H. B. 4026
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced January 14, 2004; referred to the
Committee on the Judiciary.]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new chapter, designated §20A-1-1, §20A-1-2,
§20A-1-3, §20A-1-4, §20A-1-5, §20A-1-6, and §20A-1-7; and to
amend said code by adding thereto a new section, designated
§29-2-5a, all relating to establishing the water resources
management act; providing a short title; creating legislative
findings and legislative policies of the act; providing that
a survey of state waters be undertaken; defining terms;
providing that the state reserves a sovereign interest in the
waters of the state as a valuable public resource; declaring
the state should manage state waters for the use and benefit
of its citizens; directing that a water use survey be
conducted; defining types of activities to be surveyed;
establishing that the purpose of survey is to inventory state
waters and assess need for a state plan; providing for preservation of common law rights and water as a natural
resource; authorizing the state director of office of economic
and geologic survey to undertake study; requiring the director
to coordinate study with state agencies and a legislative
oversight commission; requiring persons making large
withdrawals to participate; creating exceptions; establishing
reporting requirements; requiring the director to use
reasonable alternatives for estimating usage; requiring the
director to report to the Legislature; specifying contents of
the report; requiring persons participating in survey to
submit accurate information; requiring the director to consult
with state agencies that have or collect water use data to
determine the appropriate form and format of the data
submitted pursuant to the survey; authorizing the director to
coordinate with the United States geological survey;
establishing confidentiality of submitted information;
providing criteria for requesting and receiving
confidentiality designation; providing for types of records,
reports or information eligible for being designated
confidential; exempting certain information from being deemed
confidential; providing methods for preserving and maintaining
confidential status; establishing a process for requesting
documents including notice and hearings; establishing a
legislative oversight committee to monitor, study and report development; requiring certain persons to participate in
survey; providing civil penalties for noncompliance; providing
for survey compliance mechanisms; requiring certain agencies
to promulgate legislative rule; and providing that the
director of geological and economic survey use existing
authority to undertake survey.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new chapter, designated §20A-1-1, §20A-1-2,
§20A-1-3, §20A-1-4, §20A-1-5, §20A-1-6, and §20A-1-7; and that said
code be amended by adding thereto a new section, designated section
§29-2-5a, all to read as follows:
CHAPTER 20A. WATER RESOURCES.
ARTICLE 1. WATER RESOURCES MANAGEMENT ACT.
§20A-1-1. Short title; legislative findings; legislative
statement of policy.
(a) Short title - This article may be known and cited as the
"Water Resources Management Act."
(b) Legislative findings:
(1) The West Virginia Legislature finds it is the public
policy of the state of West Virginia to protect and conserve the
water resources for the citizens of the state and to provide for
the public welfare. The state's water resources are a vital
natural resource of the state that are essential to maintain, preserve and promote quality of life and economic vitality of the
state.
(2) The West Virginia Legislature further finds it is the
public policy of the state that the waters of the state be
available for the benefit of the citizens of West Virginia,
consistent with and preserving common law, while also preserving
this resource within its sovereign powers for the common benefit
for all citizens of the state of West Virginia.
(c) Legislative policy:
(1) The waters of the state are valuable public natural
resources held by this state for the use and benefit of its
citizens. The state has a duty to manage its waters effectively
for the use and enjoyment of present and future residents and for
the protection of the environment. In order to carry out its duty
the state must determine the nature and extent of its water
resources, the quantity of water being withdrawn or otherwise used
and the nature of the withdrawals or other uses.
(2) This article is intended to preserve existing laws, uses
and conditions associated with common law, including individual
riparian rights, rights of capture and public trust, preserving
existing remedies as provided and recognized in common law or as
otherwise provided by statute.
(3) The survey required by this article is intended to provide
an inventory of the waters of the state and information on how these waters are being utilized to assess the need for developing
a water resources management plan.
§20A-1-2. Definitions.
(a) "Consumptive withdrawal" means any withdrawal of water
which reduces the supply of the water body from which it is
withdrawn or removed.
(b) "Director" means the director of the state geological and
economic survey.
(c) "Farm use" means irrigation of any land used for general
farming, forage, aquiculture, pasture, orchards, nurseries, the
provision of water supply for farm animals, poultry farming, or any
other activity conducted in the course of a farming operation.
(d) "Maximum potential" means the maximum designed capacity of
a facility to withdraw water under its physical and operational
design.
(e) "Person" means an individual, public and private business
or industry, public or private water service and governmental
entity.
(f) "Nonconsumptive withdrawal" means any withdrawal of water
which is not consumptive as defined in this section.
(g) "Water resources," "water" or "waters" means any and all
water on or beneath the surface of the ground, whether percolating,
standing, diffused, contained or flowing, wholly or partially
within this state, or bordering this state and within its jurisdiction, and includes, without limiting the generality of the
foregoing, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands: Provided, That the waters of farm ponds,
industrial settling basins and ponds and waste treatment facilities
are excluded from the waters of the state.
(h) "Withdrawal" means the removal or capture of water from a
water resource of the state regardless of whether it is returned to
the water resource.
§20A-1-3. Water resources management survey; need for study;
reporting requirements; agency cooperation;
information gathering.
(a) The waters of the state are valuable public natural
resources held by this state for the use and benefit of its
citizens. The state has a duty to manage its waters effectively
for the use and enjoyment of present and future residents and for
the protection of the environment. In order to carry out its duty
the state must determine the nature and extent of its water
resources, the quantity of water being withdrawn or otherwise used
and the nature of the withdrawals or other uses.
(b) The director of the state geological and economic survey
shall conduct an annual water resource survey of consumptive and
nonconsumptive surface water and groundwater withdrawals in this
state for a period of three consecutive calender years. Preparation for conducting the survey shall begin upon the
enactment of this article during the regular session of the
Legislature in the year two thousand four. The survey shall be
commenced as soon as moneys are made available for that purpose
either by appropriation of the Legislature or through other public
or private sources.
(c) Every person utilizing the state's water resources whose
average withdrawal from a single water body during any single month
over a calender year exceeds seven hundred fifty thousand gallons,
except those who purchase water from a public or private water
utility or other service which is reporting its total withdrawal,
shall provide all requested information regarding withdrawals of
water. Multiple withdrawals of water from a particular water
source which are made or controlled by a single person and used at
one facility or location shall be considered a single withdrawal of
water. Water withdrawals for self supplied farm use and private
households will be estimated.
(d) All state agencies that have a regulatory, research or
other function relating to water resources, including, but not
limited to, the division of natural resources, the public service
commission, the department of environmental protection, the bureau
for public health, the commissioner of agriculture, the office of
emergency services, Marshall University and West Virginia
University may enter into interagency agreements and shall cooperate with the director of the state geological and economic
survey by: (i) Providing information relating to the water
resources of the state; (ii) where appropriate, undertaking
enforcement action; and (iii) providing any necessary assistance to
the director in effectuating the purposes of this article.
(e) Persons required to participate in the survey shall
provide any available information on stream flow conditions that
impact withdrawal rates.
(f) Persons required to participate in the survey shall
provide the most accurate information available on water withdrawal
during seasonal conditions, and future potential maximum
withdrawals or other information that the director determines is
necessary for the completion of the survey.
(g) The director shall, to the extent reliable water
withdrawal data is readily available from sources other than
persons required to complete the survey, utilize that data to
fulfill the requirements of this section.
(h) The director shall report annually to the joint oversight
committee created in section six of this article to advise the
committee of the progress of the survey as well as any problems
that may be encountered in conducting the survey and to make
recommendations on policy and statutory changes that may be needed.
(i) Upon completion of the survey the director shall file a
final report with the governor, president of the Senate, the speaker of the House of Delegates and the joint oversight committee
no later than the thirty-first day of December, two thousand seven.
In preparing the final report the director shall consult with the
department of agriculture, the bureau of public health, the
department of environmental protection, the division of natural
resources, and the public service commission. The final report
shall include the following:
(1) To the extent the information is available, the location
and quantity of all surface water and groundwater resources in this
state;
(2) A discussion of the consumptive and nonconsumptive
withdrawals of any surface water and groundwater in this state;
(3) A listing of each person whose nonconsumptive withdrawal
during any single month during the calender year exceeds seven
hundred fifty thousand gallons including the amount used, location
of the water source, the nature of the use, location of each intake
and discharge point by longitude and latitude where available and,
if the use involves more than one watershed or basin, the
watersheds or basins involved: Provided, That nothing in this
subsection shall be construed to regulate or limit transfer of
water from one watershed or basin to another;
(4) A discussion of any area of concern regarding historical
or current conditions that indicate a low flow condition, drought
or flood has occurred or is likely to occur which would threaten the beneficial use of the surface water or groundwater in the area;
(5) Current or potential instream or offstream uses which
contribute or are likely to exacerbate natural low flow conditions
to the detriment of the water body;
(6) Discussion of a potential groundwater well network that
could provide indicators that groundwater levels in an area are
declining or are expected to decline excessively;
(7) Potential growth areas where competition for water
resources could be expected;
(8) Any occurrence of two or more withdrawals that are
interfering or may reasonably be expected to interfere
substantially with one another;
(9) Discussion of practices or projects users may have
implemented to reduce water withdrawals; and
(10) Any other information which may be beneficial in
adequately assessing water availability and withdrawal and in
determining the need for and preparing water resource management
plans.
(j) In addition to any requirements for completion of the
survey established by the director, the survey must accurately
reflect both actual and maximum potential water withdrawal. Actual
withdrawal shall be established through metering, measuring or
alternative accepted scientific methods to obtain a reasonable
estimate or indirect calculation of actual use.
(k) The director shall consult with the department of
agriculture, the public service commission, the bureau for public
health, the department of environmental protection, and all other
state agencies that may have or collect water resource data to
determine the most appropriate form and format of the information
to be supplied to the director pursuant to the water resource
survey.
(l) The director is authorized to enter into cooperative
agreements with the United States Geological Survey to obtain
federal matching funds, conduct research and analyze survey data
and other such agreements as may from time to time be necessary to
carry out his or her duties under this article.
§20A-1-4. Confidentiality.
(a) Information required to be submitted by a person as part
of the water withdrawal survey which may be a trade secret or
otherwise confidential must be identified by that person as
confidential information. The person claiming confidentiality
shall provide written justification for the information's
confidential nature and why the information should not be released
or made public.
(b) In addition to records or documents that may be considered
confidential under article one, chapter twenty-nine-b of this code,
confidential information means records, reports or information, or
a particular portion thereof, that if made public would:
(1) Divulge production or sales figures or methods, processes
or production unique to the submitting user;
(2) Otherwise tend to affect adversely the competitive
position of a person by revealing trade secrets, including
intellectual property rights; or
(3) Present a threat to the safety and security of any water
supply, including information concerning water supply vulnerability
assessments.
(c) Confidential information does not include:
(1) Information identifying the general source of water
withdrawn unless the information determined by the director to be
a trade secret; or
(2) Information reporting the total amount of water withdrawn
by a person or the total amount of water used for consumptive or
nonconsumptive use.
(d) Information designated as confidential and the written
justification shall be maintained in a file separate from the
general records related to the person.
(e) Information designated as confidential may be released
when the information is contained in a report in which the identity
of the person has been removed and the confidential information is
aggregated by hydrologic unit or region.
(f) Information designated as confidential may be released to
governmental entities, their employees and agents when compiling and analyzing survey information and as may be necessary to develop
the legislative report required by this section or to develop a
water management plan or plans. Any governmental entity or person
receiving information designated confidential shall protect the
information as confidential.
(g) Upon receipt of a request for information that has been
designated confidential and prior to making a determination to
grant or deny the request, the director shall notify the person of
the request and allow the person an opportunity to respond to the
request in writing.
(h) All requests to inspect or copy documents must state with
reasonable specificity the documents or type of documents sought to
be inspected or copied. Within five business days of the receipt
of a request, the director or his or her designee shall: (1)
Advise the person making the request in writing of the time and
place at which the person may inspect and copy the documents,
which, if the request addresses information claimed as
confidential, may not be sooner than thirty days following the date
of the determination to disclose, unless an earlier disclosure date
is agreed to by the person claiming the confidentiality; or (2)
Deny the request, stating in writing the reasons for denial. If
the request addresses information claimed as confidential, notice
of the action taken pursuant to this subsection shall also be
provided to the person asserting the claim of confidentiality.
(i) Any person adversely affected by a determination regarding
information confidentiality under this article may appeal the
determination to the appropriate circuit court pursuant to the
provisions of article five, chapter twenty-nine-a of this code.
The filing of a timely notice of appeal shall stay any
determination to disclose confidential information pending a final
decision on the appeal. The scope of review is limited to the
question of whether the records, reports, data or other
information, or any particular part thereof sought to be inspected
or copied, are entitled to be treated as confidential under this
section. The director shall afford evidentiary protection in
appeals as is necessary to protect the confidentiality of the
information at issue, including the use of in camera proceedings
and the sealing of records where appropriate.
§20A-1-5. Water resources management fund; contributions.
(a)
There is hereby created in the state treasury a special
revenue fund known as the "Water Resources Management Fund." The
fund shall operate as a special fund whereby all deposits and
payments thereto do not expire to the general revenue fund, but
shall remain in the fund and be available for expenditure in
succeeding fiscal years. This fund shall consist of any moneys
received or collected by the director in accordance with the
provisions of this article and where applicable, article two,
chapter twenty-nine of this code as well as interest earned on investments made from moneys deposited in the fund any moneys
appropriated by the Legislature and all other sums designated for
deposit to the fund from any source, public or private including
contributions, grants and federal and state matching moneys.
Moneys from this fund shall be expended by the director for
conducting the water resources survey, monitoring, planning,
research and other activities required by this article.
(b) Any person may contribute to the water resources
management fund in a public-private partnership to help defray the
costs of conducting the water resources survey. Any contribution
to the fund shall be sent to the state treasurer to be deposited in
the water resources management fund.
§20A-1-6. Joint oversight committee on state water resource
management.
(a) The president of the Senate and the speaker of the House
of Delegates shall each designate five members of their respective
houses, at least one of whom shall be a member of the minority
party, to serve on a legislative joint committee charged with
immediate and ongoing oversight of the water resources survey.
This committee shall be known as "the joint oversight committee on
state water resources management" and shall regularly investigate
and monitor all matters relating to the water resources survey and
the need for a water resources management plan and policy.
(b) The committee shall receive reports annually from the director to: (1) Monitor the water resources management fund; (2)
monitor the water resources survey; and (3) to develop
recommendations resulting from the survey. The director shall
submit the annual report to the committee by the thirty-first day
of January each year. The director shall also file a final report
on the water resources survey no later than the thirty-first day
of January, two thousand eight. The committee shall expire the
first day of January, two thousand ten.
20A-1-7. Mandatory survey compliance; agency rule making.
(a) The water resource survey will provide critical
information for management of the state's water resources and thus
mandatory compliance with the survey is necessary.
(b) Any person who fails to complete the survey, provides
false or misleading information on the survey or fails to provide
other information as required by this article may be subject to
enforcement action by the state agency that exercises
administrative or regulatory control over that person. Such
enforcement action may include denial, nonrenewal or suspension of
any license, permit, certificate or other authority or conduct an
activity regulated by the department of environmental protection,
the public service commission or the bureau for public health.
(c) The department of environmental protection, the bureau of
public health, and the public service commission shall consult to
determine and develop applicable and adequate enforcement mechanisms for compliance with the survey.
(d) The department of environmental protection, the bureau of
public health and the public service commission are authorized to
propose legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code to
implement the appropriate enforcement mechanisms to verify and
require participation in the water resources survey to be
undertaken pursuant to article one, chapter twenty-a of this code.
Any rules shall expire no later than the first day of July, two
thousand ten.
(c) The director of the state geological and economic survey
shall periodically provide a list to the regulatory agencies of
persons who have failed to comply with requests to properly
complete the water resources survey or provide other required
information related to the survey. The director shall also supply
a copy of these lists to the joint oversight committee on state
water resource management.
CHAPTER 29. MISCELLANEOUS BOARDS & OFFICERS.
ARTICLE 2. GEODETIC AND GEOLOGICAL SURVEY.
§29-2-5a. Water resources survey.
In addition to the duties assigned to the director pursuant to
this article, the director shall administer a water resources
survey of the waters of this state. This survey, as provided for
in the "Water Resources Management Act" established in article one, chapter twenty-a of this code, shall be conducted consistent with
the provisions and requirements of that act. All authority and
resources granted to the director in this article shall appertain
to and be utilized by the director to assist in the accurate and
timely completion of the survey.
NOTE: The purpose of this bill is to conduct a water resource
survey to collect water use data for a period of three years and
provide for the basis of a water resources management plan. The
program, administered by the state geological and economic survey,
requires all persons that withdraw over seven hundred fifty
thousand gallons during any month in a calendar year to report
water usage data to the director of the state geological and
economic survey. State regulatory agencies with administrative or
enforcement responsibilities over persons withdrawing water
resources are authorized to develop enforcement mechanisms to
ensure mandatory compliance with the survey. The director of the
state geological and economic survey shall annually report the
findings of the water resources survey to the joint oversight
committee on state water resource management. Upon completion of
the survey the director of the state geological and economic survey
shall prepare and submit a final report discussing the results of
the survey and providing recommendations for future data needs and
water resource management.
§20A-1-1 through §20A-1-7 and §29-2-5a are new; therefore,
strike-throughs and underscoring have been omitted.
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