Inland Lakes ARI Work Group

PREVENTING ADVERSE RESOURCE IMPACTS IN INLAND LAKES AND PONDS CHARGE

December 16, 2013

Background
Part 327, Great Lakes Preservation, of the Natural Resources and Environmental Protection Act (NREPA) prohibits a person from making a new or increased large quantity withdrawal (LQW) from waters of the state that causes an adverse resource impact (ARI), requires a property owner who intends to make such a LQW to register the withdrawal prior to beginning the withdrawal, and requires the Department of Environmental Quality (DEQ) to determine whether an adverse resource impact is likely to occur or has occurred. Tools, decision frameworks and criteria for implementing these requirements are well established for withdrawals affecting rivers and streams. This is not the case for withdrawals affecting other waters of the state, i.e. inland lakes, ponds, wetlands, which leaves water users and the DEQ without a consistent, transparent approach and criteria for decision making about withdrawals that affect other waters.

ARIs for inland lakes and ponds are specifically referenced and defined in Part 327 providing a good starting point for discussion around protection of waters other than rivers and streams. Part 327 defines an ARI for lakes and ponds as:

Decreasing the level of a lake or pond with a surface area of 5 acres or more through a direct withdrawal from the lake or pond in a manner that would impair or destroy the lake or pond or the uses made of the lake or pond, including the ability of the lake or pond to support characteristic fish populations, or such that the ability of the lake or pond to support characteristic fish populations is functionally impaired. As used in the subparagraph, lake or pond does not include a retention pond or other artificially created surface water body.

Notable in this definition is the limitation that the decrease in lake or pond level must be caused by a “direct withdrawal,” which is undefined in the statute. The common interpretation of “direct withdrawal” in this context is a withdrawal from the lake or pond, rather than a withdrawal from groundwater that affects the lake or pond, although withdrawals from groundwater in the vicinity of a lake or pond could result in the same adverse resource impacts. While one focus of the work group is on developing strong, defensible criteria for the definition of ARIs to lakes and ponds, it should be kept in mind that those criteria could apply to the effects of both direct and indirect withdrawals. The Compact includes all Great Lakes basin waters, and Section 32702(2) specifically references the legislature’s authority, under sections 51 and 52 of article IV of the state constitution of 1963 to regulate withdrawal and uses of waters of the state, including both surface water and groundwater. Part of the scope of this work group is to consider the appropriateness and desirability of a statutory amendment to extend these protective ARI criteria for lakes and ponds to the impacts of groundwater withdrawals.

The legislative findings of Part 327 (Section 32702 (1)(f) and (i) in particular) provide some insights as to the water uses that must be protected. In addition, one may look to the Part 4 Rules, Water Quality Standards, promulgated pursuant to Part 31, Water Resources Protection, of the NREPA, (specifically Rule 100, designated uses) for additional uses for which surface waters of the state are protected.

The development of tools, criteria and decision making frameworks to protect inland lakes from ARIs is clearly complicated and multi-faceted; additional information, data and resources may be needed to arrive at approaches for inland lakes and ponds that are comparable in rigor to those for rivers and streams. Nevertheless, proposals for large quantity withdrawals from inland lakes and ponds, and complaints (at least 16 in the past 2 years) alleging water level declines in inland lakes and ponds due to large quantity withdrawals are occurring.

Goals
-Prevent ARIs in inland lakes and ponds.
-Identify meaningful and defensible criteria for defining ARIs in inland lakes and ponds in the short term and over the long term.
-Identify scientifically defensible approaches for preventing ARIs in inland lakes and ponds in the short term and over the long term.

Specific Tasks
-Develop a plan for addressing each task and meeting work group goals in consideration of other work groups’ work, sequencing of task and delivery of all final recommendations and products from the Council to the Quality of Life (QOL) agencies by December 15, 2014. The plan should also identify information needed from and potential areas of overlap with other work groups, and information and support needed from the QOL agencies.
-Propose criteria and identify information that should be used in the short term to evaluate whether direct withdrawals from inland lakes would result in an ARI as defined by the Part 327 narrative standard.
-Propose an approach for a scientifically robust evaluation of whether direct withdrawals from inland lakes would result in an ARI, including actions, tools, data gaps and resources needed to implement the proposed approach.
-Define the scope of lakes and ponds for which current tools and decision frameworks are not adequate; if appropriate, recommend priorities by type of lakes and ponds for which tools, data, and other actions are needed.
-Recommend short term and long term approaches (if different) for tracking withdrawals and cumulative impacts of withdrawals as a means of preventing ARIs, including actions, tools, data gaps and resources needed to implement the proposed approaches.
-Propose priorities, sequencing, time frames and alternatives for filling identified gaps in data, resources and tools.
-Consider the impacts and feasibility of evaluating indirect withdrawals on inland lakes and the necessity and desirability of statutory amendments to address them.
-Provide recommendations and information not specifically covered in these bullets but, in the view of the work group, are critical to meet the specified goals of the work group.

Timeline and Deliverables
-Present work group plan, including timing of presentations to the Council and proposed dates for delivery of written report(s) and recommendations to the DEQ – first Council meeting following establishment of work group
-Oral report on activities, progress and barriers to fulfilling the charge - each Council meeting 
-Draft recommendations and guidance for the Council’s consideration - TBD
-Present background and draft recommendations at full Council meetings - TBD
-Prepare reports for consideration by the full Council, including a brief summary of pertinent background information, recommendations around which there is work group consensus, recommendations around which there was discussion but no consensus, and other areas that should be explored or require additional work – TBD
-Revise and finalize reports based on feedback from the Council, such that the findings and recommendations reflect the views of the Council rather than the Work Group - TBD/Complete by December 15, 2014.

Members
Jon Allan
Scott Brown
Laura Campbell (Wayne Wood)
Jim Milne (Dina Klemans)
Tammy Newcomb
Mike Walterhouse (Dina Klemans)