Water Laws

"Crosscurrents" and the Watershed Management Debate, September 1998

Watershed districts have operated in Minnesota since the Minnesota Watershed District Act, adopted in 1955, authorized the formation of districts and created the state Water Resources Board to oversee them. Yet questions concerning their role and relationship to state, county and municipal governments remain the subject of vital discussion. Several examples: in May 1996, a Hennepin County Water Management Advisory Committee published a report on its inquiry into streamlining the existing system of overlapping Federal, state and local jurisdiction; a Washington County task force is convened at this time to consider the role of watershed districts and joint powers water management organizations within the County. The Minnesota Association of Watershed Districts presently is engaged in a survey of its members on governance issues, with the results to be available next summer. As noted below, the National Academy of Sciences shortly will release a report on watershed-based water management developed from a convocation of water management experts nationwide.

On September 23, 1998, the Minnesota Board of Water and Soil Resources (BWSR), the descendant of the Water Resources Board, convened a special session to hear presentations from around the country on approaches to watershed management. The session proceeded from the December 1996 "Crosscurrents: Managing Water Resources," a Minnesota Planning report that assessed the existing framework of state water resources management in light of five legislative goals: sustainable development; improved service delivery; prevention of water resource problems at their source; citizen participation; and reduced pollution.

The report observed that at least six Minnesota agencies (Pollution Control Agency; Departments of Health, Natural Resources and Agriculture; BWSR and the Environmental Quality Board), counties, cities, towns, soil and water conservation districts, watershed districts, lake improvement districts, watershed management organizations and lake conservation districts all may play a substantial role in water resource management. This proliferation of regulatory and management bodies, the report found, posed a number of obstacles to meeting the five legislative goals:

• Planning among governmental bodies may be unconnected;
• These bodies' authorities may be unclear or may overlap;
• A shift from general funding to fee-based funds over time has restricted both internal and coordinative flexibility of governmental bodies;
• Differing geographical boundaries of these bodies, and differing ways of organizing them regionally, make coordination more difficult and confuse the public;
• Data and communication systems among governmental bodies are unconnected; and
• Local bodies may be given authority without resources and expertise to properly use it.

In conclusion, while noting that addressing these problems through legislative and administrative efforts is cumbersome and protracted, "Crosscurrents" proposed a variety of measures to address the identified concerns. These included co-locating regional offices of state agencies; simplifying procedures to modify special purpose districts, both to increase their ability to serve local needs and to allow for mergers or arrangements that share resources and expertise; carefully identify further state-level permitting and other decisions that could be delegated to local governments; and standardize or coordinate data management systems.

Importantly, the report found no strong call for a wholesale change in the current system. One advantage of the existing, fragmented structure is what Ron Harnack, BWSR Executive Director and Board member, referred to at the session as a "political" rather than "administrative" system of resolving conflicts in water resource management issues: conflicts arise at the interagency level and not merely within the more insular environment of a single agency. This is seen as more accountable and more open to citizen input than the consolidation of functions into fewer larger and more insular agencies.

Likewise, "Crosscurrents" did not question the wisdom of watershed-based special districts for water resource management. Similarly, the May 1996 Hennepin County report found that "the state, Hennepin County and cities should support watershed planning because [it] offers the best approach for comprehensive surface water management."

At the session, Clifford Aichinger, Administrator of the Ramsey-Washington Metro Watershed District, briefed the Board and attendees on the forthcoming report of the National Research Council, a body within the National Academy of Sciences. Aichinger, one of 15 scientists, planners and public administrators serving on the committee preparing the report, noted the report's conclusion that watershed-based water resource management is logical and fundamental. Nonetheless, it finds, government at other levels should play a role-- each level has relevant capacities that it, as compared with the others, best may bring to the table. For example, the report suggests, while local governments should be primarily responsible to implement water resource management programs, state and federal governments should coordinate, perform research, provide technical and financial assistance, and manage cross-jurisdictional, regional or interstate issues.

Water Resource Management in Florida, Nebraska and Wisconsin
Three speakers, from Florida, Nebraska and Wisconsin, demonstrated the differing scales that states have chosen for water resource management.

David Fiske, Assistant Executive Director for Florida's Suwannee River Water Management District, explained that state's means of managing water resources through five water management districts, each encompassing seven to 11 major watersheds and operating on an annual budget of from $22 to $450 million. Board members are appointed by and budgets approved by the Governor; the Florida Department of Environmental Protection oversees district operations. Twenty to seventy percent of district funds, for smaller and larger districts, respectively, derive from ad valorem taxation on property in each district, with state general revenues, state and federal grants and district enterprise revenues providing the remainder. District jurisdiction encompasses water supply, water quality and flood protection as well as management of natural resources such as timber. In addition to planning, management and regulation, the districts tend to be the leading state agencies for water-related data collection, maintain an extensive water-resource-related capital infrastructure, and actively acquire and hold state land for conservation purposes. Despite the substantial size and compass of these entities, Fiske noted that their viability rests in large part on their ability to address specific regional needs÷water supply needs, water storage capacity restoration, urban vs. rural issues÷as well as create a local stake and provide for public involvement much better than can a state-level agency.

Dayle Williamson, Nebraska Director of Natural Resources, described a slightly less centralized approach than that used by Florida. Faced with 500 special purpose districts involved in water and land management issues, each with insufficient authority, jurisdiction and resources to operate effectively, in 1969 the Nebraska legislature divided the state Natural Resources Districts as, in Williamson's words, the "multi-purpose, local unit of Nebraska Government for management, development, and protection of the soil and water resources found in that basin." The 23 districts are delineated along watershed lines with respect to Nebraska's 13 major river basins. Board members, elected by district voters, manage annual budgets ranging from $125,000 to $16,400,000 and exercise a range of fiscal authorities including taxation and bonding. Unlike in Minnesota or Florida, districts exercise authority not only over water and soil resources, but over a broader range of environmental areas including solid waste disposal; sanitary systems; drainage; pollution control; management of fish and wildlife habitat and recreation and park facilities; and forest and range management. These districts appear to represent a substantial decentralization of state authority combined with a consolidation of related program authorities into a single governmental body.

David Jelinski, Director of the Wisconsin Land and Water Resources Bureau, described 1997 state legislation transferring water resource management authority from a proliferation of stormwater, lake and sanitary districts and county drainage boards back to Wisconsin's counties. Under the legislation, the state establishes minimum performance standards for nonpoint pollution and erosion control that guide each county's development and implementation of a Land and Water Resource Management Plan. Plans are approved by the state Department of Agriculture and implemented through partnerships with municipalities, landowners, local organizations and other interested parties. The legislation establishes extensive requirements for local participation in plan development.

Elements of Effective Watershed Management
Bob Doppelt, a consultant in the design of governmental management and Director of the Center for Watershed and Community Health at Portland State University, Oregon, provided a theoretical framework for the day's other speakers. In a wide-ranging presentation, Mr. Doppelt outlined principles for effective water resources governance. Much of the talk centered on the "principle of subsidiarity," which encompasses the organization of government on the basis of "nested hydrologic units"; the devolution of governmental authority to the lowest appropriate level; and the use of performance goals, rather than the traditional "command and control" approach, to enlist the knowledge of regulated entities as to the most efficient means to achieve water management goals.

Mr. Doppelt's research suggests the three hallmarks of effective watershed governance systems to be: (a) the integration of sound science into decisionmaking; (b) the integration of economic and environmental objectives (recognizing that environmental and economic productivity are not adverse to each other); and (c) efficient service delivery to stakeholders. Particularly interesting was the idea of the "sector-based" approach. This approach rests on the recognition that obstacles to sound environmental management practices among members of the regulated community may rest on competitive industry pressures. In keeping with the "pollution prevention" concept of acting as far upstream as possible, the sector-based approach works with an entire industry on a supra-watershed basis to achieve a general change in practice that maintains the "level playing field" among the local enterprise and those against whom it competes. (A local example might be the Toxic Reduction Project of the Minnesota Center for Environmental Advocacy, which seeks voluntary agreement within the health care delivery industry to substitute non-chloride-containing IV bags, tubing and other medical products for polyvinyl chloride materials that produce dioxin when incinerated.)

Conclusion
BWSR's convocation of speakers is not a part of any broader, more formalized inquiry by the agency into Minnesota's present water management framework. But it indicates the Board's interest in examining and improving this framework and reflects the apprehension, nationwide, that beneficial refinements can be made to the present, somewhat ad hoc, water governance pot in which Federal, state, local and special district cooks all have their spoons. Even when not present on the surface, the question of the proper role of each level of government in water resource management will underlie many of the issues that water attorneys and citizens generally will face.