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Developing and implementing ecologically-based flow policy – Maine case example

Environmental policy has been shown to follow a common course of development.  Kingdon (1984) suggested that there are three elements of the process that can be likened to co-occurring and convergent streams of input each of which are necessary for new policy to evolve.  The flow and water level policies addressed in the Maine’s regulatory approach followed this pattern of policy development.

Problem Stream – The recognition of a dilemma or crisis requiring new policy, or conflict among existing policies.  Problem(s) may be different for each interest group.
·        Dynamic system creates different problems for different groups (floods, drought)
·        Need to anticipate changing and emerging uses and values.
·        Increasing water use requires better management (population growth)
Politics Stream - All significant interests must be invited into the process, and a sufficient number from each side of a “triangle of interests” must be receptive to a policy change.
·        “Triangle of interests” – resource user interests, environmental interests, public resource management interests (government agencies).
·        Goals must be defined that are commonly understood by all sides of the triangle.
·        Advantages of a policy change need to be identified by all sides of the triangle.
Policy Stream – The generation of ideas that lead to an acceptable policy proposal.
·        Need for outcome-driven results.  Science-based approaches increase credibility.
·        Flexibility and clarity are necessary where there are conflicting interests or conflicting policies.
·        Policy “entrepreneur” with expertise and negotiating ability may be required to bring convergence of the streams.
The State of Maine embarked on establishing flow and water level regulation following several years of drought in the 1990s and early 2000s.  This process led to passage of statutory legislation in 2002 (Maine Revised Statutes Title 38, Article 4-B, Section 470) which defined (1) the state’s jurisdictional interests, (2) water use reporting requirements, and (3) authorized the establishment of standards for flow (for rivers and streams) and water level (for lakes, ponds, and impoundments) for the state which became a rule instituting both numerical criteria and procedures for their implementation. (CMR 06-096 Chapter 587 
In 2007, Maine became the first state in the USA to adopt statewide environmental flow and lake level standards based on principles of natural flow variation necessary to protect aquatic life resources and important hydrological processes. Five years of public debate shaped the policy between the time the authorizing statute passed and the time the regulatory standard was adopted. Because Maine lacks a statewide water abstraction management program, the new standards are implemented by staff from a pre-existing state water quality standards program. New river condition goals did not have to be established; instead, the new seasonal flow standards are associated with existing river condition tiers, or goals, that were previously instituted under the water quality program. These policies link ecological goals (below) that were previously defined in statute to environmental flow criteria through a river classification scheme that provide a range of natural flow events and explicitly protect high-flow events for many rivers:
Class AA - Outstanding natural resource for preservation, habitat is free-flowing and natural
Class A - Habitat for fish and other aquatic life is natural
Class B - Habitat for fish and other aquatic life is unimpaired
Class C - Habitat is suitable for fish and other aquatic life
Class GPA (lakes) – Habitat for fish and other aquatic life is natural
The new legislation linked flow and water level regulation to water quality goals in Maine’s water classification law that contains specific biological goals for all classes of waters.  Language in Section 470-H of the statute requires that rules are “protective of aquatic life and other uses” … “based on the natural variation of flows and water levels” … “allowing variances if use will still be protective of water quality within that classification”.  By linking these rules to the State’s water classification law with its’ aquatic life standards, and by requiring attention to natural variation of flow principles (sensu Poff et al., 1997), the final rule provides an ecologically protective design consistent with both the Federal Clean Water Act and Maine’s Water Classification Program goals “to restore and maintain the chemical, physical and biological integrity” of the state’s waters.  The rule was passed by the Board of Environmental Protection and subsequently received special required approval by the Maine Legislature in 2007.
·        Droughts in 1995, 1996, 2000, 2001 stressed water resources.
o   Extraction caused depletion, lost use, lost reserve.
o   Over-extraction causing fish kills and other violations of water quality law.
o   Some public water supplies approaching their safe yield indicating need to invest in new sources.
·        Conflicts and insufficient clarity in the law on water management policies, authorities, public resource priorities, and jurisdictions (attempts at this had been made in the 1980’s but failed to gain consensus or political support presumably for lack of a crisis about a diminishing resource).
·        Inconsistent regulation - certain water use related activities (hydropower) and certain areas of the state (unorganized townships) are regulated while other activities or areas are not.
o   ad hoc approach to permitting.
o   inconsistent/inadequate enforcement.
·        Inadequate data on current use and inadequate information on projected needs
·        Maine Department of Agriculture produces an “irrigation blueprint” report promoting irrigation.
o   Inattention to existing problems and resource limits.
·        Listing of Atlantic salmon under the Endangered Species Act in 1999 for 8 coastal rivers that identifies extraction among the potential stressors of salmon populations.
o   Potential oversight/permitting of activities by federal agencies under ESA Sections 7 and 10 procedures.
o   Listing is extended to the 3 largest watersheds in 2009 (about half of the state’s waters).
·        Insufficient funding (public and private) directed at problem solving, while some funding actually exacerbating problems.
·        Insufficient educational resources on good water conservation practices, efficiencies, and alternative water values.
Politics  (active participants in the policy development process)
·        Resource User groups –
o   Public water supplies - represented by Maine Water Utilities Association, Maine Rural Water Association, Maine Water Co. (which operates 11 public water systems), several state chartered municipal water companies
o   Commercial water bottlers – Poland Spring
o   Agriculture –  Maine Potato Board, Maine Wild Blueberry Commission
o   Industry – Maine Pulp and Paper Association, National Hydropower Association
o   Recreation – Ski Maine Association, Maine State Golf Association
·        Environmental Interests / Advocates
o   Atlantic Salmon Federation, Downeast Salmon Federation,  Natural Resources Council of Maine, The Nature Conservancy, Trout Unlimited, Maine Rivers, Maine Congress of Lake Associations, Appalachian Mountain Club
·        Government Agencies
o   State – Department of Environmental Protection (DEP), Department of Agriculture (DoA), Department of Health and Human Services (DHHS) Drinking Water Program, Department of Inland Fisheries and Wildlife, Atlantic Salmon Commission, Department of Conservation (Maine Geological Survey, Land Use Planning Commission (LUPC)), Public Utilities Commission, Office of the Public Advocate
o   Federal – Natural Resources Conservation Service (USDA), US Geological Survey and US Fish and Wildlife Service (USDI), National Marine Fisheries Service (NOAA), US Environmental Protection Agency
Policy elements discussed 
·        Scope of the rule
·        Criteria design
·        Planning
·        Permitting
·        Variances, extensions, de minimus use, etc.
·        Implementation responsibility
·        Implementation incentives
·        Water quality standards
·        Monitoring
·        Water rights
 Policy decisions and outcomes expressed in the rule:
·        Scope of the rule
o   Applies to surface waters only, although groundwater extraction practices that affect surface waters must assure surface criteria are maintained.
o   Criteria are State water quality standards and enforceable under the powers of the DEP, and not submitted as part of the Federal CWA water quality standards docket (see Section 470-H). 
o   Regulation of hydropower is specifically exempted in the rule since it is determined to be adequately regulated through the Water Certification process of the Clean Water Act (Section 401) or the Maine Waterway Development Act for small non-federal projects (in practice, similar flow and water level management principles of the rule are used for hydropower certification).
·        Criteria design
o   The criteria establish a quantifiable standard for how much water can be removed when flows or water levels are above a certain desired seasonal threshold amount (i.e., no extraction or other manipulation is allowed when flows fall below the seasonal threshold).  Seasonal thresholds are defined by one of two means (hydrologic approach or habitat approach):
o   Standard alteration approach (based on hydrologic records or calculated from statewide or regional flow equations generated by the USGS from unregulated rivers and streams):
§  Based on 6 “biological seasons” related to important aquatic life cycle functions and seasonal inflections of the natural hydrograph.
§  Threshold flow amounts are based on a median flow value for each of the six seasons.  Median flows are used since they are thought to be a central value around which species and communities experience with the most frequency and have adapted.
§  Threshold water levels are based on two incremental reductions consistent with natural open water seasonal loss in lake and pond water level.
§  Amount of extraction is determined according to a waterbody’s classification.  Note that if a river or stream has a regulated flow (e.g. due to hydropower), that regulated flow must be maintained.
o   Site-specific approach (based on providing sufficient functionally wetted habitat)
§  On-site evaluation is required to determine that sufficient habitat is protected.  (As a rule-of-thumb, sufficient habitat protection is ascertained when  approximately 75% of each significant habitat type remains functionally wet and that connectance between permanent aquatic habitats is maintained)
§  Seasonal date adjustments can be used to account for north-south season differential.
·        Planning
o   Watersheds most-at-risk – the state is directed to identify watersheds where existing withdrawal capacity already approaches certain percentages of available supply.  As of 2011, the Maine Geological Survey had conducted these analyses.
o   Multiple withdrawals – Maine is fortunate that most waters only have one or a few extractors.  As a water quality standard, the rule only specifies the minimum flows and water levels above which extraction can occur.  It was decided that it is the individual parties’ responsibility to manage each allocation to attain the standard.  The rule does not prevent natural drought events nor is there any requirement to supplement natural flows.
o   Climate change – all parties involved in designing the rule recognized that the hydrology of Maine’s waters is in flux due to climate change.  While not expressly addressed in the rule, the state agencies, the University of Maine, and the USGS have been investigating the shifts in hydrologic patterns with the intention that seasons, median flow values, and the hydrologic equations used in the rule will need to be modified at a future date.
·        Permitting
o   No new permitting system was established specifically for water extraction, flow or water level alteration (this was a request from the legislative committee).  This was a primary reason that the rule established a water quality standard since standards can be enforceable with or without permitting activities.   Flow and water level requirements of the rule may be incorporated in other environmental permits (e.g. land alteration permits) if the permitted activity would result in alteration of flow or water level that may not be otherwise protective.
o   Flow and water level requirements in existing permits (issued prior to 2007) remain unchanged (“grandfathered”), even if they do not achieve the criteria in the rule.  It is presumed that those permit requirements were implemented using the best available information at the time.  Permits that have an expiration date must attain the new standards of Chapter 587 upon reissuance.
·        Variances, extensions, de minimus use, etc.
o   Use for emergency purposes (e.g. fire control) is exempt from criteria in the rule.
o   “Non-consumptive” (de minimus) use is defined in Section 470-A and based on reporting thresholds assigned in the law (Section 470-B).  These thresholds for non-consumptive uses are determined to have essentially no measurable effect on the resource.  These thresholds were adopted for administrative expediency since there was no interest in managing the myriad of small extractions that occur and mostly have little effect.
§  Return flows.  Where water is returned in essentially the same amount within ¼ mile of the extraction point, it is considered a non-consumptive use.
o   Community Water Systems that cannot comply with the criteria as of the date of rule adoption are given a Community Water System Withdrawal Certificate for continued use of their existing design capacity.  Any new or modified water source development must maintain or improve conditions to attain the criteria.  Certificates are reviewed and approved by the DHHS Drinking Water Program and the Office of the Public Advocate and must comply with the facility’s state charter.
o   A variance for drought conditions is provided to public water supplies only to allow for continued use of a resource to achieve the requirements of their charters.  The rule uses the Palmer Drought Index to set a threshold when a drought variance is allowed.  No variance is provided for other users, extraction ceases when flows and water levels fall below the seasonal flow or water level criteria.
o   Agriculture is provided a 5 year compliance period from the date of rule adoption (August, 2007) if a farm registers as a practicing irrigator as of that date.  That compliance period may be extended if the  DEP determines that substantial progress has been made toward compliance or where sufficient funding has not been available.  An extension may only be granted if a farm has, and is in compliance with, an Agricultural Water Management Plan developed in cooperation with the Maine DoA and NRCS.  Extensions were granted in 2012 for certain farms.  New irrigators, after the effective date of the rule, must comply with the rule.
·        Implementation responsibility –
o   Agriculture Water Management Board (comprised of agencies and user groups) advises agencies on water use policy, tracks implementation, determines requests for extensions, and advises on disbursement of state funds.
o   Farms must implement water use management plans.
o   Maine DEP
§  determines minimum flow criteria for specific extraction sites,
§  conducts site visits and determines site specific flow or water level criteria by request
§  provides water withdrawal certificates for community water suppliers
§  determines monitoring requirements conducted by the state or as part of any certificates or permits that are issued.
§  conducts any enforcement (none required to date)
o   USGS provides flow measurements, modeling services, and develops regional flow calculations.  State agencies and USGS presently have a cooperative agreement to develop a StreamStats program for Maine using NHD Plus and incorporating all the state and regional equations identified in Chapter 587.
o   NRCS provides technical support, design, and funding for cooperating farms.
o   Maine DHHS and Office of Public Advocate provide review and approval of Community Water System Withdrawal Certificates and any accompanying conditions.
·        Implementation incentives
o   Currently, Maine is helping water users meet the flow standards by providing expedited permitting and financial support for off-stream reservoir projects for storing water when excess is available, for use during low-flow periods.
o   Financial
§  Agriculture irrigation funds have been approved in the state environmental bond package (twice) with another proposal for 2014.
§  Priority points are awarded for financial assistance from NRCS (EQIP, AWEP) for projects that bring farms into compliance with chapter 587 and Maine’s water quality standards (note that because Maine has water management rules in place, the state NRCS office has been able to acquire surplus federal funding for these programs beyond the normal federal allocation of funds).
§  Use of the Clean Water and Safe Drinking Water State Revolving Funds (USEPA and State funded) for low interest loans for community water suppliers, agriculture, and other extractive users.
§  Conservation practices necessary to comply with the rule may be allowed to be paid by utility rate payers as part of rate change requests (after approval by Public Utilities Commission and Office of the Public Advocate).
o   Regulatory
§  No new permits for water extraction are required if criteria in the rule are maintained.
§  Compliance with Class AA flow criteria is determined to not represent a “taking” of Atlantic salmon  under ESA  therefore not subject to federal review (determination for Classes A, B, C is pending).
§  The rule is designed to encourage construction of storage (outside of the natural surface resource) and groundwater wells (>500 feet from surface waters) to reduce reliance on small waterbodies for direct extraction.  Expedient permit-by-rule procedures are provided to certain pond and intake structure designs. Storage ponds are expressly exempt from water level criteria of the rule. 
·        Water quality standards – activities operating in compliance with the rule attain water quality standards of the assigned water classification (goals of physical and biological integrity) for flow and water level (water quantity).
·        Monitoring – the Maine DEP has primary responsibility for monitoring and assessment of compliance with this rule.  If a permit is issued that includes flow or water level limits, the DEP or LUPC (for unorganized townships) can require the permittee to provide data showing compliance (this is a negotiable part of the permitting process).
·        Water rights – no rights or determination of reasonable use are granted or implied by this rule.
Roles for TNC
·        Problem – identify where existing policy (or lack of policy) conflicts with water management, interest group, and TNC’s conservation goals.  Provide scientific evidence that can be used to define the problems.
·        Politics – recognize that TNC is an interest group with conservation goals of significant public value.
·        Policy – provide ideas (e.g. ELOHA), tools (e.g. IHA), expertise and experience (e.g. Green River, Delaware River) to lend to policy solutions.
·        Potential to fill the role as the “policy entrepreneur” (tradition of non-confrontational approach).
Water Withdrawal Program (Maine Revised Statutes Title 38, Chapter 3, Article 4-B, Section 470)

Chapter 587: Instream Flows and Lake and Pond Water Levels

Kingdon, J.W. 1984. Agendas, Alternatives and Public Policy. Little, Brown and Co., Boston, MA

Poff, N.L., J.D. Allen, M.B. Bain, J.R. Karr, K.L. Prestegaard, B.D. Richter, R.E. Sparks, J.C. Stromberg. 1997. The natural flow regime.  BioScience  47: 769-784.


Dave Courtemanch
TNC Maine Field Office