June 26, 2013 Meeting Notes

WATER USE ADVISORY COUNCIL

June 26, 2013 | 1:00 - 4:00 P.M.
Michigan Manufacturers Association Conference Room
620 S Capitol Ave Lansing, MI 48933

Members or Alternates Attending
Gary Dawson, Consumers Energy; Pat Staskiewicz, American Water Works Association (AWWA); Dave Hamilton, The Nature Conservancy; Gildo Tori, Ducks Unlimited; James Clift, Michigan Environmental Council; Charles Scott, Michigan Golf Course Owners; Wm. Scott Brown, Michigan Lake and Stream Associations; Andy Such, Michigan Manufacturers Association; Tom Frazier, Michigan Townships Association; Laura Campbell, Michigan Farm Bureau; Bryan Burroughs, Michigan Trout Unlimited; Robert Whitesides, Kalamazoo River Watershed Council; Ben Russell, Southwest Michigan Water Resources Council (SWMWRC); Steven Rice, Michigan Wetlands Association; Pat Norris, Michigan State University (MSU); Dave Lusch, MSU; Howard Reeves*, U.S. Geological Survey (USGS); Jon Bartholic*, MSU Institute of Water Research (IWR); Jon Allan*, Michigan Department of Environmental Quality (MDEQ) Office of the Great Lakes (OGL); Jamie Clover Adams*, Michigan Department of Agriculture and Rural Development (MDARD); Tammy Newcomb*, Michigan Department of Natural Resources (DNR); Dina Klemans*, DEQ Water Resources Division (WRD)

Members Absent
Erin McDonough, Michigan United Conservation Clubs (MUCC), Frank Ettawageshik, United Tribes of Michigan; Michael Newman, Michigan Aggregates Association; Jim Byrum, Michigan Agri‐Business Association; George Carr, Michigan Ground Water Association; Dr. Michael Stafford, Cranbrook Institute of Science; Brian Eggers, Michigan Chamber of Commerce; Alan Kehew*, Western Michigan University; Peter Manning *, Department of Attorney General (DAG)

Note: Ex‐officio members are denoted by an asterisk.

Others Attending
Larry Walton, SWMWRC; Jeremiah Asher, IWR; Jim Johnson, MDARD; Abby Eaton, MDARD; Jim Milne, MDEQ WRD; Andy LeBaron, MDEQ WRD; Brant Fisher, MDEQ; Laura Young, IWR; Matthew Lautenberger, MSU; Bonnie McGill, MSU; Jason Geer, Michigan Chamber of Commerce; Frank Ruswick, IWR.

Welcome
Andy Such kindly hosted the meeting and welcomed the Council. Since the three tri‐chairs were unable to attend, Dave Lusch chaired the meeting.

Andy Such was thanked for hosting the meeting.

Program Related News
Some of the work groups had inquired about non‐members serving on a work group. It was clarified that work group membership is limited to Council members only. Non‐members can participate in a work group, but cannot be counted during votes or when reaching consensus. Non‐members should contact work group co‐chairs if they're interested in participating. It's at the discretion of the co‐chairs the extent to which they participate (e.g., whether they present at a work group meeting, participate in discussions, meet individually with a co‐chair). 

The MDEQ reported on enhanced monitoring work they're doing in southwest Michigan for the 2013 season. The Quality of Life agencies and USGS have partnered with private well drillers and property owners to collect various surface and groundwater data. Monitoring results will aid the MDEQ during the SSR process. Jim Milne agreed to provide a written summary of the monitoring effort, which was sent out after the meeting.

The Water Strategy is seeking public participation through a public engagement strategy. As part of that strategy, the tribal nations were consulted to determine to best engage with them on the development of the Water Strategy.

MDNR Fisheries Division received funds under the State Wildlife Action Program, a federal aid program funded through the U.S. Fish and Wildlife Service, to assist with the MDNR's continued participation in Groundwater council activities and in supporting some of the technical work for the water withdrawal assessment tool.

MDARD has given Ottawa County $50,000 towards its water resources study and another $300,000 has been allocated for the start of fiscal year 2014.

Council members were encouraged to share relevant and important news items such as the fracking article that Dave Lusch sent out before the meeting

The Cumulative Impact assessment required by the Compact is out. Public comments are encouraged through December 2013.

Public Comment on Agenda Items
There was no public input at this time.

Work Group Reports and Discussion (~30 minutes each)
The issue of implementation costs for recommendations was brought up during one of the work group reports. The Leadership Committee talked about this at their last meeting and will continue to have discussions on the matter. Work groups should be cognizant of a recommendation's feasibility given MDEQ's resources and time. MDEQ will likely prioritize recommendations based upon these criteria. The Council was encouraged to think about exploring public/private partnerships. The ability to leverage funding is heavily dependent upon the collective voice of the Council.

Technical Underpinnings
Dave Hamilton presented on behalf of the Technical Underpinnings work group. A handout was provided before the meeting which covered their topics for discussion. Generally speaking, the topics were in order of when they would be addressed, but some may be worked on simultaneously. The work group will identify tasks and set a schedule after incorporating feedback from the Council.

Topics 1‐4 were described as less pressing issues since they focused on having common understanding of the Water Withdrawal Assessment Tool (WWAT).

For item 5.b. (statistical basis for index flows), Council members discussed exploring whether there is a statistically significant difference between the 2007 data used in the WWAT and data collected since that cut‐off year. Members also discussed how the gages used to determine index flows have varying records that go back anywhere between ten to ninety years. Would there be a different outcome for assigned index flows if only the last ten years of records were used?

Item 9 (developing a framework for return flow accounting) was cited as a complex task and would need to be tackled earlier than later. Currently, return flows aren't automatically determined but may be factored in during an SSR. It was noted that the wording of this item suggested that the work group had already made a decision to develop a framework for return flow accounting without evaluating if it should be done. The Work Group agreed that an evaluation would be done on this issue.

Both the Technical Underpinnings and Environmental Monitoring work group plans highlight stream classification modifications, which was also addressed by the previous Council. The work groups were encouraged to keep this in mind as they move forward to avoid making recommendations that were already given. Furthermore, the Quality of Life agencies convened an internal work group which is currently examining technical modifications and other fixes to the WWAT including stream classification determinations. A timeline for when they'll have this work completed will be discussed at their next meeting and shared with the work groups.

Regarding item 11.b. (recommend process to change stream classifications), the statutory authority no longer resides with the NRC due to Executive Orders issued in 2009. After discussions with the AG's office, it was determined that the MDNR Director now has the authority.

There was lengthy discussion about item 13, which deals with including short‐term intensive withdrawals (e.g., fracking, construction dewatering) in the water withdrawal assessment process. The WWAT wasn't originally designed to address one‐time intensive withdrawals. Although Part 327 doesn't require fracking operations to use the WWAT, the industry is using it to evaluate their withdrawals under an Order issued by the Supervisor of Wells. MDEQ recently began accounting for fracking withdrawals, which are removed from the system when the fracking withdrawal ends. During this discussion, several questions were raised, but boiled down to the following two: Does the WWAT lend itself to intensive one‐time withdrawals? Is this the right application to evaluate that kind of use?

The Technical Underpinnings work group would like to coordinate with the Water Users work group on items 5.d. and 11.c., which describe situations where an SSR or a stream classification change would decrease the amount of available water in a water management area below the Adverse Resource Impact (ARI) line and affect previously authorized withdrawals.

The Technical Underpinnings work group recommended that the Environmental Monitoring group take the lead on defining an ARI for inland lakes, ponds and wetlands. It was clarified that the intent of the charge to the Technical Underpinnings work group was to explore if there are new methods that didn't previously exist to define an ARI for these water bodies. Lake ARIs are of immediate concern and MDEQ would like to know what can be used in the short‐term for lakes/wetlands.

Additionally, the Technical Underpinnings work group wanted the Water Users group to take the lead on use vs. capacity and noncompliance issues. With regards to noncompliance, the intention wasn't to make enforcement recommendations to the MDEQ, but rather explore how to deal with potential inaccurate accounting in the WWAT because of noncompliance. The MDEQ was requested to make a presentation about how it currently handles noncompliance issues. It would be helpful for the Water Users group to understand this process and gain insight about what sort of information a user group could access from the MDEQ and how they could get it.

If the other two work groups are unable to adequately address the issues outlined for them above, the Technical Underpinnings work group will still address them. In general, if an issue falls through the cracks, it will still need to be addressed by MDEQ.

Environmental Monitoring
Laura Campbell and Bryan Burroughs presented on behalf of the Environmental Monitoring work group, which provided a detailed draft work plan for the Council to review. Five major topic areas were covered, including stream flow inputs; groundwater data; monitoring to assess the accuracy of the tool; assessment of metrics for lakes, ponds and wetlands; and a ‘parking lot' area for other issues that need to be addressed. These topics will be addressed in the order they appear on the work plan, though some may be worked on simultaneously. Generally speaking, the work plan laid out the following process to address each topic: review existing data, identify data gaps, develop recommendations, link with other work groups if applicable, and draft a report to the Council. Specific discussions on the work plan are discussed below.

During the discussion on item 3 (stream flow data inputs), it was noted that the state needs to have a healthy monitoring network by stream type (e.g., adequate monitoring for headwater stream given their abundance). The work group has a few ideas about how to conduct this analysis but is open to suggestions. Jon Allan mentioned that he previously did regression analysis in this area and would share it with the work group. He also noted that officials attending the Council of Great Lakes Governors Leadership Summit have asked the Great Lakes Commission (GLC) to examine what a robust Great Lakes monitoring network looks like. The GLC could benefit from Council work.

Regarding item 4.c.ii.2. (groundwater data inputs-improving data collection at the time of well drilling), all high capacity well log forms not submitted into Wellogic by the well driller or the health department are pulled by MDEQ and entered. Furthermore, Dave Lusch notified the Council that he is serving on the stakeholder group responsible for reviewing the Well Construction Code. Council members should provide Dave with any comments they may have on this issue soon to make sure it's included in the review. Bryan Burroughs will follow‐up with Dave Lusch regarding this matter.

MDEQ noted that it would best to address item 6 (assess metrics of aquatic resource health for inland lakes, ponds and wetlands) sooner rather than later. The National Wetlands Inventory, DU, DU Canada were listed as potential sources for existing wetland data. It was suggested for item 6.e.i. (develop recommendations to prevent ARI on inland lakes, ponds, wetlands), that an ARI for inland lakes/ponds tie back to water quality standards or designated uses.

Water Users
Pat Norris reported on behalf of the Water Users work group. The work group wanted to clarify that their charge is to develop tools, methods and resources that would be utilized by local groups to get started, assess trends and in water use and availability, resolve water conflict when additional withdrawals cannot be authorized by MDEQ, and so on. The work group itself is not responsible for starting or guiding a user group through the process.

Pat presented a map of registered water users by catchment, which was developed by one of her students. The map quickly identifies areas with high numbers of registrants.

The work group has identified several questions that must be answered as they work through assigned tasks including:   
1. Are there general expectations about who will help water users groups to get started? What resources, if any, might be available to assist these groups?
2. Is there agreement water users committees can form before any evidence of an ARI and associated notification by MDEQ?
3. If large quantity users form the water users committees, what is the place for potential future large quantity users? 
4. Most importantly, how much agency, authority and autonomy will these groups have in their work?

It was discussed whether the work group is expected to address these questions on its own or if they should be determined by the full Council. It was decided that the work group would attempt to answer these questions internally and then bring them to the full Council for vetting.

The work group plans to review and gain common understanding of the statutory language regarding user groups and how MDEQ interprets that language. This will be discussed with the full Council once complete. It will also seek a common understanding of the water use program implementation process and explore issues that MDEQ hasn't faced yet because of resource constraints. Additionally, the work group would like to coordinate with the Technical Underpinnings group and MDEQ to focus on the most impacted areas of the state as these places will likely need assistance first. The work group could potentially do a pilot project in one of those areas. If so, MDARD may have a few recommendations. Lastly, they propose to explore demand forecasts and estimates of changes in demand, particularly in areas where water scarcity is a concern.

The biggest issue the work group is facing is how the statute bumps up against the riparian doctrine. While the previous Council investigated water law conflicts and found that the statute was not in conflict with other state laws, it is believed that they did not investigate the statute versus riparian water rights. It was suggested that the work group discuss the functioning of the statute with Peter Manning and Margaret Bettenhausen of the AG's office.

Pat welcomed comments from the Council. It was recommended that the group layout a workable model for facilitating activities at the local level to achieve positive outcomes. In particular, a "pitfalls to avoid" document could be very helpful for citizens unfamiliar with decision‐making processes.

Water Conservation
Frank Ruswick presented on behalf of the Water Conservation work group. A handout was distributed which highlighted three broad categories of their assigned tasks, their general work plan and schedule. Frank noted that the state's entire water management program encompasses more than just conservation practices. Under the Compact, Michigan's conservation and use efficiency program includes the following objectives:
1. Guide programs toward long‐term sustainable water use
2. Adopt and implement supply and demand management to promote efficient use and conservation of water resources
3. Improve monitoring and standardize data reporting among state and provincial water conservation and efficiency programs 4. Develop science, technology and research
5. Develop education programs and information sharing for all water users

These objectives were developed through the last Council, which was disbanded before public comment on them could be collected. In 2011 MDEQ held a public review period but has not yet responded to the comments. The work group will use the public comment in a scoping process to identify and recommend the necessary actions to be taken, by whom, and in what timeframe. The responsiveness document will be reviewed by the full Council. The work group also plans to review conservation practices and policies of other states, recommend updates to Michigan's existing conservation practices and policies, and suggest methods for public outreach to support water conservation by users. 

Some of the tasks cited in the charge were not addressed on the first page of the handout such as assessing trends and metrics for water conservation. It was clarified that these were consolidated on the schedule under the "Work Plan Charge Reference" column.

It was suggested that the last item on the work group schedule (finalize recommendations on public outreach) be pushed up to allow time to incorporate them into a comprehensive final report.

Invited Speakers Discussion 
Council members discussed which speakers would be best suited for full Council discussions. The Leadership Committee suggested inviting Grant Trigger, the governor's appointee to the Compact Council, to discuss the activities of other Compact states for the August 22 meeting. It was requested this presentation also broadly cover the Compact and the Cumulative Impacts Assessment. Jon Allan thought someone from the GLC could present on the assessment.

The Leadership Committee also put together three thematic areas for suggested speakers:
1. Agency staff on the realities of program funding
2. Overview of Pat Norris' research on water users
3. Sector representatives share experiences of the Water Use Program and future needs. This could include sectors such as agriculture, municipalities, etc. and how they perceive the program to be working. Multiple speakers may be necessary to fully cover a sector and it will likely take several meetings to cover all of them. George Carr and Abby Eaton both have suggested speakers in mind.

Council members should review the list provided by the Environmental Monitoring work group and send Dina Klemans suggestions about the recommended speakers.

Other Business
Preventative measures (permitted measures taken by a water user to prevent an ARI) were not addressed by any of the work group plans. Several questions were raised about preventative measures: Can preventative measures really be effective and what do they look like? Is there a difference between a preventative measure and a voluntary measure? One example of a realistic preventative measure is a water bottling operation removing a local dam to improve stream temperatures. Bryan Burroughs will follow up with Pat Norris on this issue.

It was posed to the Environmental Monitoring work group to also consider the noncompliance issue of users not registering their use. What methods could be utilized to determine a user isn't registering?

It was suggested that the Council visit southwest Michigan during irrigation season. Laura Campbell will identify possible locations for a meeting.

Public Comment on non‐agenda items
There was no public comment at this time.

Next meetings
1. August 22, 1:00 - 4:00 PM | Michigan Chamber of Commerce
2. October 14, 1:00 - 4:00 PM | TBD
3. December 9, 1:00 - 4:00 PM |TBD

Adjourn