A Delicate Balance: Connecticut’s Minimum Water Flow Statute (2010)

INTRODUCTION In June 2005, Connecticut General Assembly passed Public Act No. 05-142, An Act Concerning Minimum Water Flow Regulations. Signed into law by Governor Jodi Rell, act directs Connecticut Department of Environmental Protection (DEP) to issue new minimum instream flow regulations. The current minimum instream flow regulations, requiring dam operators and diverters to release to maintain a minimum daily flow, are antiquated, not based on good science, and limited only to rivers and streams that DEP stocks with fish for recreational angling. While maintaining a certain level of flowing in a stocked fiver or stream is beneficial for fishing, are many other benefits of expanded and better minimum instream flow standards, including flow for natural fish species, other wildlife, environment, aesthetic beauty, and recreational uses, such as canoeing or swimming. If not enough is kept instream and flowing, non-consumptive beneficial uses of rivers and streams, such as those above, can become impaired or outright extinguished. At time of writing, DEP has not yet finalized new instream flow regulations. Proposed regulations were only recently published in October 2009 and were awaiting public comment at end of January 2010. Even so, legislation authorizing DEP to issue regulations provides guidance as to content of regulations. The statute offers an opportunity to assess a state's recent attempt to grapple with delicate balance that must be struck between consumptive use of and need to keep instream for ecological, recreational, and other beneficial uses. I. BACKGROUND AND LEGISLATIVE HISTORY When thinking about crises in United States, Connecticut does not often come to mind. Generally, Connecticut has quite abundant resources, with an average annual precipitation of forty-seven inches. (1) Nonetheless, Connecticut is not immune from problems relating to In August 2005, it experienced severe drought conditions. (2) A report in 2000 from DEP highlighted mounting concern and conflict regarding quantity of available to meet state's needs. (3) Connecticut as a whole has enough to meet demand, but water is not always available where or when it is needed. (4) Seasonal variation in supply, particularly in summer, coupled with growth and shifting demand means that there is not always enough supply to meet demands of public in certain (5) and users are left to compete for an increasingly limited amount of water. (6) Also worrisome was DEP's conclusion that the short supply of in certain areas has caused adverse environmental impacts, as is often not enough in particular bodies to support a healthy fishery, resource, recreational boating, swimming, and other needs. (7) Connecticut's problems, however, are not limited to occasional supply issues and instead reveal a more systematic defect in state's allocation scheme. A. Connecticut's Inadequate Water Allocation Regime When it comes to management of resources, Connecticut is a regulated (8) Connecticut originally was a common-law riparian (9) state when it came to rights, but in 1982, Connecticut General Assembly passed Connecticut Water Diversion Act, which requires a permit from DEP for any activity which causes, allows or results in withdrawal from or alteration, modification or diminution of instantaneous flow of waters of state. (10) On its face, Diversion Act is a comprehensive management scheme. Applicants for permits must justify their needs for water, show that are no reasonable alternatives, and show that they have a long-term conservation plan. (11) The applicant is required to state effect of proposed diversion on other factors, including environment, quality, and recreation. …