<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>
<blockquote>
<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>
</blockquote>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<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"…;
</blockquote>
<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>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<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>
</blockquote>
<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>

COVID-19 and Gulf Resiliency
Florida Gulf Coast shoreline
Water
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
Author
Jessica Troell - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
5
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
Author
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
3

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.

Smithsonian

 

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.

Rivers Run Through It: Restoring America's Circulatory System
Author
G. Tracy Mehan III - American Water Works Association
American Water Works Association
Current Issue
Issue
3

Your reviewer grew up in St. Louis near the confluence of great rivers; imbibed the lore of Lewis & Clark, Father Marquette, and Mark Twain; participated in sandbagging operations during floods; and worked on legal and policy matters on the Missouri and Mississippi.

One of my mother’s ancestors set the record for the fastest steamboat run from St. Louis to Fort Benton, Montana, before the Flood Control Act of 1944 and the Pick-Sloan plan basically rendered the Missouri a human artifact, with dams, reservoirs, and exaggerated promises of prosperity. The Army Corps of Engineers and the Bureau of Reclamation, “in defiance of common sense, economics, and even simple hydrology,” created “an instance where both agencies managed to win,” as described by Marc Reisner in his classic Cadillac Desert: The American West and Its Disappearing Water. See my review, “A Classic a Quarter Century Later” (May/June 2011).

In my salad days, I would break the winter doldrums by eagle-watching at the big lock and dam at Clarksville, north of St. Louis. It is designed to control the Mississippi River, T. S. Eliot’s “strong brown god-sullen, untamed, intractable.” In winter, the Missouri-Illinois stretch of the river has the largest collection of eagles outside of Alaska. When every pond, creek, and small river freezes over, they come to the big dams to feed on the fish coming through the spillways. It was not unusual to see 200 eagles of all ages and sizes congregating for the feast.

Yet, one had to recognize, as Henry Adams did, that we had turned our back on the river, making it a mere watery highway for barge traffic — as catalogued, in grim detail, by Christine Klein and Sandra Zellmer in Mississippi River Tragedies: A Century of Unnatural Disaster. See my review, “Dead Beyond Resurrection: Engineering an Enduring Tragedy on the River” (March/April 2015.)

In The Source: How Rivers Made America and America Remade Its Rivers, Martin Doyle, a professor at Duke, quotes Mark Twain, a former river boat captain and skeptic as to what the Army Corps could do to the great river.

As Twain writes in Life on the Mississippi, “One who knows the Mississippi will promptly aver — not aloud, but to himself — that ten thousand River Commissions, with the mines of the world at their back, cannot tame that lawless stream, cannot curb it or confine it, cannot say to it, Go here, or Go there, and make it obey; cannot save a shore which it has sentenced; cannot bar its path with an obstruction which it will not tear down, dance over, and laugh at. But a discreet man will not put these things into spoken words; for the West Point engineers have not their superiors anywhere; they know all that can be known of their abstruse science; and so, since they conceive that they can fetter and handcuff that river and boss him, it is but wisdom of the unscientific man to keep still, lie low, and wait till they do it.”

Little did he know. Besides the 26 locks and dams on the upper river and a continuous nine-foot-deep channel between St. Paul and St. Louis, the Corps shortened the Lower Mississippi by 150 miles. Thus, straightening, deepening, and channelizing completely transformed the river from anything like Twain, Lewis, Clark, or Marquette experienced.

Doyle is a scientist and engineer and a well-read one. He is knowledgeable of the constitutional founding, the Federalist Papers, economic and environmental history, ecological and stream restoration, and the development of water and river engineering and management. One could not ask for a better guide to restoring the rivers that once were.

Doyle explains how a young America saw rivers as a key to developing the nation both as an energy source (dams and mills), avenues of commerce, and a key element in forging a union of disparate states.

John Jay in Federalist No. 2 describes, “A succession of navigable waters forms a kind of chain round its [America’s] borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids and the mutual transportation and exchange of their various commodities.”

Doyle is well informed on the growth of canal companies, debt financing, and the impacts of the Erie Canal, to take the most prominent example, on economic development. He does a good job of describing the development of constitutional law on interstate commerce and navigability and the growth of the Corps over time. For instance, he tracks the debate within the agency over the relative balance of federal-state responsibility for levees, attributing the over-reliance on levees, nationally, on a preference for local control in the 19th century.

He provides an interesting description of the intricacies of federalism, sovereignty and property rights in the context of western water rights and federal infrastructure investments. In the author’s view, the desire for massive federal infrastructure investments necessitated the subordination, voluntarily, of state sovereignty in an interstate compact on the Colorado River.

Doyle rightly praises the work of Gerry Galloway, a reformer in the Corps who did pioneering work on the moral hazards of flood control infrastructure and the false sense of security such measures create. This message is beginning to sink in at the Corps, if not in Congress, which holds the purse strings. This shift in thinking is on display in an important collection of case studies and essays inspired by Dutch practice, Making Space for the River: Governance Experiences With Multifunctional River Flood Management in the U.S. and Europe. See my review of this volume, “The Dutch Are Much: Governance and Making Space for the River” (September/October 2013).

In opening up the West, the desire for massive federal infrastructure investments necessitated the subordination of state prerogatives in an interstate compact on the Colorado River. Federalism-as-local-control was eclipsed by the New Deal, which privileged jobs over economic or environmental sustainability. Doyle does not address Marc Reisner’s critique of these infrastructure projects. He seems to approve of the Tennessee Valley Authority except for the snail darter case, which highlighted the economic stupidity of the dam in question even beyond the environmental impact.

“Being able to blithely drink water from just about any faucet in the United States without concern is one of the greatest achievements of American Society,” writes Doyle. This powerful, true statement opens his chapter “Running Water,” which tells the amazing story of Chicago, its struggle for safe drinking water, and the engineering, institutional, and financial innovations that secured the resource, the latter two becoming models for the nation. The engineering is incredible, culminating in the reversal of the flow of the city’s rivers away from Lake Michigan to eliminate fatal outbreaks of disease. Moreover, the use of municipal bonds and special districts were pioneered in the Windy City and other systems.

Of interest to those working in the water and wastewater sectors will be the author’s account of the conflict between these two sides of the house over “self purifying” rivers and exclusive reliance on drinking water treatment plants, rather than controlling pollution at the source, a debate resolved by the burning rivers that led to passage of the Clean Water Act in 1972. One school believed that the action of bacteria allowed rivers to self-purify in the course of their flow and, combined with water filtration and chlorination, was sufficient to protect public health.

“As a result of these attitudes based on new scientific and technological discoveries, the most prominent water engineers of the era were justifying the practice of cities dumping their waste directly into streams and rivers untreated — as long as water was treated when used for supply, as quickly became the standard by necessity,” writes Doyle. This view was “anathema to physicians.” Thus, the debate between so-called sanitarians, or sanitary engineers, on one side and physicians and public health officials on the other. It came down to whether or not cities should bear additional cost for wastewater treatment as they do today rather than letting the engineers “establish their view of rivers as grand sewers of convenience for society.”

Martin Doyle concludes The Source with two hopeful chapters. “Channelization” features Luna Leopold, son of the author of A Sand County Almanac, and Gordon “Reds” Wolman of Johns Hopkins University, whose father was Abel Wolman, founder of the discipline of sanitation and wastewater engineering. The two scions did landmark work on geomorphology, paving the way for a national movement of river restoration.

The final chapter, on “The Restoration Economy,” illustrates the opportunities to restore the physical, chemical, and biological integrity of rivers and streams and provide environmental amenities for which people, wealthy ones anyway, are willing to pay. These strike the right concluding notes for The Source, an excellent book indeed. The question is, Can we implement these restorative activities sufficiently and at scale to return more value and function to America’s 250,000 rivers over 3 million miles?

We look forward to hearing more from Martin Doyle on these matters.

Tracy Mehan on restoring America's circulatory system.

ELI Report
Author
Laura Frederick - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
6

Judicial education fighting Indonesian deforestation through new civil society mechanisms designed to protect resources

ELI and the Indonesian Center for Environmental Law have been diligently carrying out a training project in the archipelago to help judges become a player in the fight against deforestation and the path toward sustainable development.

Indonesia is home to incredible biodiversity. The country covers only 1.3 percent of the planet’s surface but it is home to 4 percent of the world’s most ecologically undisturbed forests. Indonesia also possesses about 50 percent of the world’s tropical peatlands, which serve as an important carbon sink.

However, these natural resources are increasingly under threat from the pressures of a growing population and expanding, often unlawful economic activity that together are diminishing Indonesia’s rich biodiversity, threatening the health and livelihoods of communities that depend on natural resources, and releasing enormous amounts of carbon into the atmosphere.

To address these issues, there is a promising new legal tool in Indonesia enabling civil society organizations and the government to file claims to hold responsible parties liable for environmental damages. However, many judges lacked the knowledge and capacity to ensure this authority was effectively applied.

In response to requests from the Supreme Court’s Working Group for Judicial Certification on the Environment for support in its efforts to certify judges to rule on environmental issues, ELI’s Judicial Program and its collaborators developed a capacity-building curriculum to train the country’s judiciary to be a critical part of the efforts to improve environmental quality. ELI and the project team launched this curriculum in Pekanbaru, Indonesia, this summer.

ELI and partners convened a five-day workshop that brought together 38 judges from different regions of the country as well as three Supreme Court justices to discuss economic valuation, restoration, and compensation of environmental damages.

The workshop emphasized the role the environment plays in human well-being and economic prosperity, as well as limitations to ecosystem resilience in the face of degradation. Sessions addressed topics such as principles of environmental science, valuation of natural resources in the context of compensation and restoration, scientific evidence and uncertainty in the courts, standards of liability, and mechanisms for ensuring that judicial decisions are carried out.

The participants also had the opportunity to attend a field trip to a peat ecosystem affected by fires, providing the judges with a unique opportunity to observe the complex dynamics of damage and degradation to ecosystem services and to conduct experiments illustrating the challenge in collecting scientific evidence in these case.

By transferring critical knowledge to the judiciary to understand and address liability for environmental damages, this project will improve environmental quality in Indonesia by promoting environmental accountability through judicial enforcement. Ultimately, the benefits will include reduced deforestation and greenhouse gas emissions and improved biodiversity and quality of life, especially for vulnerable communities.

The curriculum draws on the local expertise of partners at ICEL. Judge Merideth Wright, a Distinguished Judicial Scholar with ELI and a former environmental judge for the state of Vermont, and Judge Anders Bengtsson of the Växjö Land and Environment Court in Sweden are contributing their experience as members of the judiciary.

ELI Visiting Scholar Carol Jones lent her expertise on the economics of valuing damage to the environment and Alejandra Rabasa, director of ELI’s Judicial Program, discussed scientific evidence and uncertainty.

This project is generously supported by the Swedish Postcode Foundation, an organization dedicated to seeking long-term solutions to local and global challenges.

 

Report helps trustees in natural resource damage process

Eight years after the Deepwater Horizon oil spill, restoration activities in the region remain ongoing. ELI’s gulf team has focused recent efforts on helping project trustees strategically coordinate their activities to make the most of time and material and financial resources.

In March the team released a paper that surveyed some of the tools available to Deepwater Horizon natural resource damage assessment trustees to help coordinate their activities.

As a follow up to this work, the Institute recently released Coordination in the Natural Resource Damage Assessment Process: Project Planning and Selection. Building on previous research, this guide describes some additional tools that are available during project planning and selection that could help coordinate the trustees’ activities internally within the NRDA program (namely, among the Trustee Implementation Groups) as well as with other entities. This paper focuses on project screening criteria, strategic frameworks, and joint restoration.

When selecting projects for their restoration plans, the TIGs use a systematic screening process. The TIGs could develop additional project screening criteria that will promote coordination with external entities, other TIGs, or both. Examples could include encouraging or favoring projects that leverage funds from outside sources, are consistent with existing plans or efforts, or leverage activities of other TIGs or external entities.

Strategic frameworks are another tool available during project planning and selection to help coordinate activities.

In 2017, the region-wide TIG released four strategic frameworks — one each for birds, marine mammals, oysters, and sea turtles. Frameworks such as these provide a useful starting point. They ensure that trustees and others have the same information about the resource.

There may be additional information the frameworks could provide to support coordination. For example, they could identify specific activities and mechanisms that support coordination.

Another tool that may be useful in helping the TIGs coordinate internally during project planning and selection is joint restoration planning. This type of planning could be an effective way for TIGs to coordinate across restoration areas.

 

Extra! ELI Breaking News webinars bring the latest developments

In response to demand for unbiased analysis, the Institute has been at the forefront of educating members and the public on impending changes in state and federal government policies and judicial action through Breaking News webinars, allowing the Institute to provide answers on the most recent relevant topics affecting environmental law in a timely fashion.

The first Breaking News webinar reflected on Justice Anthony Kennedy’s retirement from the Supreme Court. For the past three decades, Kennedy had been a crucial swing vote on a variety of issues including the environment. His retirement came at an especially crucial time, as the Supreme Court’s 2019 docket includes cases that cover a litany of environmental issues. Attracting over 350 viewers, the webinar featured expert panelists exploring the influence Kennedy had on environmental law, and what his departure from the court could mean for the future.

The second Breaking News webinar discussed comprehensive changes proposed by the Department of the Interior and National Oceanic and Atmospheric Administration in how the Endangered Species Act is implemented.

These regulations and policies address the species listing process, including the definition of “foreseeable future,” critical habitat designations, and the Section 7 process that directs all federal agencies to consult with the Fish and Wildlife Service when any agency action might affect an endangered or threatened species.

This panel provided an advanced look into potential benefits and repercussions of utilizing the ESA under this regulatory proposal. Each panelist highlighted his or her areas of interest in the proposals and described improvements that could be made in the process to finalize the regulations. The webinar allowed participants to learn about the proposed changes as they were opened to public comment.

ELI’s most recent webinar focused on the Waters of the United States regulatory decisions and the ramifications and implications of district court Judge Norton’s August decision to enjoin EPA’s suspension rule. His decision re-instated WOTUS as the applicable legal standard in 26 states not already subject to two prior district court injunctions staying WOTUS. Panelists from law firms, environmental groups, and industry discussed what this change means for the future of the Clean Water Act.

Believing in rational, nonpartisan discussion, ELI provides a perfect venue to explore these major changes in environmental governance. The Institute will continue to provide education on the most pressing and time-sensitive environmental issues.

 

Field Notes: Helping nation protect sensitive marine areas

At the 2017 Our Ocean Conference, Niue’s minister for natural resources, Dalton Tagelagi, announced that the South Pacific Island nation would create a marine protected area covering 40 percent of Niue’s Exclusive Economic Zone to conserve the unique marine diversity in national waters. The MPA will include the waters of the remote Beveridge Reef, a place of rich marine biodiversity.

ELI is helping the Niue government identify and conduct legal reforms to put this MPA into effect. After preliminary analysis by ELI, Ocean Program Director Xiao Recio-Blanco conducted a research trip to Niue to gather information on how to effectively enact the MPA within the nation’s legal framework, with a special focus on fisheries management. With the creation of the MPA, Niue hopes to promote itself as a prime global marine ecotourism destination.

In August, the Institute co-organized a global symposium on The Judiciary and the Environment: Adjudicating Our Future. The conference took place at the Organization of American States, which co-organized the event along with the Global Judicial Institute on the Environment, and the World Commission on Environmental Law of the International Union for the Conservation of Nature.

Over two days, presidents of supreme courts and judges from around the world, as well as renowned experts, convened to discuss the challenges facing the judiciary in implementation and enforcement of environmental law.

ELI President Scott Fulton, who served on the symposium organizing committee, was present to provide welcoming remarks on behalf of the Institute. ELI Vice President of Programs and Publications John Pendergrass co-chaired a session on emerging principles and trends in environmental rule of law. ELI board member Nicholas Robinson and ELI Leadership Council Member Michael Gerrard were also present at the symposium as session co-chairs.

In devising new approaches for the management of materials and the diversion of wastes under the Resource Conservation and Recovery Act, federal regulators can draw on their years of experience working with particular sectors and materials. In the retail sector, managing discarded and returned consumer aerosol cans can often require their management as hazardous waste. This waste stream also accounts for nearly half of the RCRA-regulated material in the retail sector, driving the status of stores as large-quantity generators.

On the other hand, these same cans, when disposed of by consumers in their homes, are treated as household waste and can be managed or recycled in other ways, including ways that involve substantial steel and aluminum recovery from municipal waste management. ELI released a research report exploring this incongruity. RCRA and Retail: Considering the Fate of Consumer Aerosol Cans examines the regulation of the retail sector, the fate and recovery of materials from aerosol cans, and opportunities for further action.

Showcasing ELI’s coast-to-coast reach, the Institute collaborated with Hunton Andrews Kurth’s San Francisco office to hold a summer series featuring key representatives from the region’s environmental regulatory agencies. The series of seminars provided attendees with the opportunity to interact with environmental regulators and professionals in the field on the latest issues and challenges.

ELI trains Indonesian judges on forest preservation.

A Life of Quality
Author
Robbi Savage - Rivanna Conservation Alliance
Rivanna Conservation Alliance
Current Issue
Issue
6
A Life of Quality

After nearly three decades working on Capitol Hill representing the 50 states’ chief clean water officials, I moved to a small country town to take over the administration of a local watershed conservation group — a position I now leave. Having worked at the federal, state, and corporate levels, it was an obvious next step — bringing my environmental career full circle. Or to use another metaphor, going from little fish in a big ocean to big fish in a little stream. But I came to the same perspective on water quality problems even though I was viewing many of the same issues with a different focus.

At the beginning, I was a very small fish. I joined the fledgling Environmental Protection Agency’s water office just after the enactment of the Federal Water Pollution Control Amendments of 1972 — what everyone now calls the Clean Water Act. It was an exciting time to be at EPA in those early years; the agency’s mission was clear, the leadership was seasoned, the employees were dedicated, and program funding was plentiful. I felt inspired by the sense of mission from Administrator William D. Ruckelshaus down to the lowly secretarial level, where I started my career. That wasn’t uncommon for women of that era.

But just six years later, I was named executive director of the Association of State and Interstate Water Pollution Control Administrators, and as such became the principal representative in Washington of officials charged with implementing the CWA. In that position, I was invited to testify before Congress more than one hundred times on topics ranging from enforcement to funding, groundwater, nonpoint sources, pretreatment, stormwater, Total Maximum Daily Loads, and wetlands. I remember testifying three times on a single day on groundwater. And, during the debate on what became the CWA’s 1987 amendments, I practically lived on the Hill. What a gift to work with the environmental greats, especially at a time when congressional Democrats and Republicans worked together for the good of the country.

The first floor debate I watched was on the meaning of “navigable waterways” and “waters of the United States,” to this day an area of controversy. I was in the Senate Gallery watching Maine Democrat Edmund Muskie and New Mexico Republican Pete Domenici engage in an intense argument about ephemeral streams. I was struck by the respectful tone and empathy as Muskie, from a water rich state, and Domenici, from an arid state, each from a different party, were trying to convince the other on what now seems to have been the beginning of the national debate on the geographic reach of the law. Nearly 30 years later I was there for the Supreme Court’s oral arguments in Rapanos v. United States, which further defined navigable waters — or actually further muddied the waters.

A career-changing event at ASIWPCA was meeting with David Stockman, the former congressman and then the director of the Office of Management and Budget. Not long after Ronald Reagan’s inauguration,
Utah Governor Scott Matheson and I met in Stockman’s office to discuss state funding priorities. Stockman announced that by the end of President Reagan’s presidency the construction grants programs for clean water facilities would be no more. Stockman looked up at Matheson, who chaired the Water Committee of the National Governors’ Association, and then at me to emphasize that we could let this happen or we could find a way through the political impasse. “Your choice,” Stockman said.

It was less than 10 years since Congress provided $5 billion in annual grant funding for the construction of wastewater treatment facilities — and now we were being told that President Reagan intended to kill this critical national program. In response, Matheson formed a working group of senior state officials to identify a series of options to protect, restructure, or remake the program. I was asked by the governor to organize and staff the meetings.

The 1981 Municipal Wastewater Treatment Construction Grants Amendments, passed at virtually the last moments of the session, made it clear that Stockman’s threat was real and the process of eliminating the grants had begun. Congress reduced annual funding by more than half and limited eligible funding categories to only sewage plants and interceptor systems. Reserve capacity, to accommodate population growth, was completely eliminated — foolishly, in my view.

The death knell for the grant program would come with the 1987 amendments to the CWA, but the state and local government groups (having coordinated with EPA) were ready with legislative language for what became the State Revolving Loan Fund, still operating to this day. The proposed legislation was designed to create a transition from federally funded grants to loans at favorable interest rates. The SRLF would phase in gradually by reducing grants and at the same time providing federal seed money for state-administered loans to local governments

In addition to sewage treatment, stormwater — rainwater runoff from industrial and municipal facilities — was also of concern during the 1980s because it had not specifically been addressed in the original legislation. The scope of the stormwater problem was huge, controls were difficult to implement, management systems were complex, and adequate funds were not available. For these reasons, stormwater controls were not being systematically permitted under the CWA’s National Pollutant Discharge Elimination System. A number of citizen suits against EPA followed. These suits for not enforcing the act led to the crafting of legislative language for industrial stormwater dischargers and municipal separate storm sewer systems to obtain permits.

The sheer magnitude of the problem and the workload associated with issuing permits was a major concern for cities, counties, and other organizations. The National League of Cities and the National Association of Counties were particularly skeptical that Congress would provide funding to cover the costs of implementation. These concerns were prescient, because the grant program included in the initial amendment was deleted during the congressional conference committee as it considered the 1987 amendments.

In an unusual move, Senator John Chafee (R-RI) and Representative Bob Roe (D-NJ), committee chair and vice chair, invited me to serve as a technical resource to represent the states as the committee considered the State Revolving Loan Fund; the stormwater control and management program; Total Maximum Daily Load allocations; wetlands conservation; and new authorities for treating tribes as states for the purposes of the act.

During the proceedings and much to our surprise, EPA and ASIWPCA were asked to merge the House and Senate stormwater language. The acting assistant administrator for water, Rebecca Hanmer, and I convened a small group of attorneys to work through the night to create the stormwater language that is included in the 1987 amendments.

The conference committee came to agreement on a full reauthorization package, and it was sent back to the House and Senate for what was expected would be the last floor vote. On November 6, 1986, Congress unanimously approved the legislation and sent it to President Reagan for his signature. But President Reagan decided not to act and the Congress was not in session — the result was a pocket veto, which cannot be overturned by a super majority.

In response, Senator George Mitchell (D-ME) convened a small group to develop a strategy to ensure that the vetoed bill would be the first action of the 100th Congress. The Water Quality Renewal Act was introduced as HR 1 and as Senate 1, which combined sailed through and was sent to the president. Once again he vetoed the bill, citing the cost of the new SRLF and governmental jurisdiction issues. On the latter, he meant the federal government should not pay for the remediation of nonpoint source pollution, stormwater management, and achievement of TMDLs of pollutants entering waterbodies.

On February 4, the Congress voted to override Reagan’s veto, and the Water Quality Renewal Act of 1987 became law. Again I sat in the Senate Gallery, this time with Rebecca, to watch Congress pass the law. My vocal enthusiasm as the result was announced was met with the rap of the gavel and the admonishment, “Order in the chambers.” But, as my mother used to say, “Robbi Jean, you are witnessing history in the making,” so I signalled the important event with a loud shout.

Stormwater and TMDLs have followed me throughout my career. In 2006, I moved to Charlottesville, Virginia, to take over the reins of the Rivanna Conservation Society (now Alliance), a small citizens organization that promotes conservation in the watershed, a tributary of Chesapeake Bay. In that position, I participated in the technical advisory committees for the city of Charlottesville and surrounding Albemarle County. These groups helped designed the local programs and the use of a stormwater utility.

Virginia’s Department of Conservation and Recreation was initially responsible for the stormwater program, but the program was moved to the Virginia Department of Environmental Quality in 2013. This complicated the implementation of the stormwater program at the state and local levels because the commonwealth was requiring draft codes or ordinances for the program, with permitting authorities including the city, the county, and the University of Virginia. Based on the differences in population, community size, and age of the stormwater infrastructure, the program was being handled differently in each of the four primary jurisdictions within the Rivanna watershed, and because the initial legislative focus was on large stormwater discharges, such as cities with over 350,000 population, the smaller discharges such as Charlottesville and Albemarle had several years to create their programs.

It should be obvious that I need to highlight the important role of nonprofit organizations in designing and implementing stormwater programs — and the CWA generally. We took advantage of the time provided to implement stormwater controls. RCA provided input on legislation, regulations, and policies, supported funding for development of best management practices, and served on local government advisory committees, meanwhile tracking the success and pace of local stormwater programs and educating the public. RCA along with the Southern Environmental Law Center and UVA’s Conservation and Environmental Law Center engaged in a joint project to analyze and make recommendations for the improvement of the stormwater codes and ordinances. These recommendations were, for the most part, implemented by the localities.

At RCA, I led staff scientists who, with a team of dedicated volunteers, monitor 65 water-quality sites at the highest certified level for bacteria (e coli) and benthic macroinvertebrates (aquatic bugs). RCA is the only nonprofit to be certified at VA Level III, which means that government officials can, without follow-up, use RCA data to develop TMDLs for water-quality standards and also for related Section 305(b) reports to Congress. To monitor physical parameters, RCA has two River Stewards paddle the Rivanna weekly to monitor conditions, clean up trash, and help other paddlers as needed. We also conduct educational programs and workshops and regularly engage the community in World Water Monitoring Day, a program I created in 2002. That was the 30th anniversary of the Clean Water Act and the Year of Clean Water. Philip Cousteau’s Earth Echo International now manages the monitoring program, which delights me.

After a career of 45 years, I have come to understand that the goals of legislation, regulations, and related policies can only be achieved with the involvement of all levels of government and the participation of interested and affected groups and individuals. I have seen this process at the federal level and the state level. Central Virginia and the Rivanna River watershed provide a microcosm of how this process can work at the local level. Federal, state, and regional officials are paying attention to the work of our alliance and similar watershed-protection groups around the country. TEF

TESTIMONY ❧ I started at EPA just after the Clean Water Act was passed and have helped to implement it at the federal and state levels ever since. Now retiring as executive director of the Rivanna Conservation Alliance in central Virginia, I have come to realize that government policymakers can learn a lot by studying solutions worked out at the watershed level.

ELI Report
Author
Laura Frederick - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
5

Now in their 29th year, ELI’s National Wetland Awards are presented to individuals who have excelled in wetlands protection, restoration, and education.

“These men and women are on the forefront of protecting wetland resources in the face of development and climate impacts,” said ELI President Scott Fulton. “Through their dedication and achievements, they inspire wetlands protection across the country and worldwide.”

The ceremony kicked off with a keynote speech from Leah Krider, senior counsel, environment, health, and safety, at the Boeing Company, who described its expansion and mitigation efforts in South Carolina.

“Conservation and economic growth are not mutually exclusive. Conservation is not only good for the environment, for the communities. It makes good economic sense,” Krider said.

Awardees were recognized for their individual achievements in six categories:

Landowner Stewardship: For 28 years, William and Jeanette Gibbons and their family have devoted their time and financial resources to restoring degraded land and water on their property at Cedar Breaks Ranch in Brookings, South Dakota. They developed their property into a showcase of how various conservation practices can be seamlessly and profitably integrated into a working farm. They also use their land to further research and education on natural resource management approaches.

Science Research: Kerstin Wasson is the research coordinator at the Elkhorn Slough National Estuarine Research Reserve in Watsonville, California. She engages citizen scientists in collecting water quality data and counting migratory shorebirds. She launched an ecosystem-based management initiative that brought together stakeholders to develop a shared vision for restoration of the estuary’s wetlands. Kerstin has led collaborative projects across the network of National Estuarine Reserves.

Education and Outreach: Mark D. Sees has served as the manager of Florida’s Orlando Wetlands Park for over 20 years. In addition to managing the wetland treatment system, he has evolved the park into a center of public recreation and wetlands education and research. He initiated the annual Orlando Wetlands Festival to provide 5,000 local children and adults an opportunity to tour the wetlands to understand their ecological importance.

State, Tribal, and Local Program Development: Maryann M. McGraw, wetland program coordinator for the New Mexico Environment Department, initiated the state’s wetlands program and continues to provide vision and guidance to ensure the program reflects the importance of wetlands and riparian areas in the arid west. She developed rapid assessment methods for montane and lowland riverine wetlands, confined valleys, and playas of the Southern High Plains, which provides data needed to underscore state wetlands water quality standards and anti-degradation policies.

Conservation and Restoration: Latimore M. Smith is a retired restoration ecologist with The Nature Conservancy in Covington, Louisiana. A botanist and plant community ecologist, he spent over 15 years with the Louisiana Natural Heritage Program, documenting the ecology of habitats across the state. He was the first to formally describe a variety of previously undocumented natural wetland communities, including rare longleaf pine flatwood wetlands.

Wetlands Business Leader: Roy R. “Robin” Lewis III of Salt Springs, Florida, was the winner of this new award. For more than four decades, Lewis has been at the vanguard of wetland restoration and creation, designing or assisting in the design of over 200 projects around the world. He founded two environmental consulting companies and is president of Coastal Resource Group, Inc., a nonprofit educational and scientific organization. He also works with the Association of State Wetland Managers to provide education opportunities and resources.

Ramsar Convention event presages 13th conference of parties

Before the 29th Annual National Wetlands Awards ceremony — see facing page — ELI hosted a panel discussion on the Ramsar Convention on Wetlands of International Importance.

The treaty calls attention to the rate at which wetland habitats are disappearing, in part due to a lack of understanding of their importance. The convention provides an international framework for action and cooperation to promote “the conservation and wise use of all wetlands through local and national actions and international cooperation.”

The United States became a party to the convention in 1986 and has since designated 38 sites covering 4.5 million acres nationwide.

Attendees of the program, An Introduction to the Ramsar Convention, learned about efforts at the local, national, and international level to implement the accord.

Panelists included Cade London, Fish and Wildlife Service; Maryann M. McGraw, New Mexico Environment Department; and Barbara De Rosa-Joynt of the State Department.

After receiving an overview of the evolution of the convention and insight into the international community, the audience heard about the primary goals of Ramsar at the domestic level.

The convention covers a broad range of ecosystems considered as natural and man-made. The final presentation focused on one Ramsar site in New Mexico. The Roswell Artesian Wetlands is a desert ecosystem made up of a complex of springs, lakes, sinkholes and saline wetlands situated along the Pecos River. These wetlands support over 360 species of waterfowl as well as other animals and plants, including a number of rare, endemic, and endangered species.

As panelist De Rosa-Joynt explained, wetlands knowledge and science is consistently evolving and informing the future goals of the convention.

The 13th conference of the parties will be held this fall in Dubai. Themed “Wetlands for a Sustainable Urban Future,” the conference is expected to draw over 1,200 representatives from the parties. On the agenda are climate change; agriculture; so-called “blue carbon”; and polar wetlands.

Aiding China in coming to grips with country’s excessive pollution

In March, ELI, with the assistance of the Pillsbury law firm, prepared a report, Managing Environmental Protection and Economic Considerations Under Select U.S. Environmental Laws and Permitting Systems, for China’s Ministry of Environmental Protection. The study explains how the United States has balanced economic considerations and environmental protection through the Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act, and the Endangered Species Act.

ELI and the China Environmental Protection Foundation then held capacity building workshops at the Tianjin University Law School on environmental public interest litigation. While the focus was on participation of Chinese NGOs, other entities involved included Supreme People’s Court judges and prosecutors from the Supreme People’s Procuratorate.

Reforms to China’s Environmental Protection Law establish authorities for the government and the public alike, with the added ability of authorized civil society groups to file citizen suits. However, the success of these improved systems relies on a multifaceted system of accountability, with both the government and civil society playing roles. ELI is providing technical assistance, capacity building, and legal training to NGOs that have been approved by the civil authorities to engage in civil environmental litigation.

ELI staff attorney Zhuoshi Liu has been a leader in this public interest environmental litigation capacity building work, and in developing and hosting the workshops. A China native, Liu brings a wealth of knowledge to ELI’s China Program and the Institute as a whole.

Participants also benefitted from the expertise of ELI faculty from the Institute’s extended community.

Jeff Gracer of Sive, Paget & Riesel P.C., a member of ELI’s Leadership Council, traveled to China for January’s conference. The conferences included presentations from Leadership Council members Robert (Buzz) Hines of Farella Braun + Martel LLP, and former ELI President Leslie Carothers as well as longtime member Dan Guttman of New York University Shanghai.

Field Notes: ELI on the scene in flooded Ohio, polluted Gulf

In summer 2017, ELI Senior Science and Policy Analyst, Rebecca Kihslinger, and ELI’s partners at the University of North Carolina’s Institute for the Environment, traveled to Ottawa, Ohio, where state and village officials and residents and business owners came together to brainstorm on uses for flood buyout properties during the Making the Most of Ottawa’s Floodplain Buyouts Workshop.

Ottawa had purchased 55 floodplain properties since 2008, totaling 25 acres, using funding from government grants, Hazard Mitigation Grants, and Hazard Mitigation Assistance grants. Recently, the Federal Emergency Management Agency approved the first of three major projects planned to utilize these buyout properties by the Greenspace Development Committee. A once vacant lot will become Rex Center Park.

In continuation of ELI’s work in the Gulf of Mexico since the BP oil spill eight years ago, ELI traveled to Gulfport, Mississippi, to encourage public engagement efforts. To help members of the public better understand how to get involved, ELI, along with Environmental Management Services, Mississippi Commercial Fisheries United, and Public Lab, co-sponsored an event on Engaging in the Gulf Restoration Processes: How the Public Can Help Shape Restoration. The goal of this event was to provide participants with tools and information that they can use to more effectively take part in and understand the restoration and recovery efforts.

On April 16, ELI and co-sponsors convened a panel of environmental justice leaders, including keynote speaker Rep. Raul Ruiz, co-author of the proposed Environmental Justice Act of 2017.

Continuing discussions from a panel held last November, speakers explored climate justice, siting issues, ramifications of extreme weather events on marginalized communities, and ways in which practitioners can empower and support environmental justice communities through their own work.

A networking reception followed to further conversation and discussion of key topics at the forefront of environmental justice. On display was the newly released book from ELI Press Environmental Justice: Legal Theory and Practice, 4th Edition.

After announcing his $1.5 trillion infrastructure plan, President Trump has sought to streamline and expedite the environmental review and permitting process for projects under multiple environmental laws, ranging from the National Environmental Policy Act, Endangered Species Act, and Migratory Bird Treaty Act to the Clean Air and Clean Water acts.

Trump submitted to Congress an ambitious legislative “roadmap,” which proposes a number of far-reaching changes to the environmental review framework with a goal of shortening the process for approving projects to two years or less.

To examine these developments ELI and Arnold & Porter cohosted a conference entitled Infrastructure Review and Permitting: Is Change in the Wind? High-level government officials, practitioners representing industry and environmental NGOs, and congressional representatives were present to address the wide range of environmental permitting and review challenges across sectors, including transportation, energy, transmission, renewables, and more.

Panelists discussed the role of policy and litigation in shaping these developments over the next years and beyond.

Latest flock of National Wetlands Awards winners.

Going Against the Flow
Author
Talia Ogliore - Washington University in St. Louis
Washington University in St. Louis
Current Issue
Issue
5
Going Against the Flow

The Missouri River is the longest and, by some accounts, most heavily engineered river in the United States. From its headwaters in the Rocky Mountains in western Montana, it stretches for more than 2,300 miles through a massive system of dams, reservoirs, and levees before emptying into the Mississippi River just north of St. Louis.

Tim Briscoe is a brand new associate attorney in the environmental law practice group of Thompson Coburn LLP, having just received his juris doctor degree from Washington University in St. Louis, a campus not far from the confluence. For him the Missouri River is more than an overbuilt local waterway. It is the scene of a battle with an unlikely set of protagonists: the Army Corps of Engineers, the U.S. Fish and Wildlife Service, and two birds and a fish.

Before he found himself evaluating the Corps’ ambitious management plan for the Missouri River, Briscoe did not know about the interior least tern, the Northern Great Plains piping plover, or the pallid sturgeon. He didn’t know about engineered sandbars and flow rates or what they mean for the animals’ survival. He had never even heard of these species, let alone encountered one in person —though he later was delighted to stumble upon a fine example of the prehistoric-looking sturgeon at the Saint Louis Zoo.

But he had always loved water. Briscoe, 25, played competitive men’s water polo as an undergraduate at the University of Illinois, where his thesis focused on jurisdictional challenges of the Clean Water Act. He swam breaststroke on his high school swim team, and he still swims recreationally at Millstone Pool a few times each week. “There’s a connection between my interest in water law and growing up swimming in the water — literally,” Briscoe says today. He grew up in northwestern Illinois near the Fox River, which has its own complicated history of pollution and environmental cleanup.

His early introduction to environmental issues came with swimming and boating in and on the Fox. Briscoe frequently saw oil slicks and dead fish floating along. They made an impression. At Washington University, Briscoe declared his interest in environmental law from the start. During his first summer, he interned at the Great Rivers Environmental Law Center in St. Louis, and he worked at the EPA Office of Regional Counsel in Chicago during his second summer. In fall 2017, he served as a law clerk at the Environmental Law Institute in Washington, D.C.

Then in spring 2017, Briscoe rolled up his sleeves for the Missouri River, under the auspices of Washington University’s Interdisciplinary Environmental Clinic. The IEC represents nonprofit groups, communities, and individuals who are pursuing legal action to protect the environment and community health but who cannot afford the legal representation and scientific expertise this requires. Working as a student attorney for the IEC, Briscoe represented the Missouri Coalition for the Environment in preparing and delivering a formal comment on the Corps’ Draft Missouri River Recovery Management Plan and Environmental Impact Statement. The draft EIS describes management actions intended to ensure that operations of the Missouri River system will not jeopardize the sturgeon, tern, and plover, three species listed under the Endangered Species Act. It was prepared by the Kansas City and Omaha Districts, in cooperation with FWS.

When the comment was submitted, it was endorsed by seven nonprofit environmental organizations. “The proposal itself was massive, containing thousands of pages of statistics, scientific studies, economic projections, and other analysis designed to support the Corps’ vision,” says Elizabeth Hubertz, lecturer in law, who oversaw Briscoe’s work with the IEC and, subsequently, his pretrial procedure course at the law school.

“Tim’s role was to evaluate the proposal and determine whether it was protective of the environment and met the requirements of the Endangered Species Act,” she said. “This was a daunting challenge, in terms of the size and complexity of the undertaking,” Hubertz says. “One of the first things Tim worked on was convincing the Corps to allow the clinic’s clients more time to prepare a response in light of the project’s sheer immensity. Tim then prepared and gave oral testimony at a hearing held by the Corps, challenging landowners and barge traffickers who hoped to persuade the Corps that ‘two birds and a fish’ were not worth saving.”

“This is a big project, a very expensive one,” Briscoe says. “It’s very important from an environmental perspective. The health of the Missouri River is important, and there’s all kinds of impacts related to flooding, channelization, and shipping.” The Missouri hosts a wide variety of interests and uses today, all of which the Corps says it considered in the river’s recovery program. These uses include fish and wildlife habitat, flood control, hydropower, irrigation, navigation, recreation, and water supply and water quality applications. The Corps also cites other important considerations for the river including tribal interests, cultural resources, and ecosystem services. But a river can only take so much “use.”

Across the Missouri River ecosystem, the Corps acknowledges that 3 million acres of natural river habitat have been altered; 51 of 67 native fish species are now rare, uncommon, or decreasing; reproduction of cottonwoods, historically the dominant floodplain tree, has largely ceased; and aquatic insects, a key link in the food chain, have been reduced by 70 percent. In the formal administrative comment on the draft EIS that he prepared, Briscoe argued that the Corps is using an outdated biological assessment as a snapshot of the health of the species in question. He and Gabby Riek, a 2017 graduate of Washington University’s engineering school, who also worked with the IEC, determined that the science behind the Corps’ plan to build engineered sandbars as habitat was debatable — and that there was reason to suspect that they might never pile up the way the Corps said they would.

“The Corps said that they would release water from dams that would theoretically create sandbar habitat,” Briscoe says. “The sandbar habitat is used by endangered birds during breeding and migration. Riek did some really good research and found out that the science behind these flow releases was actually highly uncertain. And the Corps even acknowledged in some of its prior publications that it was inconclusive — that they did not have conclusions about the effectiveness of this method to create sandbar habitat.” Finally and most importantly, Briscoe says, the Corps presented a loaded set of “alternatives” for mechanical sandbar habitat construction that it represented as the full range of possible management actions — despite being heavily weighted toward one particular solution.

“We call this an unreasonable range of alternatives,” Briscoe says. “They should have presented a solution that offered a middle ground. Even if the flows had more scientific basis, why not create a more middle-ground alternative? Like, let’s build 1,500 — or 1,000 — or 500 acres of sandbar habitat. Why not?

“The best legal arguments are often the most clear,” he continues. “And that’s what we’ve tried to do here. We said, ‘You have inflated the cost of the most environmentally beneficial alternative, and it’s massively different than all of the others. And you simply do not explain why you cannot choose middle-ground alternatives.’” In all, the Corps received approximately 450 comments on the draft EIS via public meetings, mail, and online comment forms.

“Public comments are a crucial element in developing the final EIS and record of decision,” says Major General Scott A. Spellmon, commanding general of the Corps’ Northwestern Division. “We want to know the Missouri River Basin residents’ thoughts and concerns about our preferred alternative. We take all the comments we received seriously and will use them in shaping the final EIS and record of decision.”

Briscoe’s instructors commended him for his approach to the public comment effort. “Tim’s work on the Missouri River Recovery Project required not only extensive legal skills and knowledge, but the willingness and capability to understand many areas of expertise outside of the law entirely,” says Hubertz. “Many law students approach these interdisciplinary problems with the understanding that they are ‘the lawyer’ and that a legal solution is the best, if not the only, solution,” Hubertz says. “Tim had the intelligence to see that the question presented here required an answer that incorporated biology and economics as well as legal reasoning, and had the patience and skill to learn the science and work with his teammate to present the best of all worlds.”

As an environmentalist, Briscoe is less crunchy granola, and more clean-cut and practical. He has kind blue eyes, but his gaze is unflinching. His family has always valued life in public service, with all of its sacrifices: his dad was a police officer in the Chicago area for more than 30 years, and his mom has worked for Big Brothers Big Sisters of America for two decades.

“The important part of useful environmental advocacy is that you need to have good arguments!” Briscoe laughs. “Abstract philosophical arguments are not the types of things that resonate in the legal world.” He continues, “I call myself an environmentalist, and I do share the philosophy behind it. But given my legal training, I know that a judge doesn’t want to hear about how much I love the river. They want to hear about how the law was broken, and whether the agency did something that is actionable or in violation of law.”

Now Briscoe is set on litigation as a career path, having snagged a desirable position as an associate in the environmental law practice group with Thompson Coburn, one of the top law firms in St. Louis. “It involves a lot of work, but it’s rewarding work,” Briscoe says. “I’m practicing the type of law that I have been preparing to do for years — all of college, and all of law school. So it’s worked out great.”

At press time, the jury was still out for the pallid sturgeon and its feathered friends. As a result of his and other public comments, Briscoe hopes that the Corps will reformulate its recovery alternatives to present additional middle-ground options, and that they will focus less on economic impacts to stakeholders. Briscoe recognizes the enormousness of the Missouri River management challenges, and the subtlety required to get to a solution that the affected parties can support, his instructors say today. And he’s done it all with a smile.

“In his three years here, Tim seized every possible opportunity to develop both personally and professionally,” says Maxine Lipeles, the director of the IEC. “He embodies the perfect balance between taking his work with utmost seriousness while always having a quick smile and genuine warmth for everyone around him. I look forward to following his legal career, and am confident he’ll be a wonderful ambassador for WashU.”

For Briscoe, his experience managing the flow of a challenging law degree program while targeting his energy and skills in support of water, environment, and sustainability causes has led him to the career opportunity he always wanted. “I’ve kept my interest in policy and economics,” Briscoe says. His words slow down as he thinks about how to phrase it best. “Law is a unique — and potent — tool to influence the direction of policy, and to check various forms of power, both public and private. And it’s very exciting.” TEF

A freshly fledged lawyer, Tim Briscoe has already gotten his feet wet in ecological policy. He has become a champion for riparian species in the complicated legal environment governing the Missouri River and its human and wildlife dependents.