Proposed rules prompt annual debate over water usage
Concern over water supply in New Hampshire, driven by demand from rapid development and an increasing awareness to the delicate nature of natural resources, has again sparked the attention of many in the state, including the Department of Environmental Services. In the latest efforts, new rules for registration and reporting of water use are nearing completion. These new regulations are likely to attract extra attention from private users, environmental advocates and regulators. With an unusually dry spring and minimal snowmelt, the annual attention paid to water shortages will only be exacerbated. For many ordinary water users, such as those who draw on the public water supply or private wells for household or small business uses, water user registration and reporting rules are likely unfamiliar. By contrast, however, the heaviest of water users — such as those involved with agriculture, energy production, construction, snowmaking, aggregate, bottlers of various types and some golf courses — know vaguely of registration requirements and the need to report water withdrawals and discharges. The new administrative rules are nearing the end of the rulemaking review process. Under the direction of the groundwater commission — a group convened to study ways to improve New Hampshire’s ability to monitor and manage groundwater — the new rules will tighten registration and reporting requirements. RSA chapter 488, titled “Water Management,” became effective Jan. 1, 2006, and affirms the statutory authority for registration and reporting rules. RSA 488:3 expressly requires DES to administer a revamped water user registration and reporting program. The new statute also establishes accuracy requirements for usage reporting and enables DES to inspect facilities and fine violators. Although not yet effective, the current draft of the proposed registration and reporting rules illustrate key differences from the outgoing rules. While many of the key components of registration and reporting remain unchanged, the new rules clarify several areas that had resulted in inadequate reporting under the old rules. Similarities and differences Any water user having to register should take time to understand the requirements proposed by the draft rules. Key similarities in the old and proposed measures include: • The threshold to qualify for registration and reporting by a single real property or place of business continues to be cumulative water use that exceeds an average of 20,000 gallons of water per day in any seven-day period, or exceeds a total volume of 600,000 gallons in any 30-day period. • Registration is still accomplished by submitting a form published by DES and providing identification information for the water user and the location. • Measurement must still be accurate to within 10 percent of actual amounts. • Registered users shall still report monthly water usage quarterly on forms published by DES. • Water use measurement and calculation records must be retained by registered users for three years. Perhaps the most significant change under the proposed rules is that each individual withdrawal, and each individual discharge point exceeding 20,000 gallons per day, is expressly required to be separately measured, unless a waiver is obtained. Other key differences: • Under the old rules, registered users were not required to measure sources individually, even though the reporting requirements called for monthly water use per source or destination, thereby creating a point of confusion. • New exceptions to the reporting requirements are proposed for test wells, pressure testing pipes or tanks and emergency cleanup in the case of spills. • Registration forms shall require a statement of purpose for the water usage and shall locate individual withdrawal and discharge points on a topographic map. • For purposes of measurement of open channel flow or pipe flow, the proposed rules adopt a more flexible “equivalent methods” approach enabling water users to choose a reliable method of measurement, subject to DES approval. • The proposed rules specifically incorporate the standards for water use data described in the U.S. Bureau of Reclamation “Water Management Manual, Third Edition.” • Records of measurement device calibration and maintenance must be retained by users for five years. • Rather than directly measuring output, agricultural water users may estimate water use based on pump capacities and duration of pumping. • Upon registering with DES, a water user constructively grants permission for the state to enter upon the property and inspect compliance. • Whereas penalties were rare under the old rules, because there was no express enforcement mechanism, ignoring the new rules may result in administrative fines for the failure to register, false reporting or tampering with any measuring device under RSA 488:8. In spite of the enhanced burden and enhanced enforcement remedies under these proposed rules, they still serve the interests of the heaviest water users. The data gathered is intended to help avoid potential future problems relating to well interference, declining water tables and diminished stream flows — consequences that would have the greatest negative impact on registered water users. DES’ efforts to further refine the water use data gathered under these registration and reporting rules demonstrate a convergence of public and private interests. Where the regulatory perspective is grounded in scientific data, industry practices that require significant water use are better positioned to defend historic water use practices against more extreme attempts to restrict or liberate heavy water usage. nhbr Erik Newman, an associate with the Concord-based law firm of Gallagher, Callahan & Gartrell, focuses his business practice in the areas of real estate development, land use and commercial transactions.