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Out-of-Basin Diversion Policy/Protocol
FROM THE SUSQUEHANNA RIVER BASIN The water resources of the Susquehanna River Basin are vested with a local, state, regional and national interest. The signatory parties have a shared responsibility to exercise the powers under the Susquehanna River Basin Compact (the Compact), P.L. 91-575; 84 Stat. 1509 et seq., in the common interest of the people of the region. Present and anticipated future demands require increasing economies and efficiencies in the use and reuse of the basin's water resources. It is the Commission's duty to develop and effectuate policies for water resources conservation, control, utilization, and management. In order to conserve, protect and utilize the water resources of the basin in accordance with the best interest of the people of the basin and the Commission's signatory jurisdictions, it shall be the policy of the Commission to discourage the diversion or transfer of water from the basin. Before any project is approved under Article 3, Section 3.10.2 (ii) of the Compact, for the diversion of the waters of the Susquehanna River Basin, the project sponsor must demonstrate to the Commission through clear and convincing evidence that it has made every good faith effort to develop and conserve sources of water within the importing basin and has fully considered other reasonable alternatives to the diversion. There must also be a clear commitment by the project sponsor to adhere to Commission water conservation standards and to comply with any orders or special regulations issued by the Commission under Compact Article 11. In deciding whether to approve a proposed diversion, in addition to the General Standards set forth in §803.41 of its regulations, the Commission may also consider, but is not limited to, the following factors: 1) any adverse effects and cumulative adverse effects the project may have on the ability of the Susquehanna River Basin, or any portion thereof, to meet its own present and future water needs; 2) the location, amount, timing, purpose and duration of the proposed diversion and how the project will individually and cumulatively affect the flow of any impacted stream or river and the freshwater inflow of the Chesapeake Bay; 3) how the project will individually and cumulatively affect other environmental, social and recreational values; 4) whether there is a reasonably foreseeable need for the quantity of water requested by the applicant and how that need is measured against reasonably foreseeable needs in the Susquehanna River Basin; 5) the impact of the diversion on economic development within the Susquehanna River Basin, the signatory states or the United States of America; 6) the cost of the diversion versus other alternatives, including certain external costs such as impacts on the environment or natural resources; 7) the amount and location of water being diverted to the Susquehanna River Basin from the importing basin; 8) the proximity of the project to the Susquehanna River Basin; 9) the project sponsor's pre-compact legal authority to withdraw or divert the waters of the basin; 10) any policy of the signatory parties relating to water resources, growth and development; and 11) any land use and natural resource planning being carried out in the importing basin. All projects involving a diversion of water from the basin must be submitted to the Commission for review and determination under Article 3, Section 3.10.2(ii) of the Compact and be included in the Comprehensive Plan. In accordance with Article 3, Section 3.10.5 of the Compact, the review procedure for a proposed diversion shall include public hearing on due notice given with opportunity for interested persons, agencies governmental units, and signatory parties to be heard and to present evidence. A complete transcript of the proceedings at the hearing shall be made and shall be available for review in accordance with the Commission's regulations.
OUT-OF-BASIN DIVERSION POLICY PROTOCOL The following protocol is provided as a general statement of how the Susquehanna River Basin Commission will apply its "Policy Regarding Diversions of Water from the Susquehanna River Basin." The protocol is a guidance statement and is not absolutely binding on the Commission. The Commission reserves the discretion given to it under Section 3.10 (4) of the Susquehanna River Basin Compact, P.L. 91-575, in the review and approval of diversions. Development of In-Basin Sources of Water Laws and policies for out-of-basin diversions have their roots in riparian rights doctrine. In riparian jurisdictions, courts have long held that removal of water from the riparian lands where it originates is per se unreasonable. The same principle has been applied to the transport of ground water from the overlying land. The common law recognizes the need to protect the basin of origin to insure the availability of water for downstream riparians. The Commission will follow these same principles on out-of-basin diversion review procedures. The Commission will also consider the impacts on upstream, as well as downstream, water users. Project sponsors will have to show by clear and convincing evidence (a burden of proof that exceeds the usual substantial evidence standard) that they have made every good faith effort to develop sources of water within their own basin and have fully considered other reasonable alternatives, including water conservation. As part of its evaluation of this effort, the Commission may consider the amount of water being diverted into the Susquehanna River Basin by the importing basin and the proximity of the proposed use to the Susquehanna River Basin. The Commission will also consider the location, amount, timing, purpose and duration of the proposed diversion. An outside sponsor proposing to use Susquehanna water must also agree to adhere to the same water conservation standards as any in-basin water user and be subject to any drought or water shortage restrictions imposed by the Commission under Article 11 of the Susquehanna River Basin Compact. Finally, the Commission will consider the level and scope of land use and natural resource planning being carried out and implemented in the importing basin. The focus of this inquiry will be on whether the local planning jurisdictions and the state are taking actions to insure that, to the furthest extent practicable, development is adequately supported by nearby or in-basin sources of water. Water Needs of the Susquehanna River Basin The Commission has adopted regulations on consumptive use of water, surface water withdrawals and ground-water withdrawals. The purpose of these regulations is to help ensure the availability of water to all basin water users, including instream users and uses. The regulations also safeguard critical flows of fresh water to the Chesapeake Bay. The Commission will give priority to the reasonably foreseeable needs (see explanation of "reasonably foreseeable needs" below) of all water users and instream flow needs in the Susquehanna River Basin and to the freshwater inflow needs of the Chesapeake Bay. Users include public water suppliers, private well owners, industries, power producers, agriculture, institutions and commercial establishments. Users also include fish, other aquatic creatures and terrestrial forms of life that depend on the waters of the basin for sustenance. The Commission further recognizes the water needs of recreation, navigation and scenic preservation. Other Environmental and Social Values Protection of instream flows addresses one environmental issue. Other environmental concerns include, but are not limited to, maintenance of water quality standards, including anti-degradation standards, preservation of wetlands and prevention of erosion and sedimentation. The Commission will consider the impacts of a proposed diversion on such environmental values and will insist on compliance with all applicable Commission regulations and all other state and federal environmental laws and regulations, as well as compensation to the Susquehanna River Basin to mitigate for the water diversion. Likewise, the Commission will seek to preserve and protect other social values such as scenic, recreational, historic, and cultural amenities. Reasonably Foreseeable Need To determine the reasonably foreseeable need, the applicant must demonstrate that its projected water demands in the next 25 years, using conservation and water supplies reasonably available, cannot be met in its own basin. The applicant must show that projected demands are realistic, that conservation practices are being used as required by Commission regulations, and that the applicant has developed water supply alternatives reasonably available in its own basin, such as ground water, surface water, interconnections, reservoirs, storage capacity, desalinization, or recycling. Population projections and projected water demands must be consistent with state and county projections and supported by comprehensive county level land use plans drafted with public participation. The majority of local governments in the service area of the applicant's project should be in agreement with the projections. Per capita water use trends must be consistent with water recycling and water conservation practices required by the Commission. Because of many factors which can change long-range projections, water needs beyond a 25-year time horizon will not be considered. Among the water conservation practices which will be required are:
Economic Impacts Two purposes of the Susquehanna Compact are "to make secure and protect developments within the states" and "to encourage and provide for development of the water resources of the basin." These are the economic development planks of the Susquehanna Compact that indicate the intent of the Compact framers concerning economic development within the basin, as well as conservation and protection of water resources. With respect to economic impacts, the Commission will first consider the impacts on the economic well being of the Susquehanna River Basin. The primary objective will be to safeguard and promote economic growth and development within the Susquehanna River Basin. For example, if an activity having positive economic impacts proposes to use water diverted from the basin, the Commission may require the project sponsor to show good cause why that activity cannot be conducted within the Susquehanna River Basin. Likewise, if a diversion of Susquehanna water is likely to cause some adverse economic impact to the basin by, for example, providing a competitive edge to some out-of-basin activity at the expense of an in-basin activity, the Commission may consider that not to be in the best interest of the basin's economic development and reject or limit the diversion. After first considering the economic impacts on the Susquehanna basin's economy, the Commission may then consider the impacts on the economies of the signatory states and the United States. Although the primary emphasis is on the economy of the Susquehanna basin, the Commission will play a constructive and cooperative role in the economic development of the signatory states and the United States. Cost of the Diversion Any proposed diversion must be the most cost effective alternative available to the applicant. The other options must be substantially more costly than the diversion for approval to be considered. An interbasin transfer proposal should be the least cost source of water supply and all feasible alternate sources of supply must be examined and evaluated on the same basis. The calculation of cost may also include certain external factors such as the impacts on the environment and lost opportunities for development and use in the Susquehanna basin. Any proposed diversion will reduce the average flow of the stream or river from which it is taken. Compensation to the Susquehanna basin either in the form of higher than normal reservoir conservation releases, flood skimming, low flow augmentation, or monetary payments to provide for low flow or other water resource enhancement, will be required of project sponsors. In accordance with Section 4.2(b) of the Compact, diversion of any basin waters shall not diminish any augmentation of flow made during any period in which waters are being released from storage under the direction of the Commission for flow augmentation. Pre-Compact Status of the Diversion To the extent that a diversion is wholly or partially pre-Compact, the Commission will consider the application of Federal Compact Reservation Section 2, Paragraph (b), which limits any charges for water to post Compact withdrawals or diversions. The Commission will review the applicant's legal water rights authority as well as the physical facilities in place at the time of the Compact. Further, a review will consider the service area or franchise area approved for the applicant and any studies justifying the applicant's pre-Compact rights and authorities.
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