Basics of Water Law

Basics of Water Law
as it Applies to
Instream Flows in North Carolina
Water Resources 101, March 2008
Jim Mead, NC Division of Water Resources
919/715-5428 [e-mail]
As population and offstream uses
increase
Pressures on instream flows and
instream uses also increase
Instream Uses
•Aquatic Habitat
•Water Quality
•Recreation
•other
North Carolina is a
Riparian Rights State
•A riparian owner owns property along at
least one side of a water body
•Riparian owners have the right to
“reasonable” use of water
This is in contrast to states
where water is allocated in
specific amounts to each
recognized use
The exception in NC is ….
Water Use Act of 1967
•Water availability concerns
•Ground or surface water
•Designation of Capacity Use Area
•Rules to regulate water withdrawals
•Examples – Eno River voluntary
agreement; coastal phosphate mining
In NC, the vast majority of
instream flow concerns are
addressed by including conditions
in environmental review
comments and permits required
for water resource projects.
These Include:
•Federal Energy Regulatory Commission
(FERC) licensing
•State Environmental Policy Act (SEPA)
•NC Dam Safety Permits
•Clean Water Act section 401
•Clean Water Act section 404
FERC Licensing
•Stakeholder settlement agreements are one
approach to resolving issues
•These agreements may include offstream
users in the watershed, particularly those
using water in hydropower reservoirs
•Signatories agree to follow a “low Inflow
protocol” to reduce water use during
drought
State Environmental Policy Act
(SEPA)
•Development of new or expanded potable
water supply requires EA or EIS, if
•Total design withdrawal is >= 20% of 7Q10
or is >= 1.0 mgd
•Requires consideration of instream flows
•Conditional approval of FONSI
NC Dam Safety Law
•Administered by Division of Land
Resources
•Jurisdictional if >= 15 feet high AND
>= 10 acre-feet of storage
•ALL high hazard dams are jurisdictional
•Rules stipulate how flow to maintain
aquatic habitat is determined
•Water quality of release may also be
addressed
Clean Water Act Section 401
•Administered by Division of Water Quality
•Water quality certification required to place
fill in navigable waters
•Applied only in conjunction with another
federal permit such as section 404 or
FERC licensing
•Can include instream flow conditions
Clean Water Act Section 404
•Administered by US Army
Corps of Engineers
•Required for construction in, or placing fill
in, waters of the United States
•Can include instream flow conditions to be
maintained during construction and
operation of a new project
Water Quality Violations
•Activities that result in:
–Violations of water quality standards
–Fish kills
–Death of endangered species
•May result in penalties under state
and/or federal law
Riparian Rights Lawsuits
•Riparian owners may sue for damages or
injunctive relief
•Are their riparian rights impaired by another
parties’ use of water
•Is that use “reasonable”?
Questions?