Five common misconceptions about water rights in N.C.
To wrap up the discussion in several previous entries on “Who Owns the Water,” I am giving into the spirit of the times and its love for listicles with this set of common misconceptions about water rights in North Carolina. There is a wonderful quality about the naivete with which most people in the southeastern United States approach water rights: it’s a naivete born of plenty, born of the fact that so few people here have had to worry about water scarcity, and even then for relatively short periods of time compared to people in arid regions of the world. But the droughts of the early 21st century proved that drought can and will happen here, too. And when the water shortages do come, that lack of practice and preparation puts us in a bad place for responding. So while we gaze at the American West at the huge challenges that drought presents, let’s not forget that our time will come again, too. When it does, let’s hope we’ve learned at least a few things from past problems. Of course, the hardest lessons to learn are the ones we think we already understand, but in fact we have wrong. Here are five of those things concerning water rights.
1. “If someone upstream is using too much water and drying up my intake (or my well), government will step in and protect me.”
The pervasiveness of this belief was confirmed for me in the last two major droughts, when I received calls from many people in the piedmont (and a few in the mountains) who were sure there was something government could and would do to protect their inflows, if only they knew the right person to call. No, sorry, in North Carolina, at present, the State’s role (I am including local government here in using the word “State”) is very limited when it comes to regulating water withdrawals. The public water systems whose run-of-river intakes ran dry or nearly dry in the last two major droughts (including Shelby, Statesville and Rocky Mount) had to figure out their own way to find out where “their” water (see next lesson) went when it suddenly dropped below the level of their intake. If and when they succeeded (by aerial and on-foot inspections) in finding the upstream extractors (most often agricultural irrigators who had placed temporary pipes and pumps in the stream), the best they could do was to try to negotiate, with little or no legal backing.
North Carolina did pass a law in 1991 (see G.S. 143-215.22H and the rules that implement it) that requires surface and ground water withdrawers who withdraw 100,000 gallons per day or more to register their water withdrawals and surface water transfers with the State and update those registrations at least every five years. Agricultural water users can take up to one million gallons of water a day or more without registering. But what we learned in 2002-2003 and 2007-2008 is that the unpredicted shortages come downstream from temporary withdrawals, in low-flow conditions, that are not registered.
Another response to future droughts was the requirement for Water Shortage Response Plans required by the legislature in 2003 as part of the longstanding Local Water Supply Plans. North Carolina’s water supply planning initiative originally developed as a response to a severe drought that occurred in 1988. The first Local Water Supply Plans were submitted to the State’s Division of Water Resources (DWR) in 1989 and primarily included data regarding municipal water demand. Every subsequent drought has generated new questions and new initiatives to piggy-back on the program first implemented in the late 1980s. You can read about these plans and review what’s been submitted here. I’m hopeful these will help, but experience already shows us that, in many jurisdictions, production of these plans is just farmed out to a consultant and the plan itself may not be understood by or even accurate for the staff and leaders of a given jurisdiction. The Water Allocation Study in 2007-2010 looked carefully at the Local Water Supply Plans, including the Water Shortage Response Plans, as of that date, and concluded that they were mostly inadequate and incomplete. As a result of this finding, the legislature required DENR approval of future plans. We shall see in the next drought how well that has worked.
The situation is even worse for wells that dry up, since there is no easy way to determine whose pumping has lowered your water levels, especially in the fragmented crystalline bedrock of the piedmont and mountain regions. Even if you find the culprit, it’s on you to take them to court and attempt to prove that their withdrawals are “unreasonable.” This is the downside of North Carolina’s easy come, easy go approach to water withdrawals. When the water gets scarce, it’s pretty much everyone for themselves, even if one of those “everyone’s” is a large public water system on which entire regional economies depend.
2. “My town’s public water supply permit says we get to take 5 million gallons per day from this stream, so we own 5 mgd.”
Public water supply systems (any system that supplies piped drinking water to at least 15 connections or 25 or more people 60 or more days per year) are permitted for a certain treatment capacity. Some system operators and owners view this permitted capacity as a right to the permitted amount of water. In fact, this number is just a statement of treatment capacity, not withdrawal rights. But it’s understandable how system owners and operators come to view it as a water right, because the review process for new and expanded surface water plants has evolved to include some review (occasionally a sophisticated, site-specific review) of the amount of source water available for treatment.
Anyone who wants to build or expand a public water supply system must first have their plans reviewed and approved under the Safe Drinking Water Act (among other permits). There are a huge number of these systems in North Carolina (over 6000), which is nationally famous for having many small systems. These systems are obviously critical to public health. The public water supply regulators typically review around 2000 applications each year. Most of the review by the Public Water Supply section concerns engineering and system management details. But systems that plan to withdraw or increase withdrawals of surface water also have regulatory attention paid to the source of water that will be treated and distributed.
The actual regulatory driver for review of source water withdrawal capacity and effects can vary; possibilities include environmental review under the State Environmental Policy Act, the N.C. Dam Safety Law, federal energy laws, and the federal Clean Water Act Sections 401 or 404. For example, structures (such as permanent intake structures) placed in streams to withdraw water for any purpose may require a permit from the US Army Corps of Engineers under Section 404 of the Clean Water Act.
Until the 1990s, the typical State review given to new or expanded surface water treatment plants was nothing or a comparison of projected demand with a flow statistic generated by the U.S. Geological Survey, the 7Q10 (the 7-day, 10-year low flow, a low flow estimation that is also used for wastewater discharge permitting). Starting in the late 1980s, the State began requiring some projects to conduct an “instream flow study” because the proposed maximum withdrawal amount was a significant percentage of the 7Q10. No instream flow study was (or is) required if the water withdrawal for the proposed project is less than 20% of the 7Q10. Today, the location of the proposed project and the habitat rating of the downstream aquatic habitat will determine how deep an analysis is used to determine the permitted capacity. The NC Wildlife Resources Commission does the habitat rating. The State has developed some hydrological models of flow in each river basin to improve everyone’s understanding of how much water will be available in stream segments. A group of water resources and wildlife experts who have reviewed North Carolina’s approach to instream flows recommended adoption of flow regimes that are driven by the amount of disturbance to the ecological integrity of the stream. The legislature concurred, and the State has developed quite sophisticated methods for considering ecological flows, but the fate of those methods will have to await another blog entry–the story is itself long and complicated.
Meanwhile, the reality is that the science behind the number that represents a public water system’s permitted treatment capacity for surface water sources varies tremendously–from state-of-the-art site specific review and full hydrologic modeling, to literally nothing (for systems that were permitted prior to around 1990 and have not expanded since then). The number is not a legal guarantee by the State that a certain amount of water will be available to a water system. Only a State water withdrawal permitting system could supply that sort of guarantee.
3. “The city (or county) can force you to stop using your well.”
Cities and counties have a lot of power over things in their jurisdiction that might cause harm to other people or to their water systems. For example, they have broad powers to enact rules to protect their public enterprises, and they can force property owners in close proximity to water lines to connect to the public system. In times of drought, when city and county water systems are requiring their customers to cut back on water use, it’s natural for those water systems and their customers to want to curtain groundwater withdrawals by people in the jurisdiction. There are also places in the state (notably Wake County) where private well users believe their wells are systematically being interfered with by other well users, and the local governments have been called on to try to resolve these well interference conflicts. In the two major droughts of the early 21st century, several local governments attempted in one way or another to force private well users to curtail or stop pumping groundwater. To my knowledge, none of these attempts faced litigation from the property owners. In my opinion, and that of my predecessor at the School of Government, the great N.C. water law expert Milton Heath, neither cities nor counties nor any other owners of public water systems in the state have clear legal power to force property owners to curtail groundwater use. Only the State, acting through the legislature or the Environmental Management Commission (under the Water Use Act of 1967, G.S. 143-215.11 through .22 which allows creation of “Capacity Use Areas”) clearly has that power. So a city or county that tries to force someone to stop using a well, other than for a public health reason, is skating on very thin legal ice.
The State’s Well Construction Act (Article 7 of G.S. Chap. 87) does allow for local regulation and more stringent standards than the State’s. See G.S. § 87-96. This is fairly broad language and might be read to support a groundwater quantity concern, especially given any health-related bases that a local government might document in connection with wells that dry up. However, the Well Construction Act goes on:
Provided, however, that the Environmental Management Commission shall not reject any application under this subsection for permission to construct a well except upon the ground that the well would not be in compliance with a provision of this Article [the Well Construction Act] or with a rule or regulation of the [EMC under the Well Construction Act].
GS 87-88(a).
Furthermore, in 2011 the General Assembly passed Session Law 2011-255, which added this language to the Well Construction Act:
Notwithstanding any other provision of law, no permit for a well that is in compliance with this Article and the rules adopted pursuant to this Article shall be denied on the basis of a local government policy that discourages or prohibits the drilling of new wells.
G.S. 87-97(e) (emphasis added).
There is also the problem that North Carolina has treated groundwater as a property right, to an extent, as discussed in an earlier post. North Carolina has adopted a rule of law concerning groundwater that states, in essence, that property owners are legally entitled to make reasonable use of the groundwater beneath their property for purposes that benefit and concern that same property. On the other hand, this rule—the ‘American rule’—does not recognize a landowner’s right to withdraw groundwater for the purpose of distributing and selling it to benefit other properties, if that withdrawal would work to the detriment of properties that adjoin the point of withdrawal. See Bayer v. Nello Teer Company, 256 N.C. 509 (1962).
Thus a prohibition by a local government on water withdrawals of all types could run into major legal challenges, including “takings” claims, by persons who assert that the right to use their groundwater is a fundamental property right that came to them with the purchase of their property. On the other hand, a prohibition on the water withdrawals made for the purpose of selling and distributing water elsewhere might be done consistent with these common law property rights. There would probably be a legal challenge to the local unit’s power along these lines, but it is possible a court would stretch the local police powers to permit it to extend the common law rule in this way..
4. “Agriculture is an insignificant water user in NC”
It’s all about seasonality. Ag advocates make this claim based on annual averages. Annual averages are meaningless when it comes to competition for water in low-flow season, which in North Carolina is generally late summer and fall. At this time nearly every year there is the “triple witching hour” of low precipitation; high demand for energy from air conditioning, which uses huge quantities of water; and a need for irrigation of crops if the ag producer has a farm that relies on irrigation. The result is that, in the critical time period of late summer and early fall, agricultural water use is a huge factor in overall water demand in North Carolina. Here is an estimate prepared by N.C. DENR near the end of the drought of 2007-2009:
5. “Power generation appears to use a lot of water, but most of it is returned so consumptive use is low”
The main ways in which we produce electricity all consume large amounts of water, providing multiple opportunities for efficiency improvements. Thermoelectric power plants burn fossil fuels to heat water and generate steam, and lose massive amounts of water to evaporation in cooling the condensors. Nuclear plants also use massive amounts of water for cooling, and lose water through evaporation. Hydroelectric power involves storage of water in reservoirs, and these reservoirs are increasingly used also as drinking water sources, but they lose water to evaporation from the reservoir. Natural gas from hydraulic fracturing (“fracking”) requires large volumes of water.
Estimates of the amount of water consumed in generating a kilowatt of electricity range from an aggregate total for the United States of 2.0 gal/kWh (7.6 L/kWh) of fresh water evaporated per kWh of end-use electricity (noting thermoelectric average of 0.47 gal/kWh) (1.8 L) and hydroelectric power plants evaporated 18 gal (68 L) of fresh water per kWh consumed by the end user* to estimates as high as 27 gal/kWh (attributed to U.S. Department of Energy by Catawba RiverKeeper).
It’s true that the enormous volumes of water withdrawn from lakes and rivers to cool power plants do not take into account the large return flows, so that the consumptive use percentage from power generation is lower than many other uses. But it remains that case that a typical power plant in North Carolina can easily use the same amount of water in a day as a medium-size town will use. So energy conservation (or generation by solar or wind) is also water conservation.
*(Consumptive Water Use for U.S. Power Production December 2003 • NREL/TP-550-33905 P. Torcellini, N. Long, and R. Judkoff National Renewable Energy Laboratory 1617 Cole Boulevard Golden, Colorado 80401-3393 NREL is a U.S. Department of Energy Laboratory Operated by Midwest Research Institute • Battelle Contract No. DE-AC36-99-GO10337
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