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INTERVIEWS WITH GROUND WATER EXPERTS IN TWENTY
REGULATED RIPARIAN STATES: SELECTED RESULTS

presented by

Mariah Branch

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5/08 KzlProi/AchresIClRCIDaleDueindd

INTERVIEWS WITH GROUND WATER EXPERTS IN TWENTY REGULATED
RIPARIAN STATES: SELECTED RESULTS

By

Mariah Branch

A THESIS

Submitted to
Michigan State University
In partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE
Agricultural, Food, and Resource Economics

2008

ABSTRACT

INTERVIEWS WITH GROUND WATER EXPERTS IN TWENTY REGULATED
RIPARIAN STATES: SELECTED RESULTS

By
Mariah Branch
Michigan, like many other states, is concerned that current ground water
regulations are not adequate for addressing increasing demands placed upon the state’s
aquifers and is currently revising its ground water policies. In order to identify
components of effective ground water policies, we interviewed (via telephone) 70 ground
water experts in 20 regulated riparian states which have a history of managing ground
water within a riparian doctrine. Our respondents were from agencies, extension,
universities, water resource institutes, and special interest groups, as well as legislators.
Our sample includes experts who were involved in policy design as well as experts who
work with ground water regulations on a daily basis. The questions in our semi-structured
interview and the analysis were guided by an economic criteria framework for evaluating
effective policy instruments. The findings from this project provide advice for water

policy design based upon extensive experience.

DEDICATION
This work is dedicated to my family and friends who have supported me while pursuing
this master’s degree and the generation that arrived while I was at MSU, Kartik J indal

and Noah Branch.

iii

ACKNOWLEDGMENTS
I wish to thank my committee:
Dr. Sandra Batie, Dr. Michael Kaplowitz, and Dr. Patricia Norris.
I also wish to thank my other professors who took the time to help me develop my
knowledge base while here at Michigan State University, especially:
Dr. Allan Schmid, Dr. Paul Thompson, and Dr. John Kerr.
Several colleagues also merit mention in their support of my work:
Mamta Vardhan, Rohit J indal, Sonja Perakis, Lexi Harris and Monica Ostrand.
I am grateful for funding from the following intuitions:
Elton R. Smith Endowment, Sustainable Michigan Endowed Project, Great Lakes
Protection Fund, Institute for Water Research, and United States Geological Survey.
Finally, I wish to acknowledge the many, many people who generously gave their

time and participated in or provided references for this survey.

iv

TABLE OF CONTENTS

List of Tables .................................................................................. vii
List of Figures ................................................................................. viii
I. Introduction ................................................................................. 1
11. Research Objectives ...................................................................... 8
III. Framework And Methods ............................................................... 8
III. A. Respondent Selection ................................................................ 11
III. B. Interview Questions .................................................................. 17
III. C. Data Analysis ........................................................................... 18
IV. Selected Results ........................................................................... 18
IV. A. Static Concerns ....................................................................... 19
IV. A. I. Efficiency in Meeting Policy Objectives ........................................ 19
IV. A. 2. Informational / Computational Demands ...................................... 21
IV. A. 3. Relative East of Monitoring And Enforcement ............................... 23
IV. B. Dynamic Concerns ................................................................... 25
IV B. 1. Flexibility in the Face of Exogenous Changes ................................. 25
IV. B. 2. Incentives For Environment- Saving Technical Changes .................... 28
IV. C. General Institutional Demands .................................................... 29
IV. C. 1 Overarching Institutional Needs ................................................. 30
IV. C. 2. Institutional Demands on the Agency .......................................... 31
IV. D. Political Dimensions ................................................................. 33
IV. D. 1. Distributional Implications ...................................................... 33
IV. D. 2. Perceived Ethical Messages ...................................................... 36

IV. D. 3. Perceived Fairness ................................................................ 37

IV. E. Perceived A-priori Risks ............................................................. 38
IV. E. 1 Agency ............................................................................... 38
IV. E. 2. Regulated Parties .................................................................. 40
V. Summary & Conclusion .................................................................. 42
References ..................................................................................... 46

vi

LIST OF TABLES

Table 1: Categorization of Contacts and Respondents ................................. 14

Table 2: Number of Contacts and Interviews in Each State ........................... 16

vii

Interviews with Ground Water Experts in Twenty

Regulated Riparian States: Selected Results

|. - INTRODUCTION

Riparian states are traditionally characterized as those states where water has been
abundant, water is viewed as a shared resource, the combination of water rights and
property ownership is viewed as inseparable, and any conflicts over water use are decided
in the courts based upon the concept of “reasonable use” (Cox, 1994; Dellapenna, 1994;
Miller et al, 1996; American Society of Civil Engineers (ASCE), 2004). Unlike Western
water laws, most riparian doctrines prohibit moving water away from riparian land
because removing water is thought to diminish other’s Opportunity to use it and thus
would be contrary to the ideal of shared use-- an important aspect of reasonable use
(Kundell and Tetens, 1998). While most Eastern states, including Michigan, have had
some form of riparian water law, the riparian doctrine has been in decline for several
decades and states have experimented with alternative allocation systems (Dellapenna,
1994; Cox, 2001; American Society of Civil Engineers (ASCE), 2004). Some regulated
riparian states like Florida and Hawaii revised their ground water regulations in the 70’s;
others like Wisconsin and Michigan have only recently begun such a revision.

Riparian law was originally based on British ground water laws and the “absolute
ownership doctrine” subject to “reasonable use” (Cox, 1994). Numerous authors (for

example: Cox, 1994; Kundell and Tetens, 1998) have explored the history of changes in

riparian law. Riparian law does not allow the separation of water rights from real estate
rights with the result that landowners are unable to sell their water rights separately from
their land rights. In contrast, prior appropriation states allocate specific amounts of water,
based upon seniority of use, and allow those allocations to be bought and sold as long as
the new diversion does not harm junior users (Dellapenna, 1994).

Traditionally, because riparian doctrine is common law, reasonable uses were
decided by the courts; however, reasonable surface water uses and reasonable ground
water uses are not viewed as the same thing in the courts (Cox, 1994; Kundell and
Tetens, 1998). Reasonable use, as it applies to surface water, allows for riparian users to
use the water for beneficial purposes so long as it does not interfere with other riparian
users and their beneficial uses (Kundell and Tetens, 1998). Reasonable use, as it applies
to ground water, may allow users to interfere with each other causing disputes that often
end up being resolved in court (Kundell and Tetens, 1998). According to Maloney et al,
(1979)

The Restatement (Second) of Torts has identified nine factors

which courts have taken into consideration in determining whether a use is

“reasonable use.” These are: (1) the purpose of the respective uses; (2) the

suitability of the uses to the water course or lake; (3) the economic value

of the uses; (4) the social value of the uses; (5) the extent and amount of

the harm caused; (6) the practicality of avoiding the harm caused; (7) the

practicality of adjusting the quantity of the water used by each proprietor;

(8) the protection of existing values of land, investments and enterprises;

and (9) the burden of requiring the users causing the harm to bear the loss.

(P 256)

Kundell and Tetens (1998) have noted that leaving disputed decisions to be
decided on a case by case basis creates a high amount of uncertainty for new endeavors.

(This same argument has arisen in Michigan (Schneider, 2003) where there has been an

ongoing legal battle between the Michigan Citizens for Water Conservation (MCWC)

and Nestle Corporation surrounding a water bottling plant in Mecosta, Michigan.) The
traditional riparian doctrine has been criticized for not providing a mechanism to protect
certain water uses, such as sufficient in-stream flow for existing aquatic ecosystem, nor
does it provides a mechanism for water use to be transferred to higher valued uses
(Deason et al, 2001). These omissions have also created a context for change as the need
for the states to actively manage their ground water has grown ( Dellapenna, 1994;
Kundell and Tetens, 1998).

As riparian states have modified their legislation and regulations to require either
reporting or permitting of water withdrawal (F oran, 1995; Kundell and Tetens, 1998; Cox
2001) they have moved into what Dellapenna (1994) has termed “regulated riparianism.”
Regulated riparianism describes the water doctrines of states that have moved from the
traditional form of riparianism and have now established some form of regulations. In
contrast to the prior riparian doctrine, regulated riparian polices are based upon the
state’s need to protect the public welfare, safety and health (ASCE, 2004).

Michigan’s recent ground water legislation (for example four proposed revisions
in 2008, to Senate Bills 212, 723,727, and 860 in 2007) are part of a long line of riparian
states’ efforts to modify traditional riparian doctrines. For example, in 1968 The Great
Lakes Basin Compact was approved by Congress and it created a commission, The Great
Lakes Commission, which, among other duties, was charged with recommending laws,
ordinances and regulations to the members (the Great Lakes States as well as Quebec and
Ontario) for the protection and enhancement of the Great Lakes (Great Lakes
Commission, 2003). In 1985, the Great Lakes Charter was signed and then in 2001 , the

Great Lakes Charter Annex, 2001 (Annex 2001) was created (Council of Great Lakes

Governors, 2006). Relatively recently, in 2005, the Great Lakes-St. Lawrence River
Basin Sustainable Water Resources Agreement (Agreement) and The Great Lakes-St.
Lawrence River Basin Water Resources Compact (Compact) were signed. These two
documents include a ban (with limited exceptions) on diversions of water outside the
Basin and also called for an increase in technical data development (Council of Great
Lakes Governors, 2006). However, the ability of a state to ban diversions is dependent
on having state management of water resources.

Several of the proposed revisions to laws in Michigan stem from these
agreements. For example, Senate Bill 212 (2007) provides for the implementation of the
Great Lakes- St. Lawrence River Basin Water Resources Compact and Senate Bill 858
(2007) is intended to satisfy some of the requirements in the Compact (Cassidy, 2008).
The Great Lakes Basin Compact and Annex 2001 have prompted Michigan’s Public Act
148 of 2003 which created the Ground Water Advisory Council and charged the Council
with monitoring the implementation of Annex 2001 as well as providing suggestions for
Michigan's statutory conformance with Annex 2001. Additionally in 2003, the new

Generally Accepted Agricultural Management Practices (GAAMPs) for irrigation water

 

I The Great Lakes Basin Compact is an agreement between the states of Illinois,
Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin and the
provinces of Ontario and Qtébec to mange the development, use, and conservation of the
water resources of the Great Lakes Basin. Dating back to 1955, Article V of the Compact
created the Great Lakes Commission which provides a vehicle for members to bring forth
concerns and negotiate agreements. In 2001 a number of issues, including the threat of
significant water withdrawals from the basin, were negotiated and a supplemental
agreement, the Great Lakes Annex Waters Agreement (Annex 2001) was developed. In
general, Annex 2001 states that there will be “no significant individual or cumulative
adverse impacts to the quantity or quality of the waters and water-dependent natural
resources” of the Great Lakes Basin
(http://wwwflgluorg/english/annex 2001/summarv_background.htm, accessed May
2008).

use were approved to work with Michigan’s Right to Farm Act. The need to revise
Michigan’s water laws, coupled with the knowledge that the number of conflicts over
ground water in riparian states has increased in frequency in recent years (Kundell and
Tetens, 1998; An and Eheart 2006) led our team to begin to examine what other
regulated riparian states have done.

There is a paucity of literature to assist policy makers with updating their water
laws. An exception is the American Society of Civil Engineers’ (ASCE’s) ASCE
Regulated Riparian Model Water Code (2004) which was written to facilitate the
development of enabling legislation for water management. However, the
implementation of the legislation suggested by the code was largely unaddressed by that
document (Eheart, 2002). This deficit was addressed by the Task Committee on Water
Rights Allocation and Trading in Humid Areas of the Water Regulatory Standards
Committee of the Environmental and Water Resources Institute of the American Society
of Civil Engineers. The Committee developed the Riparian Water Regulations
Guidelines for Withdrawal Limitations and Permit Trading (Eheart 2002). Together,
these two documents address regulated riparian management of both surface water and
ground water.

There are a few publications to complement these two reports and which provide
suggestions for revising water laws. For example, Bulkey et al (1987) describes
numerous institutional options at the state, regional and local levels. Kundell and Tetens
(1998) examine states that have adopted registration requirements as well as states that
have adopted administrative permitting programs. The difference between registration

and permitting is that, with registration programs, ground water withdrawers are only

required to inform the state of what they are doing. With permitting, potential ground
water users must apply to the state for permission to use the water and the designated
state agency has the power to approve, modify or deny the request to withdraw water.
Eheart et al (1989) developed a report exploring water management trade offs and
options. These three publications were targeted at specific states, but have generalized
conclusions about water resource policy choices for other states. A complementary paper,
“Institutions for Interstate Water Resources Management,” (Mandarano et al, 2008)
examines the institutions for interstate water resources management. However, these
works do not solicit extensive advice from ground water experts in regulated riparian
states.

Studies which do solicit advice through in-depth interviews, focus groups, and
surveys, tend to focus on a specific state or region or a specific issue. For example,
O’Connor et al (1999) surveyed 506 community water system managers in the
Pennsylvania Susquehanna River Basin, to learn more about community water system
sensitivity to weather and climate changes. Rumps et al (2007) reported on interviews
with 47 project participants in the Pacific Northwest regarding the restoration of
freshwater habitat.

However, there is a literature gap with respect to states’ experiences and lessons
from moving from the traditional riparian doctrine to regulated riparianism. This paper
addresses this gap by synthesizing interviews with ground water experts in other 20 other
regulated riparian ground water states and by gleaning information about components of

effective ground water policies.

ASCE (2004) identified 20 states as being regulated riparian surface water states.2
While other lists of regulated riparian states have been generated, (Kundell and Tetens,
1998; Cox, 2001) we decided to use the most recent list for our survey of regulated
riparian states with a history of decisions based upon “reasonable use.” Thus, we
interviewed ground water experts from: Alabama, Arkansas, Connecticut, Delaware,
Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota,
Mississippi, New Jersey, New York, North Carolina, Virginia, South Carolina and
Wisconsin. Our interest was specifically in ground water because many of the proposed
legislative updates in Michigan include ground water (for example, Senate Bills 212, 342,

723, 858, and 860.)

 

2 The decision about which riparian states to include in our survey was problematic.
Some authors such as Kundell & Tetens (1998) have organized riparian states into
categories such as:

1. States that Depend on Common Law Doctrines (Louisiana, Vermont, Rhode Island,
West Virginia)

2. States Requiring Registration of Major Water Users (Michigan, Missouri, Ohio,
Tennessee, New Hampshire)

3. States with Targeted Permitting Programs ( Alabama“, Arkansas*, Illinois*, Indiana*,
Maine, Mississippi*, New York*, North Carolina“, Pennsylvania, South Carolina“,
Virginia*)

4. States with Comprehensive Water Permit Programs (Connecticut*, Delaware*,
Florida*, Georgia*, Iowa*, Kentucky*, Maryland“, Massachusetts*, Minnesota*, New
Jersey“, Wisconsin*)

States that we interviewed are noted with *. We chose to follow the determinations made
by ASCE and interviewed riparian states that had moved to comprehensive groundwater
withdrawal permitting programs with states that only had partial permitting programs
because we thought that it would better provide us with an overview of the various paths
that other regulated riparian states have followed and allow us to better discover the
relative strengths and weaknesses of other programs.

ll. - RESEARCH OBJECTIVES

Overall our research objective was to obtain advice from ground water experts in
other regulated riparian states with respect to changes in their water law that was relevant
to ground water management. Sub-objectives were:

I To select a framework of analysis to guide the choice of questions of experts.

. To interview at least three experts from each of the 20 identified regulated

riparian states.

I To organize the results of the interviews in a manner to provide policy advice

to states — such as Michigan — considering revisions to their current water

allocation legislation.

III. — FRAMEWORK AND METHODS

We needed a framework which would provide an overarching foundation that
would allow for an easy comparison of policies from multiple states. There are many
alternatives to evaluating environmental policy instruments and we reviewed six (Bohm
and Russell, 1985; Krarup, 1999; Russell and Powell, 1999; Richards, 2000; Mickwitz,
2003; An and Eheart, 2006). In addition, we reviewed the comparison of 6 environmental
policy instrument frameworks by Richards (2000). For this article, we chose the
evaluative policy framework developed by Russell and Powell (1999) because it was

relatively comprehensive and based on economic theory.

We used an adapted Russell and Powell (1999) framework to identify common
concerns, institutional requirements, and political dimensions of the respective ground

water laws that our respondents revealed in their interviews. This article synthesizes this

information and provides advice for the revision of water legislation from that of riparian

law to regulated riparian law from an environmental economic’s perspective.

Numerous authors (for example, Weersink et al, 1998; Eheart, 2002 ) have
pointed out how economic analysis can better inform stakeholders and decision makers.
Our selected framework provided us with five distinct areas that we could examine for
commonalities and recommendations from our experts. These five areas are: 1) Static
concerns 2) Dynamic Concerns 3) General Institutional Demands 4) Political Dimensions
5) Perceived a-priori risks. The adapted Russell and Powell framework is reproduced in

Figure 1.

Figure 1: Criteria For Evaluating Policy Instruments

Static Concerns
1. Efficiency in meeting policy objectives (cost—effectiveness)
2. Information/computational demands
3. Relative ease of monitoring and enforcement

Dynamic Concerns
4. Flexibility in the face of exogenous changes
5. Incentives for environment-saving technical change

General Institutional Demands
6. Overarching Institutional Needs
7. Institutional Demands on the Agency : honesty, technical capabilities
(including data gathering, model building and solving, monitoring and
enforcement, and revenue handling)

Political Dimensions
8. Distributional implications
9. Perceived ethical message
10. Perceived fairness

Perceived a-priori risks
11. To agency: failure to achieve goals, freezing current technology for too long,

possible perverse responses
12. To regulated or otherwise impacted parties: false convictions, ‘ratcheting

down’ of requirements

(Adapted from: Russell, CS, and RT. Powell, 1999. Practical Considerations and
Comparison of Instruments of Environmental Policy. In: Handbook of Environmental
and Resource Economics. Jeroen C .J .M. van den Bergh (Editor): Edward Elgar Publisher
p 321)

10

In addition to questions suggested by the Russell and Powell framework, we
developed questions about the history of the state and the role of scientists in developing
policy as well as general questions to solicit advice. We chose to do so because we
thought that it was important to contextualizing the state’s situation and because we
wanted to know more about the role of science in adopting altemative water allocation

systems.

III. A. - Respondent Select_i_o_r_r

We were particularly interested in advice applicable to Michigan’s situation, so
we focused on the 20 states that, like Michigan, have a heritage of a riparian ground
water doctrine. We interviewed at least three ground water experts in each of these states
and we used a judgment sample, which is a purposeful selection of respondents we felt
were best qualified to answer our questions (Marshall, 1996), and conducted 66 in-depth

interviews in 2006 and 2007, averaging over an hour in length.

We began by contacting people in each state’s Institute for Water Research,
University Extension, and the state agency that issued ground water permits. Thus we had
three initial points of contact in each state and we solicited referrals for additional
potential participants from all of these initial contacts. We provided respondents with an
overview of the interview guide (see Figure 2: Overview of Interview Guide) and asked if
they were an appropriate participant or if they would recommend someone who was
appropriate. Approximately a third of our initial contacts were not interviewed as they

provided more relevant potential respondents.

11

Figure 2: Overview of Interview Guide

10.

ll.

12.

13.

The words “ground water regulation” can mean a number of things. Please
describe your current ground water regulations and any changes made to them in
the past.

How does your ground water regulation system work? What is the difference
between what is on paper and what actually happens? Does it serve agricultural
interests? Industrial interests? Environmental interests?

Do you have a permit system of some sort? If not, how does your state’s ground
water protection system control, enforce, and administer your state’s resources?

Do you think that your state’s current water resource regulations as they concern
ground water use adequately balance human use and healthy aquatic ecosystems?

Who do you think benefits from your state’s current approach to ground water
regulations? What are some of the ways that they benefit?

Can you share with me your perspective on the process behind putting your ground
water (water resource) regulations into place?

We are particularly interested in learning more about the extent to which your
state’s ground water regulations consider ecosystems with a hydrological
connection to ground water. Is protection of the environment specified or
otherwise addressed as part of your state’s ground water resource regulations and
laws?

Are there special “protected areas” in your state where ground water regulations
are more strict than others? (ie. Wetlands, trout) What are the key threats to
maintaining ground water quantity? What are the key threats to maintaining ground
water quality?

In your state, how is it determined who gets to withdraw ground water? Is a permit
required? Are there tiers of use? First to apply?

Can you tell us about how ground water permits/regulations are enforced and
whether the enforcement mechanisms are effective?

If you could change one thing about ground water laws what would that be?
What else should we know about your experiences with ground water regulations?

Do you have any advice for us as we contact other programs to learn about ground
water regulations?

12

In some states like Connecticut, we were given numerous referrals immediately.
In other states like Hawaii, our initial contacts all agreed to talk with us, and we did not
need to pursue additional referrals. Almost half of our respondents also provided
additional referrals. Three respondents gave us referrals to colleagues who could
represent an opposing point of view on some controversial issues in their state. We did
contact these three referrals, however we did not contact approximately 15% of our
identified potential respondents, because we met the goal for the number of respondents
in that state. (Interviews with two or three respondents only counted as one interview in
meeting our minimum of three interviews per state criteria.) Almost 80% of our

respondents were male and over 90% had 10 or more years experience.

Rubin and Rubin (1995) have identified three requirements for selecting
respondents: respondents must be knowledgeable, willing to be interviewed and hold a
range of perspectives. Once we confirmed that a contact met these three requirements, we
set up a time for our telephone interview. Our respondents included representatives from
agencies such as the Departments of Natural Resources, US. Geological Survey,
Environmental Quality Departments, Health Departments, Water Districts and Divisions.
Their job titles included: directors, chiefs, supervisors, department heads and university
faculty. Seven respondents were present during and participated in updating their

respective state’s legislation/regulations. A disposition table of our respondents follows:

13

Table l: Categorization of Contacts and Respondents

 

Number of potential respondents we sent
introductory letters to (via either e-mail or
snail mail):

122

 

Number of people contacted who did not
participate in the survey, but referred us to
one or more other people:

50

 

Total number of potential respondents we
identified or were given a referral to:

193

 

Total number of potential respondents we
contacted in some manner:

164

 

Number of contacts that we did not pursue
because we met goal for the number of
interviews for the state:

29

 

Total number of respondents:

70

 

Total number of interviews:

66 (Two interviews had two respondents
and one interview had three respondents at
the same time.)

 

Number of people we contacted who
refused:

11

 

 

 

 

 

 

Number of respondents who participated in 31

the survey and gave us a referral:

# of male respondents: 53 (76%)
# of female respondents: 17 (24%)
# of respondents with 10 or more years of 64 (91%)
experience:

# of respondents who talked about their 7 (10%)

participation in updating their state’s
legislation or regulations during the
interview:

 

 

Note: These categories are based upon the AAPOR’s 2006. Standard Definitions: Final

Dispositions of Case Codes and Outcome Rates for Surveys. 3

 

3 Table 1, The Categorization of Contacts and Respondents is based upon categories and
definitions developed by The American Association For Public Opinion Research
(AAPOR) and published in their 2006, “Standard Definitions, Final Dispositions of Case
Codes and Outcome Rates for Surveys. The American Association for Public Opinion
Research, 2006. Standard Definitions: Final Dispositions of Case Codes and Outcome
Rates for Surveys. Lenexa, Kansas, AAPOR.” However we felt that while some of the

 

definitions developed by AAPOR are appropriate for random surveys, they were not as

useful for a series of 66 in—depth interviews with subject matter experts. For example, the
AAPOR definitions distinguish between completed and incomplete interviews. We found
those categories to be too restrictive as some of our questions were not appropriate for all

14

In Table 1, The Categorization of Contacts and Respondents, we categorized the
potential subject matter experts into those who participated in our answering some or all
of the questions in our guide, those who provided us with referrals, and those who
declined to participate and did not provide referrals. These categorizations provide
readers with an accurate overview of our participation level and show how we were able
to obtain a high level of participation from experts with over 10 years of experience.
Also, even with an average interview length of over an hour, we were not always able to
touch on all topics. Thus it is important to note that a low number of responses in a
specific area is not indicative of the importance level of the area and in fact, we chose to
do in-depth interviews because it is a format that allows us to identify and pursue
interesting comments and perhaps cutting edge ideas that would be overlooked in a

standard survey.

In some states, we interviewed more than three experts. (See Table 2: Number of
Contacts and Interviews in Each State). The decision to interview additional experts was
based on the first three interviews. If, during the first three interviews, we were referred
to an expert who was a key participant in updating their state’s ground water regulations,
we made every effort to contact that person. Additionally, in some states, the
responsibilities for ground water management are shared between many agencies and it
was necessary to contact several agencies to gain a fuller understanding of the overall

perceived effectiveness of the state’s ground water policies. In two states we

 

states and all respondents so we did not ask all the respondents the same questions. For
example, questions about the process of changing the ground water laws were relevant in
states that had recently updated their laws, but not appropriate to pursue with an expert
who was not present when the law changed 30 years ago and who primarily works with
monitoring and modeling aquifers.

15

interviewed individuals who work for environmental organizations or provided legal

services for environmental organizations relating to ground water and in three other states

we interviewed elected officials because of the important role that they played in

developing their water allocation legislation.

Table 2: Number of Contacts and Interviews in Each State:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

# of Respondents Year Regulated Riparian
# of Interviewed Who System For Surface Water was

State Contacts # of Interviews Have 10 or More Enacted (ASCE, 2004), as of

Years of 2002

Experience

AL 7 3 3 1993*
'AK 13 3 3 1985*
icr 18 3 311982
11313 6 4 3 1959
EFL 7 3 ‘ 3 1972
GA 9 3 3 1977 -surface
1 1972 ground water
int 4 3 3 1987
IA 8 4 4 1957
71L 9 3 2 1983'”
iKY 6 3 3 1966
MA 14 4 2 1985'”
MD 15 3 2 1957
MN 15 4 4 1973
MS 5 3 3 1985
NC 7 3 3 1973*“
NJ 9 3 3 1963
NY 9 3 3 1979*
38C 11 6 6 1969'”
jVA 10 5 4 1989 — surface
i 1973 ground water
iwr 10 4 4 1959
frTotal 183 67 61
ASCE noted:

*Less completely developed or implemented than for other regulated riparian states.
“Applicable to underground water only and requiring permits in capacity use areas only.
***Applicable to critical management areas only.

16

 

III. B. - Interview Questions
Prior to each interview, we mailed our respondents a summary of our interview

guide (see Figure 2: Overview of Interview Guide) so that s/he would have a chance to
think about our questions prior to the interview. However, during the actual interview,
not every respondent was asked every interview guide question. The design of our
interview matches the approach outlined by Carter and Henderson (2005) and is a mix of
‘open ended’ and ‘closed’ questions. ‘Open ended’ questions are those questions which
elicit a narrative response, while ‘closed’ questions are those that generate simple “yes”
and “no” answers. We described the purpose of our research during the first part of the
interview and reminded the respondents of the confidential nature of the interviews.
During the second part of the interview, we asked respondents to describe their
professional background and expertise. The third and longest part of the interview
consisted of guided questions where we let the interview evolve as the respondent
expanded on what s/he thought important, although we probed for answers relating to
static and dynamic concerns, general institutional demands, political dimensions, and
perceived a-priori risksto agencies or impacted parties, as listed in Figure 1. The majority
of our questions during the third phase were open ended, and the few closed questions
were paired with an open ended question such as “Please describe.” or “Why do you
think that happened?” During the final part of the interview, we asked if there was
anything else that the respondent thought that we should know as well as asked for
several pieces of advice for policy makers considering updating their riparian ground
water legislation. Our open ended questions included all three types of evaluative
questions as described by Gysen et al (2006) (descriptive, causal linkages, and

normative).

l7

III. C. - Data Analysis

We recorded and transcribed our interviews; this transcription allowed us to use
the Atlas software program (F riese, 2004) to code our respondents’ answers. The Atlas
program allowed us to select phrases or paragraphs in our transcriptions and attach a code
to the selection. In analyzing the data we went through three main stages in coding our
information. The first time we coded the answers for each of our main questions. We then
went through the interviews again and coded them using the adapted Russell and Powell
framework. Finally, we reexamined the interviews and identified the specific quotes that
supported the general themes we identified in the second coding process. It is important
to reiterate that our research method was chosen to allow us to introduce relevant advice
from our ground water experts regardless of the number of times that it was or was not
mentioned and that some topics were not introduced in some conversations due to time

constraints.

In addition to the codes directly relating to the adapted Russell and Powell
framework, five particularly useful codes in our analysis were: advice, history, threats,
scientist, and catalysts. The additional codes allowed us to identify issues that would not

otherwise emerge from the use of our framework.

IV. - SELECTED RESULTS

Using the adapted Russell and Powell framework, we analyzed our results under
the general headings of: static concerns, dynamic concerns, general institutional
demands, political dimensions, and perceived a-priori risks. Within these headings, we

further present both common and unique responses addressing each item in Figure l.

18

IV. A. - Static Concerns
Static concerns include, efficiency, informational and computational demands, as

well as the relative ease of monitoring and enforcement (Russell and Powell, 1999).
These three areas remain constant concerns throughout the life of the policy (Bohm and
Russell, 1985).

IV. A. I. - Efficiency In Meeting Policy Objectives

Efficient policies are those that are designed and implemented in such a way that
the perceived net social benefits from the policies are as high as possible, given the
resources available (Bohm and Russell, 1985; Perman, 2003). If benefits are assumed,
efficient policies are those that are cost-effective in that they obtain their objectives at
least cost (Bohm and Russell, 1985). Thus we coded comments as to whether the policy
was perceived as achieving the objectives of the state’s at least cost, if the administration
of the policy was perceived to be streamlined; if the respondent believed that ground
water in their state was being used in a technically efficient manner. Open ended
questions like “Please tell me about your application process and how well do you think
it is or isn’t working?” were used to invite comments about our respondents perceptions
of how efficient is their ground water policy.

Eight of our sixty-three interviews talked specifically about cost effectiveness,
and several mentioned strategies for cost sharing. Along the lines of using ground water
efficiently, thirteen of our respondents in nine states assumed that the objective of their
state’s policy was the conservation of the ground water resource while allowing for high
valued development and the provision of drinking water. Our respondents described
policies that were effective in reducing consumption as well as protecting the supply.

Thirteen respondents in nine states made comments about using ground water efficiently

l9

so that it is reserved for the times when there is not enough surface water available. Their
comments included preserving water for anticipated future drinking water demands.

When asked about efficiency issues, eleven respondents talked about paperwork.
Six voiced concerns about onerous and/or redundant reporting requirements as well as
duplicative applications. Respondents also described the need for policies and regulations
that are easy to interpret by both the regulator and the permittee. Five respondents talked
about the importance of having enough staff to effectively meet the application demands
or actively monitor ground water usage. Sporadic funding levels were also seen to
hamper effectiveness, because money was spent starting up and then stopping monitoring
programs instead of providing some level of consistent monitoring and consistent data
collection.

Fifteen respondents also mentioned that permits themselves can be a tool to
increase water use efficiency in the long term--as permits can require efficient use of
water as defined by the best management practices at the time the permit is issued. A
respondent recommended that permits should be issued on a cycle, such as 10 years, to
allow businesses to plan their investments with some certainty, but without permanently
locking the state or the firm into certain water uses. This same respondent also described
how the sheer act of forcing perrnittees to document their process and describe how they
plan to use the water, encouraged conservation and innovation. He said that the process
provided a motivation to identify ways to improve their production processes and save
water. The respondent thought that improving permittees’ production processes often

saves both energy and water, thereby improving their profits.

20

IV. A. 2. - Informational / Computational Demands
Informational and computational demands are described by Bohm and Russell

(1985) as the amount of information necessary to implement the policy in a satisfactory
manner as evaluated by the citizenry. Information obtained from the modeling of aquifers
may be required. The majority of our respondents felt that they needed adequate data to
be able to model their ground water aquifers accurately so that they could effectively
manage the state’s ground water resources. We asked open ended questions such as,
“Please tell me about the modeling in your state” to gain insights into the role of
modeling and the type of data that modelers and scientists need, as well as any advice
that they had for policy makers in creating policies that would provide the data collection
and modeling resources that they felt were necessary to adequately manage the state’s
ground water resources.

When asked about the role of modeling, 27 of our respondents described their
experiences with modeling. There was consensus amongst our respondents that ongoing
monitoring is crucial for understanding and managing ground water aquifers. For
example, one respondent mentioned that his state has established a cap for maximum
water withdrawals that is based upon scientific models that predict ground water recharge
rates and surface flow as well as assuring that the amount of ground water used does not
exceed the recharge rate nor negatively impact aquatic ecosystems. This outcome can
only be accomplished with adequate information provided by ongoing monitoring.

Eight experts in six different states noted that the lack of consistent data over time
prevents the development and use of reliable models and that sporadic data collection is

relatively useless for modeling efforts. Additionally, three respondents noted that robust

21

models with good graphics can be excellent educational tools for politicians,
stakeholders, and potential permittees.

Eighteen of our respondents described the important role of scientists in their
states with regards to ground water legislation and/or regulation. Their comments were
consistent with Nadeau and Rains’ (2007) conclusion that strengthening the interaction
between scientists and policy makers is crucial for achieving effective water policies.
Nine respondents described scientists as being involved in an advisory capacity (usually
as part of a committee or task force) in the development of either legislation or
regulations. It was also noted that a lack of funding for the research deemed necessary by
the scientific committees or state agencies was a significant constraint to improving the
scientific basis for their ground water management policies.

A second constraint, the need for accurate and complete reporting of data caused
two states to revise their regulations, according to two respondents. Other respondents
also noted a disparity of available information, where, due to differing geology, they had
considerable information about the aquifers in one area in the state but almost nothing
about other areas. To increase the completeness of their data, several other respondents
echoed Glennon’s (2002) proposed elimination of the reporting exemption for domestic
wells.

Accurate recording of drilling logs were also described as an important
component of adequate information being required by the state. One agency person
described the need to gain well drillers’ “buy-in” to the importance of accurately
maintaining their well drilling logs. This respondent recommended continuously

educating and partnering with well drillers and their associations. He suggested that when

22

well drillers were shown how their data contributed to accurate models of the local
aquifers, the incidence of negligent reporting (purposefully turning in inaccurate reports)
went down significantly. It was also mentioned that the ability to revoke a well driller’s
license for intentionally misreporting was also viewed as a useful enforcement tool.
Several respondents also had ideas about how to take better advantage of existing
institutions. One respondent suggested that states’ universities could mirror the National
Academy of Science’s role with respect to Congress and provide important policy-
relevant scientific information to state legislatures. Another respondent suggested that
states may wish to create a certification program so that citizen volunteers who want to
help monitor water levels can be involved in collecting viable data and stipulate that the
agency can use the data provided by these “certified citizens.” And finally, it was
suggested that policy makers need to explicitly recognize and incorporate into their

policies the interconnectedness between ground water and surface water.

IV. A. 3. - Relative Ease of Monitoring And Enforcement
Bohm and Russell (1985) describe this category as the relative ease in judging

compliance, preparing bills, and auditing. They write, “these measurements are
complicated not only by the features of invisibility and inherent “fugitiveness” already
mentioned, but by the equipment malfunctions, operator actions, imprecision of
measurement devices and discreet sampling techniques” as well as the awkwardness of
obtaining the samples. During the second phase of the interview, we directly asked
respondents a question like, “Please tell me about your background” to learn if they had

experience monitoring, enforcing, developing policy and/or advising.

23

Although our open ended question was formulated to learn about our respondent’s
experiences with monitoring and/or enforcement, many of our respondents comments
moved from talking about themselves to talking about other concerns or suggestions, and
so we allowed the interviews to move on to addressing things like flexibility to update
requirements or provide incentives for conserving ground water. Thus the results in this
section are sparse when compared with other sections.

Thirteen of our 67 respondents are/were involved in monitoring, while only 10 of
our 67 respondents described their role as enforcement. It is important to note that most
states have purposefully separated the monitoring and enforcement responsibilities. All
but one respondent who talked about the separation of monitoring and enforcement
related to it positively. Four respondents specifically described how this separation gave
them more options in achieving their desired goals. For example, when ground water use
problems were discovered by the monitors, the monitors felt that they were better able to
work with the permittees to achieve an acceptable solution because they had the
motivating threat of eventually reporting the perrnittee’s violation to the enforcement
personnel. Further, a respondent in Kentucky mentioned the corrective measures process
in the Agricultural Water Quality Code in the Kentucky Public Health Statutes (KY Rev.
Stat. Ann§ 224.71-100 to 224.71-140 West 2008). Many farmers in Kentucky are active
participants in state cost-sharing programs. If they are found to be a “bad actor,” they
face losing this financial assistance (Henken and Kirk, 1998). (A summary of the policy
is available at: http://www.ca.uky.edu/enri/cd/pdf/correcti.pdf.) Another respondent

commented, that the enforcing authority should be empowered with a full arsenal of

24

options to be used against “bad actors” and to encourage the regulatees to work with

agencies to comply.

IV. B. - Dynamic Concerns
Dynamic concerns as they relate to ground water policies include looking for

flexibility in the face of exogenous changes as well as identifying incentives and
disincentives for environment saving technical changes (Russell and Powell, 1999).
Exogenous changes include changing weather patterns, population demographics, social
policies, consumption patterns and land use, which can be significant components of
changing water demands (Slaughter and Wiener, 2007). Technological innovations can
radically change both the cost of compliance with regulations and the demand for ground
water (Perman, 2003).

Improvements in technology can also change the demand for ground water and
sometimes regions undergo a shifi in ground water use prioritization. A respondent in
Minnesota told us that their region has taken the step of reserving the highest quality
aquifer for human consumption and now prohibits the use of potable ground water for
inefficient cooling systems. Previously, some buildings had cooling systems that were

originally designed to only use the water once, instead of recirculating and reusing it.

III. B. 1. - Flexibility in the Face of Exogenous Changes
Bohm and Russell (1985) describe flexibility as the relative ease with which the

state maintains its desired environmental quality as the economy changes. In addition to

economic changes, we included flexibility to environmental changes, like drought. To

25

learn if environmental protections standards were fixed into the policy or if they were
flexible, we asked paired questions like “Is protection of the environment specified or
otherwise addressed as part of your state’s ground water regulations and laws?” followed
by the open prompt of “Please tell me about it.” Our respondents mentioned planning for
the future and potential changes in hydrology, as well as ground water’s connection to the
economic well being of the state, and updating Safe Minimum Standards (SMS) in
response to new scientific information or increased pressures on water by economic uses.
Three respondents in different states told us that some experts try to plan for potential
changes in hydrology accompanying development. For example, some ground water
managers consider how development may result in land use changes that will cause
changes in the area’s hydrology and/or potentially impact the aquifers’ recharge rate.

A common theme in water management is that of “one size does not fit all,”
(Richards, 2000). Thus it was not a surprise that ten respondents told us that, because of
varying geology and local politics within the state, single solutions are inappropriate.
These ten respondents spoke spoke positively for the idea of creating specific polices
addressed to specific, unique areas of the state. Some states have done this targeting by
creating special ground water protection areas which have a set of rules specific to
managing that area.4

In addition, five respondents talked about how the use of ground water is
inextricably tied to the economic health of their area/state. One respondent suggested that

land use zoning should incorporate considerations of the hydrology of the area, especially

by states considering intensive ethanol production. If an area wishes to remain friendly to

 

4 Bowman (1990) provides us with an extensive survey of states with ground water
protection areas.

26

agriculture, there needs to be sufficient water remaining for irrigation purposes.
Conversely, if farming ceases in an area, it may affect aquifer recharge rates, and
potentially affect the water table. Several respondents suggested that water use planning
be integrated with land use planning and zoning. Zoning can be used as an institutional
tool to help achieve the desired balance between recharge and withdrawal in some areas.

It should be noted that situations such as droughts and flooding can often be
predicted and therefore can be included in plans. For these predictable situations, one
respondent noted that his state requires that permittees plan for surplus water as well as
water scarcity. However, some events are truly unpredictable, and those events are often
the times when some states give their governors (or emergency councils) the authority to
make decisions to deal with the immediate needs. Another respondent noted that the
laws in his state gave his governor the ability to decree measures such as water rationing,
while two respondents in another state noted that their state provided legislative
guidelines for prioritizing use.

One respondent advised that legislation and regulations be carefully constructed
so that agencies would have the flexibility they need to make changes indicated by new
scientific data. For example, if the salinity level is increasing in an aquifer, ground water
managers should have the ability to address the situation and institute changes they feel
are necessary to obtain the state’s water quality goals.

When respondents were asked about maintaining safe minimum standards (SMS)
to protect ecosystem functioning, we received a variety of responses. While one
respondent asserted that permits are issued based upon regulations, not on environmental

outcomes, nine experts in six other states told us that if the ground water level falls below

27

a predetermined SMS, then the permits can be suspended or revoked. A respondent
advised that, for this reason, a permit should not be granted as a permanent right to a
certain quantity of water and that the allocation should be contingent upon the aquifer
being able to maintain its designated uses, including the protection of fish habitat.
Additionally, three respondents also talked about pumping ground water to
supplement surface water flow. For example, if a river level fell so much that it was
endangering native fish populations, ground water might be pumped to supplement the

streamflow.

IV. B. 2. - Incentives For Environment- Saving Technical Changes
Bohm and Russell (1985) suggest identifying and examining the actions that are

encouraged or discouraged by the chosen instrument in the long run. We directly asked
respondents about incentives and disincentives embedded in their legislation and
regulations with questions such as “When thinking about your state’s current ground
water policies, what do you think are the incentives to conserve ground water? Incentives
to maintain the same rate of usage? And are there any incentives to waste ground water?”
These questions seemed to take many respondents by surprise as they were not explicitly
included in our overview so the vast majority of respondents said that they had not
thought about it and were unable to think of any at the moment.

Respondents in two states told us that permittees in their states lobby for retaining
their water allocations even if they are not currently using all of their water allocations.
State agencies also work with permittees so that permittees are not penalized for

conserving water at the time of permit renewal. In contrast, respondents in two other

28

states mentioned that “use it or lose it” regulations, where failure to use water in the
present could result in losing the right to use the water in the future, potentially
contributed to wasting water as permit holders used water in low value uses to maintain a
history of use. An example given was when a municipality would run its emergency
ground water pumps even in wet years so that they would not lose their permit to pump
ground water in dry years. This example supports Ward et a1. ’8 (2007) conclusion that
one of the potential barriers to water conservation is a lack of secured right to use the
conserved water.

Another respondent noted that water companies may have a disincentive to
promote conservation among users as it could negatively affect their profits in the short
term. He suggested requiring public water suppliers to document their water conservation
measures/programs as part of the permit application process. This requirement would
create an incentive to promote conservation and perhaps help to counteract any short term

economic incentives that run counter to the goal of sustainable use.

IV. C. - General Institutional Demands
At a basic level, institutions are described as the set of formal and informal rules

that govern society (North, 1990; Schmid, 2004). Thus institutional demands are the
demands placed upon agencies and regulated parties by policies (Bohm and Russell,
1985). We wanted to avoid economic jargon like “institutions” in our conversations,
however, we repeatedly asked “What advice do you have for legislators with regard to
ground water policy?” Five respondents offered overarching institutional advice. Fifty

one respondents described general institutional demands such as agency technical

29

capabilities and the need for data gathering for building and maintaining their models,
however issues such as inadequate staffing and revenue issues were only mentioned by
fifteen respondents. General institutional demands also relate to regulated parties
experience in markets, reliance on government regulations, and technical skills (Bohm
and Russell, 1985). Because we did not directly ask about reliance on government or
technical skills, our respondents did not address these issues.

IV. C. 1. - Overarching Institutional Needs

Overarching components of effective policies can be generalized as institutional
needs. When asking our experts for advice, five respondents noted specific necessary
components of effective ground water policies. They talked about establishing clear
goals, definitions, special protection areas, and documenting ground water use.

One respondent advised doing the political work to ensure that there are clear
goals for the legislation. Possible goals include: returning aquifers to pristine condition,
returning the water level to some previous level but not pristine condition, maintaining
the current level and preventing additional drawdown, only allowing a certain level of
drawdown, protecting a ground water dependent resources (e.g. trout) or depleting the
aquifer completely.

Two respondents noted that precise definitions are vital to effective regulations
and 18 others mentioned definitions in passing. According to our respondents, two states,
had to go back and revise their regulations to provide definitions that were omitted from
the original legislation. For example, what is a “reasonable consumptive use?” Are

instream uses “reasonable consumptive uses?” What are “human consumptive uses?” Our

30

experts suggested that, where possible, definitions should be based on science (e. g. when
defining a “spring.”)

Taking the importance of quantifiable definitions further, in another example, two
respondents in different states acknowledged that drawing boundary lines around special
protection areas can be challenging and is sometimes arbitrary. However, these two
respondents still recommended using a scientifically based criteria whenever possible and
further that any arbitrary definitions only be used until it was possible to have a
scientifically based replacement. For example, a temporary boundary line might be used
until enough data was collected and resources were obtained to accurately model the
hydrology of the area.

Recalling that these interviews were conducted in 2006 and 2007, it should be
noted that Florida, Georgia, and Alabama were involved with litigation over water use
and one respondent felt that documenting use would to be important for any court
challenges. He believes that the courts will consider history, because although traditional
riparian law is not based on the “first in time, first in right” principle, it does consider
harm to neighboring riparian users. Thus he thinks that if you document your use, it

would be easier to prove harm in court, should the need ever arise.

IV. C. 2. - Institutional Demands on the Agency
In probing for institutional information, our questions focused on the adequacy of

funding and asked respondents about the fee structure of their respective state. For
example, we asked “Who pays for the state’s costs to process and research the

applications?” One respondent mentioned that nominal fees ended up costing the state

31

more money to collect than they generated in revenues. Foster et. al. (2005) suggest that
ground water use fees should be imposed to generate financing for aquifer monitoring
and modeling as well as provide an incentive to conserve; one of our respondents made
the same suggestion during our interview.

Markets are also sometimes considered an option for meeting institutional
demands. We asked respondents if they were aware of any ground water market or
allocation trading activity or consideration of such in their respective states. One
respondent told us that Georgia considered market based approaches in their 2003
legislation. The idea was that authorizing the transfer of water use allocations directly
amongst the permittees (without or with minimal agency oversight) would create the
opportunity for water to be used in the most economically advantageous way for the

permittees. A comment that reflects these concerns follows:

“Now what happens if a new company comes in and says, We'd like to
locate here but we've got to have half a million gallons per day? Or
an existing company says, We want to expand and we need a half a
million gallons per day, right? Well, you basically have three
choices. You can say, Well, no, we don't have the water, go away. And
so your economy is hurt. Or you can say, Well, we really wanted to
keep that much water in the stream or in the aquifer, but, hey, taking
a little bit more isn’t gonna hurt it THAT much, so yeah, you can have
it. Well, then the environment is hurt. And then the third option is
you figure out some way of reallocating water among the users. So if
you think of it that way it becomes really critical that you figure out
what water isn’t in that trading arena. That’s the water you’ve got to
keep in the streams or in the aquifers. And until you've got a good
feeling for how much you need in that system, you've got to be pretty
careful about a trading system, because you’re gonna cause more trouble
than you solve.”

As the respondent mentions, accurate models would be critical for this plan to work.
Additionally, it is worth noting that this approach would rely on the permittees’ ability to
use markets effectively. However it has been observed by Seedang et al (2008) that

depending on where the water is taken from, such removals can have an affect on the

32

local ecosystems. For example, reducing flow in a headwaters stream will warm up the
entire length of the stream much more so than removing water from further downstream.
Thus water quantity trades should occur in such as way as to increase the amount of
water upstream, as the number of potential traders upstream is often quite small, water
trading markets will probably remain very thin.

Furthermore, Shabman et al (2002) cautions that water allocation trading requires
active policy work so that decentralized decisions can be made and the situation must be
effectively monitored and enforced, thus when considering the creation of water markets,

a decision of who must pay for monitoring and enforcement will also be necessary.

IV. D. - Political Dimensions
Political dimensions include distributional implications, perceived ethical messages and

perceived fairness. Cox (2001) notes that sharing the water supply is an essential
component of riparian regulations. Changing the regulations has the potential to disrupt
existing distributional dynamics, create unintended ethical messages and it would be
easy for new regulations to be perceived as unfair. These three issues are crucial

components of identifying effective policies (Russell and Powell, 1999).

IV. D. 1. - Distributional Implications
When thinking about distributional implications, it is useful to identify both who

bears the costs as well as who benefits from the policy. Bohm and Russell (1985) remind
us that when we choose the environmental policy goal, we are choosing a distributional

benefit of that policy. They focus on the political implications of the distribution of costs

33

of policy implementation and point out that a policy which directs costs toward a
powerful interest group will probably meet great opposition. Cox (2001) points out that
the redistribution of water rights, prompted by scarcity, also has significant distributional
implications. Thus we wanted to learn three things. First, we wanted to identify the
interest groups in each respective state so that we would better understand who would be
affected by the distributional implications of the ground water policies in our
respondents’ states. Second we wanted to better understand who paid for the costs of
administrating the current policy. And third, we wanted to examine who benefited from
the redistribution of water rights.

To identify the affected parties, we asked questions like “Who pays for
administering the current ground water regulations?” and “Who benefits from the current
ground water regulations?” We also asked, “We’ve identified the following common
interest groups: municipal and private water systems, agriculture, development,
industrial, environmental groups. Can you think of any others in your state?” Only one
respondent suggested an additional interest group: banking and investment. Overall,
respondents’ answers included considerations and planning for the future as well as the
previously mentioned allocation of application processing costs. Our respondents also
brought up the issue of defacto redistribution of water rights like drawdown and well
interference and shared their concern over the implications for the state’s economy as a
result of policy makers’ water distributional choices.

The question of who bears the cost burden of reviewing permit applications as
well as monitoring elicited responses that provided both institutional and distributional

insights. According to respondents, most states bear the full cost of monitoring, although

34

many states do require permittees to report water use to the relevant agency. A
respondent in one state suggested that agency employees could use a “means” test and
provide small landowners with grants for the permit application costs that were funded by
taxpayers (via the agency), but require large corporations with greater available resources
to bear many of the costs. The justification behind this idea could be similar to state
grants for initial start up businesses; as the state would benefit by increasing the number
of small landowners who were economically successful.

Overall, our respondents’ answers confirmed that states have chosen a wide
variety of approaches to distribute costs, ranging from states that charge relatively
nothing so that the taxpayers bear the full cost of the permitting, to others that try to make
every applicant pay the full cost of the permit. Also, one respondent told us that their
office used to require high capacity well applicants to hire consultants to provide models
for their permits, however it was just as much work for the agency to verify the
consultants work as it would have been had the agency done the modeling. This
particular state changed its procedure and now applicants are given a cost estimate for
modeling. If the applicant wishes to apply for the ground water permit, they then pay the
agency to do the modeling work instead of an outside consultant.

We also heard from our respondents that policy makers were concerned with the
actual distribution of water as well as water scarcity, due to droughts. Indeed,
distributional issues were the primary motivation for some policy makers to re-examine
the current allocation of water rights. Respondents in two states described requiring
cities, townships, and counties to develop “water use” plans. One of those states went

further and required “water allocation in times of scarcity” plans as well. These plans

35

were then brought together to form a larger, state-wide plan. Respondents told us that
other states have developed state-wide plans to allocate ground water in times of scarcity
while four other states have some type of a drought task force.

Ten respondents in nine states mentioned concerns about future distributional
issues. A respondent told us that their state’s DNR asks their municipal permittees to look
5 years ahead. Additionally, the majority of respondents voiced their concern that if all
the water is currently allocated, then what mechanism will be used to provide water for
future beneficial uses? An example of this concern is ethanol production. According to
The Institute for Agriculture and Trade Policy in Minneapolis, Minnesota, ethanol plants
in Minnesota used 4.2 gal of water on average per gallon of ethanol produced in 2005,
(Keeney and Muller, 2006). A respondent queried: If ground water is used to produce
millions of gallons of corn ethanol, can aquifers in the region sustain that type of ground
water pumping? Ethanol production issues were mentioned as a concern for respondents
in 3 states. Another respondent noted the concern of potential ground water conflicts with
the old private power plants that are being revitalized to deal with the current energy

situation.

IV. D. 2. - Perceived Ethical Messages
In developing their framework for evaluating alternative policy instruments and

the topic area “Perceived Ethical Messages,” Bohm and Russell (1985) described a
spectrum of ethical stances. On one end of the spectrum is the ideal that regulatees should
be able to choose how they are going to affect the environment. On the other end of the

spectrum is the ideal that any environmental damage is immoral. Interestingly, none of

36

our respondents talked about perceived ethical messages, but perhaps this omission is
because the majority of our respondents were agency officials whose job is to follow the
directives of their state as well as Federal legislation. In the literature, we find that agency
employees strive to not impose personal moral judgments into policy issues (for example,

Eheart et al, 1989).

I. V. D. 3. - Perceived Fairness
Raiser (1998) notes that the perceptions of fairness are vital for establishing

creditability for formal institutions. Again, we used a paired question technique and we
asked seven respondents5 if they thought that the current legislation and regulations were
perceived as being fair. We followed up the question by asking “why?” The most
common response was “yes,” however several others responded that their regulations
were a compromise and that everyone felt that they were giving something up.
Occasionally, respondents described a regulation as arbitrary. For example, the set-back
distance (1200 feet) between high capacity wells and trout streams in Wisconsin was
described by a respondent as arbitrary. However those respondents acknowledged that
arbitrary distances were adopted because there was a lack of science upon which to base
the decision; choosing an arbitrary distance was politically expedient.

Doremus and Tarlock (2005) explore science’s role in natural resource regulation
and conclude that “unless science can provide some level of confidence that management
actions are both necessary and effective, those decisions will be widely perceived as

unfair (p.2).” One respondent supported this assertion by describing how the ability of

 

5 Due to time constraints we only asked seven respondents.

37

the ground water modelers to illustrate what was happening to the aquifer and to share
those illustrations with the general public, stakeholders, agency personnel, and policy
makers helped people in their state to feel that the process was more transparent and

increased the perception of fairness.

IV. E. - Perceived A-priori Risks
Fourteen respondents described their experiences contributing to

legislative/regulatory changes however they only identified four a-priori risks to the
agencies and three a-priori risks to the regulated parties. We did not directly ask about
perceived a-priori risks to either the agency or the regulated/affected parties but instead
asked the respondents to describe their experience and the discussions that they recall
around the proposed policy changes. For the purposes of our research, regulated parties
are ground water pumpers including municipalities, farmers, industry, and well-drillers.
We asked questions like “Do you recall any concerns that were voiced at the time?” and
if so, “What were they?” When policy makers consider new potential policy, both the
perceived potential benefits and risks are weighed (Bohm and Russell, 1985). Many times
a potential policy is abandoned because a group perceives the potential risks to
themselves to be too great (Bohm and Russell, 1985).
IV. E. 1. - Agency

The most common a-priori risk voiced by agency personnel was about legislative
requirements that were not accompanied by adequate funding or which were not
supported adequately by existing user data or scientific information. Additionally, two

respondents mentioned the risk that new legislation could be viewed by some as a

38

“government taking.” However, comments from other respondents countered this
concern by noting the importance of reminding permittees that they were being given a
permit to use ground water, not ownership of ground water. We also had a respondent
who, while explaining that it was appropriate to have permits issued on a cyclical basis,
suggested that the permit renewal process was a tool that the agency could use to
encourage the use of new technologies and help to avoid the risk of freezing technology
in place.

Six respondents noted that ground water crosses political boundaries, thus, a
mechanism to facilitate coordination helps to provide effective management and
protection of the resources. The risks associated with such transboundary issues were
identified by respondents who raised cautions about duplication of monitoring and
reporting requirements and overlap of jurisdictions. Additionally, they described a need
for adequate communication between agencies (like the health department and the DNR)
regarding ground water to avoid duplicative and onerous reporting requirements for the
regulated parties as well as adequate and efficient monitoring overall. They described a
need for adequate communication between states with shared aquifers to avoid costly
litigation and a general need to improve communication between parties with shared and
complementary responsibilities. For example, coordinating additional monitoring efforts
with any on—going United States Geological Survey monitoring projects could be
beneficial for state or local agencies with permitting responsibilities. Our respondents
recommended establishing and supporting coordinating councils to assist those agencies
or political units with shared responsibilities to improve communication and coordination

and reduce the risk or costly litigation and wasting resources on redundant monitoring.

39

Along these lines, the National Water Quality Monitoring Council has tracked the efforts
of 13 state and regional water monitoring councils and documented their mutual
assistance and cost savings through coordination (May 2007).
IV. E. 2. - Regulated Parties

Three a-priori risks to regulated parties were mentioned by our experts. The first
was onerous or confusing reporting requirements and a difficult application process
which were seen as both an efficiency issue (previously discussed) and a risk to the
regulated parties because it would hamper their ability to obtain permits. Our experts told
us that if the reporting or application process was too difficult, the risk is that many small
businesses would be out of compliance because they would not bother with the
paperwork. Agency respondents expressed the understanding that the forms needed to be
easy to fill out and file, and that it should be the agency’s responsibilities to work
together to share the information instead of requiring the applicant/permittee to file the
same or similar reports with multiple agencies. A respondent in Alabama described how
applicants there only needs to submit one application and copies are shared amongst the
relevant agencies. This is an example where the previously advised adequate
communication between agencies is beneficial. A respondent in another state also
described a program that he felt was successful in getting his agency the information that
they needed. He told us that in his state they rely on well drillers to file the appropriate
applications. He explained that they did this because it was easier to educate a small
group that they had a relationship with instead of trying to educate the larger general
public. He also pointed out that a well driller who did not fill out and file the forms

correctly risked losing their license and as such had a strong motivation to provide

40

adequate information in a timely manner. A respondent in another state suggested that
applicants for new developments should be required to demonstrate a reliable water
supply for their new proposed land use. (This suggestion is similar to that of Glennon,
2002)

The second a-priori risk mentioned was leaving policies to be decided by the
courts. This concern relates to Kundell and Tetens’ (1998) assertion that leaving policies
to be decided in the courts leave both business and environmental advocates vulnerable
because they are unable to adequately plan.

The third a-priori risk described by a respondent was the perceived possibility of
municipality failure to meet the new environmental regulatory requirements and the
consequences of that failure to the taxpayers. To deal with this concern, the
municipalities joined forces and hired a consultant from another state. This consultant
was hired to identify ways to meet the new environmental requirements. His suggestions
were then presented at numerous public meetings and funds were allocated to implement
the suggestions that seemed the most cost-effective.

In addition to a-priori risks, we directly asked respondents what they perceived to
be the greatest risks to ground water quality and quantity in their state. Fifteen replied
“development.” This response suggests the importance of creating policies that have the
necessary flexibility to respond to changes in land uses as well as the importance of land
use planning that incorporates environmental objectives. (Numerous land use and
planning textbooks incorporate environmental objectives, including, Ortolano, 1984;

Kaiser et al 1995; Randolph, 2004).

41

V. - SUMMARY & CONCLUSION

When viewed in the aggregate, the information gained from our interviews
identifies important factors to be considered when a formerly riparian state redesigns its
ground water policies. We wanted to know what ground water managers and policy
makers have learned from their experiences in their respective states. We did not find any
surprising results. This extensive collection of in depth interviews with ground water
experts in 20 regulated riparian states supports earlier literature and suggests that the
previous smaller surveys have been effective in identifying important components of
ground water policies.

Advice that we received included suggestions for writing the legislation,
involving scientists and modelers, funding, monitoring, enforcement as well as
considerations for issuing permits. Key outcomes of a well designed policy appear to
include: the use of ground water resources in such a manner as to protect the critical
resources of the state as well as a legislation that removes uncertainty about what can be
done, by whom, and when. The necessary components to achieve that outcome are to be
able to accurately model ground water use, the ability to maintain SMS through a drought
condition, the efficient use of water and of state resources, the distribution of costs and
benefits in such a way that the incentives work toward the goal of the legislation, and a
process that is transparent and understandable by current and potential ground water
users. Overall these suggestions and advice have illuminated a collection of applicable
components for effective ground water policies in the literature.

We looked at static and dynamic concerns, general institutional demands, political
dimensions and perceived a-priori risks. The highest responses in each framework area

follows: In talking about on-going concerns within the state, such as getting the most

42

cost-effective outcomes, respondents in 14 of our states (70% of surveyed states), talked
about why their regulations had been updated and scientific involvement in the
development of their legislation or regulations. Along the lines of being as efficient as
possible, respondents in 13 states (65% of surveyed states) talked about the importance of
definitions in their legislation and the most common lesson learned from our experts is to
carefully define terms in the legislation. In looking for policies that are able to deal with
dynamic concerns, like exogenous changes (for example, changing weather patterns or
economic circumstances) we found that respondents in 18 states (90% of surveyed states)
described or suggested using zoning, land management, or policies targeted toward
preventing harm to specific at risk areas. The most commonly reported ingredient for a
successful policy was to create policies that are tailored to a specific area to address a
specific need and avoid a “one size fits all” type of solution. All of the respondents who
talked about the creation of and uses for policy that are based upon special protection
areas related to it positively because it allows the state to establish policies that were
perceived as necessary without impeding water use and protection in other areas of the
state. This conclusion was especially true for states with heterogenic geology. In looking
at the institutional demands placed upon the agencies, respondents in all states (100% of
surveyed states) mentioned the gathering the necessary date to model the aquifers and
manage the state’s water resources. Respondents in 16 states (80% of surveyed states)
were concerned about having adequate funds to cover the agency’s monitoring costs.
Respondents in 14 states (70% of surveyed states) mentioned creating water use and
water allocation plans at the local level. To address perceived a-priori risks, respondents

in 14 of our states (70% of surveyed states) suggested or described some type of a

43

coordination council that could lower risks by prioritizing monitoring areas and activities
as well as pooling resources and expertise. For example, other state agencies could work
with the health department to identify which areas of the state and which aquifers were at
greatest risk for being susceptible to well contamination. Overall, in 14 states (70% of
surveyed states) the greatest perceived threat to ground water quality and quantity is
development.

This research did not test hypotheses, but can be viewed as generating them. We
chose to conduct qualitative interviews because it allowed for the capture and reporting
of exceptional individual responses as well as finding larger commonalities. Future
researchers might wish to investigate if the creation and use of internal coordinating
councils for ground water management within a state are effective. Future researchers
might further investigate the role of scientists in developing legislation or regulations,
and they might also examine the stated goals for new legislation and monitor how
effective the chosen tools are. As we used an economic evaluative criteria to identify
commonalities of effective ground water policy, future researchers may wish to narrow
the scope of their research to only one or two of the framework elements (like static
concerns or perceived a-priori risks) because the limited time that these type of experts
are willing to spend assisting with a survey. Future researchers might examine which
policies are perceived as being most efficient at using resources within the state,
including universities’ resources. Future researchers might also wish to more thoroughly
identify “use it or lose it” ground water policies and document their intended and
unintended effects. And finally, based on several respondents’ suggestions, future

researchers might also focus on comparing only those areas with the same types of

44

geology. These suggestions for future research complement the existing literature as the
findings from our project illustrate advice for effective water policy design based upon

extensive experience.

45

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