Water Allocation and Water Allocation and Protection of the Protection of the

Environment:Environment:Is a Collaborative Approach Is a Collaborative Approach

Possible?Possible? William E. CoxWilliam E. Cox

Professor of Civil EngineeringProfessor of Civil Engineering

Virginia TechVirginia Tech

Why a Collaborative Why a Collaborative Approach?Approach?

Allocation is the division of supplies Allocation is the division of supplies among competing interests: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 Allocation and environmental protection (EP) should be seen as protection (EP) should be seen as components of a comprehensive components of a comprehensive decision process. decision process.

The Current SituationThe Current Situation

Allocation decisions and decisions Allocation decisions and decisions under various environmental under various environmental controls thatcontrols that

Operate independently andOperate independently and Often produce conflicting results.Often produce conflicting results.

Reasons for Separate Reasons for Separate ProgramsPrograms

AllocationAllocation

Long historyLong history State functionState function Focus on human Focus on human

needs (offstream)needs (offstream) ““Accommodation” Accommodation”

philosophyphilosophy

Environmental Environmental ProtectionProtection

Later beginningsLater beginnings Major federal roleMajor federal role Focus on natural Focus on natural

systems (instream)systems (instream) ““Just say no” Just say no”

philosophyphilosophy

Current Institutional Current Institutional ArrangementsArrangements

Allocation is a state responsibility Allocation is a state responsibility implemented through a variety of implemented through a variety of institutional arrangements.institutional arrangements. EP is a factor in decisions.EP is a factor in decisions.

EP is more complex and includesEP is more complex and includes Federal/state programs under the Federal/state programs under the

Clean Water Act. Clean Water Act. Federal permits / constraints on Federal permits / constraints on

water development.water development. State permits / constraints.State permits / constraints.

CWA Water Quality CWA Water Quality ProgramsPrograms

Point source wastewater controlsPoint source wastewater controls NPDES permit programNPDES permit program

Water quality standardsWater quality standards Limits on specific quality parametersLimits on specific quality parameters Protection of designated usesProtection of designated uses

Water quality certificationWater quality certification Allows state veto of certain federal permits Allows state veto of certain federal permits

Total maximum daily load Total maximum daily load determinationsdeterminations Potential basis for water use restrictionsPotential basis for water use restrictions

Impact of CWAImpact of CWAWater Quality Programs Water Quality Programs

Substantial water allocation implicationsSubstantial water allocation implications Backdoor approach to allocation?Backdoor approach to allocation? Largely within state control.Largely within state control.

Distortion of state management prioritiesDistortion of state management priorities Substantial federal water quality assistance Substantial federal water quality assistance

and mandates.and mandates. Lack of corresponding federal incentives Lack of corresponding federal incentives

relative to water supply.relative to water supply. 1980s demise of water planning assistance under 1980s demise of water planning assistance under

the Water Resources Planning Act of 1965.the Water Resources Planning Act of 1965.

Current Institutional Current Institutional ArrangementsArrangements

Allocation is a state responsibility Allocation is a state responsibility implemented through a variety of implemented through a variety of institutional arrangements.institutional arrangements. EP is a factor in decisions.EP is a factor in decisions.

EP is more complex and includesEP is more complex and includes Federal/state water quality programs Federal/state water quality programs

under the Clean Water Act under the Clean Water Act Federal permits/approvals/constraints Federal permits/approvals/constraints

on water developmenton water development State permits/approvals/constraintsState permits/approvals/constraints

Federal Regulation ofFederal Regulation ofWater DevelopmentWater Development

Several federal regulatory programs Several federal regulatory programs control water development (and control water development (and therefore “trump” water allocation therefore “trump” water allocation decisions):decisions): Permits and approvalsPermits and approvals

E.g., CWA sec. 404E.g., CWA sec. 404 Constraints on approvalsConstraints on approvals

E.G., E.G., National Environmental Policy ActNational Environmental Policy Act Endangered Species ActEndangered Species Act Fish and Wildlife Coordination ActFish and Wildlife Coordination Act National Historic Preservation ActNational Historic Preservation Act

Clean Water Act sec. 404 Clean Water Act sec. 404 PermitPermit

Applies to discharge of dredged or fill Applies to discharge of dredged or fill materials:materials: Broad applicability to waters and activities.Broad applicability to waters and activities.

Administered by Army Corps of Engineers Administered by Army Corps of Engineers subject to EPA veto.subject to EPA veto. Criterion for EPA veto is a finding of “unacceptable Criterion for EPA veto is a finding of “unacceptable

adverse effect....”adverse effect....” Does not require consideration of the need for Does not require consideration of the need for

the project or the availability of alternatives.the project or the availability of alternatives. CWA provides that state allocation authority CWA provides that state allocation authority

“shall not be superseded….”“shall not be superseded….”

Is Sec. 404 an AppropriateIs Sec. 404 an AppropriateDecision Process? Decision Process?

Authority for veto of projects on Authority for veto of projects on environmental grounds is necessary.environmental grounds is necessary.

However, the process is an example of However, the process is an example of fragmented, non-holistic decision fragmented, non-holistic decision making.making. Decision criterion does not include all Decision criterion does not include all

dimensions of human welfare.dimensions of human welfare. Allows the deliberations of the allocation Allows the deliberations of the allocation

process to be ignored in the final decision.process to be ignored in the final decision. Is discretionary restraint by the agency an Is discretionary restraint by the agency an

adequate safeguard? adequate safeguard?

What Is Needed?What Is Needed?

Environmental protection requires Environmental protection requires attention to water quantity as well attention to water quantity as well as quality.as quality.

EP is therefore an allocation issue.EP is therefore an allocation issue. EP should be an integral part of a EP should be an integral part of a

comprehensive water allocation comprehensive water allocation process and not an independent process and not an independent decision process. decision process.

RecommendedRecommendedSystem ImprovementsSystem Improvements

Option A - Minor system enhancements: Option A - Minor system enhancements: Better collaborative planning in support of Better collaborative planning in support of

coordinated allocation / environmental coordinated allocation / environmental protection.protection.

Expansion of sec. 404 decision criteria to Expansion of sec. 404 decision criteria to include broad consideration of the public include broad consideration of the public interest.interest.

Formal appeals process (similar to Formal appeals process (similar to Endangered Species Committee Endangered Species Committee procedure).procedure).

RecommendedRecommendedSystem ImprovementsSystem Improvements

Option B - Major System Overhaul:Option B - Major System Overhaul: Create comprehensive state water Create comprehensive state water

allocation programs thatallocation programs that Integrate EP considerations into water Integrate EP considerations into water

allocation.allocation. Incorporate the results of collaborative Incorporate the results of collaborative

federal/state water resources planning.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 Are subject to federal overrides only under

extreme conditions.extreme conditions.