. On Dec. 8, 2008, this compact, specifically the Great Lakes-St. Lawrence River Basin Water Resources Agreement, was signed. It is a legally binding agreement between all eight Great Lake states (or “Council”) to protect water quantity by banning large-scale diversions and promoting water conservation. Though not legally binding, but morally compelling, the compact also gained international support from the Great Lake-bordering Canadian provinces of Quebec and Ontario. The compact places a ban on new or increased diversions and instructs each state, at minimum, to adopt and implement measures for new/increased diversions, manage and regulate exceptions, and manage and regulate withdrawal and consumptive uses along with water use reporting. The data can then be assessed by the council to gain an improved understanding of the individual and cumulative impacts of withdrawals from various locations and water sources on the basin ecosystem; to more accurately gauge basin water levels; to improve scientific understanding of the waters of the basin; and mitigate potential overdraws that can negatively impact the basin as a whole.

Who Does This Impact?

It impacts “…any person who withdraws water in an amount of 100,000 gallons per day or greater average in a 30-day period (including consumptive uses) from all sources, or diverts water of any amount, shall register the withdrawal or diversion by a date set by the council unless the person has previously registered in accordance with an existing state program.” Water means ground or surface water contained within the basin. The basin (or watershed) is an area that commonly collects and drains off into a common outlet or body of water. In reference to this compact, the Great Lakes-St. Lawrence River Basin means the watershed of the Great Lakes and the St. Lawrence River. Withdrawal is defined as a means of taking water from surface water or groundwater. This also includes:

• Diversions, which is defined as a transfer of water from the basin into another watershed, or from the watershed of one of the Great Lakes into that of another (subbasins) by any means of transfer.
• Consumptive use, the portion of water withdrawn or withheld from the basin that is lost or otherwise not returned to the basin due to evaporation, incorporation into products, or other processes (i.e. waters used for irrigation, dust control, mining applications).

Though it may seem that the original intent of the compact was to target large quantity withdrawals for consumptive use, or uses that may compromise quality in commercially large quantities (i.e. bottling water facilities, irrigation, municipal water intake, nuclear plants, etc.), any water withdrawal—groundwater and surface alike—is required to abide by this compact. By this blanket of coverage, construction (or temporary) operations involving water such as dewatering, waterway diversions or even pump downs of water bodies, has been implicated. Primary responsibility falls to the property owner and is the one required to complete these registrations, permits and/or reports, though it is not uncommon in the construction industry to see such responsibilities passed through contracts to consultants or contractors. General information required on the permits/registrations includes:

• withdrawal or diversion address/location
• property owner/registrant information
• estimated withdrawal or diversion amount (pumping system total capacity)
• differentiating between surface and groundwater withdrawal
• discharge location(s)
• water use
• anticipated withdrawal or diversion duration

Groundwater withdrawal permits may also require such information as number of wells, well depths and reference the geological formation, and/or aquifer, where the withdrawal is anticipated to occur. This permit/registration withdrawal is equal to the sum of the pump capacitates of all the wells, plus the sum of the intake capacities and/or pump capacities of all surface water intakes at the site. During the design phase of the proposed task requiring a withdrawal, pump capacities may not be well known. Sometimes when filing for a permit it is best, in particular projects requiring groundwater pumping, to provide a reasonably conservative estimate for the anticipated withdrawal. This will reduce the possible need for a revision to, or requirement for refilling a new withdrawal permit should flow rates exceed those specified on the original permit. All participating states require that “all registrants shall annually report the monthly volumes of the withdrawal, consumptive use and diversion as per each state’s reporting process” per withdrawal or site, but only a few states require actual flow meters on the withdrawal to ensure accuracy. Though the compact sets the minimal precedence for withdrawal registration and reporting, as well as the standard for review and decision-making, each of the eight participating states may impose a more restrictive decision-making standard for withdrawals under their authority. This means they may have their own permits/registrations, thresholds, forms, review process, governing authority, time frames, potential fees ($0 to $5,000), reporting methods and enforcements. Some have minimal-to-no lead time prior to the withdrawal, while others have weeks to months of lead time often due to a more rigorous application, review process or a public notice period. It is the permittee’s responsibility to verify within the appropriate state of governance what the process for filing for a withdrawal permit is.

Discharge or Pollution Prevention Permits

The water withdrawal regulation and permits are not to be confused with the discharge or pollution prevention permits that may apply on a project. Discharge water is the portion of the water withdrawn which is not consumed during use and is returned to some location after use. Authorization or permission from the owner of the discharge location may also be a requirement alongside the withdrawal. Any required discharge of water to surface waters of the United States is governed by the Clean Water Act (CWA) and National Pollutant Discharge Elimination System (NPDES) permits. Discharge of water to groundwater is governed by the Safe Drinking Water Act, Resource Conservation and Recovery Act, and the Comprehensive Environmental Response Compensation and Liability Act. The Great Lakes Region Compact instead set a standard for states to follow at minimum, but this may not include any applicable local or federal permits/registrations that may be required in addition to these permits. It is important to become familiar with the local government requirements in addition to the state’s when contemplating a water withdrawal. The compact itself does not reference any consequences of failing to file, or failing to file on time, but it does grant power to the council, and each state, to promulgate and enforce such rules and regulations as may be necessary for the implementation and enforcement of this compact. The council powers include conducting investigations, instituting court actions, making contracts, having and exercising all powers necessary or convenient to carry out its express powers or those that may be reasonably implied. Though consequences for failure to comply could be found in any of the states’ regulations, they are allowed to shut down operations and potentially fine the offender. Should a permittee, or applicant, feel an injustice has occurred or choose to challenge a decision on a withdrawal or diversion, the compact dictates that a person, state or council may commence a civil action in the relevant state’s courts and administrative systems to compel any person to comply with this compact should any such person, without approval having been given, undertake a new or increased withdrawal, consumptive use or diversion that is prohibited or subject to approval pursuant to this compact. The available remedies shall include equitable relief, and the prevailing or substantially prevailing party may recover the costs of litigation, including reasonable attorney and expert witness fees, when the court determines that such an award is appropriate. Each state may adopt provisions providing additional enforcement mechanisms and remedies including equitable relief and civil penalties applicable within its jurisdiction to assist in the implementation of this compact. Though this compact has been in effect since 2008 and is subject to review, assessment and revision every five years based on data collected, it is an easy assumption to make that all states’ requirements would be clearly defined among the largest industries involved. However, the compact and its related state legislature can often—due to the broad scope—be vague on certain withdrawals. This vagueness in the legislature has sometimes resulted in inconsistent enforcement and confusion with regard to understanding the scope of the legislature. Often, enforcement of this regulation is discovered indirectly while working on a project, be it a Part 41 permit for wastewater infrastructure projects (Michigan), or applying for well permits. Owners try to be in compliance with the state’s compact regulations by working with the governing authorities such as the Department of Natural Resources (DNR), but often the parameters beyond meeting checklist items are irrelevant and costly. This late attention, unclear direction and incomplete enforcement ultimately causes delays and additional costs on the project. Key resources for the compact and state regulations can be found at glslcompactcouncil.org and gsgp.org, and this document from May 2015: Glslcompactcouncil.org/docs/download/GLCompactResourceKit—5-15.pdf. Governing authorities for each state are:

• Illinois, Indiana, Minnesota, Ohio and Wisconsin: DNR
• Michigan: Department of Environment, Great Lakes and Energy (EGLE)
• New York: Department of Environmental Conservation
• Pennsylvania: Department of Environmental Protection