Gerald L. Kirkpatrick, P.G.

ABSTRACT: Property development and redevelopment pressures in the United States continue to result in groundwater use conflict. As a result, state legislatures struggle to integrate science and policy into laws and regulations. This paper examines the lively debate emerging among stakeholder groups regarding the degree to which a legislative body should mandate the application of science in an attempt to protect groundwater resources.

Through the appointment of science advisory boards, the input provided by environmental agencies and other stakeholders, legislators attempt to obtain knowledgeable scientific information to craft workable groundwater laws and regulations. The goal of a state lawmaker is to develop science-based laws and regulations that satisfy federal initiatives and can be applied on a statewide basis. Unfortunately, project stakeholders with competing agendas can exert tremendous political influence during the legislative process. In an attempt to satisfy stakeholders, the resulting laws can be prescriptive in some respects and vague in others. Technical guidance documents are often developed by state agencies in an attempt to clarify the intent of the regulations. Lawmakers generally view the process as legislated compromise, but in practice the compromise often results in the conflict of having to choose between good science and bad policy.

Common conflicts in applying statewide groundwater protection legislation on a project-specific basis arise from the continued inability to balance legislation and technical guidance. Prescriptive statewide regulatory requirements limit creativity. Vague laws and regulations create unintended ambiguity. For specific projects, the legislative balance of good science and good policy is difficult to achieve.

KEY TERMS: Groundwater law; resource development and protection; and regulatory guidance and public policy.

INTRODUCTION

Property development and redevelopment pressures in the United States continue to result in groundwater use conflict. Competing groundwater uses (including agricultural, industrial, domestic, and recreational) can each provide societal benefits; due to competing interests and subsequent stakeholder perceptions of "need", seemingly unresolvable conflicts can also develop. The American judicial system

traditionally defines what is legal within the context of existing laws and regulations; however, a healthy national trend is developing in groundwater resource management. Legislators are beginning to look beyond mere legal solutions to groundwater management and are requesting technical assistance to identify scientific solutions. Legislators attempt to obtain knowledgeable scientific information to craft workable groundwater laws and regulations through the appointment of science advisory boards (SABs) and through the input provided by environmental agencies and other stakeholders. An emerging resource management goal of state and federal lawmakers is to develop science-based laws and regulations that can be applied to satisfy federal initiatives on a statewide basis. But such scientific "guidance" can, itself, be politically charged. The challenges surrounding scale considerations, development of meaningful technical guidance, and the identification of credible sources of technical "help" must each be considered in managing the future use of groundwater as a resource.

The Challenge of Scale

The urge for lawmakers to play politics with science is great -- often times so great that stakeholder pressures cannot be resisted. One source of such pressure is determining the scale at which proposed regulations are to be applied. Regional water use commissions cannot necessarily take into account local groundwater use issues. Is it better to develop science-based resource management at a regional scale and apply the solution at the local level, or to develop science-based solutions at the local scale and apply them regionally? Scientists themselves find conflict in managing a resource when geographic area is a consideration.

Stakeholders, of course, are best served when local and regional interests are perfectly balanced to the satisfaction of all. Unfortunately, this utopian scenario is rarely achievable. Scientists, such as those who are members of the American Water Resources Association and other professional societies, are perhaps best positioned to help resolve such conflicts. Legislators, regional planners, and even local utilities are becoming aware that these professionals have expertise that can be effectively translated into sane and workable water policies. Consequently, more and more organizations are finding it advantageous to retain trained scientific and engineering professionals. Other professionals, as members of influential societies and associations, should also actively engage in the "regional" versus "local" debate.

Local brownfield projects for industrial property redevelopment present an interesting example of the scale conflict. Many of these abandoned properties are located along industrial corridors where similarly abandoned properties abut one another; the properties which generate no tax revenue and have no associated jobs, are a blight to the community. Recently-adopted state brownfield laws often allow residual concentrations of a chemical to exist on a property, if it can be shown that the residual chemical will not be a source for unacceptable adverse risks to human health and the environment. A small mass of chemical loading into an aquifer, as represented by a single industrial property, would be, at most, a minor concern. However, as noted above, in several areas of the country, brownfield properties are adjacent to one another.

Consider that residual chemical mass loading is allowed to independently occur at several adjacent properties. Clearly, at some point, if sufficient contaminant mass is locally added to an aquifer, the aquifer quality will seriously degrade regionally. This aquifer degradation could, in fact, become sufficiently significant that it results in wholesale pollution of the aquifer. Thus, while any one site could legally be considered "compliant", the regional aquifer could be deemed "heavily polluted."

The Challenge of Developing Meaningful Technical Guidance

A second debate is emerging regarding the balance between technical guidance and prescriptive legislation. Unfortunately, project stakeholders with competing agendas can exert tremendous political influence during the legislative process. In an attempt by legislators to satisfy stakeholders, they pass laws, which can be prescriptive in some respects and vague in others. Technical guidance documents are often developed by state agencies in an attempt to clarify the intent of the regulations.

The author’s experience suggests that legislators regard some issues as unacceptably complex for the law; these issues include specific technical requirements for groundwater use, protection, and remediation. Therefore, legislators discharge the resolution of such issues to guidance documents, which are normally developed at a later date. However, developing and finalizing these guidance documents can be problematic. The regulated community desires maximum flexibility, including perhaps guidance based solely on a performance-based standard. Such flexibility does have the potential for abuse, and an agency’s alternative often focuses on how to control the worst among the regulated community (i.e., those individuals who would take unfair advantage of the flexibility in a system).

Conversely, industry and other groundwater users fear that overly prescriptive regulations would allow any one regulator to "rule with an iron fist." Regulators can develop a system whereby all projects are managed by regulatory obligation, not by regulatory intent. The result is frustration on the part of project stakeholders when they recognize a "better" approach, only to be told by a regulatory contact that the approach is a violation of regulation or law. More than once the author has heard it said by a regulator that they are not authorized to say "yes"; they are only authorized to say "no."

Lawmakers generally view the process as legislated compromise, but in practice the compromise often results in the conflict of having to choose between good science and bad policy. For example, good science would dictate limiting groundwater withdrawals from one basin and discharging the groundwater to another basin. However, resource policy and law often consider only political boundaries (and their constituent’s agendas). Paradoxically, many of those political boundaries (or "edges") coincide with major drainage basin axes or centers (e.g. rivers).

In southeast Pennsylvania, for example, competing water use issues in the Delaware River Basin have become so significant that regional water use allocation has become a variable for consideration in zoning and planning board decisions at the municipal level. The real estate laws in the East were hardly crafted considering water rights. Indeed, in Pennsylvania, for example, water goes to the party with the deepest well and the biggest pump (Cardamone, 1999). Clearly, the input of knowledgeable water engineers and groundwater scientists is critical to the management of the resource.

Is it best to develop prescriptive science and engineering-based laws, or is it best to pass minimalist legislation with the expectation of developing workable guidance?

The Challenge of Identifying Credible Sources of Technical "Help" (e.g., Science Advisory Board and Technical Committee Members)

The third challenge to be considered in managing the future use of groundwater as a resource is the identification of credible sources of technical help. As difficult and daunting as this task seems, there are solutions. State and federal regulators now acknowledge that sound groundwater management decisions can be made and consensus can be achieved, albeit not in a vacuum. One of the most enlightening developments in the past few years is the formation and use of grass-roots Scientific Advisory Boards (SABs).

SABs are formed by political bodies of all sizes (federal to municipal) to provide advice and guidance on a broad spectrum of complex groundwater issues. The formation of SABs is a positive step toward resolving the "good-science or bad-policy" conflict. If SABs are used properly, they can represent a logical, unbiased source for reasonable management solutions to competing groundwater use interests.

Legislators and local communities now appreciate that the first step in writing reasonable and workable laws and regulations for groundwater use and land use planning is to understand just what it is they are trying to regulate. The engineering and scientific complexities of managing groundwater as a resource and the relationship of this management to the economy and quality of life are becoming better recognized.

Simply put, many resource stakeholders are rapidly embracing science, not politics, to regulate based on good engineering. SABs seem to operate best when members represent, as much as possible, a broad spectrum of both the political and scientific disciplines.

It is unreasonable to expect an individual’s political beliefs not to influence their opinion on such weighty issues as who is allocated how much of what resource and why. SABs seem to work well when composed of agency representatives, technical representatives of stakeholder groups, and perhaps most importantly, knowledgeable citizens. Political influence can be kept to a minimum, or at least identified quickly, when competing interests are examining each other’s actions. The system of checks and balances works as well within the technical community as it works for the government.

SAB members are often faced with one other frustrating challenge -- recommendation rejection. It is not uncommon for SAB or other technical committee recommendations to be rejected by lawmakers because, although they make scientific sense, they make no political sense. SAB members may not have understood the task with which they were charged, the legislature may not like the "answer" received, or perhaps the board members could not reach a consensus. Fortunately, it appears that such cases are rare. An examination of the various SABs in place throughout the United States indicates that only rarely can a consensus not be achieved.

The Obligations of Groundwater Engineers and Scientists

For a groundwater scientist or engineer, the future for legislative sanity is bright. Lawmakers are taking advantage of the many resource management experts who are available to them. Legislation is no longer crafted only in terms of the political realm; the technical realm receives consideration. Lawmakers are seeking, receiving, and taking technical advice. Local politicians (at the municipal and county-wide levels) are also seeking advice, which is being used in the local land use planning process.

Unfortunately, one emerging trend is not positive. Some of the best and brightest engineers and scientists are unwilling to volunteer or to pursue business opportunities in the groundwater resource planning sector. Either time is limited, or margins are insufficient. This trend of non-involvement results in the same voices being repeatedly heard in the same forums. Ideas grow stale, lawmakers begin to believe they have heard and know it all, and debate is replaced by complacency.

Experience suggests that if one does not care for existing legislation and new legislative initiatives are on the horizon, direct involvement is the solution. By educating the lawmaker, by designing new regulations, or changing existing regulations, an outcome which is favorable to all can be achieved. It is likely that your legislator is unaware that you are a knowledgeable water resource management professional – let the legislator know, volunteer, and become involved in the process. Good science can be good policy only if we each play our part.

CONCLUSIONS

To what extent should a legislative body mandate the application of science in an attempt to protect groundwater resources? What problems are encountered by legislators as they struggle to achieve the proper balance between legislation and science? What resources are available to legislators? This paper has addressed these and related issues (e.g., problems and conflicts relating to groundwater use, the challenge of scale, the development of appropriate technical guidance, etc.) Trends in the relationship between groundwater protection and legislated sciences are moving in the right direction; however, to successfully integrate science and technology into workable groundwater protection legislation, scientific advisory group members and groundwater scientists and engineers must interact with legislators to translate good science into effective policy.

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