June 17, 2014 Meeting Notes

Agro-Culture Liquid Fertilizers
St. Johns, MI

Members or Alternates Attending:
Gary Dawson, Consumers Energy; Pat Staskiewicz, American Water Works Association (AWWA); Matt Evans, Michigan United Conservation Clubs (MUCC); Dave Hamilton, The Nature Conservancy; James Clift, Michigan Environmental Council; Frank Ettawageshik, United Tribes of Michigan; Charles Scott, Michigan Golf Course Owners; Shada Biabani, Michigan Aggregates Association; Wayne Wood, Michigan Farm Bureau; Laura Campbell, Michigan Farm Bureau; George Carr, Michigan Ground Water Association; 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; Brian Eggers, Michigan Chamber of Commerce; Alan Kehew*, Western Michigan University; John Yellich, Michigan Geological Survey; Jon Bartholic*, MSU; Frank Ruswick, MSU; Abby Eaton, Michigan Department of Agriculture and Rural Development (MDARD); Tammy Newcomb*, Michigan Department of Natural Resources (MDNR); Margaret Bettenhausen *, Department of Attorney General (DAG); Dina Klemans*, MDEQ

Members Absent:
Gildo Tori, Ducks Unlimited; Michael Stafford, Cranbrook Institute of Science;  Wm. Scott Brown, Michigan Lake and Stream Associations; Andy Such, Michigan Manufacturers Association; Tom Frazier, Michigan Townships Association; Jim Byrum, Michigan Agri-Business Association; Howard Reeves*, U.S. Geological Survey (USGS); Jon Allan*, Michigan Department of Environmental Quality (MDEQ) Office of the Great Lakes

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

Others Attending:
Jim Milne, MDEQ; Mike Walterhouse, MDEQ; Laura Young, MSU; Brockton Feltman, MSU; Marcy Colclough, Southwest Michigan Planning Commission; Todd Feenstra, Tritium, Inc.; Larry Julian, Prairie Water Users Group; Val Vail-Shirey, Prairie Water Users Group; Aaron Rice, Prairie Water Users Group

Welcome
Brian Eggers chaired the beginning of the meeting and thanked Agro-Culture Liquid Fertilizers for hosting. The streamflow recommendations under agenda item #8 were pushed back for discussion in July.

Program Related News
An update for the 2015 MDEQ fiscal budget was provided by Dina Klemans. The budget for MDEQ remained generally unchanged by the conference committee from what the governor had originally proposed. The water quality initiative, which constitutes funding for a number of programs including the Water Use Program, still had $3.9 million of general fund dollars appropriated. The 2015 budget will sustain current efforts by the Department.

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

Southwest Michigan Water Resources Council (SWMWRC) Final Report
Marcy Colclough presented on behalf of the SWMWRC regarding their final report to MDEQ. The SWMWRC reached consensus on 21 items, which focused around topics such as the need for additional data collection, regional models, public and private partnerships, and improving the site-specific review (SSR) process. Within the report, several consensus and non-consensus items were recommended as issues to be considered by the Water Use Advisory Council and were categorized by work groups.

Questions arose regarding consensus item #16, which recommended better accuracy of actual withdrawal volumes in the accounting system of the Water Withdrawal Assessment Tool (WWAT). During the SWMWRC’s discussions, it was a concern for members that registrations could be made to lock up available water in the accounting system without actually making a withdrawal. However, their discussions did not get to the point of suggesting that the legislation needed to be changed to register use instead of capacity or that the 18 month timeframe for developing the capacity for a withdrawal needed adjustment.

There was also much discussion around consensus item #17, which called for including unregistered wells with pre-2008 use in the baseline calculations of index flow and not debit them from available water. Jim Milne noted that pre-2008 withdrawals not reported to MDARD or MDEQ by April 1, 2009, are not legally considered baseline capacity and must be registered through the WWAT. However, pre-2008 withdrawals may have been accounted for when index flows were determined. The SWMWRC was concerned that if those water users register, in theory there would be double dipping in the accounting system, which would reduce the amount of available water for other users. The SWMWRC did not quantify how many users fall into this category, but Aaron Rice noted anecdotally that it is a common occurrence in southwest Michigan.

The Council further discussed prevention methods for noncompliance and how to bring unregistered users into the water withdrawal assessment process. Pat Norris commented that based upon discussions in the Water Users work group, it is highly likely that members of a water users committee will identify unregistered users as part of their work. She recommended focusing discussions on what to do once unregistered users are found rather than how to find them (i.e., how to handle changes to the accounting system, particularly if they trigger an adverse resource impact).

Dina Klemans noted that this issue is worthy of more discussion and asked for suggestions about how to move forward. James Clift volunteered to draft a document highlighting the issue and potential options to bring unregistered users into the system and facilitate a subgroup on the topic. Dina Klemans encouraged the Council to consider the outreach piece of this issue. Council members should notify James Clift if they are interested participating in the subgroup.

With regards to consensus item #21, the SWMWRC was not successful in obtaining the needed data to assess projected water use trends in the region. Jim Milne commented that Steve Miller of MSU Extension identified specific soil types that are suitable for irrigation in Michigan, but his study did not examine future demand and its associated timeframe.

Marcy noted that the SWMWRC has a strong desire to continue meeting. Marcy was thanked for presenting and the SWMWRC was applauded for its efforts and coming to consensus on 21 items.  

MDEQ Draft Field Procedure for Identifying Perennial Streams
- Mike Walterhouse, MDEQ
Dina Klemans, introduced Mike Walterhouse, an environmental quality specialist at MDEQ, who presented a draft field procedure for identifying perennial streams. Previously, MDEQ staff relied on MDNR Fisheries Division staff for field reviews for perennial streams, but the proposed procedure will allow MDEQ staff to conduct the reviews. The written procedure establishes clear guidelines for staff and provides more transparency and consistency for the SSR process. A work group was formed between MDEQ Water Resources Division and the MDNR Fisheries Division to draft the procedure. The Department sought input on the procedure from the Council before finalizing it. (Note: MDEQ perennial determinations are not used for any other regulatory program).

Before conducting a field review, MDEQ staff begin by producing a topographic map that identifies the streams in question and their respective watershed boundaries. Staff then conduct a desktop review, examining databases for previous water chemistry, temperature, and fish and macroinvertebrate community survey data. They will also review if there are any reported fish kills; discharge measurements, including zero flow observations from USGS, MDNR, or MDEQ; and stream order.

A number of items are then used in the field to make a perennial stream determination using a weight of evidence approach. Staff assess streams at road crossings, unless property owners grant voluntary access to their properties. Indicators of perennial streams include the presence of flowing water at least 48 hours after a rain event; absence of leaf accumulation in the channel; presence of rooted aquatic plants or algae; absence of terrestrial plants in channel; presence of benthic macroinvertebrates , mussels or clams, and fish (staff will document age/cohorts); presence of well-defined bed and banks; presence of a bankfull bench; distinct grain sorting; presence of riffle and pool sequences; and sinuosity. Other information such as water temperature is also collected.

Mike Walterhouse emphasized that there must be a weight of evidence to make the determination of a perennial or non-perennial stream. Ideally, determinations are made during low flow conditions. In instances where this is not possible, staff will revisit the site during the appropriate time of year. Determinations are subject to revision. It is not clear at this time what will trigger a second review of a stream for perennial identification.

George Carr objected to proceeding with a "Policy or Procedure" as opposed to a Guideline under the Michigan Administrative Procedures Act (MAPA) for the stream truncation process. It was also discussed whether the statute requires the process to be undertaken by the Natural Resources Commission under delegation by the Governor. George Carr also asked about appeal mechanisms for a perennial stream determination. Dina Klemans explained that the appeals process would apply to the SSR decision rather than the perennial stream determination, which is one consideration during site-specific review.

Dina Klemans encouraged the Council to provide feedback on the procedure, whether in the form of individual comments or handled by a particular work group such as Environmental Monitoring. The procedure will be discussed again in July.

Considering Impacts on Existing Water Users by Updating Technical Underpinnings of the WWAP
Dave Lusch encouraged Council members to begin thinking about unintended consequences of work group recommendations on existing water users. Many items discussed in the Technical Underpinnings work group may affect current registrations and understanding what happens when a stream truncation, change in index flow or stream classification causes an adverse resource impact (ARI) is critical. Pat Norris added that this same issue applies with climate change. This will be discussed at future meetings.

Work Group Updates
Water Users
Bryan Burroughs chaired this portion of the meeting. The work group compiled a set of Tier I recommendations discussed later in the meeting and is beginning to look at voluntary measures.

Water Conservation
The work group has a complete first draft of their report which is under review. It is a comprehensive and integrated set of recommendations. Bearing major revisions, the work group expects to present the report at the July meeting.

Inland Lakes ARI
The work group expects to make recommendations soon on the characteristics of an inland lake ARI and are continuing to work on the decision tree for prioritizing inland lakes. They are also going through responses to their survey of lake association groups and thanked Michigan Farm Bureau for assigning a student to contact the organizations. Frank Ettawageshik will check if Michigan tribes have any lake level monitoring data.

Technical Underpinnings
Additional work is being done for the bedrock pass and water management area (WMA) allocation recommendations. The work group will soon be reviewing the history of changes in the WWAT as well as the decision matrix recommended by the last Council that outlined types of anticipated changes to the WWAT and the appropriate decision-making level for authorization.

Environmental Monitoring
The work group is making progress with gathering groundwater data. They are continuing to update their streamflow recommendations and will send out a revised copy of the recommendations prior to the July meeting.

Tier I Recommendations
Forming Water Users Groups and Providing Technical Information

Pat Norris presented their set of recommendations on behalf of the work group and noted that the recommendations build on one another. The recommendations include an issue statement and detailed findings section. Five recommendations total were presented, recommending that MDEQ develop a brochure on water users committees (WUCs) and include it in letters already sent to registered and permitted users and associated local governments. Furthermore, they recommend that MDEQ develop and maintain an online website with resources for WUCs and water resources assessment and education committees (WRAECs). They also recommend that MDEQ take the lead in first convening a WUC when an applicant of a negative SSR wants to meet with other users or if an ARI is suspected, and that MDEQ develop a protocol for convening the initial meeting.

Several of the work group’s findings were highlighted. MDEQ has yet to work with a large group of water users; however, during SSR the Department has worked with water users who consistently report less water use than their registered capacity in the vicinity of a proposed withdrawal to facilitate the approval of that new withdrawal. It was also found that water users are unfamiliar with the concept and legislation relating to WUCs. With regards to WRAEC’s, existing watershed organizations may play an important role in terms of organizational capacity, leadership and acquiring funding for the committee. However, many of these groups currently focus on water quality issues rather quantity. The Flint River Watershed Coalition met with the work group and indicated that water use could be an issue they focus more heavily in the future. The Kalamazoo River Watershed Council also met with the group.

The recommendations included a table that identified the number of registered or permitted users per catchment, which range from 1 user/catchment to 50 users/catchment. Besides the challenge in convening a large group of registrants, users may run into situations where they have to participate on multiple WUCs. There is concern for how many times a user would have to come up with voluntary measures or attend various meetings.

Except in rare circumstances, the work group does not anticipate WUCs forming unless an ARI is occurring and MDEQ convenes a committee. As part of their recommendations, there are two scenarios outside the scope of Part 327 that the work group recommends MDEQ convene a WUC. The first scenario occurs when an applicant wants to form a committee after receiving a negative SSR. In this situation, having a say in the final decision is the main incentive for WUC members to participate as opposed to a court-made decision. The second scenario occurs when an ARI is suspected. It is anticipated that it will be easier to reach successful outcomes if a WUC is convened prior to an ARI, particularly because of the tight 30 day timeframe for coming to agreement if an ARI was occurring. Unlike scenario 1, the repercussions for not participating are unclear, especially given that a solution is not legally binding. The work group expects that a WUC will be more successful in reaching agreement if there is demonstrated evidence that an ARI is occurring (i.e., streamflow is significantly lower).

There was some concern about language in the recommendations that indicated MDEQ needed to verify an ARI outside of the accounting database. Others questioned how likely users would participate in a WUC if convened prior to an ARI without data to back up the prediction. Margaret Bettenhausen noted that the statute says the Department can convene a WUC if it determines by reasonable scientific evidence that an ARI is occurring or likely to occur and added that this is not an enforcement step.

It was questioned whether the transfer of unused capacity or earmarking was allowed under Part 327. Even though a WUC may be working to accommodate one particular user, it does not guarantee that any water made available through the process will go to that person. Margaret Bettenhausen noted that the statute does allow voluntary measures agreements between users.

Bryan Burroughs thanked Pat Norris for the presentation and requested any additional questions or comments be sent to the work group.

July 15 Council Field Trip
Wayne Wood chaired this portion of the meeting. The July 15 Council field trip was still being finalized. Bryan Burroughs explained that those interested in attending the field trip would meet in the Grayling area in the morning and explore a few different groundwater fed streams in the area to illustrate concepts discussed in the Council. MDEQ has reserved one 7 passenger van for the field trip.

George Carr noted that on August 23 there will be an in-service at the RAM Center for a large quantity withdrawal well drilling. Laura Campbell also mentioned that she is coordinating with Ben Russell and Larry Walton regarding the August 19 southwest Michigan Council field trip.

Other Business
Ben Russell and the Southwest Michigan Farmers for Responsible Water Use group met with Director Wyant to discuss a pilot project for southwest Michigan. Only the initial concept has been discussed.

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

Next meeting
The next Council meeting is on July 15 at Hartwick Pines in Grayling, MI. An optional field trip will be offered in the morning. The full Council meeting will be held from 1:00-4:00 PM.

Adjourn