September 16, 2014 Meeting Notes

WATER USE ADVISORY COUNCIL

September 16, 2014 | 9:00 AM - 4:00 PM Dow Diamond Baseball Stadium
825 E Main St, Midland, MI 48640

Members or Alternates Attending:

Rich Bowman, The Nature Conservancy; James Clift, Michigan Environmental Council; Frank Ettawageshik, United Tribes of Michigan; Andy Such, Michigan Manufacturers Association; Tom Frazier, Michigan Townships Association; Wayne Wood, Michigan Farm Bureau; Laura Campbell, Michigan Farm Bureau; Jim Byrum, Michigan Agri-Business Association; George Carr, Michigan Ground Water Association; Bryan Burroughs, Michigan Trout Unlimited; Robert Whitesides, Kalamazoo River Watershed Council; Ben Russell, Southwest Michigan Water Resources Council (SWMWC); Pat Norris, Michigan State University (MSU); Dave Lusch, MSU; Brian Eggers, Michigan Chamber of Commerce; Howard Reeves*, U.S. Geological Survey (USGS); John Yellich*, Michigan Geological Survey; Jon Allan*, Michigan Department of Environmental Quality (MDEQ) Office of the Great Lakes (OGL); Robert Pigg*, Michigan Department of Agriculture and Rural Development (MDARD); Sharon Hanshue*, Michigan Department of Natural Resources (DNR); Dina Klemans*, MDEQ Water Resources Division (WRD)

Members Absent:

Gary Dawson, Consumers Energy; Pat Staskiewicz, American Water Works Association (AWWA); Matt Evans, Michigan United Conservation Clubs (MUCC); Gildo Tori, Ducks Unlimited; Michael Stafford, Cranbrook Institute of Science; Charles Scott, Michigan Golf Course Owners; Wm. Scott Brown, Michigan Lake and Stream Associations; Steven Rice, Michigan Wetlands Association; Jon Bartholic*, MSU Institute of Water Research (IWR); Michael Newman, Michigan Aggregates Association; Margaret Bettenhausen *, Department of Attorney General (DAG) Note: Ex-officio members are denoted by an asterisk.

Others Attending

Rich Wells, Dow Chemical; Jeff Martin, Dow Chemical; Michael Kelly, Saginaw WIN; Jim Milne, MDEQ; Brant Fisher, MDEQ; Aaron Rice, Prairie River Water Users Group; Laura Young, MSU; Shayna Petit, MSU; Angela DeVries, Michigan Oil and Gas Association

Welcome

Brian Eggers chaired the first portion of the meeting and thanked Dow Chemical for their generosity in hosting. He introduced Rich Wells, Vice President of Operations at Dow. Mr. Wells welcomed the Council and discussed the importance of water to the company and highlighted their state of the art on- site waste water treatment plant. Michael Kelly of the Conservation Fund, leads the Saginaw Bay Watershed Initiative (WIN) and commented on Dow Diamond's investments in reducing energy and water use and Dow Chemical's contributions to water conservation. He noted that Dow Chemical and others have partnered with WIN, which has invested over $4.5 million in projects around Saginaw Basin.

Program Related News

Site Specific Review Checklist – Jim Milne, MDEQ

Jim Milne reviewed a draft site-specific review (SSR) checklist. This document is intended to act as a summary and provide enough information about the SSR process so that anyone reading it would be able to understand how MDEQ makes decisions in SSR and why. It serves both as general instructions for MDEQ staff and will be posted online for the public once finalized.

The initial step of the SSR process involves contacting the registrant to verify their information is correct. Generally, most of the remaining checklist review items happen concurrently. Mandatory items (under the first column of the instructions) occur for every SSR. The SSR will terminate when enough information has been collected to make a determination. The bottom of the form indicates the final decision of the SSR.

Ben Russell noted that it would be helpful if MDEQ indicated what information an applicant would need to provide to assist the department in their decision-making process. Brian Eggers added that it would also be helpful to an applicant if they knew which of the optional items would be beneficial for their specific request(s). Jim Milne indicated that optional items, such as an aquifer pumping test, are highly situational. While the department could provide overall guidance about what is involved for optional items, they may not be necessary in every situation.

George Carr voiced a number of concerns about the document, but indicated that this is a good first step toward more transparency for the program. He encouraged MDEQ to further refine the document to indicate specific requirements and guidance for all applicants regarding what will be needed for their application. Andy Such inquired if this had been vetted through the Office of Regulatory Reform (ORR) and noted that guidance documents need to be promulgated. Jim Milne stated that at this point, the department is seeking feedback from the Council on the document. John Yellich felt this issue would be best handled in detail by reviewing it further in the Technical Underpinnings work group.

Bryan Burroughs asked whether or not this document was intended as a record keeping transparency tool or a guidance document on what must occur in SSR. Jim Milne clarified that it is a record keeping transparency tool.

Public Comment on Agenda Items

There was no public comment at this time.

Tier I Recommendations

Leadership Committee

Dave Lusch presented a recommendation supporting the continuation of the Council (or similar body) on behalf of the Leadership Committee. There was not a specific work group addressing this issue, but the Leadership Committee felt both internally and from Council member feedback that there is an overwhelming desire to have a stakeholder group like the Council continue into the future. It recommended that the MDEQ Director reestablish and maintain the Council or similar group for the foreseeable future regarding implementation issues of Part 327. The recommendation does not require current members to continue serving on the Council past December. Jim Byrum proposed a friendly amendment emphasizing the importance of having representation from those actually drilling wells and irrigating in the private sector. Dave Lusch stated that the Committee felt it would be inappropriate to prescribe membership to future Directors, but that a future stakeholder group would at least maintain current representation. Brian Eggers stated that he would like to see the Michigan Oil and Gas Association on future bodies. The recommendation reached consensus without the addition of specific stakeholder groups.

Environmental Monitoring

Laura Campbell presented groundwater recommendations on behalf of the work group, the majority of which were discussed at the August meeting. They added one new recommendation, which called for MDEQ to use data it receives in the SSR process, develop numerical models to better understand the hydrology of certain areas, and to develop better tools for predicting streamflow depletion. James Clift noted that the Technical Underpinnings work group has a similar recommendation and that it may be worthwhile to combine the recommendations in Tier II discussions.

George Carr voiced concerns about supporting any recommendation coming forward without knowing how MDEQ would implement it and/or if a recommendation would have standing. There was disagreement among Council members whether procedures and protocols mentioned in the recommendations would be required to go through steps of the Michigan Administrative Procedures Act (MAPA). During this discussion, Bryan Burroughs noted that consensus on Tier I recommendations is focused on whether or not something is a good idea without getting into the weeds of how each recommendation will be implemented. Brian Eggers asked for consensus on these recommendations and the recommendations were approved.

Water Conservation

Robert Whitesides presented on behalf of the work group. Their revised integrated report included all new changes in red. The majority of changes to the report were minor corrections or word-smithing edits. The largest change was to recommendation B.2, which a number of Council members voiced concerns about at previous meetings. The recommendation is now less regulatory in nature. It was noted that the work group did not discuss whether the multi-interest work group mentioned in the recommendation would be the Council or another group.

Dave Lusch asked about using "Michigan" in their recommendations instead of a more specific entity or program. He was concerned without a clear designation of responsibility that the work would fall through the cracks. Robert Whitesides noted that the work group wanted to maintain flexibility with their recommendations. Bryan Burroughs added that this may be something better discussed in Tier II meetings. Hearing no objections, consensus was reached on all of the recommendations.

Inland Lakes ARI

Bryan Burroughs chaired this portion of the meeting. Laura Campbell and Jim Milne presented two sets of recommendations on behalf of the work group, one of which was presented at the previous meeting. Their first set of recommendations, "Adverse Resource Impacts for Inland Lakes" contained two recommendations. The first recommendation recognizes that inland lakes and ponds may need protection from indirect withdrawals, but that there is insufficient knowledge to develop a statewide screening procedure. Until enough data or sufficient knowledge are acquired to assess the impact of indirect withdrawals, they do not recommend changes to Part 327. This recommendation generated much discussion, which is summarized below.

Dave Lusch and Pat Norris commented that it did not read like an action oriented recommendation. The Council agreed to add a sentence up front indicating that statutory changes are not needed at this time. There was also some confusion over the recommendation's second sentence, and after much discussion, the Council agreed to amend it as follows, "However, our knowledge of interactions between groundwater, surface water, and inland lakes and ponds is insufficient to develop a statewide assessment procedure to efficiently and reliably screen lakes for the potential for an ARI caused by a given withdrawal proposal."

Pat Norris asked whether or not it was intentional to not include specific types of criteria that should be used to define an ARI for inland lakes and ponds. She noted that while the proposed recommendation says future statutory changes may be required, it does not state that a statutory change may need to include an acceptable lake level impact. The work group explained that the recommendation includes using designated uses in the determination of an ARI for inland lakes and ponds, though not all lakes will have the same uses. Jon Allan added that the decision-tree included in the recommendation establishes a risk framework for different kinds of lakes. They further noted that without bathymetric data for most lakes, it is extremely challenging to recommend concrete criteria. For example, a one foot drop in a broad shallow lake will have a significant impact on the littoral zone and aquatic life versus a one foot drop in a deep, steep-sided lake. Pat Norris suggested the work group recognize some of these complicating factors explicitly in their recommendation.

There was also discussion regarding the use of "designated uses" in the recommendation. Dina Klemans suggested moving away from that term since it has specific meaning in law for water quality standards. Some of the items listed below the recommendation in the discussion section are not encompassed by those designated uses (e.g., riparian rights of dockage). It was agreed to remove "designated" from the language in the recommendation. Consensus on Recommendation 1 was reached with the above changes.

The second recommendation proposed that the Quality of Life agencies, in collaboration with the USGS and successor of the Council, a) develop an online screening tool for assessing whether a proposed withdrawal is likely to cause an ARI for inland lakes and ponds, b) develop a SSR procedure for determining whether a proposed withdrawal is likely to cause an ARI in inland lakes and ponds, and c) prioritize additional data collection for classifying inland lakes and ponds.

Several Council members discussed modifying the discussion section under Recommendation 2 to indicate that the current process of treating inline lakes (those with an inlet and outlet) should be continued until a statewide screening tool is available. Rich Bowman also suggested rearranging the recommendations so that prioritizing additional data collection (2.c.) was listed before developing a screening tool or SSR procedure. The Council agreed to reorder the components of the recommendation.

Dina Klemans asked about whether the work group discussed decision making options for inland lakes and ponds in the short term. Currently, if MDEQ receives another request to withdrawal water directly from a lake, the only tool available is SSR. She was wondering if they had discussed approaches to determine whether a withdrawal will result in an ARI on an inland lake. Jon Allan noted that the data are not there to make such a determination. Laura Campbell clarified that the work group's recommendation is to develop an SSR procedure for inland lakes and ponds. However, the SSR example that is summarized in the recommendation could serve as a basis for the development of the procedure. This example was sent to the Council in a reference materials packet. Consensus was reached on this set of recommendations, barring suggested changes.

Their second recommendation set, "Inland Lake Level Data" was presented at the August Council meeting. It recommended installing staff gages on inland lakes ponds, and prioritizing placement for high and medium risk lakes.

Dave Lusch was in support of the recommendation but asked about what would be done with the data once collected. Laura Campbell indicated that this ties into previous recommendations by the work group, which recommended that MDEQ establish protocols for how data are collected and used. There were no objections to this recommendation and consensus was reached.

Water Users Groups

Pat Norris presented on behalf of the work group. She noted that the work group was unable to fully address some of their charges related to voluntary measures and would not be bringing forth recommendations on those topics. Three sets of new recommendations were brought forward.

The first set, "Ensuring the success of water user committees: facilitation and technical assistance" included two recommendations. The first recommendation called for creating and funding an external position for the facilitation of water users committees (WUCs). The work group concluded that MDEQ would not be a viable option for facilitation because the department would not be seen as impartial.

There was discussion amongst Council members about what exactly a facilitator would do for WUCs. A few members commented that this voluntary process was intended to allow neighbors to work out issues with one another rather than taking it court. Other members brought up the fact that the potential exists for any given user to participate in multiple WUCs.

George Carr voiced concerns about allocating state funding for a facilitator position. He wanted to know who a state funded facilitator would advocate for and also felt that other aspects of the water use program had greater need of funding. He suggested that if a WUC needs a facilitator, that it hire one on an as needed basis. James Clift suggested the work group also add that MDEQ should provide support to water resource assessment and education committees as well.

There was also discussion regarding the size of watersheds in Part 327. Some indicated this could be interpreted to mean multiple adjoining subwatersheds rather than an individual WMA. Pat Norris indicated that the reason they stuck with the WMA designation is because it relates back to the accounting system and will make it easier to connect the work of a WUC to how the program is administered. Bryan Burroughs suggested to exclude some of the specific implementation considerations from the recommendations for now and address them in Tier II. This would remove where a facilitator position would be housed and the mention of financial commitments.

Wayne Wood asked about the makeup of WUCs. Pat Norris indicated that as specified in the statute, all registered and permitted LQW users within a water management area (WMA) would comprise a particular WUC. Laura Campbell asked if the work group intended to include additional parties beyond the statute's definition. Pat Norris explained that the purpose of a WUC as written in Part 327 is to negotiate to agreement how to collectively reduce cumulative withdrawals within a WMA and that outside membership would not be appropriate.

Jon Allan asked how a new user would be accommodated in a WMA that is fully subscribed. Pat Norris explained that this relates back to their past recommendations. The work group recognizes two
common situations that would drive the convening of a WUC. The first where MDEQ determines that an ARI is occurring and is required to convene a WUC. The second would occur when a LQW applicant receives a negative response to a SSR. In this case, the work group recommended that MDEQ convene registered and permitted users and facilitate that kind of discussion with the new user. At their work group meetings, Margaret Bettenhausen raised questions as to whether agreement among a WUC to reduce water use for another user would guarantee the newly available water for that user. The applicant could also pursue litigation against the State or other LQW users or potentially buy another user out (which was not discussed much in their work group). Andy Such added that the local government representative on a WUC would also provide an avenue for new applicants. He voiced concerns about who would have standing in these groups.

Their second recommendation dealt with providing technical expertise to WUCs. The work group saw a need to have ongoing communications between a WUC and MDEQ to avoid situations where resources are spent on something that would not be accepted by the department (e.g., a privately funded study). The technical expert would advise and act as a liaison for both entities technical aspects of the water withdrawal assessment process. George Carr voiced concerns over this recommendation regarding for whom a technical expert would advocate and was asked by Pat Norris to provide additional clarifying language.

James Clift suggested removing the language that stated "assisting with identifying technical options available for verifying the condition of the water resource." Jim Milne added that the department has a role in providing technical assistance, and that if a WUC needs to hire a private consultant, public funds should not be used to support it. The Council came to consensus on these recommendations with objections from George Carr, Andy Such and Jim Byrum.

Their second recommendation set, "Ensuring the success of water user committees: Accessing water user information," recommended that MDEQ, MDARD or both provide information relevant to a WUC if requested. It was discussed whether this would necessitate a statutory change as Part 327 requires certain information to only be reported in the aggregate. Several Council members voiced privacy concerns about disclosing all water use information instead of just baseline capacity. Pat Norris indicated that the work group felt strongly that for a WUC to function effectively as a negotiating entity, members would need basic information on who is currently doing what for cumulative withdrawals. This recommendation would facilitate the process given the 30 day deadline. James Clift offered that a WUC may not be subject to FOIA and that the department could disclose individual use without making it publically available so long as members agreed to keep it confidential. He also added that if an issue regarding the program went to court, the court would be able to disclose that information.

George Carr suggested that the department use its best efforts to resolve a conflict prior to the commencement of a WUC, as they have done in the past. This would avoid many of the privacy and consent issues. He provided an example where a stream truncation caused an ARI in an adjacent watershed and MDEQ staff contacted three individuals who voluntarily agreed to reduce their use to avoid an ARI. The Council agreed to remove the second bullet of this recommendation to reach consensus.

Their last set of recommendations, "Ensuring the success of water user committees: Addressing noncompliance issues," contained three recommendations. These recommendations sought to provide guidance on how to address noncompliant users once they are identified, presumably after the formation of a WUC. First, they recommended that MDEQ establish a process to bring users withdrawing water prior to February 28, 2006, into the records of registered and permitted users without debiting from the WWAT if they reported their water use. Second, they recommended that a process be designed for noncompliant high capacity users making withdrawals after February 28, 2006, but who did not report their water use. The last recommendation dealt with MDEQ and MDARD cross checking annual water use reporting (WUR) for additional oversight.

There was much discussion as to whether or not the first recommendation was necessary. Based on the work group's understanding of Part 327, individuals who were LQW users prior to February 28, 2006, could register by reporting, which they interpreted to mean that those users are part of registered and permitted users. They are recommending that MDEQ bring them in and not debit their use from the accounting system since their water use should be captured by the index flow snapshot in July 2009. Frank Ettawageshik noted that these individuals would shave an incentive to stay out of court.

It was asked if penalties exist for noncompliant users. There are only penalties for not reporting use and the work group did not address a penalty or cost for being in violation. Pat Norris indicated that there are very contrasting perspectives on this. Some see it as not fair since they are breaking the law and others would prefer an amnesty program. Consensus was reached on all three recommendations with objections from George Carr and Andy Such.

Technical Underpinnings

Wayne Wood chaired the last portion of the meeting. Several sets of new recommendations were brought forward. Jim Milne presented the first, which included two additional recommendations to the "WWAT and Bedrock Autopass" set. The first two recommendations were approved by the Council in January 2014. The two additional recommendations dealt with approaches better handle bedrock registrations going forward, without the use of the bedrock pass. To implement these recommendations, the data for bedrock aquifer transmissivity would need to be developed as a layer from the GWIM project. Once that is complete, programmers would need to reconfigure the WWAT.

It was noted during the discussion of these recommendations that Howard Reeves used a MODFLOW model developed for the Tri-County Region by USGS to run a pumping simulation over five years in tributaries of the Red Cedar and Looking Glass Rivers for wells screened across the Saginaw Formation. The Looking Glass was depleted by 20 gpm and the Red Cedar by 10 gpm. These results were surprising as a significant connection between the bedrock and streams was not expected. Further study needs to be conducted. This test is described in the discussion section of the recommendation.

George Carr did not support these recommendations. He voiced concerns about the fourth recommendation's inclusion of a provisional approval process for registration. Several other Council members voiced concerns about provisional approval. Laura Campbell noted that in essence, all WWAT registrations are provisional since property owners are required to reregister if their well is completed differently than authorized. Several other Council members remained in favor of the provisional clause to guarantee that registrations match how wells are actually completed.

It was agreed to eliminate provisional approval from the fourth recommendation and last sentence of the third recommendation. These two recommendations were then combined. Consensus was reached on the combined recommendation.

James Clift presented the next set of recommendations, "Procedures to modify index flow and stream classification, and approval levels to make modifications to the process." The first recommended that MDEQ develop procedures for modifying index flows to be reviewed by the Council or similar stakeholder group before adoption. The second was very similar, except that it dealt with MDNR modifying stream classification. The third recommended that MDEQ and MDNR use the table developed by a previous council (with minor edits) as guidance when determining what level of approval is needed to make modifications within the Water Withdrawal Assessment Process (WWAP).

George Carr objected to these recommendations. He explained that such modifications would need to go follow steps outlined in MAPA. Consensus was reached on these recommendations with objections from George Carr and Andy Such.

Howard Reeves presented the next recommendation set, "Data Analysis Criteria" which dealt with MDEQ working with a stakeholder group to develop criteria for data analysis. Specifically, this is referring to SSRs in the WWAP. If an applicant performs an aquifer test and wants that data included in SSR, they have little guidance about the methods used for analyzing the test. Andy Such stated that he thought this recommendation would need to be a rule. Other Council members indicated that the recommendations are going to the MDEQ Director and that the Director would decide the appropriate avenue to take. Dina Klemans suggested adding more details to the recommendation itself. Dave Lusch suggested pulling language from the background section of the document into the recommendation itself to make it more clear that it is for SSR. With this revised language, consensus was reached on the recommendation with objections from George Carr and Andy Such.

Howard Reeves also presented the next recommendation, "Groundwater-flow model evaluation criteria," which dealt with working with stakeholders to develop criteria for features of groundwater flow models used in the WWAP. George Carr was concerned how this would fit in with stream truncations and if a new map scale is used in the WWAT. Dave Lusch stated that this recommendation is not about the WWAT but rather for external groundwater flow models that would be used in SSR. Consensus was reached on this recommendation with objections from George Carr and Andy Such.

The last set of recommendations, "WWAT models and allocation between water management areas," was presented by Dave Lusch. He noted only the first two recommendations within the set received consensus by the Technical Underpinnings work group. The third recommendation was not supported by four work group members. Wayne Wood asked for consensus on the recommendations. Recommendations 1 and 2 reached consensus. The third recommendation generated much discussion and did not reach consensus.

The third recommendation had to do with the half max rule and finding a way to have a more holistic water accounting approach. There was lengthy discussion about this and it was agreed by several Council members that while there is support for finding a better way to account for streamflow depletions, much more work needs to be done before something can be recommended. Dina Klemans reminded the Council that the final report will include a section on items that were unable to be fully addressed by the Council. She asked if this was one of those issues. While some voiced concerns about having it included, the majority of Council members agreed that the background findings for the recommendations should be included somewhere in the report.

Other Business

John Yellich noted that the Michigan Geological Survey is working with well drillers on an approach for completing log cuttings. On September 19, a drilling hole demonstration will take place near Alpena and Council members were invited to attend.

Public Comment on Non-Agenda Items

There was no public comment at this time.

Adjourn