SEHN Offers a Guide to Creating a Water-Protecting Ordinance for Communities

Based on the premise that people have a human right to clean environment—including clean water—and in the context of the onslaught of a new generation of large industrial projects taking communities off guard, SEHN is offering a new “Guide to Creating a Water-Protecting Ordinance for Communities.” This guide also reflects our commitment to the precautionary principle, which as we note in the preface, is arguably the most powerful decision-making tool for governments to use to fulfill their trustee responsibilities for protecting the right to water. 

The preface orients the reader to the current landscape regarding this human right, and provides background on what data centers and carbon capture and storage (CCS) projects are and how they can pose risks to water quantity and quality. The tools of this resource are in the full document (inserted below and downloadable here), which includes a Table of Contents. Whether you are looking for more background or are ready to get to work, we hope you will find the guide very helpful in accomplishing transparency and the rule of law for the use and protection of the precious water in your community or region. We have excerpted the Introduction below.

This guide is organized as a menu of provisions that can be incorporated into local ordinances or state laws and regulations to protect water quantity and quality from data centers, carbon capture and storage (CCS) projects, and other large industrial developments. The provisions are conceptual rather than prescriptive because each situation will be different. As much as possible, we provide existing language and concepts from regulations, laws, or bills that could serve as a model for the provision along with guidance about pitfalls to avoid and protections to include. We also include a sample ordinance that could serve as a template. Our hope is that these materials can help make the process of creating protections for water supplies easier and more effective. We plan to update the guide and model ordinance so that they can be as useful as possible over time. Feedback from readers on both elements is encouraged.

Water and environmental law can be complex, and those promoting development of water-intensive facilities may pressure governments to rush an approval. However, water is arguably our most precious resource, and in many jurisdictions, supply is highly constrained. Therefore, communities should not be shy about insisting on a detailed ordinance with enforcement provisions, especially when they are dealing with deep-pocketed companies with the resources to comply. If data centers, CCS projects, and other large industrial users cannot meet standards for protecting water supplies, they should not be permitted to operate.

We are not acting as attorneys for users of this guide. Those creating ordinances, regulations, or laws regarding the concepts discussed in this model ordinance should also consult with attorneys familiar with the relevant laws and regulations. In addition, we encourage governments to study and address other issues in their regulation of facilities including but not limited to air pollution and electricity and water costs. Governments may want to address these issues using at least some of the practices and procedures recommended in this guide.

Dusty Horwitt has spent nearly 20 years researching and working to protect communities from the health and environmental impacts of oil and gas drilling and fracking as well as other environmental risks. An attorney and former reporter, he has written a chapter on fracking chemical disclosure for a textbook published by Elsevier. He has also been quoted in, and had his work featured in, media outlets including the New York Times, Wall Street Journal, and Marketplace on NPR. He has played significant roles in efforts to protect New York state, the George Washington National Forest, and the Delaware River Basin from unsafe shale gas drilling and fracking. He is the author of PSR’s report Fracking with Forever Chemicals about the use of PFAS in fracking and lead author of PSR’s report Fracking with Forever Chemicals in Colorado about the use of PFAS in oil and gas extraction in the state. He is continuing to work with PSR on issues related to oil and gas chemical exposure and in April 2022 was invited to testify before the Colorado House of Representatives Energy and Environment Committee regarding legislation that would improve oil and gas chemical disclosure in the state. Previously, he worked as a deputy press secretary on Capitol Hill and as a reporter at the City News Bureau of Chicago. He is a member of the Virginia State Bar.