David M. Flannery
     Jackson Kelly PLLC
       Charleston, WV

• Historical water use initiatives
• 2003 Legislative Interim Committee
  Stakeholder Process
• Governor Wise’s Initiative
• 2004 Water Resources Protection Act
 Historical Legislative Initiatives

• WVa Code 22-11-2 (circa 1960’s)
“… that water resources … with respect to the
  quantity thereof be available for reasonable use
  by all citizens of this state.”
• Water Rights Commission (1982) recommended
• Water allocation system bill (S.B. 123 – 1983)
• Water Resources Management Act (S.B. 249 –
2003 Legislative Interim Committee
       Stakeholder Process

• Co-Chairs:
     Senator John Unger
     Delegate Nancy Houston
• Membership
  – Industry
  – Environmental
  – Academia
  – Government
• Recommended legislation
Legislative Interim Committee Proposal
             January 9, 2004

 •   Waters are valuable natural resources
 •   Preserve common law
 •   Protect environment
 •   Lead agency: Geological and Economic Survey
 •   12 months future survey of use and withdrawal
 •   Survey sources in other states
 •   Recommendations to legislature by 12/31/06
 •   Created Water Resources Preservation Commission
 •   $5,000 civil penalty
 •   Limited confidentiality
                Governor’s Bill
               January 14, 2004
•   Waters are valuable natural resource
•   Preserve common law
•   Protect environment
•   Lead agency: DEP
•   36 month future survey of use and withdrawal
•   No mention of surveying sources in other states
•   Recommendations to legislature by 1/31/08
•   No Water Resources Preservation Commission
•   $5,000 civil penalty, after NOV
•   DEP given substantive rulemaking authority
•   Limited confidentiality
Water Resources Protection Act

     • Passed: March 13, 2004

     • In effect: June 10, 2004
 Water Resources Protection Act
          Preserving Common Law

• “water resources … be available … for citizens …
  consistent with and preserving all other existing rights
  and remedies recognized in common law or by
• “no provision of this article may be construed to
  amend or limit any other rights and remedies created
  by statutes or common law in existence on the date of
  the enactment of this article.”
Water Resources Protection Act
              Legislative Policy

• “protect and conserve water resources”
• “water resources … essential … economic vitality”
• “Waters … claimed … for … citizens”
• “manage … quantity … for … use and enjoyment and
  for protection of the environment”
• Necessary to determine “withdrawal” and “uses”
• “Citizen” is not defined
 Water Resources Protection Act
             Survey - Applicability

• Include withdrawals of greater than 750,000 gallons in
  any month beginning with 2003 [22-25-3(c)]
   – Single water resource
   – Include multiple withdrawals by single person used at
     one facility
• Exclude purchases from water utility that is reporting [22-
• Exclude coal, oil, gas and mineral extraction [22-25-2(k)]
   – If water is not “used”
   – If water is not a “factor” in low flow condition
• DEP to make “good faith effort” to survey
  out-of-state withdrawals [22-25-3(d)]
Water Resources Protection Act
     Survey - Required Information

• Include withdrawals in 2003, 2004 and 2005 [22-25-3(b)]
• Include consumptive and non-consumptive uses [22-25-
• Include both surface and ground water [22-25-3(b)]
• Include “withdrawals” only (not use) [22-25-3(b)]
• Include stream flow conditions that impact withdrawal
  rates [22-25-3(f)]
• Water utilities need not supply information on interbasin
  transfer [22-25-3(c)] (although there is no general
  requirement for the reporting of data on such transfers)
Water Resources Protection Act
                 Survey - Form

• DEP to determine form, including electronic [22-25-
• Withdrawals for farm and households will be estimated
  (by DEP?) [22-25-3(c)]
• DEP authorized to propose rules to implement survey
 Water Resources Protection Act
           Survey - Data Reporting

• Provide most accurate information available [22-25-3(g)]
• Include withdrawals during seasonal conditions and
  future potential maximum withdrawals [22-25-3(g)]
• Coal-fired electric generating facilities report nominal
  design capacity [22-25-3(g)]
• Include both actual and maximum potential [22-25-3(k)]
• Maximum potential means the maximum designed
  capacity of a facility to withdraw water under its physical
  and operational design [22-25-3(e)]
• Actual withdrawal established through metering or
  alternative scientific method (reasonable estimate or
  indirect calculation)
 Water Resources Protection Act
             Survey - Registration

• Statewide registration beginning 2006 [22-25-3(b)]
• Applicable to large quantity “users” [22-25-3(b)]
• Good faith efforts to include out-of-state persons
  “withdrawing”water [22-25-3(d)]
• Include stream flow conditions [22-25-3(f)]
• Cease reporting after 3 years unless 10% change in
  annual withdrawal or change in location of intakes and
  discharge [22-25-3(h)]
• DEP authorized to propose rule [22-25-3(m)]
Water Resources Protection Act
      Alternative Sources of Data

• DEP utilize data from other sources
   – if “reliable”
   – if “reasonably available”
• If not “reasonably available” DEP can obtain in
   – survey
   – registration
• Cooperative arrangements with other agencies
Water Resources Protection Act
           Legislative Oversight

• Joint Legislative Oversight Commission on Water
• DEP to report quarterly on
   – survey
   – recommendations
• DEP to submit annual reports
• DEP to submit final report December 31, 2006
 Water Resources Protection Act
             Final Report Contents
• Identify all water resources
• Identify consumptive versus non-consumptive
• Identify intake and discharge points
    – Latitude / longitude
    – Amount of use
    – Nature of use
• Identify interbasin transfer
• Drought / flood assessment
• Identify areas of concern
    – In-stream uses
    – Off-stream uses
    – Declining groundwater
    – Interfering withdrawals
• Identify growth areas
• Discuss practices to reduce withdrawal
 Water Resources Protection Act
Recommendations to Legislative Committee

• Need to implement water quality management strategy
  in regions where the quantity of water resources are
• Include analysis of costs and benefits
Water Resources Protection Act

• Applicable to both survey and registration
• Confidentiality claim
   – Trade secret
   – Homeland security
   – other
• Provide written justification
• DEP empowered to approve or deny
• Data can be shared with governmental entities
Water Resources Protection Act

• Mandatory compliance
• 30 notice required before assessing first
• Penalty for failure to comply: $5,000 per
         Issues Not Addressed

• Regulation of withdrawal
  – Allow non-riparian owners access to water
  – Limit withdrawal to address hot sports
  – Limit withdrawal to provide water for economic
  – Link water quantity to environmental programs
  – Extend to both use and withdrawal
          Issues Not Addressed

• Permitting
   – Information gathering
   – Restrict withdrawal
   – Fund data analysis
   – Provide vehicle for taxation
   – Priority: interbasin transfers
         Issues Not Addressed

• New Taxes
  – Severance tax as a “valuable resource”
  – Out-of-state sources
         Looking to the Future

• Many unresolved issues
• Participate in survey
• Assist in data gathering on other issues
• Become more familiar with common law rights and
  experience of other states
• Identify the problem
• Seek a role in the interim process
• Get ready for the 2007 Regular Legislative Session

To top