United States v. Hamilton, 952 F. Supp. 2d 1271 (D. Wyo. 2013) (finding on a motion for partial summary judgment that (i) no genuine dispute existed that Slick Creek is a water of the United States subject to the Clean Water Act; but (ii) a genuine dispute of material fact existed regarding whether Hamilton’s farming activities precluded application of the Clean Water Act’s recapture provision).

This is a case of first instance before the United States District Court for the District of Wyoming (“court”) regarding David Hamilton’s activities when he filled part of Slick Creek (“Creek”) and altered the course of the Creek’s progression. The Government brought suit against Hamilton under the Clean Water Act (“CWA”) because Hamilton filled Slick Creek without first obtaining a discharge permit from the Army Corps of Engineers (“Corps”). The Government filed for summary judgment on its prima facie case. Hamilton contested two major issues: (i) whether Slick Creek is a water of the United States that is subject to the CWA, and (ii) whether Hamilton’s filling activities were subject to any of the exemptions to the CWA’s permit requirements.

Slick Creek is a waterway sourced mainly by irrigation runoff but also from natural rainfall and melted snow. The Creek runs from Worland, Wyoming into the Big Horn River, which flows into the Yellowstone River and eventually the Missouri River. In 2005 Hamilton dug up the Creek so that it would run through a straight channel across his property. This allowed him to plant new crops where the Creek used to flow. The EPA subsequently discovered that Hamilton filled the Creek without the required discharge permit under 33 U.S.C. § 1311(a). The EPA then sent a compliance order to Hamilton, but he refused to return the Creek to its previous condition. Consequently, the Government filed suit and sought summary judgment to compel Hamilton to restore the Creek and pay civil fines.

The court first considered whether the Government was entitled to summary judgment on the determinative issue of whether the Creek was a navigable water of the United States. The court concluded that the Creek meets the requirements of a water of the United States under the Rapanos v. United States plurality test because, as the Government contended, it is a “relatively permanent, flowing body of water that connects to a traditional interstate navigable water.”

The court agreed with the Government because the evidence showed that the Creek had been full every year since 1962 and that it lacked vegetation along the waterway, as is consistent with yearly water flow. The court also concluded that the Creek connected to a navigable waterway because the Creek drains into the Big Horn River, which is navigable in fact. The court rejected Hamilton’s argument that the Creek was manmade because it was mostly filled by farming irrigation by noting that prior precedent – namely, Rapanos – shows that manmade water bodies can be waters of the United States. Additionally, the court rejected Hamilton’s argument that the Creek is not permanent because it fluctuates with farmers’ irrigation activities by noting that, regardless of the changing volume of flow, the Creek flowed continuously year-round. Consequently, the court granted the Government’s request for summary judgment on this issue because the Creek is navigable and therefore subject to the CWA.

The court next considered whether Hamilton was liable under the “recapture” provision of the CWA.The CWA contains a general prohibition against any discharge of a pollutant or fill material into waters of the United States without a permit. The CWA, however, contains exceptions for farmers carrying out normal activities and for the maintenance of an irrigation ditch. Hamilton argued his actions fell under both of these exceptions. The Government, however, argued that the CWA’s “recapture” provision trumps the exceptions in this case. The CWA recapture provision requires that, even if someone is exempted under those activities, they must obtain a discharge permit if the activity brings an area of the navigable waters into a new use that impairs water flow. Hamilton presented testimony that prior landowners used the filled portions of the Creek for farming activities. The court concluded that, given this evidence, it was still disputable whether the land Hamilton filled was previously farmland and therefore whether the recapture provision applied.

Accordingly, the court granted the Government’s request for summary judgment in part and found that the Creek is a water of the United States. However, the court denied the Government’s request for summary judgment on the applicability of the CWA’s recapture provision.

 

This title picture is of of the Bighorn Mountains located in Wyoming. This picture is attributed to Conniemod under the Creative Commons Attribution-Share Alike 3.0 Unported license, and the use this pictures does not in any way that suggests that Conniemod endorses this blog.


The Water Law Review is pleased to announce the addition of a new Advisory Board member, Mr. Stephen H. Leonhardt, Esq.

Mr. Leonhardt is a shareholder with the law firm of Burns, Figa & Will, P.C., in Greenwood Village.  Before joining Burns, Figa & Will, P.C., Mr. Leonhardt practiced law with Fairfield and Woods, P.C., in Denver from 1985 to 2002. He works primarily in the area of water law, as well as environmental and governmental law and related litigation, appeals, and transactions.  Mr. Leonhardt represents public agencies and private parties on a variety of water and governmental matters. He has represented clients in hundreds of water court proceedings. He is an active member of the Colorado Water Congress and has represented the Water Congress and other clients in legal proceedings involving proposed ballot initiatives in Colorado.

Mr. Leonhardt grew up in Colorado Springs, and graduated from Washington University in St. Louis (B.S. with honors in Civil Engineering, 1982) and Stanford Law School (J.D., 1985). He has spoken and written articles on water law issues and on the initiative and referendum process in Colorado. He co-authored The Public Trust Doctrine: What It Is, Where It Came From, And Why Colorado Does Not (And Should Not) Have One, 16 U. Denv. Water L. Rev. 48 (2012), and a similar 1994 article. He has been listed in Best Lawyers in America for Water Law since 2010. Mr. Leonhardt was a member of the Ethics Committee of the Colorado Bar Association from 1988 to 1996 and lectures frequently on issues of legal ethics in water law practice. He enjoys playing piano, hiking, fishing, travel, history, and baseball.

The Advisory Board is an invaluable source of support and guidance for the journal, and the staff and Editorial Board of the Water Law Review are excited to have a water professional of Mr. Leonhardt’s caliber join the ranks.

Please join us in welcoming Mr. Leonhardt to the Water Law Review Advisory Board.


Hughes v. Hughes

Hughes v. Hughes, 305 P.3d 772 (Mont. 2013) (holding (i) the lower court had jurisdiction to adjudicate the alleged stock water easement; (ii) partition of land does not extinguish existing water rights on other land unless the parties intended such a result; and (iii) an implied easement was the appropriate remedy to allow continued use of the stock water right).

The Supreme Court of Montana (“Court”) reviewed four complaints Jack and Shirley Hughes (“Jack”) filed against their son, Johnny Hughes (“Johnny”). The Tenth Judicial District Court (“lower court”) consolidated Jack’s complaints, which concerned money he loaned to Johnny, an alleged stock water easement following a partition of jointly-owned land, and a disputed pasture lease. The lower court found in favor of Johnny on all matters except the water rights issue. Jack appealed the non-water issues and Johnny cross-appealed the stock water issue.

These disputes arose in the wake of a falling-out between Jack and Johnny and the subsequent referee-supervised property partition. In separate deeds dated 1984, 1985, and 1986, Jack granted Johnny an undivided 56% interest in Melby Ranch but retained a life estate in the buildings and improvements. Thus, at the time of partition in 2011, Jack and Johnny owned Melby Ranch as tenants in common. In light of their falling-out, the parties engaged three referees to partition the land. Jack and Johnny agreed that Johnny would receive the section of Melby Ranch that included Flatwillow Creek. However, they did not specify how this partition would affect Jack’s stock water right that he used to sustain his cattle business on land not subject to the partition. The parties agreed to fence their boundaries to better reflect the partition. In his complaint, Jack sought an easement either to allow his cattle access to Flatwillow Creek or to construct a pipe to bring water across Johnny’s parcel. Johnny opposed, arguing that the partition agreement did not provide for a stock water easement.

The lower court granted Jack a water gap through the fence and over Johnny’s land, but in the same order, determined that it lacked jurisdiction over the water issue. When the parties asked for clarification, the lower court stated that it did not believe it had jurisdiction to grant the water gap. Johnny thereafter appealed the original order granting Jack a water gap.

After resolving the non-water issues, the Court discussed the lower court’s jurisdiction and found it well established that district courts have jurisdiction to supervise already-adjudicated water rights. Jack possessed rights to use Flatwillow Creek for stock water through J&S Family Limited Partnership. The Court also stated that, regardless of the lower court’s jurisdiction over water rights, an easement is a legally distinct property right. For these reasons, the Court concluded the lower court possessed the jurisdiction to determine whether Jack held an implied easement to continue using Flatwillow Creek.

Jack argued he possessed an implied easement by existing use over Johnny’s part of the partitioned land. The Court first recited the three elements for the creation of an easement by existing use: (i) prior unity of ownership of the two parcels, (ii) severance, and (iii) an apparent, continuous, and reasonably necessary use for Jack’s beneficial use and enjoyment. Neither party disputed these factors, and the Court therefore held that Jack originally owned both parcels, the partition severed that ownership, and access across Johnny’s section was reasonably necessary for Jack to exercise his stock water right.

The crux of the dispute rested on whether Jack and Johnny intended for Jack’s use of Flatwillow Creek to continue after the land partition. Jack did not have access to any other source for stock water besides Flatwillow Creek. The Court observed that Johnny, at the time of the partition negotiations, knew Jack possessed the water right and had no other source from which to use it. The Court also noted that nothing in the record suggested Jack intended to stop using Flatwillow Creek for his cattle. The Court paid particular attention to the fact that if the partition excluded Jack from exercising his water rights, it would be inequitable and could not stand. As a result, the Court held that the record supported Jack’s implied easement by existing use because both he and Johnny intended the stock water use to continue after severance of the two parcels.

In opposition, Johnny further argued that Jack surrendered his water rights to Flatwillow Creek when he agreed to the partition. As Johnny argued, the partition identified and valued the two parcels of land as “dry pastureland” and “irrigated land.” Jack granted Johnny all of the available irrigated land, including Flatwillow Creek. As a result, Johnny argued that Jack consciously gave up his stock water right. However, the Court disagreed and found that Johnny’s argument overlooked the fact that Jack’s water rights benefited land not subject to the partition.

The Court therefore concluded that, by agreeing to the partition, Jack did not intend to give away his water rights used on land not included in the agreement. The Court remanded the issue to the lower court to determine the best and most equitable way to provide Jack access to Flatwillow Creek.

 

The title picture is of a Montana ranch and is licensed under the Creative Commons Attribution 2.0 Generic License by Tony Hisgett, who does not in any way endorse this blog.


Platform Plank VI: A Plan Must Have Money to Succeed: Managing Financial Risk to Secure Our Water Future.

Denver, Colorado. January 29-31, 2014

Building on the framework adopted at the first Colorado Water Congress in 1958, this year’s annual convention addressed six important issues affecting the development of the Colorado Water Plan in terms of “planks.” The convention featured moderated panel discussions on each plank, which included (i) ensuring a strong water program for Colorado, (ii) constant reappraisal of the strength of Colorado’s position in respect to its interstate water obligations, (iii) the importance of hydropower to Colorado’s water policy, (iv) allocating funding for flood mitigation, (v) the necessity of investing in public water education, and (vi) ideas for managing financial and political risk in order to fund water projects. Together, these planks serve as the Colorado Water Congress’s “platform for action.”

The final panel of the three-day convention tackled the issue of managing financial risk. Mike Brod of the Colorado Water Resources and Power Development Authority moderated a discussion of how calculated political and financial risks are sometimes necessary to build new water infrastructure.

The first panelist, John Entsminger, General Manager of the Southern Nevada Water Authority (“SNWA”), discussed how his agency solicits the input of the community in making short- and long-term decisions regarding the financing of water infrastructure projects. Formed in 1991, the SNWA addresses southern Nevada’s unique water needs on a regional scale. The SNWA manages the Southern Nevada Water System, which includes facilities used to pump, treat, and deliver Colorado River water from Lake Mead to the Las Vegas Valley.

At the beginning of the 1900s, the small community of Las Vegas claimed it had an inexhaustible artesian supply of water in an attempt to persuade people to move there. Eventually, growing population and limited water supplies required significant steps to address growing water shortages. In response, Las Vegas predominantly turned to the Colorado River to supplement the city’s diminishing groundwater supply.

In 2000, southern Nevada had nearly exhausted its share of water from the Colorado River. When drought struck in the 2000s, the people of southern Nevada watched as their primary water supply, the Colorado River, dramatically diminished in flow. The water level of Lake Mead dropped more than one hundred feet from 2000 to 2014, with current levels around 1106 feet. The SNWA anticipates water levels to drop an additional twenty feet in 2014. Consequently, the first water intake (located at 1050 feet) will likely be out of service in the near future. When this happens, the second intake (located at 1000 feet) would be insufficient to continue uninterrupted delivery of water to the Las Vegas Valley. As a result, in 2008 the SNWA began installing a third intake at 860 feet.  This bit of engineering, however, comes with an $850 million price tag. Entsminger stated that neither the federal nor state government showed a willingness to assist in covering this cost, which placed the financial burden for the project squarely on southern Nevada consumers.

According to Entsminger, the key to gaining community support for water infrastructure projects such as the Lake Mead intake is to involve stakeholders in policy and program directives. In 2012, the SNWA created a committee of residents, business owners, school directors, and representatives of the gaming and golf industries to help guide future water resource planning. The task given to this “Integrated Resource Planning Advisory Council” (“IRPAC”) was to figure out the best way to allocate costs for the Lake Mead intake and other water-related projects. For example, one of the biggest concerns for the committee was ensuring that Las Vegas’ large population of fixed-income seniors could adjust to any proposed increases in their water bills.

For years, developers essentially subsidized these sorts of water infrastructure projects through new connection and construction fees. When recession hit in 2008, these subsidies dried up. For example, in 2005–06, the SNWA collected $188 million in connection fees from developers. By 2011, this income dropped to $11 million. As a result, it became imperative to find new funding sources. In 2012, at the recommendation of IRPAC, SNWA instituted an infrastructure charge that charged every water user regardless of their level of consumption.

Entsminger added that, in addition to the infrastructure fee, a significant amount of funding comes from sales taxes, commodity charges, and connection charges. Despite the addition of the infrastructure charge and other fees, SNWA is proud to offer its customers lower water rates than many large metropolitan areas, including Santa Fe, San Diego, Phoenix, and Seattle.

SNWA is also employing conservation measures to address the water shortage. For example, SNWA is currently paying people to remove turf from their yards. SNWA has spent $195 million on this project since 1995. According to Entsminger, conservation is a double-edged sword and an upside down business model. On the one hand, the water authority has spent millions of dollars encouraging people to stop using the product they are selling. However, in return the SNWA experienced the benefits of reducing consumptive use of the Colorado River by one-third even as the population grew by 25%.

Next, Steve Hogan, Mayor of the City of Aurora, discussed his city’s approach, which focused less on direct citizen input and more on leaders who are willing to make tough political decisions for the benefit of the city as a whole. Mayor Hogan explained that much of Aurora’s past mirrors that of Las Vegas. Aurora draws water from three river basins and stores it in a dozen different reservoirs in the plains and mountains. In addition, Aurora’s water system, like SNWA’s, is only about fifty years old.

In 2002, as a result of rapid population growth and a multi-year drought, Aurora found itself with just a nine-month supply in its system. As a result, the Aurora City Council directed Aurora Water to ensure it was capturing all of the water that the city legally owned. The challenge was to find the most sustainable, cost-effective way to deliver water to the city. The result was Prairie Waters, a state-of-the-art water recycling and purification system that allows the city to draw water from the South Platte River, which is then filtered through sand and charcoal filters and eventually piped thirty-four miles to a treatment facility. Prairie Waters delivers an additional ten thousand acre-feet of water per year, an increase of approximately 20%.

The Prairie Waters Project took five years to complete and cost the city $660 million.  Much like the Lake Mead project, neither federal nor state government contributed financial support to the project. To fund the project, the city raised residential water rates and tap fees and also issued $450 million in bonds. Unlike SNWA, however, elected officials, rather than water consumers, made most of these decisions regarding how to finance the project.

Hogan pointed out that, unlike some municipal water suppliers, Aurora Water is a part of the city government. This means that eleven citizens sitting on the City Council have control over water policy decisions. According to Mayor Hogan, while the Prairie Waters project had some community input, overall it was a political decision to go ahead with the project. While Mayor Hogan recalled debates over whether developers should pay their own way, he noted that the city ultimately paid for most of the Prairie Waters Project through increased water rates. The Aurora City Council has since received numerous complaints about increased water rates. According to Mayor Hogan, there are ongoing discussions about water rates in Aurora, but he noted that opinions on what constitutes an appropriate water infrastructure charge vary with changes in the city’s political landscape.

Hogan further explained that while government staff input and recommendations are important, politics still play an important role in these decisions.  Mayor Hogan emphasized the importance of having “project-specific leadership.”  In other words, having a knowledgeable spokesperson who can deliver accurate information to the public will make these tough political decisions easier on the community as well as on the City Council.

Overall, Entsminger and Hogan provided a helpful discussion of the differences, but also similarities, of their financial approaches to infrastructure improvements. Their discussion highlighted the major methods of securing funding for such projects but also exposed the need for each water district or agency to tailor their methods to their specific situation and needs.

 

The title picture is a photo of Hoover Dam and Lake Mead in 2009.


On January 9, 2014, West Virginia’s Governor, Earl Ray Tomblin, declared a state of emergency after a storage tank containing crude 4-methylcyclohexane methanol (“MCHM”) began leaking into the Elk River, located 1.5 miles upstream of a water-treatment facility in Charleston, West Virginia. MCHM is a chemical compound used at coal processing plants to separate coal particles from the surrounding rock.

Alerting the Public of the Contamination

According to authorities, the contamination occurred after thousands of gallons of MCHM leaked through a one-inch hole, bypassed a containment wall, and seeped into the Elk River. Charleston residents quickly began to notice a licorice-like odor wafting from the chemical storage site. Upon arriving at the scene, State inspectors quickly advised 300,000 people in nine counties (Kanawha, Boone, Cabell, Clay, Jackson, Lincoln, Logan, Putnam and Roane) not to drink or use the water. In addition, the contamination caused schools to close in at least five counties, and strict water bans prevented hospitals, restaurants, nursing homes, and other local establishments from using their water until further testing had been performed.

According to authorities, the contamination does not appear to pose lethal harm. “You’d have to drink something like 1,700 gallons of water to even approach a lethal dose,” said Paul Ziemkiewicz, Director of the West Virginia Water Research Institute. However, as a result of the chemical spill, approximately 300 residents had to seek medical attention. Symptoms ranged from nausea to rashes. State Department of Health & Human Resources Secretary, Karen L. Bowling, reported no patients were in serious or critical condition.

Once word leaked out about the contamination, panic set in amongst affected residents who quickly stripped store shelves of items such as bottled water, paper cups, and plates. “If you are low on bottled water, don’t panic because help is on the way,” said Governor Tomblin at a news conference the day after authorities detected the leak. The Federal Emergency Management Agency and several companies, including Pepsi and Coca-Cola, sent bottled water and other items for people unable to use tap water.

In the Wake of the Spill

Initially, Freedom Industries, the chemical supplier whose leaking storage tank caused the federal emergency, reported that the contamination involved approximately 7,500 gallons of MCHM. However, almost two weeks after the initial leak, officials revealed that a second coal-processing compound, a mixture of polyglycol ethers known as PPH, had leaked into and contributed to the contamination of Charleston’s water system.

While PPH is thought to be less toxic than MCHM, the late disclosure outraged local officials and residents who had been awaiting accurate information regarding the extent of the contamination. “It is very disturbing that we are just now finding out about this new chemical, almost two weeks after the [initial] leak,” said West Virginia’s Secretary of State, Natalie E. Tennant.

On January 17, a mere eight days after the initial spill began, Freedom Industries filed a Chapter 11 petition with the U.S. Bankruptcy Court in the Southern District of West Virginia. The Company used their bankruptcy documents as a forum to theorize on how the chemical spill occurred, stating that frigid temperatures caused a water line to burst, the ground beneath the storage tank froze, and some kind of sharp object punctured a hole in the side of the storage tank, causing it to leak.

While the bankruptcy filing has been described as “a tactic to freeze the two-dozen liability suits,” which have already been filed against Freedom Industries, it does not halt lawsuits against other third parties targeted in the spill. Some of the lawsuits also name West Virginia American Water Company and Eastman Chemical, the producer of the MCHM spilled. Furthermore, the bankruptcy proceedings do not strip the Freedom Industries of its responsibility to rectify the environmental damage caused by the spill.

While the full extent of damages remains unknown, Government entities, including the U.S. Attorney’s Office, are continuing to investigate the spill as well as mitigate the long-term effects.

The title picture is of the Elk River.


Sources:

About 300,000 can’t use water after chemical spill near Charleston, W.V., NY Daily News (Jan. 10, 2014), http://www.nydailynews.com/news/national/chemical-spill-taints-water-300-000-w-v-article-1.1575847.

Chemical Spill in West Virginia Declared Disaster, Fox News Network (Jan. 10, 2014), http://news.discovery.com/earth/chemical-spill-in-west-virginia-declared-disaster-140110.htm.

Company files for bankruptcy after West Virginia chemical spill, Fox News (Jan. 17, 2014), http://www.foxnews.com/us/2014/01/17/company-files-for-bankruptcy-after-wva-chemical-spill/.

David Zucchino, West Virginia puzzled, outraged over chemical leak, Los Angeles Times (Jan. 16, 2014), http://www.latimes.com/nation/la-na-chemical-danger-20140117,0,7792964.story?page=1#axzz2qsGvvf86.

John Schwartz, A Second Chemical Was Part of West Virginia Chemical Spill, Company Reveals (Jan. 21, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/01/21/five-big-questions-about-the-massive-chemical-spill-in-west-virginia/.

Kiley Kroh, West Virginia Declares State of Emergency After Coal Chemical Contaminates Drinking Water, Think Progress (Jan. 10, 2014), http://thinkprogress.org/climate/2014/01/10/3145221/west-virginia-emergency-coal-chemical-spill/.

Nick Visser. Freedom Industries, Company Behind West Virginia Chemical Spill, Files for Bankruptcy, The Huffington Post (Jan. 17, 2014), http://www.huffingtonpost.com/2014/01/17/freedom-industries-bankruptcy-west-virginia-chemical-spill_n_4619385.html?ir=Green.

Paul Barrett, A Second Chemical Spilled in West Virginia, and the Company Said Nothing Until Now (Jan. 23, 2014), http://www.businessweek.com/articles/2014-01-23/a-second-toxic-chemical-spilled-in-west-virginia-and-freedom-industries-said-nothing-until-now.


Introduction

During the first decade and a half of the twenty-first century, contaminated recreation water entered the public concern’s limelight. Last year lake closures due to E. coli contamination sky-rocketed in North America, most notably in the Midwest, affecting major recreational hubs in the Great Lakes region and stretching as far south as the Missouri and Arkansas Ozarks. For areas that generally stay open all year and rarely see the need for concern of bacterial infection, these lakes and streams closed to the public in hopes of reducing E. coli exposure.

Background

Escherichia coli (“E. coli”) is bacteria predominantly found in human and animal fecal matter. The most common strains of E. coli are harmless, living and thriving in the intestines. However, the bacteria are prone to adaptation and can form strains that cause severe illness. The EPA cites 1982 as the first recognition of E. coli as the cause of an outbreak stemming from contaminated hamburger meat.  It wasn’t until 1999 that scientists identified E. coli as a waterborne contaminant in New York and Washington. Since 1999, waterborne E. coli has increased and caused beaches, lakes, streams, and watersheds to either shut down or close off to public recreational use. The Midwest is home to the largest lakes in the United States, and the influx of bacteria provides ample grounds for generally studying the development of E. coli as well as E. coli’s metamorphosis from harmless to dangerous.

Point Source Contamination – Friendly E. coli

E. coli most prominently enters water through “point sources.” Point sources include pipes, ditches, and wells that carry sewage and waste for discharge into water systems. The notion that water could dilute waste substances historically made lakes and especially streams hot spots for dumping. Organic, inorganic, and sewage waste continually cause water quality to decline and provide an atmosphere for optimal bacterial growth. E. coli found in lake and stream waters often indicates the presence of human fecal matter. In the Great Lakes, fecal matter pollution produced a 32% increase in the number of beach advisories and closures in 2003. E. coli presence alone is not the main concern in North American lakes and streams; rather, the type of E. coli and concentration provides area for concern. When the basic strain of E. coli adapts into a more dangerous pathogen, which significantly increases severe illness, humans and animals alike are at risk. However, water environments challenge E. coli’s survival because of the environment’s generally low temperatures, high salinity, and increased solar radiation. Due to these natural constraints on E. coli growth, E. coli that enters water systems via point sources usually contributes to a healthy aquatic ecosystem.

Non-point Sources – Don’t Eat the Sand!

Bacteria flourishing in human and animal intestinal tracks may make it through sewage and waste into the environment. However, studies conducted over the past decade have shown a new trend of contamination. While lake and stream water provide a semi-hostile environment for E. coli to replicate or survive in, these areas are not completely inhospitable. Furthermore, scientists now recognize soil and sand as creating an environment for E. coli to adapt, survive, and flourish, eventually leading to the development of pathogenic strains.

Recently, scientists have discovered that the shallow groundwater below beaches and adjacent to the shoreline harbor elevated levels of E. coli. When E. coli enters the water system, groundwater is often infected as well. The bacteria attach to soil or sand particles and can survive for far longer than free-floating bacteria. Sand protects E. coli from the environmental stresses bacteria experience while in lake or stream water, such as the effects of UV radiation. Sand also allows the bacteria to attach to grains where there is a steady flow of nutrients.  In sum, sand provides the ideal atmosphere for E. coli to survive, adapt, and replicate. Why is this concerning? Tidal washes, run-off, and erosion then transport the preserved and adapted E. coli strains into surface water. The E. coli found in the shallowest parts of lakes and streams resemble the genetic make-up of sand-nourished pathogens and less like the harmless bacteria found at point source locations. The higher concentration of pathogen E. coli creates a much higher risk of contracting a severe illness from the bacteria.

Moreover, in the past decade, with the currently increasing land temperatures, E. coli is surviving the coldest months. While the summer months have always seen an increase in E. coli concentrations, winters typically serve to combat and curb concentrations. Generally, E. coli survives anywhere from two to seven days in water; however, according to a beach contamination study of the Great Lakes, E. coli survived through the winter and tested at high levels in the frozen February sand. This means that come spring thaw, E. coli concentrations start at higher levels, setting up for contamination frenzies and closures all summer.

So, what you’re saying is, I can’t play in the water?

Across the Midwest, recreational lakes, beaches, and streams close every summer to minimize the risk of contracting illnesses due to E. coli exposure. While the prospect of contracting an illness deters most water enthusiasts, some cities, such as Chicago, are making strides in order to reduce general panic. Chicago, for example, is supplying added information to assist visitors to make their own informed decisions. For the past two summers, the Chicago Park District (the “District”) daily posted the E. coli water concentration at select beaches with frequent visitors. The District only closes beach and lake access if the concentration exceeds a certain threshold as mandated by the Environmental Protection Agency. Somewhat concerning, the daily postings do not account for the concentration of E. coli harbored in the sand. On the other hand, Canadian investigations and experiments have found that while some harmful strains of E. coli exist along shorelines and within the shore soil, the majority remains benign, resembling strains of bacteria found in our own bodies.

So, this summer, when there is an E. coli advisory, think about a few things before you swear off swimming, fishing, water skiing, or reading on the beach. Though current research shows increased concentrations of E. coli, higher concentration does not mean that all present strains are pathogenic and cause severe illness upon exposure. Rather, the majority of bacteria found in surface water and in shoreline soil is still categorized as harmless E. coli. While scientists work to find better ways of measuring E. coli concentrations, sources, and prevention, the question remains how safe, or unsafe, recreational lake and stream waters truly are.

The title picture is of Lake Michigan.


Sources:

T. Berthe, M. Ratajczak, O. Clermont, E. Denamur & F. Petit, Evidence for Coexistence of Distinct Escherichia coli Populations in Various Aquatic Environments and Their Survival in Estuary Water, 79 Applied & Envtl. Microbiology 4684, 4684-93 (2013), available at http://www.ncbi.nlm.nih.gov/pubmed/23728810.

Satoshi Ishii, Winfried B. Ksoll, Randall E. Hicks & Michael J. Sadowsky, Presence and Growth of Naturalized Escherichia coli in Temperate Soils from Lake Superior Watersheds, 72 Applied & Envtl. Microbiology 612, 612-621 (2006), available at http://aem.asm.org/content/72/1/612 (last visited Jan. 27, 2014).

Amy Latham et al., A Study of How Pollution Affects Wildlife in the Great Lakes, University of Michigan,  available at http://sitemaker.umich.edu/section5group1/home (last visited Jan. 27, 2014).

Basic Information about E. coli 0157:H7in Drinking Water, Environmental Protection Agency, http://water.epa.gov/drink/contaminants/basicinformation/ecoli.cfm (last visited Jan. 27, 2014).

Allan Crowe, E. coli: A Permanent Resident of our Beaches, The Lake Huron Centre for Coastal Conservation, http://lakehuron.ca/index.php?page=e-coli (last visited Jan. 27, 2014).

Karen Jordan, Is it safe to go in? That’s up to swimmers, ABC Local (May 23, 2012), http://abclocal.go.com/wls/story?id=8673487.

Lori Lewis, Health Implications of Escherichia coli (e. coli) in Recreational and Drinking Water, The Water Project (Jan. 27, 2014), http://thewaterproject.org/health-implications-of-e-coli.asp.

Gretchen Goetz, Dangerous Waters: E. Coli Threaten Swim Areas, Food Safety News (Aug. 18, 2011), http://www.foodsafetynews.com/2011/08/dangerous-waters-e-coli-continues-to-threaten-summer-swim-areas/#.UubOrmTn8y7.

Swimming with E. coli: New efforts to reverse centuries of abuse, The Economist (Jun. 25, 2009), http://www.economist.com/node/13915830.


Background

The final product of two decades of water use disputes has now resulted in a contentious lawsuit filed in the United States Supreme Court (“Supreme Court”). For more than twenty years, Florida, Georgia, and Alabama have been elbows deep in negotiations over the distribution of water shared by the three states. The negotiations involve a river system that begins in northern Georgia with Lake Lanier, which was created in 1950 by damming the Chattahoochee River. The river system continues south with the Chattahoochee River along the Alabama state border, where it then meets the Flint River near the Florida state line. At this junction, the two rivers flow into the Apalachicola River, which then empties into the Apalachicola Bay (the “Bay”). The Bay accounts for 10% of the nation’s oysters and provides over 2,000 jobs to the fishing industry in Florida.

The fishing and oyster industries in Florida encountered, and continue to battle, near collapse. On August 12, 2013, the National Oceanic and Atmospheric Administration declared a fishery disaster for oyster farmers in the Bay. This disaster threatens a deeply seeded tradition and the income of many Florida families, as the Bay produces 90% of Florida’s oysters. The Bay provides an ideal environment for oyster farming as the brackish water promotes oyster growth through decreased disease and predators. Reduced river flows emptying into the Bay disrupts the Bay’s salinity levels and leads to decreased oyster growth, resulting in decreased numbers of oysters to harvest and increased economic difficulties for the oyster farming industry.

Though the current conflict among Florida, Georgia, and Alabama remains in familiar territory due to the history of water disputes among these states, the current lawsuit proves to be a new frontier. Throughout the many years of disagreement, the states refrained from suing one another, electing to instead sue third parties like the United States Army Corps of Engineers (“Army Corps”). The Army Corps manages the system of dams and reservoirs shared by the three states. Past litigation addressed the Army Corps’ compliance with various federal statutes and management of the storage and water use issues in the river system. In 1992, Florida, Georgia, and Alabama commenced a study to determine the needs of the river system. The study lead to the creation of the Apalachicola-Chattahoochee-Flint River Basin Compact (“AFC Compact”). The AFC Compact developed an allocation formula for equitably apportioning the water resources of the river system. Florida’s need to file the current lawsuit suggests that the Army Corps failed to address each state’s water needs and the allocation formula failed to meet its intended purpose.

Florida has reached a point of desperation. Instead of continuing to negotiate with Georgia, Florida has escalated to involve the Supreme Court in an attempt to save one of their largest industries. In the most recent round of litigation, Florida emerged down for the count. The Eleventh Circuit Court of Appeals granted Georgia access to Lake Lanier, subject to restrictions, to provide water to Atlanta, an outcome Florida wished to avoid. With negotiations failing and lower courts ruling contrary to Florida’s interests, a lawsuit in the Supreme Court may be Florida’s only option to protect the Bay’s current brackish ratios and save the struggling fishery industry.

What Are the Arguments?

The fight for water originates in the competing needs of urban development and traditional agricultural endeavors. As urban development continues to grow, the demand for water outpaces the available supply. Georgia has been particularly motivated in urban development due to Atlanta’s constantly increasing water needs. Furthermore, as cities upstream continue to demand more and more water, the amount of fresh water entering the Bay will decrease.

Florida

From Florida’s perspective, Georgia continues to engage in unchecked consumption and unfair use of water shared by Florida, Georgia, and Alabama. In particular, Florida worries about the water use by irrigation wells in Georgia. According to Florida, the combined effect of increased water storage for Atlanta and South Georgia’s increased groundwater use has decreased water levels in the Bay, thus increasing salinity, and devastating Florida fisheries and oyster farmers. Florida Governor Rick Scott accuses Georgia of failing to engage in good faith negotiations while simultaneously consuming more water than necessary. Scott now alleges that Georgia’s actions make resolution possible only through a lawsuit. Florida has invoked the Supreme Court’s original jurisdiction in order to seek appropriate apportionment of water resources to redress existing harm and avoid continued harmful depletions caused by Georgia’s alleged unfair use. Throughout the past year, Florida suffered a drought and claims Georgia’s consumption only increases the threat faced by the Bay fisheries. And while the drought might be a factor, Florida argues climate data does not demonstrate that a lack of rain accounts for the freshwater reduction in the Bay. Without a ruling from the Supreme Court restricting Georgia’s consumption of water, Florida officials worry the Bay’s brackish levels will continue to fluctuate and continue to threaten the oyster farming industry’s survival.

Georgia

Georgia officials have responded and accused Florida of filing a frivolous lawsuit motivated by a political agenda. Brian Robinson, a spokesman for Georgia Governor Nathan Deal, called the lawsuit “political theatre” used to gain favor with voters as an election year approaches. Georgia officials believe Florida’s mismanagement of the Bay area has enhanced the issues created by the recent drought, leaving Florida in need of a “boogeyman” to blame for the poor management. In response to accusations that Georgia has indulged in unfair water consumption, Georgia responds that other factors have played a more detrimental role: the Bay’s woes result from the recent drought, overharvesting of oyster beds, and Florida water mismanagement. Georgia strongly asserts that Georgia’s water consumption continues to create  minimal effects. Further, Georgia argues responsible water conservation measures have been enacted and followed by Georgia’s citizens both in major cities and agricultural communities.

Alabama

At this time, Alabama officials have yet to decide if they will join the suit against Georgia. Jennifer Ardis, a spokeswoman for Alabama Governor Robert Bently, said the state will consider “all available options” to protect its water rights. Should Alabama choose to join the lawsuit, their support will most likely fall with Florida. Alabama senators have partnered with Florida senators in attempts to convince Congress to set stricter limits on Georgia’s access to water in federal reservoirs. However, Congress did not accept these limitations, and a lawsuit might provide the only solution Alabama needs to ensure access to sufficient water resources. Further, Alabama’s involvement with the AFC Compact suggests any decision by the Supreme Court will affect Alabama’s access to water resources.

Conclusion

The decades of conflict and the current lawsuit reflect a clash between urban expansion and traditional agricultural endeavors. Should the Supreme Court decide to hear the case, determining the fair use of the water resources available to Florida, Georgia, and Alabama will govern which interest takes priority in future conflicts and, therefore, the interest most likely to survive. However, significant doubt remains concerning the Supreme Court agreeing to hear the case. As recently as June 2012, the Supreme Court refused to hear an appeal from both Florida and Alabama lower courts concerning proper water use in Lake Lanier. If the Supreme Court refuses to hear the case or fails to find a solution to share the available water equally among the three states, Florida, Georgia, and Alabama will likely suffer economic hardships and struggle to provide the necessary water resources to their citizens.

The title picture is of Apalachicola Bay located in Florida.


Sources:

Florida’s Motion for Leave to File a Complaint, Complaint, and Brief in Support of Motion, Florida v. Georgia (petition for cert. filed Oct. 1, 2013), available at http://www.flgov.com/wp-content/uploads/2013/10/FLORIDA-v.-GEORGIA-Original-Action-Complaint.pdf.

Arian Campo-Flores, Florida Sues Georgia Over Water Use, Wall St. J. (Oct. 1, 2013), http://online.wsj.com/news/articles/SB10001424052702303643304579109673261813180.

Bill Cotterell, Florida Sues Georgia to Protect Oyster Farmers in Water Dispute, Reuters, (Oct. 1, 2013), http://www.reuters.com/article/2013/10/01/us-usa-florida-oysters-idUSBRE99015D20131001.

Gabriela Raffaele, Florida Sues Georgia to Protect Oyster Farmers, FIS United States (Oct. 3, 2013), http://fis.com/fis/worldnews/worldnews.asp?monthyear=10-2013&day=3&id=63905&l=e&country=&special=&ndb=1&df=1.

Dave Williams, Water War II: Florida Sues Georgia, Atlanta Business Chronicle (Oct. 4, 2013), http://www.bizjournals.com/atlanta/news/2013/10/01/water-war-ii-florida-sues-georgia.html.

Allison Floyd, Florida Lawsuit Could Restrict Georgia Irrigation, Growing Georgia (Oct. 9, 2013), http://growinggeorgia.com/features/2013/10/florida-lawsuit-could-restrict-georgia-irrigation/.

Gary Fineout, Scott Says State Will Sue Georgia Over Water, Associated Press (Aug. 13, 2013), http://www.postandcourier.com/article/20130813/PC16/130819727.

Daniel Malloy, Florida Will Ask Supreme Court to Limit Georgia’s Water Use, The Atlanta Journal-Constitution (Aug. 13, 2013), http://www.ajc.com/news/news/local-govt-politics/florida-will-ask-supreme-court-to-limit-georgias-w/nZNTy/.

Toluse Olorunnipa & Michael C. Bender, Florida to Sue Georgia in U.S. Supreme Court Over Water, Bloomberg Sustainability (Aug. 13, 2013), http://www.bloomberg.com/news/2013-08-13/florida-to-sue-georgia-in-u-s-supreme-court-over-water.html.