Thursday, October 08, 2009

Presentation on water supply planning raises questions about water supply law

Presentation on water supply planning raises questions about water supply law

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I was one of about 70 people who attended a recent public meeting in Champaign conducted by the Regional Water Supply Planning Committee for East-Central Illinois. The committee, which was appointed in 2006, has been holding meetings throughout the region to present the findings of a report it completed in June. As that report indicates, the people of east central Illinois do not face an immediate water crisis, but we’re by no means immune to the threat of water shortages, either.

To me, the most interesting questions raised by the work of the committee have to do with the legal rights of water users, which I’ll explore today, and the sustainability of water supplies in the region, which I’ll return to next week. But I would also strongly encourage others to become informed about and involved in the ongoing water supply planning process.

The Regional Water Supply Planning Committee was charged with making recommendations to improve the planning and management of water supplies under the framework of existing law, not with evaluating that law.

At the meeting I attended, Gary Clark, of the Illinois Department of Natural Resources, presented a condensed overview of current law for the committee. Under the Water Use Act of 1983, withdrawals of groundwater were brought into the same framework that had long governed the withdrawal of surface water in Illinois, which is the doctrine of reasonable use. Under this doctrine, owners of land adjoining surface water, such as a lake or stream, or owners of land overlying an aquifer are entitled to reasonable use of the water contained therein. Under this law, the reasonableness of one party’s water use can be challenged only by another party who can show that her right to use the resource has been harmed in some identifiable way.

Like other people I spoke with after the meeting, I was left feeling uneasy about the potential for current law to protect some values important to me. So I checked in with Eric Freyfogle, who teaches natural-resources, property, and land-use law at the U of I to get his perspective on the state of water law in Illinois.

Freyfogle noted that current law dates from the nineteenth century, and that it was essentially designed to discourage people from wasting water. It was not, he said, set up to resolve disputes in the face of scarcity, nor was it written with regard for environmental values.

Among the deficiencies in current Illinois water law we discussed, Freyfogle emphasized its extraordinary vagueness. Nobody can know in advance whether various uses are permissible or not, since the definition of “reasonable use” is decided on a case by case basis. Also unclear under current law is where it is permissible to use water. A strict interpretation, for example, might say that a water company has no right to pump water from wells outside of town and then distribute it elsewhere throughout the community. The uncertainties associated with current law also make it difficult for potential large users, including municipalities, to plan for the future. They cannot reserve water for future use, nor can they halt new uses that might frustrate their plans.

Beyond these legal uncertainties, Freyfogle also called attention to some of the public uses current law does not protect. It makes no provision for the rights of anglers or boaters, for instance, and it includes no direct protections for the interests of the public in aquatic life or water quality, both of which are affected by water withdrawals.

The upshot of this is not to say that Illinois water withdrawal law needs to be reconstructed from the ground up, but that without some updating it is not suitable to meet current needs.