The highly-anticipated EPA study “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States” (“study”) released in December 2016, sent shockwaves through media outlets due to a change in the language of the study’s major finding from the draft version that emerged in June 2015. The 2015 draft stated that the EPA “did not find evidence that” fracking mechanisms “have led to widespread, systematic impacts on drinking water in the United States.” In contrast, the new study revealed conclusions that describe “how activities in the hydraulic fracturing water cycle can impact—and have impacted—drinking water resources and the factors that influence the frequency and severity of those impacts.”

Because ambiguity in the study’s findings can be construed to support different sides, the study provides fuel for both anti-fracking activists and industry supporters. Nevertheless, the study also provides scientific insight into the process that can be used by state and local policy makers to create tailored regulations to mitigate potential water contamination risks. Thus far, the federal government has not passed any legislation directly addressing fracking, so much of the regulation has been left to state and local governments. Further, with the new administration’s plans to reduce the size of the EPA and roll back environmental regulation, state and local governments will likely continue to be the major source of fracking regulation.

The study provides local governments with much needed data about when risks of contamination are greatest and the factors that contribute to the occurrence and severity of contamination. Local governments can use the data to create targeted mitigation procedures and regulations to ensure that cheap energy sources can continue to be tapped while protecting valuable drinking water resources.

 

The Study

The goal of the EPA’s study was to assess the potential for activities in the fracking water cycled to impact the quality and quantity of drinking water, and identify factors that affect the frequency and severity of those impacts. The study broke down the fracking water cycle into five stages to examine the potential for contamination of drinking water during each stage. The stages and activities of the fracking water cycle are: (1) water acquisition; (2) chemical mixing; (3) well injection; (4) produced water handling; and (5) wastewater disposal and reuse. Each step will be summarized in turn along with policy recommendations.

 

Water Acquisition

Water acquisition is the first stage in the fracking process where ground water is withdrawn or surface water is transferred to make fracking fluids. The study found that fracking uses a small percentage of water relative to total water use with some notable exceptions. Notable for state and local governments, the EPA concluded that, despite fracking using a relatively small percentage of water, fracking water withdrawals can affect the quantity and quality of drinking water resources by changing the balance between other local demands. The EPA found that water management strategies could be used to reduce the frequency and severity of such impacts.

To address water acquisition concerns, local governments should explore alternative sources to be used for fracking in order to preserve freshwater resources for other uses. Incentivizing the recycling of produced water and tapping alternative resources such as brackish water to be used in the fracking process would mitigate the impact that fracking water acquisition has on local resources.

 

Chemical Mixing

Chemical mixing is the stage in the fracking process where water is mixed with sand, proppants, and other additives at the wellsite in preparation for injection. The EPA found that spills of fracking fluid and additives during chemical mixing have reached surface water resources in some cases and have the potential to reach ground water resources. Large volume spills have the greatest potential to reach ground water resources, and highly concentrated spills have the potential to most severely impact drinking water resources. Naturally, large volume spills have the potential to increase the frequency of impacts on drinking water, and groundwater impacts would likely be more severe than surface water impacts given that it is generally difficult to remove chemicals from groundwater resources.

Chemical mixing concerns require regulations to mitigate the potential for spills, especially when large volumes or highly concentrated mixtures are being handled. The oil and gas industry could play a major role in spill mitigation by adopting standard mixing and handling procedures.

 

Well Injection

Well injection is the point in the water cycle when fracking fluids are injected into a production well in order to free oil and gas molecules from the targeted rock formation. The EPA found that water in the injection stage has impacted drinking water resources due to mechanical failures that have allowed gases or liquids to move to underground drinking water resources. The study highlighted the importance of the distance of vertical separation between the targeted rock formation and drinking water resources by highlighting cases of contamination where little or no vertical separation existed between the targeted formation and drinking water resources existed.groundwater in Pavillion, Wyoming.

Geological surveying can be used to analyze whether adequate vertical separation exists between the targeted formation and drinking water resources. However, this is a limitation identified by the study because most of the geological information is proprietary to the operator and is not readily searchable by the public. The study asserts that the presence of casing, cement, and thousands of feet of rock between drinking water and the target formation can reduce the frequency or impacts during the water injection stage. However, when inadequate vertical separation exists, local governments should impose permitting requirements based on environmental impacts studies in order to mitigate instances of contamination during the well injection stage. Additionally, casing and cement integrity should be monitored before and after injection, and pressure should be monitored to ensure that the barriers did not fail during the process.

 

Produced Water Handling 

Produced water handling is the stage when water returns to the surface after fracking and is transported for disposal or reuse. The EPA found that spills of produced water during the water handling stage have reached groundwater and surface water resources in some cases. Like water spilled in the mixing stage, large volume spills have higher potential of reaching groundwater resources. Furthermore, the saline produced water can potentially migrate through soil into groundwater resources, leading to longer-term groundwater contamination.

As with mixing concerns, produced water handling impacts can be mitigated by enforcing standardized collection and handling procedures. Minimizing human error could greatly reduce the frequency and severity of spills while handling produced water. Also, creation of response mitigation plans for when spills do occur would reduce the severity of impact from spills.

 

Wastewater Disposal

The wastewater disposal and reuse stage typically involves the injection of produced water into disposal wells. Water is sometimes disposed of by using evaporation ponds and percolation pits also. Wastewater is sometimes put to beneficial uses such as irrigation if the quality is high enough, or it can be treated at water treatment facilities and discharged into surface water resources. Additionally, an increasing percentage of produced water has been reused in the fracking process. The EPA found that aboveground disposal of fracking water has impacted the groundwater and surface water in some instances, particularly where water was inadequately treated before discharge into surface water resources. Disposal in lined and unlined pits has also impacted groundwater and surface water resources, particularly because unlined pits provide a direct pathway for contaminants to reach groundwater. The EPA also noted that disposal wells have been associated with earthquakes in several states, thus reducing the availability of their use.

Each method of disposal and reuse presents unique problems that require collaboration between the industry and local governments. Increasing the availability of water treatment facilities is an attractive solution, because treated water could in turn be used for other beneficial uses. However, treatment is expensive and would likely require public and industry investment. The potential to turn produced water into useable water could help Colorado communities that have growing domestic needs as well as growing industrial needs meet their growing water demands. Funding mechanisms such as tax-exempt bonds, public improvement fees, or tax increment financing could be used get water treatment facilities built. Additionally, depending on which entity would have the legal rights to the newly cleaned water, water could be sold on the open market to help service the debt that was incurred by the entity to build the facility.

 

Conclusion

In conclusion, fracking continues to play a vital role in helping the United States achieve its energy goals. The study provides an initial roadmap of areas for local governments to target potential risks of drinking water contamination during the fracking process in a meaningful way. The study has set local governments up to create targeted mitigation procedures and regulations to ensure that cheap energy sources can continue to be tapped while protecting valuable drinking water resources.

Dalton Kelley

Sources

Envtl. Prot. Agency, Draft: Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (June 2015), https://www.epa.gov/sites/production/files/2015-06/documents/hf_es_erd_jun2015.pdf.

Coral Davenport, Reversing Course, E.P.A. Says Fracking Can Contaminate Drinking Water, The New York Times (Dec. 13, 2016),

https://www.nytimes.com/2016/12/13/us/reversing-course-epa-says-fracking-can-contaminate-drinking-water.html.

Timothy Cama, Trump Team Plans Big Cuts at EPA, The Hill (Jan. 23, 2017, 9:57 AM),

http://thehill.com/policy/energy-environment/315607-trump-team-plans-big-cuts-at-epa.

Envtl. Prot. Agency, Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (Dec. 2016), http://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=530159.

 

Image: A natural gas drilling rig on the Pinedale Anticline, just west of Wyoming’s Wind River Range. WikiCommons user Bureau of Land Management, Creative Commons.”


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

The Citizens of Rockaway Beach, Oregon—How One Community Started to Fight for Their Drinking Water, and Ended Up Fighting for Us All

 

Presented by: Nancy Webster, Citizens for Rockaway Beach Watershed Protection; Kate Taylor, Frigate Adventure Travel; Steve Perry, Citizens for Rockaway Beach Watershed Protection; Jason Gonzales, Oregon Wild.

This panel featured citizens of Rockaway Beach, Oregon who experienced the destruction of their local watersheds by clearcutting. The panelists spoke about their experiences throughout the clearcutting process, including their frustrations with inaction from both the local and state governments.

Rockaway Beach, a small town on the northern Oregon coast, relies on Jetty Creek for its freshwater supply. One panelist described the creek as “a crevice between hills, but it’s our lifeline.” Yet, from 2003–2014, timber companies removed eighty-two percent of the trees around Jetty Creek. Overall, timber companies have removed ninety percent of the trees from Jetty Creek. Often, these companies performed aerial sprays of “chemical cocktails” over the trees before and after clearcutting. The State of Oregon does not require timber companies to release information about what chemicals these sprays contain, nor does the state provide notice to locals before sprays occur. The Oregon Forestry Practices Act contains almost no requirements for watershed protection. Furthermore, the City of Rockaway Beach, the municipality with regulatory authority of Jetty Creek, does not require any notification or information on the contents of chemicals.

The combination of a lack of regulatory oversight and an acquiescence to the timber industry has effectively ruined Jetty Creek. Since clearcutting began, levels of trihalomethanes in Jetty Creek have rapidly increased and are far beyond the EPA’s suggested levels. The turbidity of Jetty Creek has also increased, reducing fish populations. Further, logging has negatively impacted bird and beaver populations, forcing animals away from an otherwise seemingly wild landscape and creating a the appearance of a “Silent Spring.” The reduced water quality has also forced Rockaway Beach residents to drink from packaged water bottles. Some residents keep water dispensers in their homes. This is the only alternative the City of Rockaway Beach has to Jetty Creek, as leaky septic systems and percolating seawater have made the area’s groundwater unsafe for consumption.

These are not the only problems that locals have experienced at the hands of the timber industry. Panelist Kate Taylor, for example, commented on how the logging negatively impacts water-tourism. Taylor is a professional fishing guide who works in the area, and she recounted the negative experiences her customers have when the river they are fishing turn to “chocolate mud” because of nearby logging. When she asked the Oregon Department of Forestry about this issue, the agency became “defensive” and did not assist her. Taylor’s experience mirrored the other panelists’ struggles to bring their issues to the attention of city, county, and state government officials.

When the panelists initially sought to confront the issue, they approached their local, municipal governments, but the Rockaway Beach City Council rejected all efforts against the timber industry. The panelists believed the city is clinging on to a cultural string, instead of supporting local economic growth. After inaction by the local government, the citizens turned to the state. The state responded without any tangible policy change. The state, like the local government, seemed too tied to the cultural idea Oregon’s logging industry. This steadfast protection of the timber industry does not produce economic gain. For example, logging companies are not allowed to perform aerial chemical sprays on federal lands in Oregon. The state’s use of aerial chemical sprays is simply a concession to the industry.

Frustrated with the state and city, the citizens performed “citizen science” to prove to regulators that the logging industry has been negatively affecting watersheds. Through citizen action, the panelists and other members of the public have created a series of legislative proposals to limit aerial spraying in the timber industry. Oregon Democratic State Senator Michael E. Dembrow recently sponsored Senate Bill 892, also known as “The Timber Aerial Spray Right to Know” Bill. This bill was accompanied by Senate Bill 500, which provides agriculturalists with a cause of action for damages resulting from timber companies that conduct aerial sprays.

Overall, any short-term gains in the legislature will prove insufficient. The panelists warned that other parts of the Oregon coast, notably Short Sands Beach, are in imminent danger of succumbing to the same fate as Jetty Creek. The only true way to prevent watershed destruction in Oregon, the panelists contended, is to fundamentally reshape the state’s approach to the timber industry.

Matthew Kilby

Image: Sunset on Rockaway Beach, Oregon.  Flickr user Jake Melara, Creative Commons.


35th Annual American Bar Association Water Law Conference

       Los Angeles, California                           March 29, 2017

Agricultural Water Conservation: Is It Really So Simple?

 

Jan Newman from Tonkon Torp, LLP moderated the panel discussion on water law issues as it relates to agricultural water conservation. The panel featured three distinguished speakers who contributed their views and experience in water conservation as it relates to agricultural development in the United States. The speakers were James Eklund, outgoing Director of the Colorado Water Conservation Board, Warren H. Peterson, Vice President of Farmland Reserve, Inc. headquartered in Salt Lake City, Utah, and Adam Schempp, Director of the Western Water Program at the Environmental Law Institute in Washington, D.C. The main theme of the panel was whether traditional water law doctrines, such as prior appropriation—“first in time, first in right”—and beneficial use promote water conservation efforts.

Adam Schempp began the panel with a general overview of the challenges western water users face, and the possible solutions to these challenges. Water conservation efforts are restricted by the physical geography of the arid western landscape where sources of surface water and groundwater are intrinsically bound by the layout of the land. There are also inconsistencies in the legal doctrines each state legislature uses as a basis for developing their own water laws. Economic considerations also shape conservation efforts in the various western states. Schempp noted that water conservation is a complex topic, and there are a multitude of issues and considerations in each of the three broad categories described above.

Next, Warren Peterson discussed his views on water conservation efforts based on his work and experience in the Utah water law landscape. Peterson believes that water conservation is always a question that revolves around the reallocation of resources: how much water may be retrieved or preserved after use. He suggested that the best way to promote agricultural water conservation is for farmers to utilize more efficient irrigation techniques. Science and technology are friends of water conservation, and creative new irrigation systems could drastically decrease the total amount of water needed for crops as well as increase the amount of reallocated water leftover after use. To illustrate his point, Peterson presented a quick case study about the hydrology of Utah’s Sevier River and the effects of water appropriation for agricultural and urban use on the river system.

James Eklund followed Peterson’s discussion with his insights regarding the state of water conservation in Colorado. Eklund began by noting that Colorado is home to two of the world’s top eighteen most stressed river basins. This designation is probably the result of the unique physical landscape within the state of Colorado. With a map of Colorado and the surrounding states as a visual reference, Eklund pointed to the fact that Colorado is separated into two distinct regions: the water rich western area and the water poor eastern area. Not only that, many of Colorado’s water sources flow out of the state without having a significant amount of water sources flowing in. Tension between water users from the two regions has shaped the history of water law in Colorado. This tension between the two regions is exacerbated by Colorado’s geographical dichotomy as the western regions of Colorado has a low population and is primarily rural agricultural, and the eastern regions of Colorado has a high population and is generally urban. Furthermore, the urban population in the eastern regions of Colorado has increased drastically in recent years. Such a growth puts pressure on the state to allocate enough water to supply the urban populations. This kind of water allocation negatively impacts water rights holders residing in western Colorado. The political battle between the agricultural west and the urban east is constant and greatly affects statewide water use planning and conservation efforts.

After Eklund’s overview on the nature of Colorado’s water infrastructure, Schempp gave a brief conclusion to summarize the panel discussion. Schempp emphasized the primary purpose of water conservation – to return more water to the stream or, alternatively, to maintain a higher volume of water flowing in stream. The key to water conservation is not to reduce the amount water rights holders may use but rather to use the amount of water they already have in more efficient ways so as to promote a higher return of water to the stream. Current agricultural water conservation projects have mostly been tested on a smaller scale, with individual private farmers. But the results have been positive and overall very promising. Schempp ended the discussion by characterizing successful water conservation as a collaborative effort; states must work together to change laws that are outdated and outmoded, implement new technology and innovative strategies to promote water conservation, and give farmers incentives to utilize their water more efficiently and to produce less waste.

Tina Xu

 

Image: A field of flowers surround a sprinkler irrigation system in Oregon. Flickr user Ian Sane, Creative Commons.

 


Annual Symposium 2017: At The Confluence: The Past, Present, and Future of Water Law

Denver, Colorado                         April 7, 2017

Science and the Courtroom: How Modeling Is Changing The Game

 

Meg Frantz, an engineer at Brown & Caldwell, moderated this panel discussion on science, data, and math modeling in water law. The panel featured: Dick Wolfe, State Engineer & Director of the Colorado Division of Water Resources; Chris Sanchez, a Hydrogeologist at Bishop-Brogden & Associates, Inc,; and Burke W. Griggs, visiting professor at Washburn University School of Law.

Chris Sanchez, who has testified in the Division 1 Water Court providing expert testimony about water, oil, and gas rules, offered a view from the perspective of an engineer and spoke about the difficulties related to communication especially with the more technical aspects of hydrology and water law. Sanchez also spoke about the varying accuracy models have in accounting for the interaction between groundwater and surface water. He indicated that current models can account for surface water fairly easy, but using models to make predictions about groundwater is much more difficult because there are still many unknowns and missing information in the field of groundwater modeling. Complicating this issue is that groundwater moves slowly and that some aquifers are buried and can be shallower, deeper, or more connected than others.

Moreover, Mr. Sanchez said that the impacts of groundwater wells on these aquifers and streams is also hard to predict because of all the variables and inputs involved, including the fact that aquifer depletion continues after the pumping stops. Mr. Sanchez’s said that the ground-surface water interaction is determined by the attributes of that individual, which are not always easily to isolate for the purposes of modeling. Next, Mr. Sanchez explored some of the different models used in many courtrooms—such as Modflow and others based on Glover inputs—before discussing communication and cultural issues in the world of water law. From the perspective of an engineer, Mr. Sanchez expressed that it is not always easy to communicate the technical work he does even to skilled attorneys and consultants. He continued on this theme and said that it was even more difficult to defend the models and work that water engineers do in court. He elaborated on the difference in the kind of testimony required when he appears in front of a water court judge or in front of a jury.

Dick Wolfe also offered an engineer’s perspective. Mr. Wolfe has been Colorado’s State Engineer for the Division of Water Resources for the last ten years. Mr. Wolfe spoke about the use of groundwater models in intra/interstate litigation and advocated for developing models for purposes other than litigation. However, Mr. Wolfe also discussed the importance challenging current groundwater models through litigation because states cannot manage what they cannot measure accurately. Mr. Wolfe pointed out the practical use of models in helping to develop rules, then later the operational plans based on these rules. He gave three instances of models being used in this way: creating irrigation rules in Arkansas River Basin, creating Compact compliance rules in the Republican River Basin, and in developing the Rio Grande Aquifer new-use rules in the Rio Grande decision support system. However, Mr. Wolfe explained that these models took a long time to create and were fairly expensive. But, this was not a recommendation to stop using models because Mr. Wolfe also emphasized the importance of science leading the way in policymaking and ensuring that the state legislature bases new laws on science and reality, not mere speculation.

Dr. Burke Griggs, a lawyer and professor at the Washburn University School of Law, provided an overview of some of the most contentious litigation between states over water-related issues. For example, Dr. Griggs talked at length about the Daubert motions for expert witness testimony in a case where Kansas sued Colorado. He emphasized the common practice of relying on their one’s own experts with their own models to make their case. He characterized this situation as being a “battle of the experts” and discussed the cultural differences that can arise when lawyers interact with engineers and other water resource professionals. Dr. Griggs also explored how the federal government can assist states by creating models used in litigation. For example, he said the USGS can help states develop more expansive Modflow models and pointed to a federally funded groundwater analysis used when a dispute arose between Mississippi and Tennessee. Dr. Griggs’ point was that federal funding has really helped modeling because without the funds from federal agencies, creating models is much more difficult for individual litigants.

Members of the panel followed their remarks by answering questions from the audience. In responding to the question of how to resolve the tension between legal and engineering cultures, panelists said that having proper expectations, developing realistic outcomes, and acknowledging differences in the different fields were all positive ways to make headway towards increasing communication. Another audience member asked about high transactions costs for litigants and what changes can be made to reduce them. Mr. Wolfe responded to this question by pointing to Colorado’s Decision Support System, a program that allows for anyone to browse a wide range of water-related databases and records, and explaining that it has made a lot of progress towards reducing these costs through increasing transparency.

Next, an audience member asked whether there could be a risk of repression of these models as there currently has been with climate change data. Panelists answered that models are relatively insulated from data repression by an unfriendly federal government because of the extensive framework that exists around these models and jurisdictional difficulties with the federal government trying to interfere as most models exist at the state level.

Following that question, another person asked whether water law is moving more towards a mediation-based practice and if so, if that would be any better than the current system. Mr. Dick Wolfe responded that there are problems with high transaction costs in water courts and that water judges were working to solve those issues. However, Mr. Wolfe was not entirely sure that a mediation-based model would work much more effectively than the current system, pointing to required non-binding arbitrations in the Republican River Compact that have lead to little actual progress. Alternatively, Mr. Wolfe also said that mediation has worked well in the Platte River Compact because it is more focused on species conservation.

The final question was about how to ensure courts are using the best science. The panelists responded to this by saying that water decrees have made things more complicated and that scientific tools are used on a case-by-case basis, so it is hard to know exactly what the “best” science is in an individual situation because each is so vastly different. But, they also said that the legislature can help make sure that scientists have the best tools and data that they need to present the “best” science in the courtroom through enacting legislation that enables science to continue to move forward and make more discoveries.

Gracen Short


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

California Groundwater Management

 

Presented by: Alison Divine, Community Legal Information Center, California State University, Chico.

Alison Divine discussed how the California Sustainable Groundwater Management Act of 2014 (“SGMA”) has impacted the state. Divine first discussed the history of groundwater management in California, then the general functions of SGMA, and finally how SGMA has developed during in its infancy.

California’s groundwater system is expansive. Seventy-five percent of Californians depend on groundwater, in some part, for their primary water supply. The state recognizes two types of groundwater: subterranean streams, which consist of groundwater flowing in a known and definite channel; and percolating groundwater, which a California court once eloquently described as “vagrant wandering drops [of water] moving by gravity in any and every direction along the line of least resistance.” City of Los Angeles v. Hunter, 156 Cal. 603, 607 (1909). From 1850 until 1903, California landowners possessed absolute ownership of the groundwater under their land. After 1903, California adopted a correlative rights system for groundwater use. Until 2014, California only regulated its groundwater through local agencies, groundwater ordinances, and basin adjudications.

SGMA is California’s first statewide groundwater management act, and it provides a long-term framework for sustainable management in California by requiring the establishment of Groundwater Sustainability Agencies (“GSAs”) in each county by June 30, 2017. GSAs may be formed in a variety of ways, including: (1) as local public agencies; (2) as a public water agency, county, or municipality; and (3) through a Joint Powers Agreement (“JPA”) or Memorandum of Agreement (“MOA”) between multiple agencies. Each GSA has wide authority to manage the sub-basin(s) on which it sits. GSAs may regulate groundwater well registration, measurements of groundwater extraction and metering, filing of annual reports, well spacing, and basin boundaries. GSAs may also establish sub-basins, limit groundwater extraction, and establish recharge, conjunctive management, or pumping reduction programs. However, to manage sub-basins and basins, GSAs must submit a Groundwater Sustainability Plan (“GSP”), which must include a description of the aquifer, historical data, a discussion of historical and projected water demand and supplies, a detailed map of the basin’s boundaries, and a map identifying existing and potential recharge areas. GSPs must also include a twenty-year sustainability goal, as well as a series of five-year interim milestones. GSA must submit GPS for basins designated as “high priority” by January 31, 2020 and medium priority basins by January 31, 2022.

Divine discussed how eleven counties in the Sacramento River Hydrologic Region had adapted to SGMA’s requirements by March 2017. For several of these counties, jurisdictional challenges have inhibited progress. In Sutter County alone, eight agencies of various sorts have submitted overlapping GSA applications to manage the county’s three sub-basins. Although the county contains high-priority areas, no GSP had been submitted as of the date of the presentation. Sacramento County, Glenn County, Yolo County, and Yuba County are all experiencing similar problems. With so many applications, it may be hard for these counties to come to a consensus on which GSAs to select. At the same time, however, two counties (Placer and Shasta) have received no GSA applications. Solano County has received one application but has yet to determine how to proceed.

Some counties in the Sacramento River Hydrologic Region have had more success. Colusa County, which contains ten sub-basins, has benefitted from seven GSA applicants coming together to form a JPA. Tehama County has approved a GSA comprising an eleven-member board of directors. The directors include three city representatives and three service-district representatives, as well as an additional representative from each of the county’s five supervisorial districts. The board for the Tehama County GSA has final authority over GSPs, future amendments, ordinances, rules regulations, and fees.

Butte County’s early transition to SGMA’s framework has also been successful. In 2015, Butte County hired a consulting farm to help it integrate the county’s groundwater management into SGMA. Although fifteen agencies have sought GSA status, the county has implemented a Groundwater Pumpers Advisory Committee, which first met in January 2017. Butte County, Tehama County, and Colusa County have all experienced various levels of success in preparing for SGMA’s early deadlines. These counties provide an example of what effective, long-term, and local management of groundwater may look like in California.

Matthew Kilby

Image: A vernal pool near Oroville, in Butte County, California. Flickr user, mary. Creative Commons.


Recently, a court in India has made a dramatic decision to give rivers legal rights in an attempt to curb pollution. While India’s Supreme Court overturned the ruling as legally unsustainable in July, this continues a global trend of recognizing the rights of water sources as opposed to just those that use the water. Potentially, this trend could come stateside, offering a unique way for Native American tribes to protect waters they consider sacred.

 

The Rights of Rivers in India

The high court in Uttarakhand, India, where the Ganges River originates, recently granted the Ganga and Yamuna rivers and their tributaries rights as “living entities.” This gives the river and its tributaries, regarded as holy by millions of Hindus, the same rights as people, making the harming the river equivalent to harming a person. The ruling also appoints three officials to represent rivers as legal guardians. In theory, these guardians may then sue on behalf of the rivers for damages since their title gives them legal standing,

This is the court’s most recent attempt to address the pollution problem affecting rivers that supply water for forty percent of India’s population. Critics, including the courts, have called national government efforts ineffective at slowing the estimated two billion liters of waste entering the river each day. Economic development and population growth are primary culprits for this waste.

To support its decision, the Uttarakhand court cited a recent New Zealand law that also grants a river the same legal rights as people. The Whanganui iwi Tribe worked with the government to recognize the Whanganui River and grant it protections as an ancestor. Similar to the court ordained decision in India, this law also appoints legal guardians charged with protecting the river. The river has the same protections from harm as a Whanganui iwi tribal member.

In July 2017, the Supreme Court of India reversed the ruling at the urging of the local state government in Uttarakhand. The Court cited complications in implementing the law across jurisdictions, since the Ganges runs through much of India. And it noted the ruling would allow actions against the river, such as murder or wrongful death claims for people killed in floods. Despite this setback, the ruling remains an novel solution to a severe problem.

 

Rights of Water Sources in the U.S.

The idea of granting legal rights to inanimate objects, specifically natural resources, is not alien to the United States. There are advantages to granting a water source specific rights, discussed at length by Cristopher Stone, Professor of Law at the University of Southern California, in a 1972 journal article. Stone argued giving an entity like a river judicial standing, or a right to sue for a perceived harm, would allow for greater justice for ecological harms. For example, if a polluter dumps in a river, the only current avenue for recovery is for those non-river entities harmed by the pollution to sue. If pollution doesn’t significantly bother a downstream user, or that user is a polluter itself, that individual may not ever bring a suit and the harm would go unchecked. A river could sue for the entirety of harms suffered.

U.S. Supreme Court Justice Douglas agreed with Stone, in a dissenting opinion also authored in 1972, Sierra Club v. Morton.  His dissent cited public concern for nature and ecology, and called for those with a meaningful relation to water to be able to speak for it. He used the analogy of ships and corporations, both of which have legal personality that grants them rights in litigation. While stirring, this view has failed to gain traction in the following decades.

A likely cause for this is that it could be politically unpopular. The Blaze, a conservative U.S. news source, pushed back against the New Zealand law. Ironically, it attacks the law for one of the same reasons Stone argued natural resources should have standing. The Blaze article is concerned with giving rights to non-living entities, when New Zealand does not recognize rights for unborn children because it does not ban abortion. As Stone himself recognized, there is difficulty in getting Americans to accept an inanimate object has standing. As an example, he cites the backlash from corporate personhood, a debate that still goes on. And at a more technical level, water as a commercial commodity with multitudes of competing interests and disagreement over what constitutes “public interest” and “beneficial use” in the American West’s established prior appropriation system complicates matters.

 

Recognizing Sacred Sources: Difficulties and Consequences

However, there is one avenue where an attempt to give a water source standing could arise, mirroring New Zealand’s legislative approach. America could potentially work to recognize water sources as having rights as a sacred part of Native American history and culture. University of Montana Profess of Law Michelle Bryan recently explored this possibility and its challenges in a Natural Resources Journal article.

Indigenous groups across the world treat waters as sacred in several ways. Like the Maori, water sources can have spiritual significance and consider the sources as an ancestral member of the tribe. Alternatively, the waters can have ceremonial value, or locational significance to a tribe, such as for a creation story. Unfortunately, there is little legal protection for sacred water on a global scale. Tribes have few alternatives to protect what they have not legally been appropriated. These sources can be “vulnerable to diversion, consumption, contamination, and other impacts that damage the very essence of what makes them sacred.”

Recognizing sacred water rights challenges the traditional prior appropriation schematic factors of: beneficial use, diversion, seniority, abandonment, and public interest. First, sacred water currently lies outside accepted ideas of beneficial use. Second, since sacred waters’ value exists typically in place as part of the source, it is difficult to show diversion. Third, these rights would likely be subject to senior, preexisting rights. Fourth, where use is difficult to show, rights are subject to abandonment, or the idea of “use it or lose it.” Finally, many states require water uses promote public interest, which is vague, but seems to prefer economic benefit over social utility.

States sometimes have statutes that define in-stream uses like fishing rights to avoid diversion and abandonment by non-use. And several federal doctrines offer some relief for tribes. The Winters Doctrine, for example, reserves water rights for tribes that vest upon creation of the reservation, in amounts “sufficient to fulfill the purposes of the reservation.” This water reservation is independent of both beneficial use and loss by non-use. The Winters decision allows relating back water use to creation of the reservation, which can give tribes a higher seniority than water rights holders who perfected their rights after reservation creation. Unfortunately for tribes, fixing these rights can be limited to Practically Irrigable Acreage, the minimum water the tribe needs to sustain itself agriculturally.

Success stories are rare. For example, members of several Native tribes were unable to show sufficient harm to their religious practices to prevent construction of a solar energy facility that would cut off their access to the Salt Song Trails in the Southwestern United States. Professor Bryan notes the difficulties coupled with a lack of state and federal support means the stars must align to protect a water source as sacred to a tribe. And other rights holders understandably get nervous when their rights could disappear or reprioritized.

Bryan suggests negotiating treaties with tribes, like the New Zealand legislature did creating their law, that recognize sacred waters as a right inherent to the river itself and not with people. This would be a resurgence of the arguments put forward by Stone and Justice Douglas. However, negotiations would be a long process. It is also possible to protect water within our current system. Recognizing sacred waters as a legitimate public interest and beneficial use are key steps in this direction.

Bryan may underestimate the usefulness of the Winters Doctrine. She notes examples of tribes using it are becoming rarer, but perhaps this is because they haven’t fully explored its usefulness. However, at least one state has recognized an avenue to use the Winters Doctrine to preserve sacred water sources.

A 2001 Arizona Supreme Court decision involving the Gila River (In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source) recognized that the act of measuring a tribe’s minimal need by the Practicably Irrigable Acreage standard is antiquated. Instead, the court suggested several factors to consider in deciding what a tribe needs, notably including a tribe’s history and culture. If their culture considered a water source sacred, they could reserve the minimum amount needed to preserve that source, potentially a significant amount. This would allow relating the right back to creation of the reservation, jumping other appropriators with junior rights.

If you close your eyes, you can almost hear other appropriators crying “foul!” Significantly appropriating a source this way would likely be a tough pill for courts to swallow, as well. But the threat of such a possibility could bring parties to the negotiating table. Tribes could have more bargaining power to be a part of the water allocation process, representing the tribe or river.

In Arizona, Rod Lewis, a Native American attorney involved in the Gila River adjudication has gained a seat on the Central Arizona Water Conservation District Board. He will have a voice for the tribe in state water allocation. From such a position, tribes could influence state water boards to further protect sacred waters, possibly influencing a formal recognition of sacred water as a beneficial use or as part of the public interest.

Recognizing sacred rights could have had implications for the Standing Rock and Cheyenne River Sioux protesting the Dakota Access Pipeline beneath Lake Oahe in South Dakota. Perhaps if the tribes could have sued not as themselves, but on behalf of the lake, they could have showed a greater potential for damage. The Tribes may have had a better shot at getting an injunction halting the pipeline if they could argue standing on behalf of this waterway.

In sum, giving water sources legal rights has moved from a hypothetical in law journals and dissenting court opinions to real statutory and common law around the globe. Perhaps it’s time America considered weaving it into its own system.

Michael Larrick

Image: “Indian at Sacred Lake” by Eanger Irving Couse, Wikimedia Commons.

 

Sources

Michael Safi, Ganges and Yamuna rivers granted same legal rights as human beings, The Guardian (Mar. 21, 2017, 7:44 AM), https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings?CMP=share_btn_link.

Dr. Afshan, Save The Ganges River, Scientific India (Jul. 24, 2014), http://www.scind.org/36/Social-Issues/save-the-ganges-river.html.

Eleanor Ainge Roy, New Zealand river granted same legal rights as human being, The Guardian (Mar. 16, 2017, 12:05 AM), https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being.

Cristopher D. Stone, Should Trees Have Standing? Toward Legal Rights For Natural Objects, 45 S. Calif. L. Rev. 450 (1972), available at https://isites.harvard.edu/fs/docs/icb.topic498371.files/Stone.Trees_Standing.pdf.

Sierra Club v. Morton, 405 U.S. 727, 741 (1972), available at http://caselaw.findlaw.com/us-supreme-court/405/727.html.

Justin Haskins, Crazy environmentalism: New Zealand law gives river human rights – but not unborn babies, Blaze (Mar. 18, 2017, 10:55 AM), http://www.theblaze.com/news/2017/03/18/crazy-environmentalism-new-zealand-law-gives-river-human-rights-but-not-unborn-babies/.

Michelle Bryan, Valuing Sacred Tribal Waters Within Prior Appropriation, 57 Nat. Res. J. 139 (2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2803691.

In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 35 P.3d 68 (Ariz. 2001).

Jack Newsham, Feds Blast Tribal Claim To Holy Site At Solar Power Plant, Law360 (May 9, 2016, 9:37 PM), https://www.law360.com/articles/794209/feds-blast-tribal-claim-to-holy-site-at-solar-power-plant

Dianna M. Náñez, Gila River member becomes 1st Native American to have a vote on Arizona water board, The Arizona Republic (Apr. 3, 2017, 6:02 AM), http://www.azcentral.com/story/news/local/arizona-water/2017/04/03/gila-river-member-becomes-1st-native-american-have-vote-arizona-water-board/99826278/.

Jeff Baenen, Company: Oil in pipeline under Missouri River reservoir, Assoc. Press (Mar. 27, 2017, 11:57 PM), http://bigstory.ap.org/article/9f3a519d5a2c4d9090c51b7bd8deab25/company-oil-pipeline-under-missouri-river-reservoir.


Imagine living your life in a community with little or no access to a clean and safe source of water. Now imagine this problem existing in countries across Europe. This is the reality of the Roma people in Europe. But this is a reality that is beginning to change as the European Union (“EU”), countries like Slovenia, and the Roma themselves start to fight the legal battle of making water a fundamental right for all citizens. In the pursuit of access to running water, the Roma are on their way to getting access to running water—from online petitions to constitutional amendments.

For hundreds of years, the Roma people of Europe—also derogatorily referred to as “gypsies”—have experienced tremendous discrimination. This discrimination not only still impacts their socio-economic status and education levels, but it also impairs the fulfillment of their basic needs such as housing, sanitation, and access to safe drinking water. While reports of people unable to access proper drinking water in well-developed countries are not as shocking after the crisis of Flint, Michigan, these reports show there are people still fighting all over the world for fundamental rights such as water.

In November 2012, an online petition was launched to urge the European Commission to protect water as a human right and common good. It included three demands: 1) EU institutions and Member States should be obliged to ensure that all EU residents enjoy a right to water and sanitation; 2) water supply and management of water resources should be be subject to internal market rules, and water services should be excluded from economic liberalization; and 3) the EU should increase its efforts to achieve universal access to water and sanitation. The petition managed to collect enough signatures to require a response from the EU, and in December of 2014 the European Citizenship’s Initiative Right2Water started work on finding a solution to this long-standing problem.

In 2014, two Roma families, currently living in Slovenia, filed a lawsuit with the European Court of Human Rights. The case, Hudorovic v.Slovenia, still pending before the European Court, sheds light on the living conditions of Roma settlements. The Hudorovic family in the case describes their settlement as being caravan living and without access to basic infrastructure such as water, sewage, sanitation, and electricity. The water they do have access to is collected from the cemetery or a polluted stream, and sometimes from other established houses nearby. The second family in the lawsuit describes their settlement as “twenty housing units for two-hundred and fifty people,” lacking the same basic infrastructures as the first, resulting in gastrointestinal diseases among the children as well as a lack of dignity and privacy. In both instances, each family and their settlements have attempted to gain the proper permits and governmental aid in obtaining these infrastructures. Both have not succeeded and instead been denied of any help by the government.

This case however, is not unique to Slovenia. In 2011, the European Council (EC) declared that each EU country has a joint responsibility in changing the discrimination against the Roma across Europe. The EC solicited for strategic integration plans in solving this discrimination against the Roma from each country. In 2013 the EU made a recommendation on creating these plans, noting that the Roma were vulnerable to exploitation such as human trafficking and faced higher levels of poverty and difficulties accessing fundamental rights. The EC also explained that children who stayed in poor health, poor housing, and who suffered from poor nutrition were especially vulnerable to dropping out of school—and into trafficking and labor exploitation. Some of the proposed resolutions the EC set out for EU countries include increasing access to public utilities (such as water and sewage) as well as the desegregation of housing and education. While the EU does not have any specific language in its constitution declaring that water is a fundamental right (or requiring its member countries to do so), the UN does. The EU has simply given recommendations to its countries and allows each country to make this decision on its own.

Four years later, many countries are still lacking comprehensive integration plans on water and the Roma. In the report “Thirsting for Justice”, released in March 2017 by the European Roma Rights Centre (ERRC), seven countries were surveyed in their integration of the Roma ethnic group. The countries included France, Romania, Hungary, Moldova, Slovakia, Montenegro, and Albania. All but two of these countries had national strategies referencing water and sanitations in relation to their integration strategies. In every country besides France and Moldova, these integration strategies recognize the innate need and the effects that the lack of access to water can have on hygiene and pregnancy. The report states that seventy-two percent of Roma households in Romania, sixty-six percent in Moldova, and thirty-eight percent in Slovakia are still not connected to drinking water sources certified safe (or even inspected or maintained by government officials). Furthering this research, the United Nations Development Programme Regional Roma Survey (2011) found that forty-five percent of Roma living in households lacked at least an indoor kitchen, indoor toilet, indoor shower/bath, or electricity.

The ERRC’s report concludes urging state authorities to continue or to start adopting laws recognizing access to water as a fundamental human right. They urge state authorities to ensure safe water facilities are adequately provided to Roma neighborhoods and settlements, and to start considering the cost of not providing these centers to the Roma. The ERRC advises that the EC create better monitoring mechanisms in ensuring the social equity of water and sewage in the EU states while helping to find the funds and consider the costs of providing water pipelines to Roma communities within each state.

Though the reports seem grim and the shift to making water accessible seems slow moving, a beacon of hope emerged in late 2016. In November, Slovenia amended its constitution making access to drinking water a fundamental right for all citizens, the start of making water accessible to Roma citizens within the state. Slovenia became the first European country to make water a constitutional right and to prevent it from being commercialized. However, much work is yet to be done in implementing this new law in a way that applies it the 10,000-12,000 Roma people living within the country. As Branko Hudorovic aptly stated in his case (Hudrovic v. Slovenia), and echoed by Amnesty International, “The Roma do not need riches, what we really need is a water pipe for our children to wash and to be able to drink water when thirst.” With Slovenia’s new constitutional water right for all of its people and the EU’s still growing Right2Water Initiative, the Roma people may be able to see that need of accessible water soon be fulfilled, hopefully in a suitable time. Until then, all eyes will be on Slovenia in implementing this new constitutional water right for all citizens and the implications it will have across the European Union.

Kristina Ellis

Sources:

Hudorovic and others v. Slovenia (third party intervention, pending), European Roma Rights Centere report (Sept. 23, 2015), http://www.errc.org/article/hudorovic-and-others-v-slovenia-third-party-intervention-pending/4423.

Slovenia: Constitutional Right to Water “Must Flow Down to” Roma Communities, Amnesty International, (17 Nov 2016), https://www.amnesty.org/en/latest/news/2016/11/slovenia-constitutional-right-to-water-must-flow-down-to-roma-communities/.

Agence France-Presse, Slovenia adds water to constitution as fundamental right for all, The Guardian (Nov. 17 2016), https://www.theguardian.com/environment/2016/nov/18/slovenia-adds-water-to-constitution-as-fundamental-right-for-all.

Roma Data, United Nations Development Programme, (2017) http://www.eurasia.undp.org/content/rbec/en/home/ourwork/sustainable-development/development-planning-and-inclusive-sustainable-growth/roma-in-central-and-southeast-europe/roma-data.html.

EU and Roma, http://ec.europa.eu/justice/discrimination/roma/index_en.htm.

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Effective Roma Integration Measures in the Member States 2016, (June 27, 2016), http://ec.europa.eu/justice/discrimination/files/roma-report-2016_en.pdf.

Council Recommendation on effective Roma integration measures in the Member States, Official Journal of European Union, (Dec. 9, 2013), http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32013H1224%2801%29.

European Roma Rights Centre report, Thirsting for Justice, (March 2017), http://www.errc.org/cms/upload/file/thirsting-for-justice-march-2017.pdf.

Water is a Human Right, http://www.right2water.eu.

Image: Roma girls near Miercurea Ciuc, Romania. Flickr user Rachel Titiriga, Creative Commons.