Thursday, April 30, 2009

What ever happened to the rain?

As a brief follow-up to my posting on Colorado water rights (This land is my land, but the rain isn't...) check out this article at Popular Mechanics.

Wednesday, April 29, 2009

The Clean Water Restoration Act

There is a fight brewing – big surprise – over the Clean Water Restoration Act of 2009 (“CWRA”)(S.787). The stated purpose of the CWRA is to “restore” the authority of the EPA under the Clean Water Act and roll back the clock to the state of the law prior to the U.S. Supreme Court’s rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2006).

According to U.S. Representative James Oberstar (D-MN) and Senator Russ Feingold (D-WI), as well as environmentalists who support the bill, the CWRA is needed to restore the original authority of the EPA under the Clean Water Act. Others disagree and allege that the CWRA vastly expands the scope of the EPA’s authority to waters never contemplated under the Clean Water Act.

The crux of the dispute is that the Clean Water Act of 1972 (as amended) does not clearly define what waters it applies to. The Act refers to “navigable waters” (33 U.S.C. §§1311(a) and 1342(a)), but then defines that term as “the waters of the United States, including the territorial seas.” (§1362(7)) Prior to the Supreme Court’s decisions in SWANCC and Rapanos, the Act was believed by some to apply broadly to non-navigable (in the traditional sense of the word) bodies of water, including intrastate wetlands. SWANCC and Rapanos changed all that. Under those decisions, the extent of the Clean Water Act was read to include only “relatively permanent, standing or continuously flowing bodies of water…” Rapanos at 739. Further, the Court read the Act to cover only those wetlands with a continuous surface connection to an otherwise covered “water”. Id. at 742. This had the effect of excluding numerous intrastate “waters” and wetlands that had previously been deemed to fall within the scope of the Act.

So – here comes the CWRA. This legislation will either “restore” or “dramatically expand” federal jurisdiction under the Act – depending on whether you support or oppose it. The CWRA would extend the Act to include, “all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing...” (S. 787, §4(3)). In comparing this definition with the one currently found in the Act, I think I have to agree that this expands - not restores - federal jurisdiction under the Act. Environmentalists may not be happy with the Supreme Court’s reading of the Act in Rapanos, but it is reasonable. Those who dislike the decision should vent their ire not at the Supreme Court, but at the legislators who failed to adequately describe what the Act was supposed to cover. The more important question however is not whether the CWRA is restoration or expansion, but whether or not it is a good idea of itself.

As a general proposition, I am often leery of attempts to expand federal regulatory authority for the simple reason that there are often much more efficient means of addressing our problems on a local level. Despite this, there are numerous areas where federal regulation is not only beneficial, but indispensable. One need only look at where the deregulation of the financial industry has gotten us to see a dramatic example of the need for regulation. As to the CWRA, I am mindful of the expansion of federal jurisdiction it entails, but that is outweighed in my mind by the simple fact that water – like the financial industry – is all interconnected. It is a fundamentally dynamic resource that is constantly cycling through our environment – much like air. As such, I have difficulty truly imagining water that is solely “intrastate” or otherwise completely isolated from all other water sources or supplies. To me, that fact weighs heavily in favor of comprehensive regulatory controls that provide consistent treatment of water nationwide.

Tuesday, April 21, 2009

Pharmaceutical Discharges

There is a new AP article on PPCP contamination (you can see my last posting on that here). This time the focus is on pharmaceutical manufacturers. The article states:
Researchers have found that even extremely diluted concentrations of drugs harm fish, frogs and other aquatic species. Also, researchers report that human cells fail to grow normally in the laboratory when exposed to trace concentrations of certain drugs. Some scientists say they are increasingly concerned that the consumption of combinations of many drugs, even in small amounts, could harm humans over decades.

With the results of studies regarding the impact of PPCP's on our environment expected this year, it seems likely that this issue will gain additional press coverage and traction with the public. I believe that it is important not just for the EPA and FDA, but also those in the water industry to get out ahead of this issue. As the tone of the AP article suggests, statements like this one - "Scientists, doctors and the EPA say there are no confirmed human risks associated with consuming minute concentrations of drugs. " - simply don't cut it.

Wednesday, April 15, 2009

International Boundaries and Climate Change

There is an interesting posting over at the IWLP Blog discussing the possible effects of climate change on territorial claims and conflicts between nations.

Summarized briefly, the borders of many nations are defined by the course of rivers and lakes. While there is existing and well settled international law which deals with the effect of various changes to these water features, gradual man made changes - such as climate change - fall through the cracks of existing legal precedent.

The problem also extends to our oceans. We normally think of rising sea levels as exactly that - a vertical problem. But rising sea levels will also change the course of coast lines around the world, and with them the maritime territorial claims of nations. This potentially impacts fishing rights (already hotly contested in many parts of the world) and the exploration of submarine resources.

We normally think of water related conflict being one of supply. But, here is an example of how climate change's effect on water could literally rewrite the borders of nations all over the world.

It's Groundwater not Ground Water

There's a new post over at Waterwired. It's the April 2009 H2OSU Newsletter and its worth your perusal. I particularly like the article on the USGS' apparently highly controversial decision that from now on ground water will be referred to as a single word groundwater.

Tuesday, April 14, 2009

This land is my land, but the rain isn’t…

In Colorado (among other western states) you do not own the water that falls out of the sky onto your own property. An interesting article in the Wall Street Journal discusses Colorado’s water law, which some lawmakers want to change, that divvies up water even before it hits the ground.

Now, this is not a new issue out west, though it sounds more than a little strange to someone (like myself) in the northeast. I was struck however by the statement in the article that water is distributed “[U]nder a seniority system based on first-come first-serve claims staked out as far back as the 1850s.” Apparently this developed in part as an outgrowth of customs developed by early prospectors (see here for a brief discussion of the appropriation system).

But, one has to question the rationality of dividing water rights according to claims dating back more than a century. Further, the idea of “first come, first serve” may be rational in certain contexts, like a gold rush, but I have serious doubts that modern water rights are one of them.


Here's a shout out to Michael Compana who runs Waterwired, another great resource on water issues. I've added the link below, so please go check the site out.

Monday, April 13, 2009

International Water Law Project Blog

An interesting new blog was just started here. It is associated with the International Water Law Project (which you can find here). A lot of great resources on the main page which bodes well for their blog. I've added a link to both sites on this page for everyone's convenience.

PPCP Contamination of our Water Supply

It’s not exactly breaking news, but it is still worth talking about the growing realization among scientists that our water supply (and by that I mean not just the water coming out of the tap, but also streams, lakes and even bottled water) is contaminated by low levels of Pharmaceuticals and Personal Care Products (known as “PPCP’s”). Take a look at this AP report which first brought this issue to the public’s attention.

As it turns out, every time we pop pills (something we do a lot more these days) our bodies do not metabolize 100% of the medication. This is true whether it is over-the-counter ibuprofen or prescription birth control pills. The portion that is not metabolized ends up down the toilet. Similarly, all the makeup, suntan lotion, moisturizer etc. on our skin ends up in waste water after we wash – or in our lakes, rivers and streams after we swim. This is compounded by the apparently widespread direct disposal of unused medications down the toilet and into landfills. For an interesting diagram of some of the ways PPCP’s enter our environment take a look here (thanks to the MassDEP).

While it should come as no surprise that we flush all sorts of things into our waste water, what has caused a certain amount of surprise and consternation among scientists is that PPCP’s appear to survive in the environment at very low levels (or are replenished at a rate equal to or greater than the rate at which they break down), and they have been detected just about everywhere. For a more technical discussion of the issue, see here.

Now, it is important to note that the level of contamination is far below therapeutic dosages. The concern remains however 1) that we don’t understand the possible effects of long term exposure to these chemicals, either individually or in combination; and 2) that we do not seem to have a good handle on how to get PPCP’s out of our water if they are causing a problem.

This issue has not gone unnoticed at the EPA (see here) or at various State DEP’s (e.g. here). The EPA is currently sponsoring a number of research projects, some of which will be completed this year. It appears that the early targets of the EPA’s research efforts are health care facilities.

Health care facilities may not seem like an obvious target, but the EPA has thus far identified more than 50,000 facilities in the US that the EPA believes may dispose of large quantities of unused pharmaceuticals. The term “health care facility” here includes not just hospitals, but also nursing care facilities, retirement communities, and residential facilities for the mentally handicapped. Surprisingly, there are no comprehensive federal regulations dealing with disposal methods for pharmaceuticals. For pharmaceuticals which fall under the Controlled Substances Act, disposal methods are mandated, but permit the health care facility to destroy unused meds by flushing them down the drain. State and local regulations are a patchwork.

Whether or not there is a human physiological impact from PPCP’s, the early results suggest that there is at least some environmental impact. That may well lead to new regulations to control PPCP levels in our drinking water and environment. While some of those regulations will undoubtedly impact the way we dispose of these products, it is also likely that they will require at least some remediation of water that is already contaminated.

There is also the obvious public relations aspect of the problem as evidenced by the tone of the AP article mentioned at the beginning of this post. If PPCP’s are found to have an impact on human health – and possibly even if they don’t – it is not difficult to imagine that the public will demand water that has been filtered for these compounds. This presents an interesting opportunity for those in the water industry who can develop the necessary technology to reliably filter these chemicals out of our water.

Thursday, April 9, 2009

Water Report

Steve Maxwell of the TechKNOWLEDGEy Strategic Group has recently published his 2009 State of the Water Industry. You can check it out here.

Wednesday, April 8, 2009

Drought and Agriculture

Well, there isn't anything new about Democrats and Republicans fighting with each other. I suppose that fighting over water rights at least gives them a break from fighting over the economy.

On March 31st, the House Natural Resources Committee held a hearing on the topic of the dispute between agricultural and environmental interests in California. Video of the hearing can be found here. The dispute arises out of the agricultural industry's desire to increase the amount of water available for irrigation. This is a very real problem. California is in its third year of drought, and the agricultural industry is facing skyrocketing unemployment cause at lease in part by a lack of water to irrigate crops.

Republicans on the panel advocated tapping water systems currently protected by an array of environmental protection legislation, not the least of which is the Endangered Species Act. They made a passionate appeal, blaming the current drought on "radical environmentalists", judges and environmental legislation. They accused the government of putting "inconsequential fish" ahead of the needs and livelyhoods of human beings.

Needless to say, Democrats disagreed.

Unfortunately, I question whether turning on the pumps, as Republicans suggested, will actually serve to solve the problem. Like it or not, our environment - including the "inconsequential fish" - is our primary water recycling and purification system. While turning on the pumps in currently protected watersheds may alleviate the current drought to some extent, the cost may well be irreperable damage to the very natural systems we rely on to provide much of our potable water.

Of course, this still leaves us with the problem of what to do about not just this drought, but droughts we may well face in the future. A recent article in the Economist (which you can find here) proposes at least one possibile solution, tradeable water rights. While I think there are some big questions about how well such a system would work (California actually has such a system, and it clearly didn't solve the problem), the results of Australia's water rights regime are provacative.

There really must be a middle road between "turn on the pumps" and "put people out of work."

Tuesday, April 7, 2009


Welcome to The Water Law. Water is one of the most important natural resources we possess and it is under ever increasing stress from population growth and environmental contamination. In recent decades we have seen the evolution of a multi-billion dollar water industry to serve our water needs, and laws have been passed to protect and regulate our water supplies.

The purpose of this blog is to discuss current legal developments effecting water rights, water contamination, remediation, and the water industry. I hope that you will find this blog informative and at least a little entertaining. Your comments, thoughts and ideas are always welcome here.