CONNECTICUT STATE WATER PLAN
PUBLIC HEARING APRIL 17 2018 TESTIMONY OF RIVERS ALLIANCE OF CONNECTICUT
TO: The Chairmen and Members of the Public Health Committee, Energy and Technology Committee, Environment Committee, and Planning and Development Committee:
Rivers Alliance of Connecticut is the statewide, non-profit coalition of river organizations, individuals, and businesses formed to protect and enhance Connecticut's waters by promoting sound water policies, uniting and strengthening the state's many river groups, and educating thepublic about the importance of water stewardship.
The Water Planning Council has worked on improving state water management since its inception in 2001. Rivers Alliance has been actively involved in this effort from then until now: as a member of the committees originally formed to implement the charge of the Water Planning Council, as co-chair of the state-based Water Planning Council Advisory Group, as a member of the Steering Committee for the State Water Plan, and as members of the Policy Subcommittee and the Science and Technology Subcommittee, which assisted in the drafting of the Plan.
Since the 1970s, the state has recognized in law the need for water planning. The Plan before you is the result of the most intense and consequential work toward this end, as mandated in PA 14-163. The state has made a major investment in money and time, as have the many stakeholders in the committees meetings and public meetings across the state. We all committed to following the process established by consultant CDM Smith, which included scrupulous and tedious collection of information and ideas from all stakeholders (including, most importantly, the public). Rivers Alliance and other environmental groups have accepted the results of that process. We were never the majority among the stakeholders. The resulting Plan fell far short of our goals. But we have accepted it.
The Plan provides a platform for progress. The Platform isn’t far above the status-quo ground, but it is one step up. Having worked on water planning since 2001, our belief is that there is nothing to be gained by yet another year of negotiating the existing language. If the language is changed now, it opens up the Plan for a complete review and new negotiations. The resources are not available for that process, and the Plan itself may sink. WE URGE YOU TO PASS THE PLAN THAT IS BEFORE YOU WITHOUT CHANGES.
Until recent weeks, all stakeholders were united in agreeing to support the plan as written. However, unexpectedly, language in the Plan referring to the public trust in water resources has become sharply controversial. The Connecticut Water Works Association (CWWA) and others say that references to the public trust surprised them and might have implications for their operation. How can one be in the water business in Connecticut and not be aware that water is in the public trust and has been so by statute for more than 40 years (and in other contexts for long than that)?
The event prompting the 2016 law calling for a state water plan law was a proposal by the Metropolitan District Commission proposal to pipe water from the Hartford region to the University of Connecticut in Storrs. A leading voice protesting that proposal came from advocates for natural waters in the Farmington River Valley. Thus, from the start, it was clear that good planning needed to address the fair allocation of the state’s water resources between and among environmental uses, recreation, and water supply. This is a public trust doctrine, which was no secret during the work on the Plan.
Early in 2017, Rivers Alliance wrote a major memorandum to the Science and Technology Committee. I reprint an excerpt below.
Excerpt from Rivers Alliance memo of January 28, 2017
To the Science and Technology Committee for state water planning.
[Note for the 4/17/18 CGA public hearing. Here are the opening pages of a major memo analyzing the science used by consultants CDM Smith in an early draft of the State Water Plan. The memo opened with the then-uncontroversial statement that water is a public trust resource and a brief statement of what this means. This committee met at the Department of Public Health and prominently included water company representatives. NO ONE OBJECTED TO THE IDEA THAT THE PUBLIC TRUST IN WATER IS A STARTING POINT FOR WATER PLANNING IN CONNECTICUT.
MEMO FOR SCIENCE AND TECHNOLOGY COMMITTEE [2017]
Connecticut is aiming for a water plan that is fair and prudent in the allocation and management of water, which is a public trust resource. “Public trust” means that government has a fiduciary responsibility to protect the resource for present and future generations. A fair, prudent water allocation and management system must begin with inventory: how much water is where. [The next pages analyze the science used in the first draft of the Plan. The entire memo is attached. Many of the problems addressed in the memo were cleared up in subsequent drafts.]
Other attachments to this testimony are a report from the Council on Environmental Quality on the history of the public trust in Connecticut and a memo from consultant Kirk Westphal on how the Plan was drafted and public comments were included.
Here follow a quick comment in reaction to the recent concern about references to the public trust. We’ve been living with the public trust for more than 40 years. As witness, the Supreme Court reversal of the Superior Court in the Shepaug River case (2002), the public trust doctrine and statute, as interpreted by the court, is limited in a manner that has been a comfort to water utilities.
But a convergence of trends seems to be prompting new criticisms of environmental protections. Thus, in the Planning Committee this year, Bill Ethier, on behalf of the Homebuilders, testified that set-asides for open space required in town regulations, are, in his view, unconstitutional unless regarded as takings for which property owners should be compensated. Similarly, with water companies we are hearing strong inferences that water permits are akin to property rights and that such permits should not be abridged without compensation. (Some years ago, a company owning land on both sides of a river suggested that it should be compensated if they were not be allowed to build a hydro dam across the river.)
Most water companies in Connecticut and many nationwide are sensitive to their responsibilities as stewards of clear water, both natural and within their supply systems. However, many water companies in Connecticut are facing financial problems due to reduced water demand in general and aging infrastructure. They are seeking new ways to raise revenue. They see water as a financial asset and regulations as a costly problem. It is my belief that the Plan before you addresses numerous ways to support the viability of water companies -- and that the financial health of water companies is a high-level goal of the Plan, and should remain a high-level goal no matter what happens to the Plan. But compromising the public trust is the wrong way to reach that goal.
Thank you all for your extraordinary attention to water planning in a very difficult year.
Margaret Miner, Executive Director
203-788-5161 (mobile) Litchfield CT 06759