Water Use Requirements

January 2008

Lyndon Kelley

MSU Extension/Purdue University Irrigation Management Educator

•

Riparian DoctrineEast of Mississippi

- based on Common Law

- handed down from British law

- legal “doctrines”

- interpreted by the courts

• sets precedents

- may be modified by legislative action

Prior AppropriationPrior AppropriationWest of MississippiWest of Mississippi

- first in use, first in right

- allows transfer of water rights

Riparian Doctrine• From ancient public trust doctrine

• Tidelands held by the king for the benefit of all English subjects

• Navigable lakes and streams held in trust for benefit of the people of the state

• Riparian rights subservient to state’s public trust authority

Who Gets Riparian Rights?

• Owners of property actually touching the water

• Everyone else• May get access rights

YesYes NoNo

A riparian may…• Use the water

– bathing, domestic use, fishing, livestock watering, irrigation

– subject to reasonable use

• Build a dock• Access the entire water body• Grant easements for others to gain access to

the surface water

A riparian may not…

• Sell or give away those rights– Example: drawing water to irrigate non-riparian

lots

• Diminish rights of other riparians– Example: excessively lowering lake level

through irrigation

Riparian Doctrine case law

• Hoover vs. Crane - 1958

• Crane irrigated 50 acres from a lake that Hoover had a cottage on. During August of a dry year between evaporation and pumping the lake fell 6” to 8” impeding the use of lake for boating and swimming.

• State Circuit Court ruled that when the over flow of the lake stopped flowing that Crane was entitle to pump only an additional amount equivalent to 1/4” of the lake surface.

• Michigan Supreme Court upheld the ruling.

Riparian Doctrine Current practice

• Riparian owner petition Court to set lake level.• Riparian owners share in cost of lake study to determine

seasonal highs and lows.• Court sets a lake level and low level that may trigger action.• Once the lake has dropped below the trigger level riparian

owner may petition to stop pumping.• Court establishes an equitable use of remaining water

between uses.

Riparian Doctrine, Severance Rule

• Once a parcel has been subdivided, the parcels no longer retaining waters edge loose their Riparian Rights.

• Once rights are lost they may not be regained (reattachment of subdivided parcels does not re-establish their water rights)

• Commonly violated, but one of the easiest ways to get injunction against a neighbor.

A B C D

GFE

Well

River

Nestle sues over restrictive

water-use permit

Nestle sues over restrictive

water-use permit

Appeals judges wade into

water use case Appeals judges wade into

water use case

Great Lakes water could flow west

Great Lakes water could flow west

Granholm shoves after Legislature refuses to push for water laws Granholm shoves after Legislature refuses to push for water laws

Humans need H2O, but lawns can wait

Humans need H2O, but lawns can wait

Water in the news

Environmentalists make new push for water protection

Environmentalists make new push for water protection

Is water a resource or a commodity? Is water a resource or a commodity?

Annex 2001

• States and provinces will manage their own in-basin withdrawals

• Basin-wide, resource-based standard– flexible application 

• Each jurisdiction will commit to establishing a program, including thresholds, to manage or regulate new or increased withdrawals consistent with the standard.

New packet of Water Use Regulation for Michigan

• P.A 148 - Water Use Reporting - 2004

• P.A. 177 – Water use conflict resolution - 2004

P.A. 33-36 of February 2006• Large Quantity withdraw requirements and

meeting Great Lakes Annex expectations.

PA 177

Act 177 allows owner of a “small quantity well” to file a complaint with MDEQ (or MDA) if well:

• Fails to furnish normal water supply• Fails to provide potable water

Complainant must have a credible reason to believe that the problem is caused by a HIGH CAPACITY WELL

PA 177

In 2007 there where • 13 complaints filed under Act 177,

involving 6 wells in four locations • 11 complaints required large volume user to

pay for improvement to affected small well• 1 complaint solved by farmer moving large

well• 1 complain was solved by homeowner paid

solution

Does your well affect neighbors?

Zone of influence

Groundwaterflow direction

GroundwaterFlow

Irrigationwell

Home well

Home well

Zone of influence

Home well

Irrigationwell

Water use Reporting 2006 Requirements -PA 33 -34

– Require permits for new uses over 2 million gallons per day.

– Sets a performance standard for Large scale water users. ( > 70 gallon / minute )

" no adverse resource impact”

– Where Agriculture fits: > 100,000 gal. a day< 2 million gal. per day.Need to register and report , no permit required

Permit Threshold - 2 mg/d 30 day average, Common distribution system

100,000 gal./day = 70 gal./min. capacity

1 million gal./day = 700 gal./min. capacity

2 million gal./day = 1400 gal./min. capacity

1400 gal./min. capacity at 50% use = 700 gal./min. capacity

Water Use Reporting- 2004 +2006

• All water withdrawals with over 100,000 gallon/day capacity (70 gallons/minute)

• One or more well combined capacity on same or adjacent property of same owner/operator.

• Much the same format as 2004 and 2005 report .• Addition of GPS location of Groundwater withdrawal.

(latitude/longitude) within 25’

• One time option to establish a baseline capacity – 2006 only option

Water Use Reporting- 2006• 2006 water use reporting forms differ from previous

years. 2006 use only for 2006

• 2007 forms may be acquired from the internet at: http://www.michigan.gov/mda/0,1607,7-125-1567_1599_29980---,00.html

• Forms and useful information on the method of estimating water use are available at: www.msue.msu.edu/stjoseph click on irrigation

• Many MSU Extension offices and USDA service center will have forms when available.

Agriculture water use reporting to MDA only

• The rarely used option of reporting to MDEQ was removed in P.A. 33 leaving Michigan Department of Agriculture as the only reporting option for agricultural producers.

• There is ‘No Charge’ for agriculture water use reporting, a $200 annual saving over other sectors.

Static water level

• Reporting of static water level is no longer required.

• Static water level reporting was moved from a requirement to report, to a statement of when available.

• Static water level records are still a very effective method of monitoring well performance.

Water Use Reporting- location of Groundwater withdrawal (latitude/longitude)

• GPS location of groundwater withdrawal. within 25’ (latitude/longitude to 6 significant figures)

Example: latitude 42.1306 , longitude -85.4701

• -GPS location of withdrawal will allow mapping and analysis of effect on groundwater and stream flow

• Most hand held GPS unit can provide this information

• Latitude and longitude may be found for any location identified on aerial map from: gwmap.rsgis.msu.edu

• Newer well logs contain latitude and longitude information

Water Use Reporting- location of Groundwater withdrawal. (latitude/longitude)

gwmap.rsgis.msu.edu

Methods of Estimating Water Use

• water application multiplied by # of applications, plus estimate of additional water use (Acre Inches)

• pump capacity multiplied by run time: or fuel/power use per hour

• flow meter: meters actual flow, note maintenance and calibration concerns

• industry average numbers (Midwest Plan Service or ASAE) with appropriate adjustments (not appropriate for high variable water uses such as irrigation).

Example: Acre Inches

Joe farmer has a 160 acre field with 142 actual irrigated acres. He applied .75 inches of water at each application. One application was made in June and 3 during July and 3 in August.

1 acre inch =27,154 gallons (745.5 Acre inches) 27,154 gallons = 20,243,307 gallons

Month Number of Appl.

Rate in Inches

Irrigated acres Water Use

June 1 .75 142 106.5 Acre inches.

July 3 .75 142 319.5 Acre inches.

August 3 .75 142 319.5 Acre inches.

Total 745.5 Acre inches.

Pump capacity multiplied by run time Larry monitors the hour meter to track maintenance needs and

now water use. Larry checked his pumping capacity multiplied by his average run time to irrigate one inch water on a field (1” on 72 acre in 60 hrs) against the total irrigated gallon needed to apply an inch of water to that field and found the to be very close at (543 gal/min.).

Month Hours ofrun time.

Pumping Rate Water Use

June 70 33,000 gal /hour 2,310,000 gallons

July 210 33,000 gal /hour 6,930,000 gallons

August 200 33,000 gal /hour 6,600,000 gallons

Total 15,840,000 gallons

Baseline Capacity – 2006 one time opportunity

• “Baseline Capacity” - Rated capacity of the system as of February 28, 2006, reported as pump capacity in gal/min.

• Water withdrawal prior to February 2006 are granted a rebuttable presumption of no "adverse resource impact.”

Baseline Capacity – did you miss this one ???

Increasing a water withdrawal by more than 70 gal./min. beyond the baseline, constitutes a new water withdrawal, loosing the rebuttable presumption of no "adverse resource impact”

If no “Baseline Capacity” volume was record in 2006, your 2004-2005 records will be used to determine a baseline.

Most farmers rated pump capacity is far greater than their water use in 2004 or 2005.

New vs. Old Water Withdrawals

Old water withdrawal have a rebuttable presumption of no "adverse resource impact”

• withdrawal must be established prior to February 28th of 2006

• Properly registered and have reported

• Not expanded by > 70 gpm

New water withdrawals; • must meet the no "adverse resource impact” standard

• Compete for the water available after old withdrawal, fire, municipal and clean-up water uses.

Registration of New Withdrawals

• Required prior to use for withdrawal established after Feb. 28, 2006

• Form available from MDA at. http://www.michigan.gov/mda/0,1607,7-125-1567_1599_29980---,00.html

Trout streamsProvision ends April 2008

will be replaced by performance standard “no adverse resource

impact”

PA 33 - 34Trout stream protection (through Feb. 2008)

replaced by standard “no adverse resource impact”

– Required either• Permit for new wells located within 1320 ft of

designated trout stream

Or• Placement of wells 150 ft deep (top of screen)

And/Or • Proof that flow will not be drawn below 50% of the 5

year seasonal low flow

What is an adverse resource impact.

A Holistic system of defining adverse resource impact that is being discussed is fish species as an indicator of quality of the habitat.

• Each water body has a designated fish species

• User cannot lower the flow lower than predicted minimum flow for habitat for the fish species the resource (stream) is designated for.

324.32721 Large quantity withdrawal; prohibitions.(1) A person shall not make a new or increased large quantity withdrawal from the waters of the state that causes an adverse resource impact to a designated trout stream.(2) Beginning 2 years after the effective date (Feb. 28, 2008) of the amendatory act that added this section, a person shall not make a new or increased large quantity withdrawal from the waters of the state that causes an adverse resource impact.(3) This section does not apply to the baseline capacity of a large quantity withdrawal or a well capable of making a large quantity withdrawal that existed on the effective date of the amendatory act that added this section.(4) This section does not apply to a withdrawal that is utilized solely for fire suppression.

History: Add. 2006, Act 33, Imd. Eff. Feb. 28, 2006 Popular name: Act 451 Michigan Compiled Laws, Legislative Council, State of Michigan

324.32722 Presumption. (for new withdrawals)

• (1) Until a water withdrawal assessment tool becomes effective upon legislative enactment pursuant to the recommendations of the groundwater conservation advisory council under section 32803, there is a rebuttable presumption that a new or increased large quantity withdrawal will not cause an adverse resource impact in violation of section 32721 under either of the following circumstances:

(a) The location of the withdrawal is more than 1,320 feet from the banks of a designated trout stream.

(b) The withdrawal depth of the well is at least 150 feet.• (2) A presumption under subsection (1) may be rebutted by a

preponderance of evidence that a new or increased large quantity withdrawal from the waters of the state has caused or is likely to cause an adverse resource impact.

History: Add. 2006, Act 33, Imd. Eff. Feb. 28, 2006.Popular name: Act 451Michigan Compiled Laws, Legislative Council, State of Michigan

PA 33

• Allow a person who intended to make a new or increased large quantity withdrawal for which a permit was not required to petition the DEQ for a determination that the withdrawal would not cause an adverse resource impact; and prescribe a $5,000 petition fee.

PA 33 of 2006

• Prohibit a local unit of government from enacting or enforcing an ordinance that regulated an adverse resource impact caused by a large quantity withdrawal.

PA 37

• Encourage large-quantity users in a watershed to form a water users committee through which the DEQ could facilitate the resolution of a situation in which a withdrawal caused an adverse resource impact.

What do you need for a new large capacity withdrawal?

• Few agricultural user will need a permit. ( 1400 gpm, common distribution system, 90 day average)

• All new large capacity withdrawal constructed after February 2006 are required to register prior to use and report their monthly water use. Forms may be acquired from the internet at: http://www.michigan.gov/mda/0,1607,7-125-1567_1599_29980---,00.html

• Through February of 2008 you need to be aware of the trout stream provision if applicable.

• All large capacity users need to meet the no adverse resource

impact clause for withdrawal constructed after February 2006.

Large Volume Water Use Assessment Tool

• Estimates the potential impact of a proposed large volume water withdrawal to the fish population in near by creek, steam or river.

• Report to legislature July 2007

• Available by February 28, 2008

• Search DEQ website for “ large volume water use assessment tool”

• New legislation pending

Large Scale Water Use Assessment Tool

• Existing water withdrawals exist in the tool only to the degree that they affect the average of stream of that size in the State.

• Tools will show water available when existing use have used all that is available.

• Tool treats all surface water withdrawal as directly from the closest stream - recharge pond problems.

Maximum water use allowed C cut off - in gallon per minute: 157 gpm 278 gpm 36 gpm 565 gpm

Maximum water use allowed C cut off - in gallon per minute: 102 gpm 157 gpm 14 gpm 2950 gpm