<h4><em>Under review</em></h4>
<p>Water pollution in the United States is <a href="http://www.epa.gov/lawsregs/topics/water.html&quot; target="_blank">regulated</a> through a number of statutes and regulations and overseen by a combination of federal agencies and states. The <a href="#clean-water-act">Federal Water Pollution Control Act</a> (now commonly known as the Clean Water Act), first passed in 1948, was substantially amended in 1972, 1977, and 1987. It puts forward a system to regulate direct and indirect discharges of pollutants in the “waters of the United States” and <a href="#" title="CWA§20101(a), 33 U.S.C. 20 §201251(a).">intends to</a> “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The <a href="#safe-drinking-water-act">Safe Drinking Water Act</a> regulates public water systems and sets national drinking water regulations. <a href="#water-use">Water use</a> —the supply of water, its ownership and allocation among various users—is largely governed by the states.</p>
<p>Listen to and download materials from the ELI Summer School Seminar on <a href="http://www.eli.org/events/eli-summer-school-series-2014-clean-water">Cl… Water</a> for a general overview of how water regulations work. For a discussion on current topics in the Clean Water Act, listen to the <a href="http://www.law.gwu.edu/News/newsstories/Pages/TheCleanWaterActat40.aspx…; target="_blank">Clean Water Act at 40</a> seminar co-sponsored with George Washington Law School.</p>
<p>For a thorough overview of the Clean Water Act, see Ann Powers, <a href="http://www.eli.org/eli-press-books/introduction-to-environmental-law%3A… to Environmental Law: Cases &amp; Materials on Water Pollution Control</a>.</p>
<h3><a name="clean-water-act"></a>Clean Water Act</h3>
<p>The <a href="http://elr.info/legislative/federal-laws/federal-water-pollution-contro… Water Act</a> was substantially amended in 1972 to create the regulatory system that is known today. It regulates the discharge of pollutants through two permitting systems, the National Pollutant Discharge Elimination System (<a href="#npdes-program">NPDES</a>) program and the <a href="#wetlands">Section 404</a> wetlands program, through effluent limitations applicable to types of direct discharges to water, and by setting standards for water quality known as <a href="#water-quality-standards">water quality standards</a> and total maximum daily loads.</p>
<p>Over the years, there has been a question over the scope of federal <a href="http://www.eli.org/freshwater-ocean/clean-water-act-jurisdiction">juris…; under the Clean Water Act. In <em><a href="http://elr.info/litigation/%5Bfield_article_volume-raw%5D/20161/solid-w… Waste Agency of Northern Cook County v. Corps of Engineers</a> </em>and <em><a href="http://elr.info/litigation/36/20116/rapanos-v-united-states">Rapanos v. United States</a></em>, the Supreme Court found that not all wetlands and waters in the United States fall under the jurisdiction of the Clean Water Act, resulting in <a href="http://www.eli.org/freshwater-ocean/clean-water-act-jurisdiction">signi… uncertainly</a> as to just how far federal power extends over water pollution.</p>
<p>For a discussion of the uncertainty around the scope of federal water jurisdiction, download the ELI Research Report <a href="http://www.eli.org/research-report/clean-water-act-jurisdictional-handb… Water Act Jurisdictional Handbook, 2d ed.</a> ELI members may listen to and download materials from the ELI Seminar <a href="http://www.eli.org/events/assessing-jurisdiction-under-new-clean-water-… Jurisdiction under the New Clean Water Act Guidance</a>. See also the ELR article, Jon Devine, <a href="http://elr.info/news-analysis/41/11118/intended-scope-clean-water-act-j… Intended Scope of Clean Water Act Jurisdiction</a>.</p>
<h5><a name="water-quality-standards"></a>Water Quality Standards</h5>
<p>The Clean Water Act requires that <a href="http://water.epa.gov/scitech/swguidance/standards/&quot; target="_blank">water quality standards</a> be established by EPA or states, territories or tribes authorized by EPA to implement the program. To determine what the water quality standards should be, the waterbody must be given a “<a href="http://water.epa.gov/scitech/swguidance/standards/uses.cfm&quot; target="_blank">designated use</a>.” This depends on how the public uses the waterbody, such as drinking water, water-based recreation, or fishing. <a href="http://water.epa.gov/scitech/swguidance/standards/crit.cfm&quot; target="_blank">Water quality criteria</a>, which can be <a href="#" title="Numeric criteria require that the water be free of a certain level of pollutants.">numeric</a> or <a href="#" title="Narrative criteria require the water to be “free from” certain pollutants.">narrative</a><a href="#_msocom_9"></a>, are then assigned to protect that designated use.</p>
<p>Authorized states, territories and tribes monitor waterbodies to determine whether they meet the water quality standards. If the WQS are met, then <a href="http://water.epa.gov/scitech/swguidance/standards/adeg.cfm&quot; target="_blank">antidegradation</a> policies are employed so that the water quality is kept at an acceptable level. If the WQS are not met, the most common tool to use is to establish <a href="http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/index.cfm&quot; target="_blank">total maximum daily loads</a> (TMDL), which are the pollutant load the water can withstand and be in compliance with the water quality standards.</p>
<p>For a thorough discussion of the TMDL program, see Oliver Houck, <a href="http://www.eli.org/eli-press-books/clean-water-act-tmdl-program%253A-la… Water Act TMDL Program: Law, Policy, and Implementation</a> and <a href="http://elr.info/news-analysis/41/10208/clean-water-act-returns-again-pa… Clean Water Act Returns (Again): Part I, TMDLs and the Chesapeake Bay</a>. See materials from the ELI-lead State TMDL conferences <a href="http://www.eli.org/freshwater-ocean/state-tmdl-program-resource-center"…;
<h5><a name="npdes-program"></a>NPDES Program</h5>
<p>Section 402 of CWA creates the National Pollution Discharge Elimination System (NPDES) program, which <a href="http://cfpub.epa.gov/npdes/home.cfm?program_id=45&quot; target="_blank">authorizes</a> permits for point sources that are going to discharge into surface waters. A “<a href="#" title="33 U.S.C. §502(13).">point source</a>” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” The permit puts a limit on the amount that a point source may discharge. Most states and some territories and tribes have been <a href="http://cfpub.epa.gov/npdes/statestribes/astatus.cfm&quot; target="_blank">authorized</a> by EPA to issue NPDES permits; EPA remains the permitting authority in non-authorized states.</p>
<p>For a discussion of the requirement to get an NPDES permit for application of pesticides, ELI members may listen to the ELI Seminar <a href="http://www.eli.org/events/clean-water-act-endangered-species-act-and-fe… Clean Water Act, the Endangered Species Act, and the Federal Insecticide, Fungicide, and Rodenticide Act Collide, But With What Result?</a></p>
<p>The NPDES program is structured to either provide <a href="http://cfpub.epa.gov/npdes/permitissuance/genpermits.cfm&quot; target="_blank">permits</a> by developing a unique permit for each discharger (individual permits) or by developing a single permit that covers a large number of similar dischargers (general permits). The individual permit sets specific limits on the amount of pollutants that can be discharged from the facility. The limits can be either <a href="http://cfpub.epa.gov/npdes/generalissues/watertechnology.cfm&quot; target="_blank">technology-based or water quality-based</a>.</p>
<p>The effluent limits on pollutants are performance standards, meaning that the discharging facility can use a combination of processes to meet the permit limits. EPA also sets <a href="http://cfpub.epa.gov/npdes/techbasedpermitting/effguide.cfm&quot; target="_blank">effluent limitation standards</a> that apply to types of industrial discharge sources that are then applied in individual permits.</p>
<p>For an ELR article on effluent limitation standards, see Melissa Thorme, “<a href="http://elr.info/news-analysis/31/10322/antibacksliding-understanding-on… Understanding One of the Most Misunderstood Provision in the Clean Water Act</a>.</p>
<p>The NPDES program also covers discharges of <a href="http://cfpub.epa.gov/npdes/home.cfm?program_id=6&quot; target="_blank">stormwater</a> from construction or industrial activity and from municipal separate storm sewers. Stormwater is rain or snowmelt that flows over the ground or impervious surfaces, like roads and parking lots, that may collect contaminants and debris harmful to water quality if discharged. Most stormwater <a href="http://cfpub.epa.gov/npdes/stormwater/swbasicinfo.cfm&quot; target="_blank">permits</a> require best management plans and occasional testing.</p>
<p>EPA also allows <a href="http://cfpub.epa.gov/npdes/wqbasedpermitting/wspermitting.cfm&quot; target="_blank">watershed-based permitting</a>, in which NPDES permits are issued in order to achieve <a href="#" title="“A watershed is the area of land where all of the water that is under it or drains off of it goes into the same place.” See water.epa.gov/type/watersheds/whatis.cfm.">watershed-wide</a> water quality standards. Such programs may incorporate <a href="http://water.epa.gov/type/watersheds/trading.cfm&quot; target="_blank">water quality trading</a>, where various sources trade the ability to pollute because some may be able to reduce discharges more cost-effectively.</p>
<p>Find resources and further information at <a href="http://www.eli.org/freshwater-ocean/background-information-water-qualit… Information on Water Quality Trading and Wetland Mitigation Banking</a>.</p>
<p>Facilities are in violation of the CWA if they discharge without a permit or discharge more than allowed by their permit. Facilities are also in violation if they do not comply with extensive <a href="#" title="EPA has an online presentation discussing NPDES monitoring and reporting requirements. See cfpub.epa.gov/npdes/outreach/training/monitoringandreporting.cfm.">monitoring and reporting</a> requirements. States, territories, and tribes that are delegated authority to oversee the NPDES program are responsible for <a href="http://www.epa.gov/compliance/monitoring/programs/cwa/npdes.html&quot; target="_blank">enforcing</a> the NPDES permits. EPA will take action if necessary, but must first give notice to the authorized agency if it believes enforcement is necessary and must give the agency time to act. Enforcement actions include injunctions, fines, imprisonment if criminal violation, and supplemental environmental projects. <a href="http://www.epa.gov/environmentaljustice/resources/reports/annual-projec…; target="_blank">Citizens</a> can bring a <a href="http://www.eli.org/keywords/governance#citizen-suits">suit</a><a href="#_msocom_13"> </a>against a violator if an agency is not pursuing a violation, but they must give 60-day notice to EPA and the authorized agency so that they have time to act against the violator instead.</p>
<h5>Nonpoint Source Program</h5>
<p>Because the NDPES program largely regulates only direct discharges from point sources, section 319, added in 1987, focuses on <a href="http://www.epa.gov/owow_keep/NPS/whatis.html&quot; target="_blank">nonpoint sources</a>, which are anything that is not a point source. Common nonpoint sources are runoff from precipitation over and through the ground and from atmospheric deposition. <a href="#" title="CWA §319.">Section 319</a> implements a <a href="http://www.epa.gov/owow_keep/NPS/cwact.html&quot; target="_blank">federal grant program</a> that gives money to <a href="http://www.epa.gov/owow_keep/NPS/where.html&quot; target="_blank">states, territories and tribes</a> for the development and implementation of nonpoint source management programs. Each entity receiving funding must create and update a nonpoint source management plan and must identify waters that are impaired or threatened by nonpoint sources, develop goals for cleaning those waters and identify the best management practices that will be used to clean up the waters.</p>
<p>For a discussion of ways to address nonpoint source pollution, download the ELI Research Report <a href="http://www.eli.org/research-report/enforceable-state-mechanisms-control… State Mechanisms for the Control of Nonpoint Source Water Pollution</a> and investigate the various ELI research materials on nonpoint source issues <a href="http://www.eli.org/freshwater-ocean/non-point-source-pollution-research…;. See also John Carter, <a href="http://elr.info/news-analysis/33/10876/control-nonpoint-pollution-throu… of Nonpoint Pollution Through Citizen Enforcement of Unpermitted Stormwater Discharges: A Proposal for Bottom-Up Litigation</a>.</p>
<h5><a name="wetlands"></a>Wetlands</h5>
<p>The <a href="#" title="CWA§ 404, 33 U.S.C. §201344.">Section 404</a> program <a href="http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/index.cfm&quot; target="_blank">regulates</a> the placement of dredged or fill material into the “waters of the United States,” which includes <a href="#" title="Federal regulations define wetlands as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil.” 40 C.F.R. 232.2(r).">wetlands</a>. The 404 permit program is administered jointly by EPA and <a href="http://www.usace.army.mil/&quot; target="_blank">U.S. Army Corps of Engineers</a>. The Corps handles the issuance of the <a href="http://www.usace.army.mil/cecw/pages/reg_permit.aspx">permits</a&gt; and determines whether the area in question is a wetland subject to federal jurisdiction. The Corps also has primary responsibility for ensuring compliance. EPA issues <a href="http://water.epa.gov/lawsregs/lawsguidance/cwa/wetlands/index.cfm&quot; target="_blank">guidelines and policies</a>, and can veto a Corps-issued permit. EPA is responsible for deciding whether states, territories, or tribes should be <a href="http://water.epa.gov/type/wetlands/outreach/fact23.cfm&quot; target="_blank">authorized</a> to <a href="http://www.eli.org/keywords/governance#role-of-states-and-tribes">imple… href="#_msocom_17"> </a>the 404 program.</p>
<p>ELI has an extensive <a href="http://www.eli.org/freshwater-ocean/wetlands">wetlands program</a> with many reports and resources to draw upon. The <a href="http://www.wetlandsnewsletter.org">National Wetlands Newsletter</a> provides in-depth policy and science coverage of wetlands issues as well. For a general overview of wetlands issues, see Margaret Strand, <a href="http://www.eli.org/eli-press-books/wetlands-deskbook-4th-edition">Wetla… Deskbook, 3<sup>rd</sup> ed</a>.</p>
<h3><a name="safe-drinking-water-act"></a>Safe Drinking Water Act</h3>
<p>The <a href="http://elr.info/legislative/federal-laws/safe-drinking-water-act">Safe Drinking Water Act</a> seeks to maintain the quality of public drinking water supplies largely by <a href="http://water.epa.gov/lawsregs/rulesregs/sdwa/index.cfm&quot; target="_blank">regulating</a> <a href="#" title="A public water system is “a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals.” 42 U.S.C. 300f(4)(A). See water.epa.gov/infrastructure/drinkingwater/pws/pwsdef2.cfm.">public water systems</a>. EPA publishes <a href="http://water.epa.gov/lawsregs/rulesregs/regulatingcontaminants/basicinf…; target="_blank">health-based levels</a> of contaminants that can appear in drinking water. The <a href="#" title="SDWA §1412(b)(1)(A); 42 U.S.C. §20300g-1(b)(1)(A).">maximum contaminant level goal</a><a href="#_msocom_20"> </a>(MCLG) is the level at which there are no known or anticipated adverse health effects on the health of persons and that allows an adequate margin of safety. The <a href="http://water.epa.gov/drink/contaminants/index.cfm&quot; target="_blank">national primary drinking water regulations</a> specify the <a href="#" title="SDWA §201412(b)(4)(A), 42 U.S.C. §20300g-1(b)(4)(A).">maximum contaminant level</a> (MCL) that is as close as feasible to the MCLG. The MCL does not specify a particular treatment technique, but EPA may, in lieu of setting an MCL, require the use of a treatment technique. Like most other environmental programs, EPA may give authority to states, territories and tribes to adopt and enforce these drinking water standards.</p>
<p>For an overview of the Safe Drinking Water Act and its 1986 revisions, see Kenneth Gray, <a href="http://elr.info/news-analysis/16/10338/safe-drinking-water-act-amendmen… Safe Drinking Water Act Amendments of 1986: Now a Tougher Act to Follow</a> and Steven Koorse, <a href="http://elr.info/news-analysis/18/10422/new-safe-drinking-water-act-liab… Safe Drinking Water Act Liability for Corporate America</a>.</p>
<p>Public water systems must <a href="#" title="SDWA §201414(c)(4), 42 U.S.C. §%20300g-3(c)(4).">notify</a> their customers if they do not comply with any applicable MCLs, if they fail to monitor, if they have a variance exemption, or if they fail to comply with any exemption. The public water system must <a href="#" title="SDWA §201414(c)(4), 42 U.S.C. §20300g-3(c)(4).">give</a> each customer an annual report that includes the quality of the water and includes information on any violations or contaminants in the water.</p>
<p>The Safe Drinking Water Act also regulates the <a href="http://water.epa.gov/type/groundwater/uic/index.cfm&quot; target="_blank">underground injection</a> of substances for storage and disposal, including the subsurface <a href="http://www.epa.gov/climatechange/ccs/index.html&quot; target="_blank">injection of the greenhouse gas carbon dioxide</a> for storage, enhancing oil production, or other purposes. The underground injection control program <a href="http://water.epa.gov/type/groundwater/uic/regulations.cfm&quot; target="_blank">regulations</a> mainly seek to prevent the contamination of underground drinking water supplies.</p>
<h3><a name="water-use"></a>Water Use</h3>
<p>Listen to and download materials from the ELI seminar <a href="http://www.eli.org/events/uncertainty-and-risk-securing-adequate-water-… and Risk in Securing Adequate Water Supplies: Challenges and Opportunities</a>. See Hunton &amp; Williams’ <a href="http://www.waterpolicyinstitute.com/&quot; target="_blank">Water Policy Institute</a> page for a helpful list of links and many discussions of current issues.</p>
<p>The legal framework for the provision of water, its ownership, its allocation to various users, and its use are different from water pollution law. In general, water ownership and use are governed by <a href="#" title="A good explanation of water law and settling disputes between states is provided here masglp.olemiss.edu/acf.htm. Washington State’s Department of Ecology has a good page describing that state’s water use laws and regulations.">state law</a>, which largely grew from judge-made <a href="http://www.eli.org/keywords/governance#evolution-environmental-law-poli… law</a>. Issues around water quantity between states are largely managed by <a href="#" title="Such compacts need congressional approval. For a list of such compacts, see http://www.fws.gov/laws/lawsdigest/compact.html.">inter-state compacts</a> and river management boards set up across states. The federal government mostly serves a referee role for allocation between and disputes among states.</p>
<p>For a discussion of how the prior appropriation doctrine can function with modern water demands, download the ELI Research Report, <a href="http://www.eli.org/research-report/western-water-21st-century-policies-… Water in the 21st Century Policies and Programs that Stretch Supplies in a Prior Appropriation World</a>. See also Robert Abrams, <a href="http://elr.info/news-analysis/42/10433/water-climate-change-and-law-int…, Climate Change, and the Law: Integrated Eastern States Water Management Founded on a New Cooperative Federalism</a>.</p>
<p>Surface water ownership law follows various <a href="#" title="For definitions of various terms used in water use law, see http://www.fws.gov/mountain-prairie/wtr/water_rights_def.htm.">models</… href="#_msocom_27"></a>, predominantly the <a href="http://www.law.cornell.edu/wex/riparian_doctrine&quot; target="_blank">riparian doctrine</a> in the eastern United States and the <a href="http://www.law.cornell.edu/wex/prior_appropriation_doctrine&quot; target="_blank">prior appropriation doctrine</a> in the western United States. Riparian rights generally allow a landowner whose land abuts a waterbody to use that water. This system often is used in areas where water is plentiful. The prior appropriation doctrine, in contrast, allows the first user of the water who puts it to beneficial use to have ownership of that water right, a system adopted in drier areas. Many states’ laws combine elements of both doctrines in practice. <a href="http://en.wikipedia.org/wiki/United_States_groundwater_law&quot; target="_blank">Ground water law</a> also generally follows these doctrines and is implemented on a statewide basis.</p>

Overcoming Barriers Created by Cost Share Requirements: Considerations for advancing natural infrastructure throughout the Mississippi River Basin
Cecilia Diedrich
Sofia O'Connor
Isabella Blanco
Date Released
December 2023
Cost Share Report Cover

The federal government administers many programs to help states, local communities, tribes, and territories as they undertake infrastructure projects of all types, including resilience measures and natural infrastructure aimed at mitigating risks from natural hazards and disasters. The increasing impacts of climate change make investment in these project types more important than ever to help prepare and protect communities across the country.

Unlocking Nature's Potential: A Guide to Navigating Federal Permits and Environmental Reviews to Facilitate Use of Nature-Based Solutions
Regina Buono
Jarryd Page
Date Released
December 2023
Unlocking Natures Potential ELI Report Cover

Natural and nature-based infrastructure (NNBI) projects have been shown to be helpful in addressing environmental problems across various landscapes and to provide co-benefits not offered by traditional infrastructure solutions. However, as they are increasingly considered for implementation, project proponents face the necessity of securing regulatory approval from the appropriate federal or state authorities.

USACE Project Partnership Agreements: Problematic Provisions for Non-Federal Sponsors
Zoe Vogel
Amy Reed
Date Released
December 2023
USACE PPAs ELI Report Cover

Cost-shared water resource development projects led by the U.S. Army Corps of Engineers require an agreement in writing between the Corps and the project’s nonfederal sponsor. Such an agreement, known as a Project Partnership Agreement (PPA), is crucial to the successful construction and operation of proposed water resource development projects across the country. The PPA serves as a framework for the nature of the partnership throughout the course of the project’s life.

Western Water Woes Visible in a Tale of Two Rivers
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue
Coffee Cup

The storms that saturated California in January made apparent in the state’s lower half once again how impractical it is to have major human activities in the desert. Subject to either drought or deluge, most of the Southwest is not a setting for a sustainable large metropolis or for intensive industrial agriculture, yet it supports a huge population and serves as America’s vegetable garden.

According to Michael Kimmelman in the New York Times Magazine, Los Angeles, the country’s second-largest city, no longer gets much of its drinking water from its namesake river, which is channelized for most of its brief 51 miles in length. The project is the Army Corps of Engineers’ biggest undertaking west of the Mississippi. The concrete lining installed by the Corps is designed to safely discharge stormwater to the Pacific, to avoid flooding the city when winter rains are severe, as they were in 2023.

A once-in-a-century rain event, however, would top its artificial embankments, flooding out as many residents as were inundated by Hurricane Katrina in New Orleans in 2005. The lowlands where the river used to overflow are now inhabited by the poor of Los Angeles, including tens of thousands of Latino people and the Chinatown community. The concrete straightjacket transports water past their neighborhoods while fencing out residents who want to use the river for fishing and recreation. Instead there are industrial zones and of course freeways, a dystopian scene used as the stage for the giant radioactive ant creatures in the Hollywood science fiction classic Them.

According to the magazine, with some limited exceptions there seems no practical alternative at this point to the channelization without a huge effect on the population in the floodplain, despite the wish of some environmentalists who want to restore the river to its natural course. Conceding the inevitable, architect Frank Gehry designed a series of parks and pavilions on concrete cantilevers over the concrete channel, allowing the river to function as a storm drain while providing amenities like fields and civic centers. The concept, which has become a part of the city’s new master plan for the stream, has seen pushback from riverfront communities who fear gentrification.

Today, Los Angeles’ drinking needs are met by aqueducts from wetter climates and a large share of the water from the Colorado River, which additionally supports several other large desert cities that are growing faster than water resources can keep up. On top of meeting the drinking needs of 40 million people, the Colorado also irrigates California’s Imperial Valley farmland.

Its watershed in drought for 22 years, with consumption growing, the Colorado is struggling to keep up with growing demand. At the Hoover and Glen Canyon dams, two of the Bureau of Reclamation’s crown jewels, the levels of impounded water have fallen hundreds of feet, endangering not only needed flow levels for downstream users but also the electrical hydropower generation that supports their desert communities.

Writes Christopher Flavelle in the New York Times, “The crisis over the Colorado River is the latest example of how climate change is overwhelming the foundations of American life, . . . including the legal underpinnings that have made those systems work.” Seven states share the river’s water, but rights are also held by tribes and Mexico, and all these rights are then apportioned to cities and to agricultural districts based in large part on the seniority of use.

Flavelle’s conclusion is that the century-old system of allocation “is facing off against a competing philosophy that says, as the climate changes, water cuts should be apportioned based on what’s practical.” In sum, “The outcome of that dispute will shape the future of the southwestern United States.”

The seven states are the key parties in the conflict. They are operating under a compact made in 1922. When it was signed, according to ProPublica, annual river flows were 18 million acre-feet. That proved a desert mirage—levels began to decline well before the effects of global warming. But the change in the climate means “in recent years, it has trickled at times with as little as 8.5. All the while the Lower Basin deliveries have remained roughly the same,” as required under the compact. The Lower Basin supplies water to the Southwest’s population centers and the majority of its irrigated acreage.

The states have met their growth in demand during a steep decline in flow by some conservation measures, but not enough—instead, they are overdrawing the water banked behind the two huge concrete dams. But the bill for inaction has come due.

The states were ordered by the Bureau of Reclamation to make voluntary cuts in annual allotments by January 31. Failing that, the bureau would apportion shares, an unprecedented act justified by unprecedented times. At press time, the deadline had passed with no resolution in sight. California, the largest user, and owner of the most senior rights, refused to join the other six states in voluntary reductions. Meanwhile, the bureau has $4 billion in drought mitigation funding from the Inflation Reduction Act passed last year. Clearly some of that can be used to implement conservation measures.

The Los Angeles River and the Colorado River are today artificial watercourses operating in a natural world that doesn’t respect planners and policymakers who attempt to control nature without understanding the often unwelcome results to the environment and the society it supports.

—Stephen R. Dujack

Cool Beans

What would we get done without coffee? Obviously, there are an enlightened few who are able to get through a work shift or household tasks without a cup of joe. But in the United States, even if you do manage to stave off caffeine’s lure, the people and culture around you may just lasso you right back in. “What happens if you go a day without coffee?” I once asked a friend who chugs four to five espressos a day. “I don’t,” he responded, shuddering with horror at the notion. And it makes perfect sense. Nowadays, there’s so many opportunities to snag some brew that not doing so feels counterculture.

Case in point: I’m writing this while sipping my daily morning cup of coffee, which I made with my coffee-maker. If I didn’t have a coffee-maker, I could just go to one of three different coffee shops down the road. Inexplicably, all three are Starbucks, and one of them is inside a grocery store, just in case you didn’t notice the first two Starbucks. In Washington state (where I live) and other parts of the West, you can even find small coffee stands inside parking lots. And finally, there’s my favorite cultural mainstay: “Let’s grab coffee sometime!”

But like all types of consumption, our coffee drinking habits add up to hefty environmental impacts. In 2017, NRDC research on food waste habits of households in Denver, Nashville, and New York City found that coffee, including liquid coffee and grounds, was the number one category of food discarded in all three cities. To reach those households, coffee beans first need to be grown, transported, roasted, ground, packed, and shipped once again—all processes that produce greenhouse gas emissions. Researchers at University College London report that, “Weight for weight, coffee produced by the least sustainable means generates as much carbon dioxide as cheese and has a carbon footprint only half that of one of the worst offenders—beef.”

At the same time, climate change will likely hinder coffee production around the world. In a 2014 study published in Climatic Change appropriately titled “A bitter cup,” researchers found that under one potential emissions scenario developed by the Intergovernmental Panel on Climate Change— called RCP 6.0—the area of land suitable for growing the most common species of coffee will reduce by 50 percent by 2050. Studies have also shown that rising temperatures could increase pests and fungal infection for coffee.

Already, coffee growers and governments are adapting. In 2014, the complete genome sequence for arabica, the species that makes up 70 percent of global coffee production, was released into the public domain in an effort to hasten breeding of new climate-resistant plant varieties. The organization World Coffee Research hosts a global coffee breeding network to accelerate these adaptation efforts.

With luck and hard work, new plant varieties will hopefully outpace a heating planet. But as with all climate impacts, adaptation means little without first addressing the roots of the problem.

—Akielly Hu

Notice & Comment is the editors’ column and represents the signatory’s views.

Gov. DeSantis Calls Natural Florida the State’s “Lifeblood”

A week into his second term, Republican Florida Governor Ron DeSantis signed an executive order [January 10] reaffirming and building on a commitment to clean water he had signed exactly four years earlier.

Like in 2019, the order addresses issues that have plagued the state, such as red tide and blue-green algae blooms, as well as the yearslong effort to restore the Everglades. It orders the Department of Environmental Protection and regional water management districts to make those issues a priority and pledges $3.5 billion for water projects over the next four years.

“I said four years ago and then I reiterated that last Tuesday, we need to leave Florida to God better than we found it,” DeSantis said at a news conference.

The governor said making a commitment to the environment not only is the right thing to do, but also helps drive the state’s tourism.

Tourists “want to go to the beaches, they want to go fishing, they want to go boating,” DeSantis said. “That’s just the lifeblood of our state’s DNA.” —Greenwire

The Consumer Product Safety Commission revealed [in January] that it’s weighing restrictions on gas stoves, while California is on track to become the first state to ban the sale of new gas furnaces and appliances. . . . . The momentum against natural gas in the home is clear. —Washington Post

Western Water Woes Visible in a Tale of Two Rivers.

COVID-19 and Gulf Resiliency
Florida Gulf Coast shoreline
Friday, May 15, 2020
The Gulf Coast is no stranger to disaster. Hurricane Katrina in 2005, the BP oil spill in 2010, Hurricane Harvey in 2017 have all left their mark on communities from Florida to Texas. The COVID-19 pandemic adds another layer of complexity to Gulf Coast resiliency.
Strengthening Water Tenure
Jessica Troell - Environmental Law Institute
Environmental Law Institute
Current Issue
Strengthening Water Tenure

Some two billion people — a quarter of humanity — lack access to safe, readily available drinking water. Moreover, freshwater security is increasingly threatened as the result of climate change, unsustainable development, and population growth. In the midst of this burgeoning water crisis, the rights of communities around the world who collectively hold, manage, and depend on freshwater resources continue to be inadequately recognized and protected. Securing the legal basis for indigenous and local community water rights can be a key national and local response.

Indigenous peoples and local communities continue their struggle to gain legal recognition of land, water, and other natural resources found within the territories they have traditionally stewarded. The realization of communities’ freshwater tenure is particularly essential to their ability to maintain food security and livelihoods, as well as to achieve other sustainable development objectives.

Observing the ways in which secure tenure underpins equitable and sustainable development, many countries have made tangible progress in legally recognizing and protecting land and forest rights. But water tenure has received far less attention. Indeed, the definition and understanding of the term itself is still evolving. Additionally, the most fundamental legal entitlements that support communities’ water security have yet to be fully articulated or generally endorsed internationally.

The development of principles and tools to guide policy and legal reforms, notably the UN Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests, has provided an important basis for building policy consensus on what constitutes responsible governance of tenure. A key aspect of this international consensus has been the importance of prioritizing the rights of the rural poor. Early discussions on the inclusion of water tenure in such guidance foundered on the unique aspects of water as a fugitive, inherently shared, and essentially public resource, which collectively makes it difficult to conceptualize water tenure in the same way that tenure is framed in the context of land and other terrestrial resources. Nevertheless, it is possible to articulate — both conceptually and based on legislative practice — a core set of water rights that comprise (in varying formulations) the diverse water tenure regimes found around the world. Taking this bundle-of-rights approach enables countries to identify areas for harmonization of legislation across water, land, forest, and other key resource sectors and, in turn, provides an important framework that can support integrated and more equitable governance.

The importance of water tenure, its practical and legal interdependencies with land and forest tenure, and the need for the further development of its conceptualization in policy and practice led to a joint undertaking by the Rights and Resources Initiative and ELI to develop a framework designed to conceptualize, compare, and track national-level legal recognition of the most essential rights for securing community-based freshwater tenure.

We applied this Freshwater Tenure Methodology across 15 countries spread through Africa, Asia, and Latin America in order to assess the extent to which various national-level legal frameworks within these countries recognize and protect the freshwater rights of indigenous peoples and local communities. Importantly, we also focused on the role of women within those communities in water use and governance. The findings from this analysis — titled, “Whose Water? A Comparative Analysis of National Laws and Regulations Recognizing Indigenous Peoples’ and Local Communities’ Water Tenure”— is now available online. The dataset underpinning its findings will be expanded and updated over time.

Drawing on widely accepted understandings of land, forest, and fisheries tenure, the UN Food and Agriculture Organization has proposed this definition of water tenure: “The relationship, whether legally or customarily defined, between people, as individuals or groups, with respect to water resources.” This definition recognizes that water tenure goes beyond water rights to capture diverse legislative and customary systems that shape how various stakeholders — whether as individuals or groups — relate to one another in their use of, and impacts on, this resource. The acknowledgement of customary water tenure regimes is also critical, as they are often the primary means by which many indigenous peoples and local communities determine how group members access, use, and govern the water they need for food, livelihoods, health, and overall well-being.

Water tenure also derives its meaning and utility from the bundle of rights that constitute the fundamental elements of peoples’ relationship with each other when it comes to freshwater resources. Rights to use and manage water are governed both by legislative and customary frameworks, which may or may not be aligned with one another. Unpacking the bundle of rights that constitutes various forms of water tenure thus helps governments and others to understand the diverse ways in which the specific rights constituting tenure regimes are practically formulated, implemented, and enforced.

A bundle-of-rights approach also builds on broadly accepted understandings of common-pool-resource property rights, as well as definitions of land and forest tenure, thus allowing for a comparitive review of regimes at a landscape or territorial level. In many countries, recognition of water rights is predicated on legally recognized land or forest rights. This legislative “land-water nexus” impacts both the realization and security of water tenure rights and points to the need for more coherence across legal frameworks impacting tenure rights in related sectors.

Indigenous and local communities constitute one-third of the world’s rural poor and are among the planet’s most frequently marginalized groups. They face inequities in access to critical services, including education and other essential resources, and suffer from comparatively higher levels of poverty. This enhanced vulnerability is often more pronounced for the women in these communities. As pressures on freshwater resources mount, legal protections for the tenure rights of indigenous peoples and local communities are therefore critical to ensuring their water security.

The legal status of community-based water tenure is often further complicated by the primary role that customary rights can play in determining how some communities use, manage, and govern their water resources. The legal recognition of customary water rights varies widely across countries, and the complex relationships that can arise between legislative and customary water rights may present serious challenges. Given the high level of dependence that local communities in developing countries have on natural resources, securing their water tenure rights is of paramount importance to their ability to support sustainable livelihoods, achieve food security, and enable economic advancement — while also ensuring that communities can continue in their roles as stewards of the freshwater and broader ecosystems on which they, and others in cities and rural areas downstream, depend.

“Whose Water?” follows extensive work by the Rights and Resources Initiative to analyze the extent to which indigenous peoples’ and local communities’ land and forest tenure rights are recognized under national law. Building on RRI’s unique methodological approach, ELI and RRI began developing the Freshwater Tenure Methodology to assess whether community-based freshwater rights, including rights to surface and groundwater, are legally recognized, and how those rights are protected or addressed within national legal frameworks regulating and impacting freshwater resources. We developed the methodology through a highly consultative process and piloted it in three countries before it was finalized.

The methodology defines a community-based water tenure regime as a distinguishable set of national-level, government-issued laws and regulations encompassing situations in which freshwater rights of use and at least either governance or exclusion are held at the community level. Communities are defined broadly to capture a range of indigenous peoples and water-user associations or similar entities that include such communities. Our team identified a total of 39 CWTRs across the 15 countries we assessed: Bolivia, Cambodia, Chile, Colombia, India, Kenya, Liberia, Mali, Mexico, Morocco, Nepal, Panama, Peru, Vietnam, and Zambia.

We then worked with national experts to examine the bundle of rights for each tenure regime using five legal indicators: use, exclusion, transferability, governance, domestic due process, and transboundary due process. In addition, to provide critical context for each regime, the Freshwater Tenure Methodology includes threshold questions to assess legal recognition of the human right to water; customary water rights, laws, traditions, or practices; the dependence of communities’ water rights on their recognized rights to land and forests; and indigenous and rural women’s rights to water.

The right to use water is perhaps the most central right in the bundle, fulfilling basic human needs, ensuring health, and realizing the full suite of human rights that can only be achieved through access to water. To capture the broad range of potential rights that are relevant to communities, our methodology recognizes four categories of commonly recognized uses: for religious or cultural purposes, domestic purposes or basic human needs, small-scale livelihoods, and commercial purposes. Domestic-use rights are the most consistently protected, and the majority of community-based water tenure regimes exempt domestic uses (defined in various ways) from any sort of permitting or licensing requirement.

National laws frequently give these rights legal priority with respect to competing uses. National laws also recognize use rights for livelihoods, although some require a permit or other administrative procedural requirement in order to vest the rights. While permitting systems can help monitor and regulate water use, reduce associated conflicts, enhance sustainability, and generate public revenue, they are seldom adapted to meet the needs and circumstances of local communities. These requirements can translate into a burden for communities in realizing critical use rights for livelihoods where such administrative requirements are coupled with fees, a need to travel sometimes long distances to reach administering agencies, language barriers, and often restricted capacity of government to effectively implement the requirements in remote rural areas.

The rights to plan, make, implement, and enforce decisions and resolve associated disputes — in short, to govern — are also critical aspects of community-based water tenure. To capture the ways in which communities are legally empowered to govern their water resources, the Freshwater Tenure Methodology assesses whether communities have rights to make rules related to their water resources, to make plans and implement those plans by managing those resources, to resolve water-related disputes in the community, and to enforce internal rules related to water. Notably, all but one community-based water tenure regime we identified legally recognize community rights to make rules concerning fresh water, and all 39 recognize communities’ rights to water resource planning and management. However, the tenure regimes that recognize water governance rights are also often premised on the broader legal recognition of communities’ customary or traditional rights to territories or lands and appurtenant resources and are not specific to water. These rights are also found across a range of laws with provisions that may or may not be aligned with the pertinent water legislation.

The right to exclude third parties ensures that communities have the legal authority to protect their water rights and territorial water resources from capture or abuse. Exclusion is generally considered one of the most essential components that make a bundle of terrestrial tenure rights meaningful. However, because of water’s fugitive and shared nature, it can be subject to overlapping claims. Moreover, water rights regimes are often predicated on balancing the public and private property rights in water. This balance is increasingly informed by the legal recognition of water as a human (and constitutional) right, placing a unique onus on governments to ensure equitable access to — and sustainable management of — the resource.

Legal rights to exclude third parties therefore often do not apply to those who seek to use fresh water to fulfill basic human needs, which are generally safeguarded. Exclusion rights also are often limited to private parties, as governments typically establish legal rights to control or even own all fresh water to administer on behalf of citizens as a public trust. However, even given these constraints, over 60 percent of the tenure regimes we analyzed provide some form of exclusion rights to communities. Not surprisingly, most of these are tenure regimes based on a land-water nexus that premises water rights on existing legal rights to land, forest, or territories.

Particularly where exclusion rights are missing or ineffectual, procedural rights enabling access to information, participation in decisionmaking, and access to justice where water rights are infringed upon take on even greater importance. All 39 of the CWTRs recognize communities’ due process rights of prior notice, consultation, and appeal when decisions related to the development or allocation of fresh water (or other related matters) could impact their rights. It is important to note, however, that these rights emanate from multiple sources of law, often outside the water sector, such as land laws and environmental impact assessment provisions. They are therefore not always specific to water resources or the unique impacts they can incur. Some countries have taken the initiative to require free, prior, and informed consent for decisions impacting indigenous and other communities, whether through national legislation or court decisions. Despite these positive developments, the majority of countries provide communities with less robust procedural guarantees to ensure their water rights are not infringed or extinguished by third parties.

Among the most policy relevant findings of our assessment are the variety of ways in which water tenure rights depend upon and are shaped by land and forest rights. The land-water nexus is also directly linked to the diverse ways in which customary land and water laws are given legal status and the legal recognition of indigenous territorial rights.

The nexus takes many forms under diverse national laws, deriving from land, forest, and water laws, as well as national constitutions, local government and administrative laws, and other legislation. In Kenya, for example, land is defined by the constitution to include “any body of water” on or under the surface of the land, and so provides recognition for the water appurtenant to customary lands that are legally recognized under the 2016 Kenyan Community Land Act. In Colombia, Constitutional Court decisions have recognized freshwater rights as integral to communities’ territorial rights, and in Liberia and India, certain communities’ statutory water rights are entirely dependent on their recognized forest rights.

Notably, across our 39 identified CWTRs, those that have a land-water nexus tend to grant stronger overall protections to communities’ water tenure rights. This indicates that water laws are falling somewhat behind in their recognition of CWTRs compared to other sectoral laws. However, it is also important to note that recognition of water-tenure rights is often not explicit when embedded in other sectoral laws or constitutional provisions, but rather included in broader provisions governing rights to territories, lands, or natural resources more broadly.

The recognition of water rights across laws governing lands and forests can provide diverse legal avenues for recognition of water tenure. At the same time, if laws are not consistent in how they address the elements of water tenure, those rights can also be undermined, result in duplicative requirements, or even lead to contradictory provisions. A clear understanding of the specific legal mechanisms creating or shaping the land-water nexus is therefore critical in defining and securing communities’ water tenure. Moreover, the legal interdependencies across water, land, forest, and other resource tenure systems must be reflected in policies and laws that take harmonized approaches to recognizing and protecting land and water rights — or risk undermining tenure security of the most vulnerable.

Our analysis found that only one-third of the tenure regimes legally recognize the specific rights of indigenous and community women to use or govern fresh water. Moreover, two-thirds of those provisions that do recognize women’s water rights are not specific to water, but rather pertain more broadly to rights to natural resources or to community territories, which can be interpreted to include their freshwater resources.

The ability of countries to support women within indigenous and local communities in exercising control over water resources depends largely on the extent to which national laws recognize women’s rights to participate in community-level governance. Without gender-sensitive legal protections, it is difficult to ensure that women can actively engage as equal members in community-level decisionmaking about water to ensure that it is appropriately allocated for their priority domestic and productive needs.

Customary water laws and practices are often the primary means by which indigenous peoples and local communities determine in practice how to access, use, and govern their water. Broadly speaking, customary laws reflect the norms and practices accepted by a community as unifying and obligatory and draw their authority from both contemporary and traditional values, practices, and institutions. They are not static but tend to adapt to community needs and priorities. Where customary rights and laws are not formally recognized, they are at risk of being ignored, manipulated, and eroded when competing claims arise.

Approximately 80 percent of the 39 CWTRs analyzed across Africa, Asia, and Latin America provide legal recognition of customary water tenure rights, creating a legal basis for ensuring the continuity and enforceability of those rights. However, even where customary water tenure rights are recognized, such rights must often be reconciled or harmonized with legislation, which can fundamentally alter their character and functioning. Moreover, even where customary water tenure rights are granted legal recognition, there is a risk that they will not enjoy the same level of enforcement as permitted rights. There is thus a strong need for research to understand the diverse impacts and policy options for improved recognition of customary water tenure rights and more effective harmonization of customary and legislative systems.

Across the water tenure regimes, we found a high number of water rights for livelihoods and commercial uses are subject to permitting or other procedural requirements. These burdens can be significant. In Nepal, for example, communities must form up to three distinct user associations to obtain their full suite of potential water use rights, including those for irrigation. The burden on communities is often compounded by the fact that governments often lack the capacity to implement their own administrative requirements, particularly in rural areas. For example, recent research across five African countries by the International Water Management Institute and the Pegasys Institute demonstrates the inability of countries to achieve even a small fraction of statutory permitting requirements and a bias toward formal, large-scale users.

Our findings highlight a need to more closely tailor water regulatory tools to the needs and priorities of communities, including more effective recognition and protection of customary rights, consideration of alternatives to permitting requirements that balance state policy priorities with the actual capacities of both agencies and communities, and exemption where possible from permitting requirements of critical water rights for domestic and livelihoods uses.

We found that water tenure does exist — in multiple forms — and that it plays a central role in supporting indigenous peoples’ and local communities’ livelihoods, resource governance and protection, and sustainable economic development. The findings also highlight the critical importance of identifying and fully understanding the nuances of the land-water nexus and promoting more integrated, tenure-rights-based approaches to land and water governance. Such approaches must look to incorporate innovative mechanisms for intersectoral coordination and collaboration, as well as better-harmonized legislation. They must also take full account of the differentiated roles, needs, and priorities of men and women through more gender-equitable legal protections for water tenure rights.

A key consideration in determining policy options and legal tools for supporting water rights is the balance that must be struck between security of tenure and the flexibility required to be able to respond to changing availability and quality of water as a result of societal and climate-driven uncertainty and change. This could require, for example, a rethinking of the time limitations provided on administrative water rights, more effective use of legal prioritization of certain uses and water tenure holders under circumstances of scarcity or disaster, and a focus on building the capacity of water tenure institutions for adaptive management that enables adjustments in the face of uncertainty and change while still maintaining equity in allocation and accountability to all tenure holders.

With respect to the water tenure rights of indigenous and local communities, a careful assessment of the resilience of customary water tenure practices and how those can be protected by law could contribute meaningfully to their water security. This could also provide innovative alternatives to alleviate the burden on governments that lack the capacity to meaningfully bring customary tenure holders into the formal administrative water rights system. More broadly, careful consideration of the wide range of potential legal mechanisms for balancing resilience and security must be an integral part of ongoing work on water tenure.

Women within indigenous and local communities have differentiated responsibilities, needs, and priorities with respect to the domestic and productive uses of water and the sustainable management of freshwater resources. Legal recognition of the specific rights of women in these communities to use and govern water is essential for ensuring that they have a meaningful voice in decisionmaking and control over this essential resource. Despite the broad international recognition of women’s critical role in water management and decisionmaking for over 30 years, men continue to dominate water-related governance at all levels, reflecting the persistent, patriarchal gender ideology that prevails in many countries and communities. This status quo is bolstered by the notable absence of gender-sensitive legal protections, as evidenced by the findings described above.

Addressing this status quo will require gender-transformative provisions in water legislation to prohibit discriminatory practices and ensure that women are represented equitably in decisionmaking processes and in institutions charged with water governance. The pervasiveness of the land-water nexus in the legal recognition and protection of water tenure, coupled with the fact that less than 15 percent of landholders globally are women, also indicates gender-equitable water tenure will also require land and forest laws to more adequately protect and respect women’s tenure rights, including their inheritance rights to community lands and resources. To build on those practices and norms that respect resource tenure rights, particularly in the context of community-based tenure, such reforms and the resulting governance institutions must be informed by the voices of the women.

The emergence of environmental rule of law as a priority for international action, as framed by UN Environment and others, provides a critical context shaping how water tenure rights can improve environmental and water governance. While environmental and water laws have proliferated globally in recent decades, equitable and accountable implementation and enforcement of these laws often remain elusive.

The components of environmental rule of law include fair, clear, and implementable legal provisions; meaningful procedural guarantees for public participation; accountable institutions and decisionmaking; clear mandates and institutional roles; accessible, fair, and transparent dispute resolution mechanisms; and recognition of the mutually reinforcing relationship between rights and the rule of law.

These core elements of environmental rule of law must provide the context for the further elaboration of the concept of water tenure and its practical application across various contexts. At the same time, equitable and secure community-based water tenure, as captured in our assessment, has the potential to advance each of these components and contribute to more effective overall water governance at the local and national levels. TEF

Many countries have made progress in legally recognizing and protecting land and forest tenure rights. But the water rights of indigenous and local communities have received far less attention, despite their role in supporting equitable and sustainable development.

Cuyahoga's Myths and Urban Justice
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue

The famous Cuyahoga River fire of June 22, 1969 — the spur that started debate on pollution across the nation, and led to passage of the Clean Water Act three years later — is lodged more in legendary storytelling than in reality. The fire was actually fairly minor, causing only $50,000 in losses to the Republic Steel Mill located along the river, damaging some wooden trestles. Moreover, no photograph of the event exists — the photo reproduced here, like the one a month later in Time magazine, was from a much larger 1952 blaze.

According to Cleveland Historical, the river actually caught fire several times before the 1969 event went viral. So concern was not new. In fact, in 1881, “the mayor of Cleveland had called the Cuyahoga ‘an open sewer through the center of the city,’” as quoted in Teresa Opheim’s excellent write-up in EPA Journal on the event’s 20th anniversary. The river picked up effluvia from Akron to Cleveland and dumped it into Lake Erie, creating a cesspool.

In Opheim’s account, the “spiritual damage” reported by local newspapers was far greater than the actual damage when the river, covered with oil and debris, ignited for 20 minutes that summer day. Cleveland soon became a national punch line. Its fabled industry, the economic underpinning of the region, kept visitors away from the city and kept the locals surrounded by water pollution, not to mention foul air.

Ironically, according to Cleveland Historical’s Michael Rotman, “the city and its residents were beginning to take responsibility for the cleanliness of the river” in the decade preceding the famous fire. In fact, “residents overwhelmingly passed a $100 million bond initiative to fund the Cuyahoga’s cleanup” a year before the blaze. And in an extended blog post titled “Fables of the Cuyahoga: Reconstructing a History of Environmental Protection,” Case-Western law professor Jonathan Adler lists numerous actions in response to the stream’s pollution taken prior to the fire.

Adler would presumably agree with Rotman’s conclusion that the 1969 conflagration “was not really the terrifying climax of decades of pollution, but rather the last gasp of an industrial river whose role was beginning to change.”

Today, burning pollutants on an urban river would bring up issues of environmental justice, so it is worth noting that the fire is a good example of the impacts often faced by poor and/or minority communities. The blaze took place just yards from the city’s first African American neighborhood. Into the breach stepped Carl Stokes, the dynamic mayor and the man responsible for the river cleanup bond campaign a year previously.

Stokes was the first black elected to head a major American city. As a result, “the national press had their reporters here 24 hours a day,” resident Ben Stefanski would later observe. “They were living here so they had to tell the story” when the infamous fire broke out.

As Rotman reports, Mayor Stokes “became deeply involved with the issue, holding a press conference at the site of the fire the following day and testifying before Congress — including his brother U.S. Representative Louis Stokes — to urge greater federal involvement in pollution control.” The mayor demanded funding from Washington as well as changes in the law to stop allowing facilities to discharge into the Cuyahoga with impunity. “The Stokes brothers’ advocacy played a part in the passage of the federal Clean Water Act of 1972,” Rotman concludes.

Though the Stokeses successfully leveraged environmental concern to help a polluted African American neighborhood, the cleanup was slow. Today, the stream’s health, while vastly improved in terms of industrial discharges, is still impaired by non-point sources not easily regulated by the federal law. Thus, although the Cuyahoga was designated an American Heritage River in 1998, the watershed is one of 43 Great Lakes Areas of Concern in EPA’s classification. Cuyahoga Valley National Park was established in 1974, but it begins upriver from the neighborhood where the blaze occurred. That community still includes a dredged working river flanked by a cement plant, gravel pits, abandoned sites, and a steel mill.

Notice & Comment is written by the editor and represents his views.

First Time a Natural Resource Granted Legal Status in U.S.

On [March 1], the citizens of Toledo, Ohio, granted legal rights reserved for people to Lake Erie, the 9,940-square-mile body of water on which their city depends. According to Sigal Samuel at Vox, the passage of the controversial ballot measure marks the first time a natural resource has been granted legal status in the United States, though a precedent for doing so has been established by other countries in recent years.

The saga of Lake Erie’s personhood began in the summer of 2014, when a toxic algae bloom in the lake, powered by agricultural runoff and other pollution, led the city to turn off the spigots. The incident caused a state of emergency declaration, leaving half a million people without water for three days.

Toledoans for Safe Water, an advocacy group that works to clean up and protect the lake . . . partnered with the Community Environmental Legal Defense Fund to bring the Lake Erie Bill of Rights Charter Amendment, which states the lake has the right to “exist, flourish, and naturally evolve” to a vote this week. The referendum passed with 61 percent approval . . .

The legislation entitles the lake certain rights and empowers citizens to advocate for those rights when they are being violated, like bringing legal suits against polluters. . . .

The Lake Erie Bill of Rights is part of what’s being called the Rights of Nature legal movement, an idea first floated by environmental lawyer Christopher Stone in the Southern California Law Review in 1972.



The case adds to a growing roster of legal losses for Mr. Trump’s efforts to undo Mr. Obama’s environmental legacy. Experts in environmental law estimate that the Trump administration has now lost about 40 environmental cases in federal courts.

— Coral Davenport in the New York Times, on the U.S. district court decision overturning Trump’s order rescinding Obama’s ban on drilling in the Arctic and Atlantic


The Pelican Brief

Did you hear the story about the single iconic sea bird that was recently awarded more than a million dollars in compensation for injuries suffered from the 2010 BP Deepwater Horizon blowout in the Gulf of Mexico? It was not, as Forum readers might expect, a matter of a bad NOAA NRDA. No, it was the NBA at issue, and the alleged lost income of a power forward on its franchise now named the Pelicans, who play in New Orleans.

To clarify, at the time of the spill, the team was called the Hornets, but they are an invasive species in Louisiana. So that mascot was supplanted in 2012 for a favorite local bird just removed from the endangered list. In fact, the pelican’s trials resulting from its status as a favorite source of feathers for ladies’ hats had led to the formation of the National Refuge System in 1903.

But there was no trial for the 21st century Pelican who claimed damage from the BP oil spill, because his brief was unpersuasive to a reviewing court. It all came down to basic contract interpretation and looking up a few terms of art used in tort lawsuits.

What happened was David West saw his success in claiming losses suffered from the oil spill reversed by an unimpressed panel of the Fifth Circuit Court of Appeals, which forcefully cited precedent and plain meaning in declining as a judicial waste of time to remand the case to the district court for reconsideration.

The Pelican’s brief claimed that he had experienced a diminution in salary after the catastrophe, a fact that the NBA star could prove through his tax records. He was awarded almost $1.5 million in lost wages by the settlement claims administrator, which was affirmed by the settlement appeal panel, even though he was paid the full amount of his $45 million contract.

As is the case with many superstars paid such sums, for tax purposes the total was front-loaded, with progressively smaller amounts paid the athlete each year. So West, who negotiated the contract four years before the blowout, was able to show that the year after the spill he earned less than the year before. For reasons the Fifth Circuit doesn’t go into, the federal district court then denied discretionary review of the settlement adjudicator’s award decision.

But the appeals jurists reversed the district judge in a terse decision. “The fact that West received less money in 2010 than in 2009 does not mean he ‘lost’ anything or was ‘damaged’ in any way,” their decision reads. “It means only he agreed to a front-loaded contract. And he did so many years before the Deepwater Horizon catastrophe.”

The settlement agreement is a contract, the judges quickly conclude in their decision, and therefore its interpretation is a “question of law” and the appeals court can review de novo. The court takes an excursion into Black’s Law Dictionary to uncover the true meaning of “loss.” The court then cites precedent in saying a claimant must have suffered “actual losses” and “harm” caused by the activity for which the compensation is to be paid. The damages must therefore be “unexpected.” The settlement documents make that clear, the reviewing court said.

Notably, for reasons not elucidated in the decision, the appeals court states it had previously said that proof of loss could substitute for proof of causation in awarding compensation under the settlement agreement. Still, under the court’s own precedent, “We must give ‘some weight’ to ‘what damages recoverable in civil litigation actually are.’” But since West was paid what he expected to be paid, that makes the issue of causation and financial evaluation irrelevant.

Thus the settlement claims panel and the district court erred in granting the compensation, the Fifth Circuit panel concludes.

50 years ago series: The Cuyahoga fire and urban justice.