States throughout the West face depleting water resources and no source epitomizes this reality more than the rapidly depleting groundwater levels in the Ogallala Aquifer. Appropriation of the aquifer during the early-to-mid twentieth century has taken a drastic toll on the water source in western Kansas where irrigators rely on groundwater due to a lack of significant annual rainfall. Officials in Kansas have been aware of the rapid depletion for decades, and in 1982 the Kansas Water Office and the Army Corps of Engineers published a feasibility report for a 360-mile aqueduct from the Missouri River in Northeast Kansas to a reservoir in Southwest Kansas. Officials believed that an aqueduct could serve as a replacement for the depleted aquifer. The report predicted the cost of building the aqueduct to exceed $4 billion with an annual maintenance cost of nearly $500 million. High costs and other factors made the project little more than a fantasy in 1982, but in January 2015 the Army Corps of Engineers and the Kansas Water Office released an updated feasibility report. The updated report has prompted significant debate about how to solve the problem of declining water levels in Western Kansas. The report initiated a discussion among officials in Kansas and states throughout the Missouri River Basin about whether a project of this scale represents a necessary approach to water management in the Midwest or indicates that policymakers are avoiding decades of inefficient management practices. The problem arose out of misguided theories about beneficial use and wasteful agricultural practices, and the solution exists in reformation of the current and future management practices that prioritize efficiency, sustainability, and conservation.

Current and Future Demand for Groundwater

Kansas has long been known as the “Breadbasket of the World” as a result of a climate conducive to wheat production and a significant agricultural labor force. In 1888, the Topeka Capital-Journal acknowledged Kansas’s wheat producing capabilities when it claimed, “In wheat, Kansas can beat the world.” Despite improving irrigation technologies, the updated aqueduct report notes that irrigation makes up 85 percent of water use in Kansas. Policy makers at the state and federal levels utilized the Irrigation Water Conservation Fund and the Environmental Quality Incentives Program to incentivize a shift from flood irrigation technology, relying on small trenches to provide crops with nourishment but wasting water due to runoff, to center pivot irrigation, which provides water to crops via large sprinklers. Increased corn and sorguhm production is one major reason for the sustained levels of water use because these crops require intensive amounts of water. In 2012 wheat still accounted for 40 percent of all acres cultivated in Kansas, but since the 1980s corn production in the state has increased significantly, making up 20 percent of acres planted in 2012.

Irrigation in western Kansas is depleting groundwater levels at a rate six times faster than the aquifer’s recharge rates. The updated aqueduct study utilized a Kansas Geological Survey tool to demonstrate the amount of time it will take for the aquifer to have levels too low to support current irrigation practices and the quantity of water required from the proposed aqueduct to replace the depleted groundwater. The report notes that the quantity of water needed to replace current irrigation demand in five years is 354,420 acre-feet; 528,731 acre-feet in ten years; 1,00,433 acre-feet in twenty five years; 1,862,620 acre-feet in fifty years; and 2,657,808 acre-feet in 100 years.

Current Policy Approach

With such quickly depleting groundwater sources, officials in Kansas, like many other states, need to reconsider their approach to water management. As Stanford affiliated scholar, Burke Griggs, noted in Lessons from Kansas: A more Sustainable Groundwater Management Approach, Kansas seemingly has a policy framework that creates channels for conservation. In 1945, the state legislature enacted the Kansas Water Appropriation Act. The Act transitioned Kansas from a riparian-based system for allocating water rights to a prior appropriation system, or “first in time, first in right.” The Act provides the state with administrative tools for responsible allocation of water resources, such as granting the Chief Engineer the authority to approve or reject applications for water rights.

Furthermore, the Groundwater Management District Act was enacted in 1978 in an attempt to provide for more localized management of groundwater resources. First, the Act outlined the means by which water right holders in a given region may initiate proceedings to create a Groundwater Management District, whereby water right holders play a role in the development of regional water policy. The act also outlined the means by which the Chief Engineer and/or water right holders utilizing mostly groundwater sources for irrigation can initiate proceedings for the creation of Intensive Groundwater Use and Control Areas (“IGUCAs”). The process involves a more localized approach to implementation of corrective measures addressing the over appropriation of water rights. For example, if the chief engineer or the water right holders determine that the water problems in the region warrant enhanced management, the IGUCA may close the area to any future appropriation and require increased conservation measures. There are currently nine IGUCAs throughout Kansas: (1) McPherson, (2) Burrton, (3) Pawnee Valley, (4) Pawnee-Buckner-Sawlog, (5) Lower Smoky Hill River, (6) Upper Smoky Hill River, (7) Arkansas River Valley, (8) Hays, and (9) Walnut Creek.

Professor Griggs identified some of the possible reasons for the ineffectiveness of current legal, administrative, and policy solutions in Kansas. First, Professor Griggs noted that part of the issue stems from the original administration of the prior appropriation doctrine. During the first few decades of the state’s adoption of the doctrine, state officials over-appropriated groundwater resources. Though officials became more cognizant of over-appropriation, they continued appropriating water to satisfy the rise of corn and soybean cultivation. This resulted in more allocated rights than water to satisfy the rights. Second, Professor Griggs discussed the inability for the Chief Engineer to effectively deal with the over-appropriation problem because water right owners are not actually committing violations. Any efforts by the Chief Engineer to regulate the resource granted to current right holders may also lead to undesirable legal and political outcomes, including retaliation from the state’s irrigators. Finally, Professor Griggs noted that Kansas’s groundwater irrigators also have not attempted to protect their senior rights over the junior right holders. Impairment investigations are a tool by which a senior right holder can request that Kansas Division of Water Resources officials inspect the circumstances hindering the senior right holder’s access to their fully allocated amount. Senior water right holders are reluctant to initiate impairment investigations due to their concern about findings leading to increased corrective controls and further restrictions on their own ability to use the water. All of these issues have led to largely ineffective control of water right holders and their use of the rapidly depleting resource. Officials now must consider alternative solutions such as those proposed by the updated aqueduct study.

At approximately the same time the Kansas Water Office released the updated aqueduct study and also released the 50-year vision for water in Kansas called, “A Long Term Vision for the Future of Water Supply in Kansas.” The plan included a number of policy considerations and a framework for the sustainability of Kansas’ water supply. Officials in charge of developing the vision sought to incorporate localized solutions, while trying to avoid regulations or mandates, and instead implement voluntary, incentive-based conservation and management schemes.

The Aqueduct

The proposed study accepted by the Kansas Water Office includes an extensive discussion about options for the construction of the aqueduct, which would be a 360-mile concrete canal. The plan calls for a source reservoir in northeast Kansas with a storage capacity of 700,000 acre-feet (228 billion gallons), as well as a terminal reservoir located in western Kansas storing water for use by irrigators. The terminal reservoir would have a storage capacity of nearly 1.6 million acre-feet (517 billion gallons). Fifteen pumping stations along the canal would allow for a flow capacity of 6,830 cubic-feet-per-second (cfs). The 1982 plan proposed a lock and dam diversion structure across the Missouri River. Lock and dam structures allow for diversion of water while also allowing barge traffic to pass from lower water elevation to upstream water elevations. However, along with proposing the same lock and dam diversion method, the 2015 study also proposes horizontal collector wells (“HWC”) as an alternative to the lock and dam approach. HWCs supply water to pump stations by infiltrating water from the river source through a water pump extending to the desired depth.

The water transfer system size is determinative of the project cost. Project costs for a 2,000 cfs, lock and dam transfer system are expected to be approximately $8 billion. The total cost rises to approximately $18 billion for a 6,000 cfs system. With a 10,000 cfs system, the study predicts a $28 billion total cost.

Reaction to the Study

Residents of Kansas have mixed reactions. Many Kansans voiced their concerns about the multibillion-dollar price tag, while some Kansans contemplated the idea as a plausible solution to a problem that threatens the state’s long-term economic vitality. Opposition to the plan arises from a variety of sources. For one, residents of northeast Kansas are concerned about the swath of quality farmland that would be submerged in the capture reservoir near White Cloud. State water officials are also questioning the idea and Kansas Water Office Director, Tracy Streeter, stated, “I don’t think this concept is the way forward.”

The plan also has its supporters in the state. Farmers throughout the western portion of the state are inevitably concerned about their livelihood, as well as the livelihood of future generations of Kansas farmers. Supporters of the plan contend that the aqueduct would simply supply the parched western portion of Kansas with other regions’ excess water. For example, supporters look to 2011 when Kansas faced a drought and parts of the Missouri River Basin suffered substantial flooding.

Missouri residents and officials had a significant, negative reaction to the release of the updated study. Recognizing the vital importance of the Missouri River to its economic well-being, Missouri officials were quick to criticize Kansas Officals and the release of the study. Missouri Governor, Jay Nixon, even acknowledged the proposal in his January State of the State address in which he called the aqueduct a “hare-brained idea” and stated that Missouri could not let the project move forward. Missouri newspapers wrote articles and published editorials about the outlandishness of the idea and maintain that the only feasible approach to Kansas’ water problems is conservation and drought resistant crops.

Future Action

The solution to Kansas’ groundwater problems does not exist in the updated Kansas aqueduct plan. Years of over appropriation of water resources and a century of Army Corps of Engineers engineering projects should be a lesson to current and future water management officials. The answer does not exist in engineering projects that allow water users to continue using water at current rates like the Kansas aqueduct project. Rather, state officials, water right holders, researchers, and other interests must work together to identify methods for slowing down the depletion of the Ogallala Aquifer and allow the Missouri River to flow in the future the same way that it flows today.

Enhanced use of IGUCAs is a possible means of establishing more widespread water management practices. IGUCA stakeholders are able to satisfy many local interests when developing management practices, whereas statewide regulations might not consider the factors present on a regional basis. Providing irrigators with a say in groundwater management practices is important for buy-in and success of management program.

State officials must utlitize to the fullest extent the legal and administrative framework that already exists and work to establish innovative conservation initiatives. The ideas outlined in “A Long Term Vision for the Future of Water Supply in Kansas” represent a more reasonable and long-term solution to the depleting Ogallala Aquifer. For the state of Kansas to maintain its status as a world leader in agriculture, officials must recognize the opportunity to pave the way for thoughtful and innovative answers to the problem of high demand for a small supply of water resources. The state of Kansas depends upon finding a reasonable solution to maintain its economic vitality and a high quality of life for its residents, but a 360-mile aqueduct will only act as a temporary solution to the more systematic problem of over consumption of the nation’s water resources.

The title image features a pivot irrigation system in Kansas. This image was created by an employee of the United States Department of Agriculture and as such is part of the public domain.



Associated Press, Kansas Leads Nation in Wheat, Sorghum Crops, The Topeka Capital-Journal (June 11, 2014),

Burke Griggs, Lessons from Kansas: A More Sustainable Groundwater Management Approach, The Bill Lane Center for the American West (Mar. 4, 2015),

Kansas Water Office & U.S. Army Corps of Engineers, Update of 1982 Six State High Plains Aquifer Study (Mar. 12, 2015), available at

Lisa Pfeiffer and C.Y. Cynthia Lin, The Effect of Irrigation Technology on Groundwater Use, Choices The Magazine of Food, Farm and Resource Issues, March 2010.

Peyton Fleming, Corn Farming in the Midwest Heavily Taxes Water Resources and Supply, The Guardian (June 23, 2014),

Tim Carpenter, Mo. Gov. Vows to Fight Aqueduct Idea, Kansas Agland (Jan. 22, 2015),

Kansas Water Office, A Long Term Vision for the Future of Water Supply in Kansas (Mar. 12, 2015), available at


Earth’s coral reefs are in danger. Sometimes referred to as “the rain forests of the oceans,” coral reefs are invaluable to ocean and dry land ecosystems. Two immediate threats are substantive. Rising ocean temperatures threaten coral species’ health and environments, as do recurrent introductions of manmade pollutants to coral ecosystems. There are actions humans can take today to support the health and self-sustainability of coral reefs and to defend those reefs from their impending disappearance.

The Great Barrier Reef

The Great Barrier Reef (“GBR”) is Earth’s largest reef system, and it is composed of over 2,900 individual reefs. It provides permanent and temporary habitat to more than 2,100 species of whales, dolphins, porpoises, turtles, birds, sea snakes, fish, and ascidians. Roughly 10% of Earth’s fish species can be found within the GBR. It is an incredibly popular tourist destination, annually hosting over two million visitors who generate approximately 5-6 billion AUD per year.

One of the greatest current threats to the GBR is the ongoing and harmful introduction of pollutants, mainly nitrogen, sediment, and horticultural pesticides. Recently, Australian Federal Environment Minister Greg Hunt announced that Australian governments would soon invest roughly 2 billion AUD to protect the GBR from threats to its water quality. The funding prominently supports the Wet Tropics Program, which is focused on providing grants to farmers to help them to improve their land management practices, specifically in relation to fertilizer use and disposal. Because pollutants are harmful to the GBR and other coral reefs, it is important for farmers to be well educated on best practices as they relate to the use and disposal of horticultural chemicals. There has been recent progress, but it has been slight. According to a combined 2012 and 2013 Reef Plan Report Card, average levels of pollutants entering the GBR had been reduced from previous levels, but only by 10% for nitrogen, 11% for sediment, and 28% for pesticides.

Members of the Australian Green Party (“the Greens”) argue, however, that Mr. Hunt’s word is disingenuous. The Greens assert that the GBR has lost 50% of its coral over the last 27 years and that it stands to lose another 50% (of what remains) in the next 10 years. The Greens are concerned about development of (and plans to develop) portions of Australian coastlines for use as coal and gas ports because those ports require or will require massive amounts of dredging and dumping that pose substantial harm to the GBR. The Greens accuse government majorities of “approving the world’s largest coal port in the [GBR]” and of being on track to approve five more coal and gas ports.

The Caribbean Reefs

Threats to Earth’s coral reefs extend beyond the GBR. Worldwide, between 25% and 33% of all life forms in the oceans make their homes in coral reefs even though coral reefs account for just one-tenth of 1% of the ocean floor. Roughly 500 million humans depend on coral reefs for food, coastal protection, and tourism, and the net economic value of coral reefs is roughly 30 billion USD per year globally. Caribbean coral reefs are essential to the economies of 38 countries and millions of people. A United Nations report on March 31, 2014 warned of substantial threats to Earth’s coral reefs, arguing that coral reefs are “the most vulnerable marine ecosystem[s] on Earth,” and that they could be completely gone within two to three generations if actions are not taken now. Illustratively, one estimate places the Caribbean’s coral losses at 80% in the last 50 years.

Near Belize, Glover’s Reef lost nearly 84% of its coral cover between 1971 and 1999, a span of only 28 years. Yet, Glover’s Reef is one of the Caribbean’s healthiest coral ecosystems. In August of 2014, the National Oceanic and Atmospheric Administration listed 20 species of coral as threatened under the Endangered Species Act (“ESA”). Rising ocean temperatures make for water that is more acidic, and water that is more acidic is less hospitable for – and dangerous to – coral species. Ocean acidity may increase by as much as 250% by the year 2100. As is case with the GBR, though, Caribbean reefs are also significantly threatened by human intrusion and pollution. Excessive pressure from tourism and insufficient, or nonexistent, controls on development currently allow for the ongoing introduction of manmade pollutants to Caribbean coral reefs.


Despite the at-times overwhelming conditions impacting Planet Earth’s coral reefs, recent findings indicate all is not lost. Recent research indicates that there are concrete actions humans can take to mitigate damages to reefs and to help reefs recover. Humans can prevent overfishing. Humans can prevent overdevelopment. Humans can prevent the introduction of manmade pollutants to coral reefs.

Even as climate change remains real, importantly, human intervention aimed at preventing overfishing, overdevelopment, and pollution can greatly and immediately reduce localized stressors. If humans are careful about how they implement and maintain sustainable fishing practices, develop land and oceanic resources, and dispose of harmful chemical pollutants, they will promote coral reefs’ abilities to be most resilient to climate change.

Further, some scientists and environmentalists are exemplifying care through the thoughtful implementation of constructive action. Conservationist Ken Nedimyer founded the Coral Restoration Foundation (“CRF”). CRF is a nonprofit group that raises coral in nurseries before transplanting that healthy coral in Florida reefs, and the group is helping coral reefs in their self-sustainability through that introduction of healthy coral. Biological oceanographer Chris Langdon, as another example, has been diligently studying ocean acidification for over twenty years. Langdon is soon due to release new findings that corals can adapt, survive, and grow amid increasing acidification so long as those corals are able to feed on natural foods. He argues that humans can help support corals’ abilities to feed on natural food sources through developing and supporting nurseries, and he has shown that such actions can be effective even in the face of great climactic threats such as rising CO2 levels.

Legislation may be key. Extended research and actions such as listing species under the ESA can provide insights and raise awareness, but cannot execute changes to human systems of operation to the extents legislation can. There are pertinent examples of legislative processes impacting real change. Certain Australians are working to ban dredging and dumping through legal avenues. Barbuda has enacted legislation to protect species of fish and prevent overfishing, particularly through the establishment of marine sanctuaries. The Bahamas, Belize, Bonaire, Cuba, and Curaçao are currently working through legislative processes to enhance marine protections. But there is more work to be done. Whether humans choose to take action to protect the Earth’s coral reefs or choose to do nothing, their decisions will have far-reaching impacts on planetary health and on hundreds of millions of lives – human, marine, or otherwise.


The title picture features an aerial view of the  Great Barrier Reef and is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. The owner of this image does not endorse this blog.


Marie Sansom, Waters Muddied Over Great Barrier Reef Health, Government News (Jan. 30, 2015),

Laura Parker, As Oceans Heat Up, A Race to Save World’s Coral Reefs, Nat’l Geographic (Jan. 15, 2015),

Jeremy Jackson & Ayana E. Johnson, We Can Save the Caribbean’s Coral Reefs, N.Y. Times (Sept. 18, 2014),

Bryan Walsh, The Last Coral Reefs, Time (Apr. 03, 2014),

Great Barrier Reef, Australia’s Great Natural Wonder, (last visited Feb. 23, 2015).


The Salton Sea is California’s largest lake covering 350 square miles. The lake is a terminal lake with no outflows and its salinity is 50 percent greater than that of the ocean. It was created by an engineering mistake when Colorado River floodwater breached an irrigation canal in 1905. Irrigation runoff from the Imperial and Coachella valleys and local rivers maintains the Salton Sea. Although the lake was created by accident, it is an essential habitat for a variety of species from fish to migratory birds.

The QSA Agreement

In 2003, California and three of its water districts, Imperial Irrigation District (“IID”), Coachella Valley Water District (“CVWD”), and San Diego County Water Authority (“SDCWA”) signed the Quantification Settlement Agreement (“QSA”). The primary purpose of the agreement was to ensure that California did not withdraw more than 4.4 million acre-feet from the Colorado River. In order to meet growing residential needs for water, IID agreed to transfer water from Imperial Valley farms to CVWD and SDCWA. Every year, IID agreed to send an additional 100,000 acre-feet of conserved water to CVWD and 200,000 acre-feet of conserved water to SDCWA. This makes the QSA “the largest ever farm-to-city water transfer in U.S. history.”

However, in order to transfer the additional conserved water to CVWD and SDWCA, California and the water districts knew that runoff from the Imperial Valley farms would decrease and threaten the Salton Sea which relies on the agricultural runoff to maintain its water levels. Because the Salton Sea is a saline terminal lake, the reduction of inflows not only causes the water levels of the lake to decrease, but also increases the salinity. Further, by reducing the inflows to the Salton Sea, the QSA poses a threat to the natural habitat of many species relying on the Salton Sea to survive.

To mitigate the harm to the Salton Sea caused by reducing farmland runoff, the QSA imposed water conservation measures on both IID and the state of California. First, the QSA agreement required IID to provide mitigation flows to the Salton Sea for 15 years after the agreement. After 2017, the QSA relieves IID’s duty to supply the Salton Sea because of increasing amounts of water sent to fulfill residential needs in CVWD and SDWCA. Once IID ceases sending mitigation water to the lake, the Salton Seas water levels will decline dramatically. The QSA also requires California to develop a plan by 2018 to maintain the Salton Seas water levels and minimize the harm caused by ceasing the mitigation water flows from IID.

Threats Caused By Reducing Flows to the Salton Sea

The declining water levels of the Salton Sea pose a threat to animals and humans alike. More than 400 species of birds rely on the Salton Sea to survive. The Salton Sea also provides an essential stop for many migratory birds.

Further, as the Salton banks continue to recede, more than 100,000 acres of lakebed will be exposed to the California air. Silt, fine-grain soil, and salt particles from the lake create toxic dust which degrades the air quality and exacerbates respiratory problems in humans. The asthma rates for children in the areas surrounding the Salton Sea are the highest in the State of California.

Finally, the Salton Sea creates a favorable climate, which allows farmers to grow certain crops in the winter. These crops account for almost 80 percent of the winter crops grown in the United States.

Plans to Mitigate the Harm Caused by Decreasing Water Levels

In 2007, California developed a plan that would cost over $8 billion to implement, but the State has little hope of raising more than $82 million by 2047, which would be too late. As of 2015, it is still unclear as to whether California has a definitive plan to preserve the water levels of the Salton Sea. However, “the Oakland-based Pacific Institute projected that without action to address the Salton Sea’s deterioration, the long-term social and economic costs . . . could range between $29 billion and $70 billion over the next 30 years.”

Because it seems like California will be unable to implement a plan by itself, the IID and other groups are drafting their own plans to preserve the Salton Sea on a smaller scale. The IID is currently working on the Salton Sea Restoration and Renewable Energy Initiative. Under this initiative, the Salton Lake will decrease to two-thirds its current size and on the dried out shores, IID will build geothermal plants. The purpose of the initiative is to produce renewable geothermal energy using the exposed portions of the lakebed. Further, by developing on the exposed portions of the lakebed, emissions of dust particles into the air will be mitigated. IID aims to produce enough energy through the project to power more than one million homes.

California has yet to approve IID’s plan for the Salton Sea. However, time is running out for the Salton Sea with under three years before IID ceases mitigating water flows.

The title image features pelicans enjoying the Salton Sea and is licensed under the Creative Commons Attribution 2.5 Generic License. The owner of this image does not endorse this blog.


Background Information on the Salton Sea, Cal. Dep’t of Fish & Wildlife, (last visited Feb. 16, 2015).

Felicity Barringer, Preserving an Accident, the Salton Sea in California, for the Good of Nature, N.Y. Times (Nov. 10, 2014),

Ian James, IID Presses State to Live up to Salton Sea Commitment, Desert Sun (Jan. 21, 2015),

Quantification Settlement Agreement, Water Educ. Found., (last visited Feb. 16, 2015).

Restoring the Salton Sea, Salton Sea Restoration & Renewable Energy Initiative, (last visited Feb. 16, 2015).

Ker Than, Can California Farmers Save Water and the Dying Salton Sea?, Nat’l Geographic (Feb. 18, 2014),

Opening the Floodgates of Federal Funding

On January 14th, 2015, the U.S. Department of Agriculture (“USDA”) awarded more than $372 million in federal funds to over 115 conservation projects in the United States. Over the next five years, the USDA expects to make $1.2 billion in federal funding available through this initiative for conservation projects. The awards are all part of a new initiative known as the Regional Conservation Partnership Program, which USDA Secretary Tom Vilsack calls “an entirely new approach to conservation.”

Congress authorized the Regional Conservation Partnership Program in its comprehensive 2014 Farm Bill. This initiative promotes conservation partnerships between the USDA’s Natural Resources Conservation Service (“NRCS”) and organizations, including businesses, universities, Native American tribes, water districts, nonprofits, and more. According to the NRCS’s website for this program, the Regional Conservation Partnership Program “combines the authorities of four former conservation programs – the Agricultural Enhancement Program, the Chesapeake Bay Watershed Program, the Cooperative Conservation Partnership Initiative, and the Great Lakes Basin Program.”

In addition to the $372 million in federal funds made available for 2015, participating groups have committed to match another estimated $400 million through in-kind services, manpower, and dollar contributions. These funds will be directed at locally or regionally designed projects that are aimed at improving soil health and water quality by promoting efficient use of water and facilitating increased wildlife habitat. Drawing on his own experience as Iowa’s former governor, USDA Secretary Vilsack believes these partnerships will accelerate conservation efforts because “it’s the local folks who will be able to encourage landowners to participate” in conservation efforts.

Making a Splash: Water Quality and Water Supply

In the context of water conservation, the Regional Conservation Partnership Program will fund projects aimed at restoring or sustaining clean and abundant water.

One of the ways this initiative seeks to restore clean and abundant water is through projects aimed at multi-state and national projects. For example, Vermont and New York will receive $16 million to implement farming practices designed to benefit the Lake Champlain watershed and improve water quality. Specifically, the Lake Champlain project is aimed at improving water quality through a variety of innovative measures, “including the use of modeling to target conservation practices for optimal environmental benefits, an extensive monitoring network to assess conservation effectiveness, sliding scale cost-share to gain the support of farmers, and an incentive-based Environmental Stewardship Program to provide some certainty to producers that will get credit for the conservation practices they apply.” Additionally, Ducks Unlimited is spearheading a project aimed at involving rice producers located in Mississippi, Arkansas, California, Louisiana, Missouri, and Texas in water conservation. Specifically, this $10 million conservation project is designed to assist rice producers in addressing water quantity, water quality, and wildlife habitat concerns throughout these states.

The Regional Conservation Partnership Program also targeted several critical watersheds for increased water conservation efforts, including the Chesapeake Bay Watershed, the Great Lakes Region, as well as the Mississippi, Colorado, and Columbia River Basins. Conservation projects funded under this initiative address both watershed- and region-specific concerns, demonstrating the flexibility this initiative provides in addressing unique concerns.

For example, in the Chesapeake Bay Watershed, the Mississippi River Basin, and the Great Lakes Region, some of the selected water conservation projects will address ways to reduce fertilizer runoff from dairy and livestock operations, and are thus focused on water quality. Conversely, in the Colorado River Basin, one of the selected water conservation projects seeks to modernize agricultural water management in its lower Gunnison River Basin, and is thus focused on water quantity. While these water conservation plans differ in their emphasis on either water quality or water quantity, both water conservation motives rely on planning by local organizations and stakeholders to determine how to best direct federal water conservation funding.

The Regional Conservation Partnership Program will also provide funding to state-level projects, receiving roughly 25 percent of the remaining federal funds under this initiative. For example, in Idaho, the Blackfoot River Conservation Partnership, spearheaded by Trout Unlimited, will use funding under the initiative to restore fish habitat, augment in-stream flows, and improve water quality throughout the Blackfoot drainage, all located within that state’s boundary.

A Watershed Moment

By focusing water conservation efforts at a regional or watershed scale while simultaneously brokering public-private partnerships, the Regional Conservation Partnership Program represents the evolution in how this nation addresses water issues and tackles conservation. While water conservation efforts have certainly been undertaken in the past, the Regional Conservation Partnership Program breaks away from the historical “random acts of conservation” approach to create an inspiring water conservation strategy that leverages federal funding with local know-how. By recognizing the role farmers and ranchers play as stewards of this nation’s water, this public-private strategy will accelerate the flow of water conservation in the United States and truly represents a watershed moment for water conservation.


The title image features Lake Champlain in New York and Vermont. This file is licensed under the Creative Commons Attribution 2.0 Generic license and the owner does not endorse this blog.



John Flesher, $372.5M in Federal Funds Awarded to Conservation Projects, Washington Times, Jan. 14, 2015,

Brad Haire, New Widespread Federal Program to Focus Conservation Efforts at the Local Level, Southeast Farm Press, Jan. 14, 2015,

Natural Resources Conservation Service, U.S. Dep’t of Agric., Regional Conservation Partnership Program, (last visited Feb. 13, 2015).

Timothy Cama, USDA Launches Water Conservation Program, The Hill, May 24, 2014,

Heather Layman, Regional Conservation Partnership Program Awards Announced, The Nature Conservancy, Jan. 14, 2015,

Coastal wetlands are among Earth’s most important ecosystems, yet are rapidly lost due to human activity as well as natural processes. In recent years, wetlands along the Gulf Coast were substantially impacted by Hurricane Katrina and the BP oil spill. As a result, there was significant devastation of the wetlands along the Mississippi River delta. This destruction affected the $23 billion dollar fishing industry, oil and gas infrastructure in the region, and the habitat of millions of species.

Coastal wetlands cover over forty million acres of land in the continental United States. Coastal wetlands are important to our ecosystem and provide a number of services. They protect upland areas from flooding caused by rising sea levels and storms. They absorb the impact of the ocean current on the land thereby controlling the amount of erosion that occurs. Additionally, coastal wetlands provide food and habitat to many wildlife species and are important to commercial fisheries, which produce fifty-percent of the nation’s fish and shellfish supply. The wetlands also play an important role in our water quality by filtering chemicals and sediment out of water before it goes into the ocean.

Causes of Decline

The oil and gas industry created over 50,000 wells along the Gulf Coast region since the 1920s. In addition to that, they laid over 10,000 miles of pipeline to connect the wells to the canals and refineries. Over time, seawater has seeped into the marshes and expanded the canals larger than they historically. These operations introduced air pockets into the land and increased the land’s subsidence significantly over time. The oil and gas industry contributes to at least thirty-six percent of coastal wetland loss in southern Louisiana. An estimated $470 billion in natural resources were pumped out of that region in the last twenty years alone, and they are mostly unopposed at the state and federal government levels.

The effect of the oil and gas industry on the land is perhaps most prevalent after a storm. As a hurricane moves in, it causes flooding and a rise in water levels. Heavy surf breaks down soft sediment in the marshes and rushing water displaces grass and mud, pushing it to more interior shorelines. While after most hurricanes the water level usually recedes back to where it started from, powerful hurricanes like Hurricane Katrina flood the land so much that the water never recedes, resulting in land loss. After Katrina, marsh plants that tried to grow back were uprooted in subsequent storms including Rita, Gustav, and Ike. Increasing human development and activity along the coastlines exaggerates the effect that strong hurricanes have on the wetlands, making recovery after storms much more difficult. From 2005-2009, hurricanes caused about 328 square miles of coastal land loss. This land loss affects over two million people and millions of species.

Katrina’s Impact on an Influential Individual

The catastrophic loss of coastal wetlands after Hurricane Katrina struck a chord among historian John Barry. Author of Rising Tide, a historical account of the 1927 Mississippi flood, one of the most destructive floods in history, Barry is considered an expert in flood prevention. He was approached by editors and television producers to answer many questions after Katrina hit. Barry was confounded at the amount of damage that Katrina did to the coastline and did extensive research to determine what went wrong. He determined that it was not overtopping of levees as the Army Corps of Engineers had presumed, it was a failure to regulate laws put in place since the 1920s to preserve the integrity of the wetlands.

To prevent another devastation of the land in the future, the Louisiana Legislature created a levee board called the Southeast Louisiana Flood Protection Authority-East (“Board”), of which Barry became a member. The Board is responsible for overseeing all flood management projects in its jurisdiction. However, the Board was not able to write policy, enforce laws, or mandate levee construction, it was primarily a consultant to agencies like the Army Corps of Engineers. Although the original focus of the Board was to improve the quality of the levees built around the city, a new focus arose: the need to preserve the marshes.

In 2007, the state created a Coastal Master Plan to restore the coast which was backed by scientists and the oil and gas industry. Over one hundred projects were listed within the Master Plan that would help rebuild the coastline, but the next pressing issue was who would fund the projects. The state estimated that it would cost $50 billion to fund the master plan, $20 billion of which would come from the BP Deepwater Horizon oil-spill settlement. Barry thought that the oil industry should fund the rest of the plan as well, but the state decided to look towards taxpayers instead. It was then that Barry decided to research whether the oil companies had a legal obligation to fund the plan.

In order to dredge canals and put pipelines into the land, oil companies have needed to obtain permits since the 1920s. In 1980 the Louisiana Administrative Code put in place a provision that require mineral extracting companies to restore land “as near as practicable back to their original condition upon termination of operations.” Failure to restore the land back to this condition has furthered the devastation caused by storms. In 2013, Barry and the Board filed suit against ninety-two oil companies seeking damages and injunctive relief in the Civil District Court for the Parish of New Orleans. The Board alleged that the oil and gas operations contributed to coastal erosion which has made Louisiana more vulnerable to severe weather and flooding. Additionally, the Board alleges that these actions “exacerbated direct land loss by failing to maintain the canal network.” This failure caused canals to erode and expand beyond their permitted widths.

The Board contends that the oil and gas companies failed to adhere to the Rivers and Harbors Act of 1899, Clean Water Act of 1972, and Coastal Zone Management Act of 1972. Together, these acts create a standard of care that preserves the land’s integrity.

Critics of the Lawsuit

Critics of the suit contend that the oil and gas companies have done what they have been told to do. They provide millions of people with an essential resource and were not doing anything illegal. The attorney for the state’s Department of Natural Resources, J. Blake Canfield, stated that they had no evidence that any permits were violated, but also stated they did not look into permits that were older than 1980. The president of the oil industry lobby group, Louisiana Mid-Continent Oil and Gas Association contends that litigation in this area will affect the Coastal Master Plan. Spending excessive amounts of time on litigation will further prolong the plan to rebuild the coast. This is an effect that we ultimately want to avoid so that wetland loss does not continue to worsen.

The oil and gas industry has a significant stake in the Coastal Master Plan. It, too, is reliant upon this plan because it has billions of dollars of infrastructure along the coast that is also vulnerable to storms, a risk that increases with coastal wetland loss.

Possible Effects of the Lawsuit

The oil industry’s lobbyists tried to pass bills through the last legislative session that would destroy the suit before it had the possibility of being adjudicated. In June 2014, Bobby Jindal, governor of Louisiana, finally signed into effect Senate Bill 469, which will bar the board from continuing in its lawsuit. The bill states “no state or local governmental entity shall have, nor may pursue, any right or cause of action arising from any activity subject to permitting under R.S. 49:214.21 et seq., 33 U.S.C. §1344 or 33 U.S.C. § 408 in the coastal area as defined by R.S. 49:214.2, or arising from or related to any use as defined by R.S. 49:214.23(13), regardless of the date such use or activity occurred.” The Board plans to challenge the constitutionality of this bill in court.

A court will address the lawsuit again this year. Should the Board’s claims fail, the problem of funding the Coastal Master Plan will arise. The estimated $30 billion dollars more that it needs to move on will somehow need to be funded through taxpayer dollars. Should the suit prevail, the oil companies will be responsible for damages for the harm that they have caused to the coastline. This also poses a tedious task. Research will need to be done to determine exactly how much damage each of the ninety-two companies has caused and how much each of them subsequently should owe. Whatever the outcome, it will still be a long road to complete funding of the Coastal Master Plan. Meanwhile, more wetlands are lost every day.


The title image features a shot of Louisiana wetlands along the coast of the Gulf. This image was created by the Fish and Wildlife Service and as such is part of the public domain.



Coastal Wetlands, Environmental Protection Agency, (last visited Feb. 10, 2015).

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Monica Palaseanu-Lovejoy, How Hurricanes Shape Wetlands in Southern Louisiana, Smithsonian Museum of Natural History, (Nov. 5, 2013)

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Alan Neuhauser, Bobby Jindal Signs Bill to Block Lawsuits Against Oil and Gas Companies, U.S. News, (June 6, 2014)

SB 469, (last visited Feb. 17, 2015).

La. Admin. Code. tit. 43:I, § 719 (2014).

On Tuesday, February 10, law students, professors, practitioners, and interested community members filled a classroom of the Ricketson Law Building for a screening of the documentary, Droughtland. The forty-five minute film, directed and produced by Steffan Tubbs, explores life in southeastern Colorado through the eyes of the farmers, ranchers, and community members impacted by current drought conditions that echo the infamous Dust Bowl of the 1930s. These Coloradans tell their own stories amidst quotes of John Steinbeck’s The Grapes of Wrath, with twangy old-school folk songs infused throughout. The result is a deeply powerful, moving, human portrayal of weather patterns, soil conditions, and generations of agricultural pride. One community member reflects that the drought is “less about the survival of the crops and more about the survival of small communities.” In the film, Sturm College of Law Professor Tom Romero explains that Colorado water is vastly over-appropriated, meaning there are more people with legal claims to water than there is water to fill those needs. Professor Romero calls on everyone, not just water law practitioners, to work collaboratively to practice responsible use, so no one is left high and dry. Following the film, a discussion panel of Professor Romero, Tubbs, and film writer Pat Woodard entertained thought-provoking questions from the audience. Questions ranged from drought impacts on poverty rates to tribal water rights and climate change. Professor Romero closed the evening by reminding us that “[w]ater is a daily experience.” Droughtland is a must-see film for any water consumer in the state of Colorado. More information can be found at


In 1996, the Bulgarian-American artist Christo Javacheff, better known as Christo, and his now-deceased wife Jeanne-Clause Denat approached the U.S. Bureau of Land Management (“BLM”) seeking permission for a temporary art installation over a portion of the Arkansas River. If completed, The Over The River Project (“OTR”) will suspend nearly six miles of silver fabric above eight separate areas of the Arkansas River between Cañon City and Salida, Colorado. One of the installation sites includes the Arkansas Canyonlands Area of Critical Environmental Concern (“ACEC”). Since its inception, the project has been controversial. It has been opposed by environmental groups including Rags Over Arkansas River, Inc., (“ROAR”), formed specifically to fight the project. Christo has said that he holds no animosity toward those fighting his project; rather he finds it “invigorating”.

Christo’s vision for OTR is that it will highlight the banks of the river. Those viewing the fabric panels from the river, will view the surrounding mountains and sky through the translucent fabric. While those viewing from above will see a reflection of the sky undulating in the breeze. OTR lists among its supporters various chambers of commerce, the Arkansas River Outfitter’s Association, and Colorado Governor John Hickenlooper.

Opponents’ vision of OTR is starkly different. They fear permanent defacement of riverbanks, impediment of fishing access for eagles, and a barrier for elk, pronghorn, and deer trying to reach the river. They also see the impact of the expected 400,000 human visitors as a problem causing traffic congestion and an increase in human and solid waste on rural systems ill-equipped to handle it.

In July 2010, BLM released a Draft Environmental Impact Statement (“DEIS”) for public comment. Over 4,500 individual comments were received on the DEIS. BLM considered these comments prior to issuing the Final Environmental Impact Statement (“FEIS”) in July 2011. In November of that year, BLM issued a Record of Decision (“ROD”) authorizing the project. Following an appeal by two individuals and the Quiet Use Coalition, the U.S. Department of the Interior (“DOI”) Board of Land Appeals issued a final agency decision in June 2013 upholding the ROD. ROAR filed suit in the U.S. District Court for the District of Colorado. Federal District Judge William Martinez ruled against ROAR on January 2nd, 2015.


ROAR’s action alleged BLM, DOI, and four officials from those agencies violated the Administrative Procedure Act (“APA”) when they failed to comply with the National Environmental Policy Act (“NEPA”) and the Federal Land Policy and Management Act (“FLPMA”). The Over River Corporation, formed by Christo to complete the project, intervened in the action as respondents.

This action challenged the BLM and DOI actions as, “. . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Recent common law from the 10th Circuit narrows the standard of review, requiring deference to a federal agency where the challenged actions involve scientific issues within the agency’s expertise.

To determine if an agency decision is arbitrary and capricious courts consider whether the agency: 1) relied on factors Congress did not intend, 2) failed to consider an important aspect of the issue, 3) offered an explanation for the decision that is contrary to the evidence available, and 4) made a decision that is implausible beyond the explanation of a difference professional opinion.

The court found that BLM did not act arbitrarily or capriciously with regard to NEPA.

ROAR raised two challenges to the BLM and DOI decisions under NEPA. First, ROAR alleged that BLM failed to adequately consider the impact of OTR on the bighorn sheep population in the area, ROAR also alleged that BLM failed to consider the impacts of traffic issues, both for construction and an influx of visitors.

On both of these issues, the court held for the BLM, finding that the goal of NEPA is not to enforce any particular environmental policy goals. Rather NEPA only requires that agencies take a “hard look” at environmental impacts of projects. NEPA serves to protect against uninformed environmental decisions, rather than their potential value or harm.

ROAR alleged that BLM failed to consider the full impact of OTR on the bighorn sheep population and that it failed to make correct findings when it acknowledged that it could not, with certainty, predict the impact on the population due to the novelty of the OTR project. The herd-specific studies BLM relied on were over fifteen years old, and ROAR claimed they were obsolete because the lifespan of a sheep is only nine years. Additionally, ROAR claimed that a study of the impact of helicopter over-flight in the Grand Canyon on sheep populations was not adequately analogous to the present situation. The court rejected both lines of reasoning, finding that ROAR failed to point to any more-relevant scientific information upon which BLM could have relied.

ROAR made three arguments against BLM’s consideration of traffic mitigation. Specifically ROAR objected to the method of traffic modeling, traffic modifications that were not reflected in the FEIS, and a failure to mitigate traffic issues for the duration of OTR.   The court rejected all of these arguments.

After BLM initially used a widely criticized traffic report, it created its own report with the Colorado Department of Transportation. The Court found that the process BLM used to model traffic impacts was reasonable, meeting the NEPA requirement. Further, one of the traffic modifications not included in the FEIS was the removal of a visitor center, and an adjacent 900-space parking lot. The court found that removal of project features that reduced environmental impacts did not compel BLM to review the FEIS as ROAR argued. Finally, on the issue of the lack of traffic mitigations, the court considered the precedent cited by ROAR in Dine Citizens Against Ruining Our Environment v. Klein. The Dine court held that an agency finding of no significant environmental impact from drilling operations based on a yet-to-be-written mitigation plan was arbitrary and capricious. The court in the present case, however, found the situation was significantly different because the FEIS contained thirteen separate mitigation actions related to traffic issues for OTR.

In summary, the court found that BLM’s action was not arbitrary and capricious with regard to NEPA.

The court found that BLM did not act arbitrarily or capriciously with regard to FLPMA.

ROAR alleged that the FLPMA requires BLM to “manage the public lands under principles of multiple use and sustained yield.” These twin aims ensure that land use is balanced among competing needs and that extractive or depleting activities are managed. Specifically, ROAR argued that: 1) BLM used the wrong legal standard to approve OTR, 2) that its decision was arbitrary and capricious, and that 3) the FLPMA required BLM to prioritize protection of ACECs. The court rejected all three arguments.

The FLPMA requires BLM to maintain a resource management plan (“RMP”) for areas under its stewardship. The Royal Gorge RMP covers the area proposed for OTR. ROAR argued that BLM may only approve projects that are “clearly consistent” with the RMP, rather than the looser standard of “not inconsistent” that BLM actually used. While the court found that “clearly consistent” is usually the appropriate standard, this case is unique because of the one-of-a-kind art project in a sensitive natural area. The court held that because OTR is a one-time project, not contemplated by the RMP, the agency must consider whether the project is “not inconsistent” with the RMP, and contributes to plan goals.

ROAR claimed that BLM is required to favor preservation of natural resources above all other land uses. The court reluctantly held that there is no such provision in the FLPMA, stating, “[M]uch as the Court may wish that were the case under the statute, the FLPMA requires that BLM manage the federal lands under its control for multiple uses, and this includes approving projects that could deplete resources.”

ROAR claimed that BLM could approve the portion of the project over the Arkansas Canyonlands ACEC only if it would “protect or enhance” the area. The court found that the FLPMA requires BLM to protect ACECs from “irreparable damage”. Because the installation would be temporary, the court held that ROAR failed to show irreparable damage would be done to the ACEC and that approval of temporary activities in the area was within BLM’s discretion. Lastly, because BLM is requiring the project to post a $200,000 bond to pay for mitigation after the project is removed, any damage would be merely temporary.


In summary, the court found that BLM did not violate either NEPA or FLPMA in approving the OTR project, and affirmed the BLM’s approval of OTR. ROAR is considering its next move in the case, including the possibility of an appeal. ROAR also has an action against the Colorado Parks board pending in the Colorado Court of Appeals.


The title image features the Arkansas River outside Cañon City, Colorado and is licensed under the Creative Commons Attribution Share-Alike 3.0 Unported License. The owner does not endorse this blog.



Rags Over the Arkansas River, Inc. v. Bureau of Land Mgmt., No. 12–cv–0265–WJM, 2015 WL 59471, at *1-*13 (D. Colo. 2015).

Utah Envtl. Cong. v. Dale Bosworth, 443 F.3d 732, 739 (10th Cir. 2006).

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Jason Blevins, Foes Vow Continued Fight Against Christo’s Over The River Project, Denver Post, January 7, 2015, at 4A.

Jason Blevins, Christo Says Opposition to “Over the River” Project is Part of the Art, Denver Post, October 17, 2013, at 4A.

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There’s a need

Indoor farms could be the answer to the water crisis bringing food security and year-round fresh produce to communities in need.

In the US, agriculture is responsible for 80% of water use and 90% in many western states. A big part of agriculture is irrigated crops. In 2008, about 72 million acre-feet of water was used to irrigate 40 million acres of farms in 17 western states. About 38 million of those acre-feet were from surface water and about 34 million from ground water. To get an idea of how much water that is, an Olympic sized swimming pool holds about 2 acre-feet of water.

Such large water use in a time of drought demands innovative solutions. One partial solution is indoor farming. Indoor farms aren’t novel in the realm of food production, for example Cornell University created an indoor farming system in 1999 (now operated by Challenge Industries, Inc.) and entities continue to implement indoor farms worldwide. A recent, rather successful, example is Mirai Co. Ltd.’s indoor farm in Japan.

Shigeharu Shimamura, the CEO of Mirai (a company that sells plant factory materials and vegetables), recently built the world’s largest indoor farm. Occupying a 25,000 square foot facility, the Mirai farm produces 10,000 heads of lettuce every day. The farm is quite remarkable because it grows lettuce 2.5 times faster than an outdoor farm, reduces produce waste from 50% to 10%, and reduces water use by 99%. Because of Mirai’s ability to control every aspect of plant growth, it is able to increase farm productivity by hundredfold per square foot. The Mirai farm uses far less water than an outdoor farm by reducing water lost due to seepage and evaporation. Moreover, the moisture that does evaporate off of the growing lettuce collects high above the produce racks and is recycled back into the system. This is an important process because in conventional farming as much as 70% of water never gets to crops.

Problems with indoor farms

Notably, Challenge Industries and Mirai both grow lettuce. However, Shimamura said that technically it is possible to grow any plant in an indoor farm. What is stopping his company and others from growing different plants is economics; these farms use a lot of energy. Therefore, it only makes sense to produce fast-growing vegetables at this time. Another issue with energy is the carbon footprint. Dr. Louis D. Albright, the program director of Cornell University’s Controlled Environment Agriculture program, argues that powering the LED lights creates a larger carbon footprint than shipping produce from coast-to-coast.

Beyond energy, indoor farming also presents a question of employment and how employees fit into this picture. Mirai uses machines to automate about half of the processes at its farm while picking is done by hand. However, Mirai hopes to fully automate the farm once there is an emergence of harvesting robots. Cornell’s farm, which produces 945 heads of lettuce per day, employs only 2 fulltime workers and 1 part time worker. Whether or not this is a problem is a matter of perspective. I view it as a step into the future in which we can redirect human capital to new challenges and innovations. But that’s easy to say as a law student who is going into the knowledge economy. Others may view the near-total robotization of farming to be no more than a job killer. Total robotization of farming could eradicate jobs across the globe; the Bureau of Labor Statistics says there are about 750,000 agricultural workers (this includes livestock workers). Coupled with the expectation that 3D printers will kill the manufacturing industry, indoor farms could put the availability of manual labor jobs in serious jeopardy.

It is also worth being concerned about the public’s potential reactions to indoor farms. People love organically grown food that has not been tampered by human interference. They may be turned off by the fact that computer systems are growing lettuce 2.5 times faster than it would grow outside and that LED lights feed the plants rather than the sun. In fact, Mirai calls its indoor farm a plant factory. It all sounds very artificial. However, people may react positively because indoor farms are pesticide free which would lead to a cut-down in water pollution. Another noteworthy benefit of indoor farms is that they can provide fresh produce year-round in communities that may not have reliable access to crops. Mirai, for example, put its factory in a part of Japan that was devastated by a 2011 earthquake amid fears about Japan’s declining supply of domestic vegetable production.

Closing thoughts

I honestly believe indoor farms are the inevitable future. Populations and food demand grow while land and water remain finite. American citizens who live in freezing climates like arctic Alaska or in deserts could have a reliable, local source for fresh produce year-round.


The title image features a “pink house” or indoor farm used to grow vegetables. The owner of this image does not endorse this blog.


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