Oil and natural gas account for a significant production of both domestic and global energy supply. Recent developments have placed water use by these necessary development operations under scrutiny, but how much are we really using?

Current and Future Energy Production

Worldwide energy consumption is expected to rise annually by two percent globally. In the United States, coal provides 37% of domestic energy generation, national gas provides 30%, and petroleum provides approximately 2%. With recent concerns such as emissions of harmful pollutants, generation by coal has dropped significantly over the past few years, while energy from natural gas has risen by over eleven percent from 2005-2012 alone. With a reduced carbon footprint, smaller emissions, and abundant reserves, natural gas is leading the way for the future of power generation in America. This led to the retrofitting of many power plants across the United States, changing their generation methods from coal to natural gas.  The increase in natural gas power plants lead to an increased need for natural gas development domestically.

Most oil and gas wells currently developed are from unconventional sources using a process called hydraulic fracturing. Hydraulic fracturing is a technique that uses water, additives, and proppant to stimulate formations, which then release the natural resources into previously developed infrastructure. To date over one million wells have been fractured worldwide, with the technology expected to lead the way in oil and gas development for years to come. This technique of development has thus begun a conversation about energy development and the use of water.

Water Use in Hydraulic Fracturing

Multiple issues are associated with hydraulic fracturing and water use. Those issues include the amount of water used and its removal from the hydrologic cycle. Each issue presents its own set of problems, benefits, and solutions.

The process of hydraulic fracturing begins with drilling a well and installing a protective sheath that is called casing. This casing isolates the wellbore from the outside environment including water reservoirs and aquifers, if applicable. Once the wellbore has been isolated, the shale formation will be fraced in individual stages.

The process of fracing uses high pressure injection into formations of a solution made up of 90.6% water, 8.5-9% proppant, and approximately .5% additives. The solutions are injected into the formation at high pressures to stimulate cracks in the formation, which produces oil and natural gas.

Water Use for Energy Development

The porosity of the formation, length of the wellbore, and depth of the formation all contribute to the total amount of water that is used per well. For example, in the Marcellus Shale formation, a low permeability natural gas shale, the average well consumes 4.5 million gallons of water. The Wattenberg field in Colorado uses an average of 2.7 million gallons of water, due to it varying formations and characteristics. In Texas, depending on the field being produced the amount ranges from 2.7 million gallons to 5.7 million gallons. In the Bakken formation in North Dakota, the largest energy play in the United States, consisting of mostly oil with associated gas, the average well only consumes 1.5 million gallons. With approximately 93% of future development projected to use fracing, water use associated with the process of fracturing will increase as well. From “2012 to 2014 the extraction method consumed roughly 48 billion gallons of water per year” and from 2005 to 2014 total water use constituted 248 billion gallons of water.

While this seems like very large amounts of water, it is important to note that total water use for hydraulic fracturing is actually less than one percent of the total industrial water use in the United States, approximately 0.97%. Further, in Colorado total use of water for fracturing was approximately .08% in 2010, and was estimated to reach .1% of total water use in the state in 2014 according to the Colorado Water Conservation Board.

Like most western states, Colorado uses the doctrine of prior appropriation. “Each state has its own variation on either the prior appropriation or riparian doctrine (some states have both) for stream water, plus other doctrines for underground water.” In Colorado, the prior appropriation doctrine is typically labeled as “first in time, first in right.” Thus once an individual has put the water to beneficial use, that person has secured a water right. In Colorado, those secured water rights are transferable, salable, or available for lease in some instances. Therefore, oil and gas operators must work with water rights holders in order to secure the water required for drilling and fracing operations.

For example, the prior appropriation doctrine in Colorado requires water right holders to “use or lose” their possessed water right. Under this theory, senior water right holders are entitled to a certain amount of water, and must use that allotted amount of water or lose the water right altogether. After senior right holders have been satisfied with their allotted amounts, “junior” water right holders will then be satisfied, working down the list by way of appropriation date. This is the essence of the first in time, first in right doctrine. Oil and gas developers will usually either lease water from senior appropriators with surplus, such as a municipality or farmer that may not need all of their appropriation, or approach junior water right holders whose water right will be fulfilled during a particular season. Thus, there is a shared benefit of water right holders ensuring that all their appropriated water has been used, and oil and gas companies are legally securing all the water they need for development. In certain instances, energy companies will purchase water rights from individuals or entities, which will ensure that they have a legal and reliable source of water for development. Water rights holders then receive a fair price for a right they may not have used anymore and thus risked losing without any compensation.

Once water has been used for the fracing process, disposal and removal from the hydrologic cycle are the next important issues. A significant amount of produced and flowback water from operations typically is disposed of by injection wells. The disposal process entails collecting the water from the drill site, and transporting it to a disposal site, where the water is injected into an isolated rock formation, such as a sandstone or limestone formation, similar to other disposal methods used for medical waste. Injection well depth will range depending on location of the injection well and the formation that the waste will be stored in.

This disposal method has led to significant conversation regarding water use, and its preclusion from reuse in the greater water cycle. As droughts in states such as California have worsened, operators have taken note and embarked on extensive investment into water recycling programs in order to preserve our most valuable resource for future generations.

Waste water recycling is a relatively new process that primarily involves filtration and removal of additives and impurities borne from the production of oil and gas. It can involve processes that use membranes or osmosis technology to filter and remove the impurities, restoring the water to a near natural condition. This allows operators to reuse water instead of new, fresh water for operations. It is an innovative solution that allows operators to contribute to a better environment, while saving money on water purchases. Additionally, it helps the public by reducing the amount of new water required for future oil and gas wells. Again, it is a relatively new process, and much of the technology is currently proprietary, but some operators are using this technology to help inform the public about how they are willing to work with and protect concerned communities. This has become more prevalent in large producing states like Texas, which has seen a rapid growth in recycling permits, development, and use.

In Colorado, one operator on the western slope has made water recycling a priority in its development operations. Their goal is to eliminate the need altogether for new water consumption, by recycling, and reusing as much water as possible for current and future operations. They have developed a central wastewater processing plant which collects all the produced and flowback water from each fractured well they develop, process out the waste, and reuse the filtered water for their next development project. While not a perfect system, and not available for all locations and formations, this illustrates the next wave of available technology. Operators will be using this new technology to further address concerns expressed by citizens, and to solidify their social license to operate for years to come. Limitations on the use of the technology include limited infrastructure to transport the wastewater to recycling plants and the availability and capacity of recycling units, which have not yet permeated all development fields in the United States.

Conclusion

As energy needs both domestically and globally continue to expand at record breaking levels, it is important for natural resource development operators to be mindful of the environment concerns of the communities they operate in. As the saying goes, “water is the lifeblood” of where we eat, live, and recreate. It is important that we take all steps available to be good stewards of all natural resources, while continuing to provide the affordable energy that has allowed us the thrive as a nation. By responsibly using the water available and investing in new technologies, oil and gas operators have contributed to the overall health and welfare of citizens, while continuing to be respectful of the natural habitat that surrounds us.

The featured image is of a natural gas well near Parachute, Colorado.  The image is part of the public domain.


Sources:

Richard Adams, Economic Growth, Inequality and Poverty: Findings from a New Data Set, Policy Research Working Paper 2972, World Bank, (2002).

Al Pickett, New Solution Emerging to Treat and Recycle Water Used in Hydraulic Fracs, American Oil & Gas Reporter, March 2009, http://www.aogr.com/magazine/cover-story/new-solutions-emerging-to-treat-and-recycle-water-used-in-hydraulic-fracs.

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Richard Valdmanis, Water Demand from Fracking Less Than 1 Percent of Total, Reuters, Sept. 15, 2015, http://www.reuters.com/article/2015/09/15/us-usa-fracking-water-idUSKCN0RF2FW20150915.

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Introduction

While oil spills, overfishing, and increasing ocean temperatures garner national media attention for their destructive effects on coral and marine life, a more subversive biological terrorist is damaging coral reefs and local fish populations along the eastern coast of the United States, at alarming rates.

Native to the Asian Pacific Ocean, the lionfish is a relative newcomer as an invasive species. Although, reports of lionfish sightings date back as early as the 1980’s, it was not until 2000 that the population of the venomous predator boomed in the western Atlantic. Scientists have documented lionfish consuming up to ninety percent of native species in areas they colonize.

What is a Lionfish?

Lionfish are indigenous to the western Pacific. Native populations stretch from southern Japan to the Philippines, but are described as “manageable.” Although ultimately destructive, the Lionfish must be commended on its’ remarkable ability to proliferate and adapt. A single female can produce more than 2 million eggs a year, casting her roe into ocean currents. The larvae hatch and arrive “hungry and ready to eat.” With bright orange and white stripes, the fish resembles a bird more than an underwater species, but the tines that line the spine of its back cloak venomous quills. Although not fatal to humans, the potentially deadly venom contributes to the lionfish having no natural predators. Lionfish can adapt to live in both natural settings like coral reefs, or non-natural structures like sunken ships or wreckage, and underwater construction. Showing how remarkably adaptable they are, lionfish have recently been found living in freshwater rivers in Florida. All of these factors contribute to create an invasive species that has no natural boundaries to expansion.

Lionfish in the U.S.

Although many sources disagree about how this venomous predator made its way to the Atlantic, the one common factor is human involvement. Likely imported for personal aquariums, scientists believe owners who could no longer, or would no longer, care for their pets released the first Atlantic Lionfish into the ocean.

Divers first spotted lionfish off the coast of Miami, Florida in the 1980’s, but numbers remained low throughout the 80’s and 90’s, before exploding in the early 2000’s. In response to this drastic increase in numbers, coral reefs that rely upon biodiversity to maintain healthy formations have struggled to survive. The situation is getting so dire, national media outlets like CBS have chronicled the invasion of this nuisance species.

From 2004 to 2010, scientists claim lionfish comprised nearly 40% of the total predator biomass of aquatic systems they have colonized. Lionfish have shown that they are not picky eaters; more than seventy species of prey have been found in lionfish stomachs. With their insatiable appetites, lionfish are decimating ninety percent of the native fish in the areas they are colonizing. Lionfish can survive for weeks without eating a meal, but won’t resort to those measures when they are not required to. Some fish caught off the North Carolina coast have shown signs of overeating, and in some cases the fish have been described as “obese.”

Lionfish employ a slight variation to the typical style of ambush predation. Instead they slowly pursue and extend their fins in an attempt to corner their prey. Scientists believe prey species off the eastern coast of North America are inexperienced with this type of attack, making them more susceptible to it. This type of predation may lead to increased efficiency, further diminishing the native prey species populations.

Federal Action

The lead federal organization playing a role in the attempt to help mitigate the impacts of the Lionfish is the National Oceanic and Atmospheric Administration (“NOAA”). Within NOAA, the Center for Coastal Fisheries and Habitat Research (“CCFHR”) is the main science center concerning itself with the habitat loss attributable to lionfish. When trying to set policy regarding best lionfish management practices, agencies run into the problem of dealing with both United States and internationally controlled waters. The majority of states are granted jurisdiction over waters extending three miles seaward from the shore. Although the federal government regulates national security and a few other matters within those three miles, states are required to manage and lease marine resources throughout the three miles of water and seabed bordering their shores. A NOAA study looked at three options for lionfish management in state and territorial controlled waters.

The first proposal centers on the principle of augmenting state based management plans. State based plans are diverse in nature, ranging from setting specific educational, monitoring and removal efforts, to more passive methods like enforcing release prohibitions, and drafting lionfish handling and collection protocols. Although this approach allows plans to be tailored to fit state specific circumstances, cooperation between state and federal agencies is notoriously difficult to oversee, and the enforcement of these types of collaborations has ultimately stalled this approach.

The other two approaches work through the lens of creating an Aquatic Nuisance Species (“ANS”) task force. One option is creating state based task forces to address the issue. To combat the lack of funding available for task forces like these, Congress enacted the Nonindigenous Aquatic Nuisance Prevention and Control Act (“NANPCA”). NANPCA allows states to create and submit ANS management plans. If approved, the state is eligible to recoup up to 75% of whatever costs are required to implement the plan. Louisiana, Georgia, and South Carolina have ANS Task force approved plans in place, while Texas, Mississippi, Alabama, and North Carolina still have plans under development.

Federal legislation was first introduced to address the impacts of lionfish in 2011. Although ultimately unsuccessful, it started a discussion that brought the lionfish epidemic to the national stage. Most recently Florida Congressmen David Jolly and Curt Clawson co-sponsored the Lionfish Elimination and Prevention Act (“LEAP”). The act would ban the importation of the eleven species of lionfish. LEAP would not interfere with the sale of fillets for human consumption, a key consideration in reducing the population of lionfish.

An Organic Solution

Once an invasive species establishes itself in a new ecosystem it is nearly impossible to eradicate them. With that in mind, the public search for a solution has shifted from finding a method that will eradicate the predators, to a method that will contain the spread of lionfish, and reduce the population to a manageable number. One option that has garnered much support from local communities is the systematic targeting and removal of the fish through hunting. The only drawback to this plan is that lionfish do not travel in packs, and their proximity to coral reefs and underground structures make the use of nets too destructive to be practical. The only commonly practiced method of fishing is accomplished by a diver and involves the use of a handheld spring-loaded spear. This method, although very effective, and if done properly doesn’t harm coral, requires the hunter to have the proper certification and gear, and takes many hunters to remove the fish at a fast rate.

A small contingent of fisherman-conservationists has sprung up and started hunting these fish for sport, as well as for conservation of the local fish population. Discovery Diving Company of Beaufort North Carolina has established an annual “If you can’t beat ‘em, eat ‘em” lionfish tournament, offering a $500 prize to the diver who harvests the highest total number of lionfish. Although this movement provides a practical solution with measurable results, environmental advocates, as well as the local tourist and commercial fishing organizations that rely on the health and biodiversity of the ocean, are concerned with the speed of removal and overall impact.

Lionfish are considered a delicacy in many countries. A cooked filet is light and flaky in nature and is considered similar to flounder. Restaurants in Mississippi, another state dealing with the invasion, have started to offer lionfish as a menu item to positive reviews. However, supply of the fish is spotty and restaurants need steady sources to make the fish a staple. At this stage hunters are key to the availability of lionfish for sale in restaurants, and in turn creating a higher demand.

Conclusion

Despite any solutions we might find, lionfish are here to stay. Individuals can help battle this problem by eating at restaurants that serve lionfish and increasing demand. Despite public approval for federal action addressing the invasion, recent decreases in federal funding across the budget means that money to help battle lionfish is unlikely. With ravaged populations of native species, and the health of coral formations at jeopardy, the search for a widely implementable solution is more important now than ever.

The Featured Image is of a wild lionfish and part of the public domain.


Sources:

Christie Wilcox, The Worst Marine Invasion Ever, Slate Online (Jul. 1, 2013).

Discovery Diving, “If you can’t Beat ‘em, Eat ‘em Lionfish/Lobster Tournament,” Events Page, http://discoverydiving.com/index.php?option=com_content&view=article&id=408&Itemid=173 (last visited Nov. 5, 2015).

Gulf and Caribbean Fisheries Institute, Invasive Lionfish Web Portal, http://lionfish.gcfi.org/ (last visited Nov. 5, 2015).

Jonathan Randall, Jesse Schram, Dr. Andrew J. Read, advisor, Policy and management Options for Invasive Indo-Pacific Lionfish in U.S. Waters, (May, 2011). http://coastalscience.noaa.gov/research/docs/Lionfish%20policy%20review_Schram%20ms%20thesis.pdf

Lionfish Threaten Native Fish in U.S. Coastal Waters, CBS This Morning, (February 21, 2013), http://www.cbsnews.com/videos/lionfish-threaten-native-fish-in-us-coastal-waters/.

Lisa Monti, READY TO ORDER LIONFISH TACO? Hunting, eating the fish may be best way to control the invasive species, Mississippi Business Journal (Oct. 2, 2015).

Reef Environmental Education Foundation, Lionfish Research Program, http://www.reef.org/lionfish (last visited Nov. 5, 2015).

Reef Environmental Education Foundation, Lionfish Quick-Facts, http://www.reef.org/reef_files/Lionfish%20quickfacts.pdf

Sixth Grader Credited with Scientific Breakthrough on Lionfish, (July 7, 2014), http://www.cbsnews.com/videos/sixth-grader-credited-with-scientific-breakthrough-on-lionfish/.

Stephanie J. Green, Invasive Lionfish Drive Atlantic Coast Coral Reef Fish Declines, March 7, 2012. http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0032596.

United States Geological Service, Non-Indigenous Aquatic Species page, Pterois Volitans Fact Sheet, http://nas.er.usgs.gov/queries/FactSheet.aspx?speciesID=963 (last visited Nov. 12, 2015).

Whitfield et. al., Biological invasion of the Indo-Pacific lionfish Pterois volitans along the Atlantic coast of North America, Marine Ecology Progress Series, Volume 235: 289-297, (June 19, 2002).


Introduction

The human body is approximately sixty percent water. We use water in every part of our lives, from creating the products we use and wear, to growing the food we eat. Drinking water just appears with the turn of a nozzle because it is transported there from the rivers and lakes, often a great distance away. We also consume other drinks, from cans, bottles, and taps. One of the most prevalent of these is beer.

Beer is a very popular beverage that uses large amounts of water to produce. On average, to produce one gallon of beer it takes seven gallons of water. This includes every part of production, from the growing of the hops, to the brewing process itself where water is an ingredient, to the cleaning of the equipment. That one gallon of beer is a little less than what you get in a twelve pack. While brewing beer is water intensive process, concerns over water use have not deterred business development as the number of breweries in the United States reached 4,000 this past September. This statistic, complied by the Brewers Association, includes any brewery that actively sells in the marketplace and pays federal taxes on their sales. With so many breweries in our nation, there is a lot of water that goes into quenching our thirst for beer.

Breweries

The United States has many breweries, but not as many as it did in 1873. There were over 4,100 breweries in 1873, and collectively they produced nine million barrels of beer. Today, the United States brews over twenty million barrels of beer a year. This includes larger breweries, like MillerCoors Brewing Company in Golden, Colorado. Keeping in mind that one barrel is about thirty-one U.S. gallons that is over 620 million gallons of beer. Additionally, for every gallon of beer we use an average of seven gallons of water to make it. To visualize this quantity, think of an acre-foot, which is about an entire football field covered with one foot of water. Now think of 13,280 football fields covered with one foot of water, and that is how much water we use to brew beer every year.

Brewpubs (establishments that brew beer and sell food) and microbreweries (breweries that are typically independently owned and brew a relatively small amount of beer, not exceeding 15,000 barrels a year) only make up for about twenty percent of the beer produced in the United States, but a few of them are making big steps to decrease their water consumption.

Conservation

All across the United States breweries are striving to conserve their water consumption, both to save money and to make a statement on environmental awareness. Breweries of various sizes are implementing water conservation measures where feasible. These are just a few examples of breweries that have made their efforts known.

Massachusetts
Harpoon Brewery, of Boston, Massachusetts, has taken a creative approach to water conservancy by using filthy, dirty water from the Charles River. They named their creation the Charles River Pale Ale. Harpoon decided to do this not to create a new product for shipping by only drawing 300 gallons of water from the Charles River, which is just enough to brew eighteen kegs of the pale ale. Harpoon brewed this beer as a message of conservation, to show that dirty water can be treated and re-used in the production of beer. Harpoon Brewery does not at this time plan to continue to brew and sell the Charles River Pale Ale. The president of Harpoon Brewery, Charlie Storey, told reporters that it was about making a beer with a story attached to it, not a new product.

Desalitech, a water treatment company headquartered in Boston, treated the water using its patented reverse osmosis process. The company wanted to participate in this venture as a way of improving the environment.

California
In California, breweries are making changes to conserve water, because of the continuing drought. Despite the drought in recent years, new breweries continue to be built. California houses over 400 craft breweries, giving it the most of any state, and all of these collectively craft over 3.4 million barrels of beer a year, generating over $6.5 billion in revenue.

Some towns in California, like Fallbrook, have placed restrictions on local breweries because of the large amount of water used. When a small brewery was told it had to reduce its water consumption by ten percent, the owner made efforts to re-use water for cleaning the brewing equipment. The brewery owner also purchased a new chiller that uses two-thirds less water than the one that the brewery used previously. The chiller quickly cools the wort, which is the liquid left after all of the solid ingredients have been mixed together fbefore adding yeast.

Another brewery, Bear Republic, spent money to drill wells not just for itself, but also for its’ home city of Cloverdale. Bear Republic also installed a new bioelectrically enhanced wastewater treatment mechanism that allows them to re-use up to twenty-five percent of their water to clean equipment. With this new technology, Bear Republic now uses an average of 3.5 gallons of water for one gallon of beer, making it one of the most efficient breweries in the United States.

Other breweries in California are using less water to brew beer, decreasing the seven-to-one gallon ratio to a five-to-one ratio. More are digging wells to access additional water as a means of not putting further stress on dwindling surface water sources. Brewpubs, including Sierra Nevada’s flagship brewery in Chico, California, are reducing water use with the food they serve and the landscaping. Installing new wastewater treatment systems is another method some of the larger facilities have chosen, but it is often too expensive for the smaller microbreweries. Many are just putting a halt on any planned expansions, reducing their distribution, and cutting consumption anywhere else they can. This is all a result of California’s drought and cities not having enough water for the breweries.

Oregon
A brewery in Portland, Oregon, Hopworks Urban Brewery, received the Salmon-Safe certificate this past August, the first brewery in the nation to do so. Hopworks received this award for its treatment of all of the storm and wastewater that comes onto the grounds, as well as all of the water it uses. The treatment ensures that the water can be put back in to the river without interfering with Salmon breeding. The brewery also uses materials that conserve water, including low-flow faucets and pervious concrete. Pervious concrete is specially designed to allow for water to filter through it into the ground, allowing the water to contribute to groundwater supplies.

Full Sail Brewery, in Hood River, has also been able to reduce its water use to a mere two-and-a-half gallons for every gallon of beer produced. They also use the leftovers from the brewery process, like the yeast and grains that come out during filtration, to feed dairy cows.

Conclusion

Water is used for everything we consume. Beer is a commodity that requires a lot of water. Drought and water scarcity have not restrained the growth of breweries in states like California, but it has led to awareness of water scarcity and the need to utilize more efficient means of creating beer. Even breweries in Boston, where water is not as scarce, are trying new methods of conserving water. This is groundbreaking and a big step for the brew industry.

Featured photo is of barley brewing, as part of the beer brewing process.  This photo is part of the public domain.


Sources:

Bart Watson, Economic Impact, BREWERS ASSOCIATION, https://www.brewersassociation.org/statistics/economic-impact-data/.

Bart Watson, U.S. Passes 4000 Breweries, BREWERS ASSOCIATION (Sep. 28, 2015), https://www.brewersassociation.org/insights/4000-breweries/.

BeerHistory.com, http://www.beerhistory.com/library/holdings/chronology.shtml.

Craft Beer Industry Market Segments, BREWERS ASSOCIATION, https://www.brewersassociation.org/statistics/market-segments/.

Dan Powell, CA Craft Brewers Leading in Water Conservation Efforts, CRAFTBEER (AUG. 31, 2015), http://www.craftbeer.com/brewers_banter/ca-craft-brewers-leading-in-water-conservation-efforts.

Howard Perlman, How much Water does it Take to Grow a Hamburger?, USGS: SCIENCE FOR A CHANGING WORLD (Aug. 7, 2015), http://water.usgs.gov/edu/activity-watercontent.html.

Julie Watson, California Craft Beer Brewers Balance Drafts and Drought, Associated Press (October 11, 2015), http://www.orlandosentinel.com/news/os-ap-california-drought-craft-beer-20151011-story.html.

Karim Nice, How Beer Works, How Stuff Works, http://science.howstuffworks.com/innovation/edible-innovations/beer3.htm.

National Beer Sale and Production Data, BREWERS ASSOCIATION, https://www.brewersassociation.org/statistics/national-beer-sales-production-data/.

Penny Schwartz, Israeli Tech Helps Turn Boston’s Dirty River Water into Beer, HAARETZ (October 6, 2015), http://www.haaretz.com/jewish-world/1.678977.

Pervious Concrete Pavement, PERVIOUS PAVEMENT, http://www.perviouspavement.org.

State Craft Beer Sales & Production Statistics, 2014, BREWERS ASSOCIATION, https://www.brewersassociation.org/statistics/by-state/.


In a complex interplay between state regulatory structure, legal doctrine, and private industry, the Gold King Mine spill serves as a shining example of government breakdown. On August 5, 2015, the Environmental Protection Agency (“EPA”) in dealing with the Gold King Mine, an abandoned mine site in southwest Colorado, triggered the release of three million gallons of toxic waste, containing a mixture of heavy metals that included lead, arsenic, cadmium, beryllium, and mercury, that affected Colorado, New Mexico, Utah, and the Navajo Nation. The actual spill climaxed an ongoing environmental nightmare, lurking in the San Juan Mountains, leaching silently into the watershed. The shadows of disaster extend far back into Colorado history when, decades ago, mining companies began altering the flow of water through interconnect tunnels in the extensively mined Upper Animas River watershed. The potential for a major blowout loomed inevitable as millions of gallons of pressurized water had been bottling up inside the Gold King mine.

But, the extent of environmental disaster soars much worse than one isolated incident. Metallic, acidic wastewater escaping from abandoned mines affects agriculture, ranching, aquatic life, human and wild life, and aquifers. The Gold King Mine and three other nearby sites were discharging 330 million gallons of toxic waste each year. Mathy Stanislaus, an EPA assistant administrator who handles cleanup activities, mildly described the issue as “ongoing adverse water quality impacts,” which the EPA has tried unsuccessfully to address. The EPA estimates that total discharges from regional abandoned mines leach the equivalent of one Gold King mine disaster every two days, resulting in the failure of 1,645 miles of rivers and streams to meet Clean Water Act standards.

In 2005, a previous water treatment system near Gold King Mine cleaned water flowing into Cement Creek, a headwater of the Animas River. However, the plant closed when funding failed. Since the closing, contaminated water has flown without treatment. Now, the EPA is considering opening a similar water treatment facility after struggling to clean the now severely contaminated water following the Gold King Mine spill. However, such a facility is expensive, costing up to $20 million to construct.

While public pressure to build a water-treatment plant mounts, government officials debate whether the effective results offset high construction and maintenance costs. The EPA currently employs several settling ponds, which will not function in freezing weather. Settling ponds, which rely on water to accomplish their tasks, freeze in cold temperatures.

Officials have long fretted over providing for and regulating water. Over 100 years ago, in the nineteenth century, after Denver secured a reliable quantity of water, citizens began worrying about the quality of their water supply when they noticed a “foul appearance, taste, and odor.” Company officials from Denver City Water Company blamed the water’s dirty appearance on sediment and assured concerned citizens nothing was wrong. However, citizens continued to sicken, contracting typhoid, an illness spread through sewage-contaminated water. Eventually, in response to continued water quality issues, companies began trying to solve the problem in creative ways. Like the officials tasked with cleaning the Animas, they began searching for solutions. Private companies built wood shelters over reservoirs, and Denver passed laws banning hogs within the city. Citizens continued to contract typhoid, inciting pubic outcry. In response, companies considered a scientific remedy for contamination, filtration. In 1884, Denver installed its first filtration system.

Like government assurances that sewage-filled municipal water was fine, Colorado Governor John Hickenlooper drank water from the Animas River to comfort citizens that the river had returned to pre-contamination conditions. State officials stated with confidence that the river does not pose a toxic threat to humans. Governor Hickenlooper was happy to show that “we’re back to normal,” but what is normal? Normal in the context of the Animas River spill is slow, but steady contamination.

The situation only stands to get worse. The recent economic crisis increases water access issues by decreasing investment in water infrastructure and bolstering private investment in water. The privatization of water utilities “has little to do with equality or equity.” The commodification of water spurs decisions centering on commercial, not environmental or social justice concerns. The cost to ship supplies adds into the cleanup calculus for remote locations. The mountain land increases difficulty and expense, since facilities are more than a short drive from the Home Depot. Yet, as the Animas contamination demonstrates, water remains a precious resource. Investment in water infrastructure pays off. For instance, the Argo Tunnel facility in Colorado, though expensive, has allowed fish to return and recreational industries to be possible on the Clear Creek. The state-run facility supports both the natural wildlife and human enjoyment of the stream.

In a world of discrete property rights and bundles, water complicates the picture. As government agencies attempt river clean up, citizens confront questions of water quantity, quality, and price. The cost of environmental exploitation, such as the Animas River spill, sometimes gets passed down the line. Miners who profited from the Gold King mine are long gone, and the current generation is funding clean up. The discovery of gold in the Rocky Mountain West fueled civilization, but settlement has a cost. Colorado’s polluted streams remind us of the environmental costs and benefits in the calculus, even those that take a century to materialize.

This featured photo is of the Animas River between Silverton and Durango, Colorado.  The photo was taken August 2015 by Riverhugger, who has licensed this photo under the Creative Commons Attribution-Share Alike 4.0 International license.


Sources:

Mark K. Matthews, House science committee grills EPA over Gold King Mine spill: First of several committee hearings to look into the spill, The Denver Post, Sept. 9, 2015, http://www.denverpost.com/news/ci_28781450/house-science-committee-grills-epa-over-gold-king-mine-spill.

Ben Brumfield, By the numbers: The massive Animas River spill, CNN, August 13, 2015, http://www.cnn.com/2015/08/13/us/animas-river-spill-by-the-numbers/index.html.

Associated Press, EPA mine spill could have been prevented, government investigators say, ABC 15 ARIZONA, October 22, 2015, http://www.abc15.com/news/state/epa-mine-spill-could-have-been-prevented.

Michele Swenson, Legacy of Hard Rock Mining in the West – Death of A River, a Community’s Response, HUFFINGTON POST, Sept. 2, 2015, http://www.huffingtonpost.com/michele-swenson/legacy-of-hard-rock-minin_b_8063144.html.

Jesse Paul, Treatment facility for Colorado mine spill site would be difficult: State officials, experts say wastewater treatment above Silverton would be tough, The Denver Post, Sept. 10, 2015. http://www.denverpost.com/news/local/ci_28786963/treatment-facility-for-colorado-mine-spill-site-would-be-difficult.

Winter Operations of a Reclaimer and Settling Pond System, BFK TECHNOLOGIES, INC., http://www.bfktech.com/index_htm_files/Winter%20Operations%20of%20a%20Reclaimer%20and%20Settling%20Pond%20System.pdf.

Patricia Nelson Limerick, A Ditch in Time, Chapter 1, 31.

Peter Marcus, Hickenlooper drinks Animas River water to make a point: Hickenlooper drinks from river: ‘If that shows that Durango is open for business, I’m happy to help, The Durango Herald, August 12, 2015, http://www.durangoherald.com/article/20150812/NEWS01/150819894/Hickenlooper-drinks-Animas-River-water-to-make-a-point-.

Tom Romero, The Color of Water: Observations of a Brown Buffalo in Ten Stanzas, 1 U. Denver L. Rev., Vol. 15, 1, 39-40 (2012).


INTRODUCTION

The Environmental Protection Agency (“EPA”) has recently fallen on tough criticism from western states. Notably, Colorado after the EPA’s involvement in a recent accidental breached mine dam. Additionally, states like North Dakota are taking a stand in opposition to the EPA’s new water pollution rule. In May of this year, the Obama Administration (“the Administration”) utilized the “Clean Water Rule” to assert its authority over the nation’s streams, wetlands, and smaller waterways under the Clean Water Act (“CWA”). Supporters and enforcers of the new rule viewed this action as a definitive win for the health of citizens and the economy, while opponents interpret this new rules a massive federal overreach that puts the EPA in charge of “puddles” and “ditches” it should not have jurisdiction over.

SO WHAT DOES THE RULE REALLY CHANGE?

The Administration and EPA Administrator, Gina McCarthy, emphasize that the rule is being issued simply as a “clarification” to help businesses determine which waterways are subject to pollution rules under the CWA. McCarthy explained that the new rule will increase the federal government’s jurisdiction by less than five percent and does so “without creating any new permitting requirements and maintaining all previous exemptions and exclusions.” The rationale behind the new rule is science-based water sources are linked together and are not simply “little streams” that begin and end within the boundary of one state— they often connect to larger bodies of water that the CWA regulates to control pollution. Small water bodies like streams and wetlands not regulated by the CWA can carry pollutants to the larger waterways like bays and rivers that supply one in three Americans with drinking water. Before the new rule, these larger water sources were susceptible to foreign pollution the “little streams” carry due to inconsistent regulation between the two different sources.

However, opponents of the “clarification” argue under a state’s rights theory that the new rule is an unlawful expansion of federal power that will irreparably diminish control over their water. States, as well as private parties including the energy industry and agricultural interests and developers, believe this is more than a so-called clarification and are deeming it an infringement upon the state’s ability to control what is within their borders.

HOW AND WHICH STATES ARE TAKING A STAND?

North Dakota, along with twelve other states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming) have filed suit in district court for the District of North Dakota arguing that the new rule significantly changes the amount of control they have over the water within their states. On August 28, 2015, a federal judge issued a preliminary injunction on the new rule, stating that the EPA likely exceeded its authority in the expansion. Furthermore, the judge stated the EPA appeared to have failed to follow certain procedural requirements when promulgating the new rule. While many other states have filed similar injunction suits, courts have been reluctant to hear the cases because of jurisdictional issues. However, on October 9, 2015, the Sixth Circuit Court of Appeals (“The Court”) issued a nationwide stay on the new rule even though it has not yet determined if it has proper jurisdiction over the case. The Court issued the stay based on the fact that the states could prevail on the merits. Following argument, The Court found two flaws in the new rule: (1) it appears to be in conflict with Supreme Court precedent and (2) the agency may have failed to properly follow administrative procedures.

The states involved in the suit have long been opponents of federal regulation, and although the rule expands federal control by only 2.8 to 4.6 percent, any increase in federal control is viewed as an overreach. In contrast, states like Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont, and Washington favor the EPA’s new rule seeing is as an opportunity to have consistency in regulation where all waterways in the United States receive the same level of protection. These seven states also see this as an opportunity to pass on some of the burden and cost of regulation to the federal government, which would relieve the states of costly enforcement while allowing them to enjoy less polluted water. The seven states supporting the new rule plan to intervene in litigation at the appellate level to encourage courts to recognize the benefit the new rule brings; it hard to say consistent regulation of waterways that feed into drinking water sources being protected from pollution is not a benefit.

WHAT NOW?

As is the case in most “state vs. federal” lawsuits, the litigation is likely to last years and in the meantime legislative priorities may change as a new administration enters the White House in 2016. Few things are certain at this stage aside from the nationwide injunction on the new rule issued by the Sixth Circuit Court of Appeals. The federal court in North Dakota recognized the split in state support when it denied a request from the thirteen states to extend the injunction nationally, likely because there are, at a minimum, a number of states that are indifferent to the rule and some states that outright favor it. However, the Sixth Circuit put that notion aside when it extended the injunction nationwide while it waits for briefs on the issue and decides the jurisdictional question. As citizens become more aware of environmental issues that impact their water and states continue to push back against federal regulation, it is likely the Supreme Court can expect a knock at the door from this issue seeking clarification on who in fact controls the water in the United States.


Sources:

Jodi Peterson, Big ruckus over little streams, HIGH COUNTRY NEWS, (Sept. 4, 2015), http://www.hcn.org/articles/big-ruckus-over-little-streams.

Timothy Cama, President Obama asserts power over small waterways, THE HILL, (May 27, 2015, 10:05AM), http://thehill.com/policy/energy-environment/243179-obama-asserts-power-over-small-waterways.

Jonathan H. Adler, North Dakota district court blocks controversial ‘Waters of the United States’ rule, THE VOLOKH CONSPIRACY, (Aug. 28, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/28/north-dakota-district-court-blocks-controversial-waters-of-the-united-states-rule/.

David P. Steinberger, Who Controls the Water? The Answer is Now On Hold, THE NATIONAL LAW REVIEW, (October 15, 2015), http://www.natlawreview.com/article/who-controls-water-answer-now-hold.

Featured image is part of the public domain.


INTRODUCTION

The Los Angeles Power and Water Department’s (“PWD”) recent release of 96 million, black “conservation balls” into the Los Angeles Reservoir attracted global media attention. The conservation balls are four inches in diameter, hollow, made of polyethylene, and coated in a carbon substance. For the most recent project, Los Angeles paid $0.36 per ball. The balls are halfway filled with water, which allows them to float on the reservoir’s surface and form into a reservoir cover. Conservation balls are not a new or novel idea. Conservation balls have been available for at least twenty years.

The balls serve two, specific purposes for Los Angeles. First, the conservation balls increase water quality. Los Angeles has been plagued with poor reservoir water quality for decades. The balls prevent the formation of harmful microorganisms, algae, and carcinogens by blocking ultraviolet ray penetration. Second, the conservation balls prevent evaporation.

WATER QUALITY

Cities, like Los Angeles, are implementing projects to cover reservoirs as means to promote public health and safe drinking water. Along with municipally imposed regulations, national regulations have also brought increased pressure to cover reservoirs. The Environmental Protection Agency’s (“EPA”) Long Term 2 Enhanced Surface Water Treatment Rule mandated either the covering of all new reservoirs that service at least 10,000 people and (2) existing reservoirs, or that the reservoirs must adhere to stricter contaminant regulations. Previous outbreaks of typhoid and cholera throughout history show that protecting reservoir water is a social imperative. Recently recognized threats to water quality, such as Cryptosporidium, have reinvigorated the push for safer drinking water. More commonly, reservoir water quality suffers from contamination of animal feces, animal carcasses, invasive species, rogue citizens defiling the water, and everyday trash buildup. Conservation balls have been utilized to protect water quality and keep wildlife off the surface water. San Francisco International Airport, London Heathrow International Airport, and the United States Air Force have all used conservation balls to deter birds from surrounding waterways.

Water quality concerns have beset Los Angeles for decades. A 2009 report, co-authored by Environmental Working Group senior scientist Olga Naidenko, ranked Los Angeles as having the 83rd best water quality amongst large, American cities. Recent news reports showed black and yellow tinted water spouting from Los Angeles area taps. The Natural Resources Defense Council stated that Los Angeles area water is “threatened by runoff and industrial or sewage contamination.”

Los Angeles historically has been slow to make improvements to its reservoirs. The state of California first recommended to Los Angeles to cover its reservoirs in 1974. In 1988, Los Angeles formed proposals to cover some of its reservoirs, including the Elysian Reservoir. The proposed covers were made of aluminum or rubber. Following the state’s push to cover the reservoirs, few Los Angeles reservoirs were ever covered. This past inattention to water quality issues may have contributed to the issues facing Los Angeles area reservoirs today.

By 1991, PWD described the Stone Canyon Open Reservoirs and Silver Lake Reservoir Complex as having deteriorating water quality, high coliform bacteria levels, and high algae counts. In 2008, the Elysian Reservoir, a reservoir that Los Angeles failed to cover in 1988, after displayed bromate contaminants and was subsequently drained. Bromate is a suspected carcinogen, and the EPA places strict limits on its presence in drinking water. Following the 2008 draining of Elysian Reservoir, PWD used conservation balls for the first time when it dumped 400,000 balls into the Ivanhoe Reservoir. The conservation balls’ primary purpose, at the time, was to increase water quality by shielding the water from sunlight, hindering the growth of algae.

Conservation balls are potentially an appropriate remedy to the unique difficulties facing Los Angeles’ water quality issues. The conservation balls protect against the formation of harmful carcinogens, microorganisms, and algae, along with hindering the presence of animals and surface debris. The pollution generated by a city the size of Los Angeles, coupled with the push back against reservoir covers and other quality control methods have had negative, long-term effects on the cities’ water quality. Despite these hurdles, Los Angeles met the EPA’s 2013 drinking water standards. However in the future, EPA standards will only continue to tighten and Los Angeles will continue to face water quality challenge. The conservation balls have the potential to benefit Los Angeles water quality in a cost effective and minimally invasive fashion. If this most recent drop of conservation balls proves successful, conversation balls may play a larger role in securing the future of Los Angeles water quality.

EVAPORATION

Although Los Angeles initially used conservation balls to protect water quality, the PWD has now embraced the balls as an evaporation suppressant. Large surface areas make reservoirs a liability in water storage, vulnerable to massive amounts of evaporation. The two most common ways to combat surface evaporation are with floating or suspended covers. Both provide similar evaporation relief and are effective in different ways. Floating covers were historically most effective at covering small areas, where the surface is easy to cover fully. Floating covers are also cheaper. Suspended covers can be prohibitively expensive, especially when needed to cover large areas.

The United States Department of Energy encourages the use of a floating cover on family swimming pools to reduce evaporation. To cover the Los Angeles Reservoir with a floating cover presents a much greater challenge than covering a swimming pool. Reservoirs the size of the Los Angeles Reservoir require cost-effective floating covers. To be cost-effective, a cover must need minimal maintenance, can be easily removed, and conform to large water surfaces without losing its shape.

Scientists have long sought a way to place an artificial protective layer over water surfaces in order to reduce evaporation. In 1917, Irving Langmuir studied how oil films on top of a liquid surface can protect against evaporation. Academics wrote extensively about these oil films, monolayers throughout the 1960s. In 2014, Wichita Falls, Texas tested a monolayer product on Lake Arrowhead. The 2.6 month test prevented 3,400,00m³ of water from evaporating, saving the city $1,700,000. However, the product required frequent application, suffered damage in the wind, and did not provide uniform coverage.

While some researchers focus on monolayers, others have researched plastic meshes, rubber mats, and interlocking hexagonal structures. Conservation balls have emerged as an alternative to monolayers and other forms of floating covers. While monolayers may be more aesthetically pleasing, conservation balls require less maintenance, are more effective against ultraviolet rays, and do not stick to the banks of open water storage areas. Conservation balls are unique in their practicality for large areas. Before, covering large reservoirs was a complex, engineering project. Now, the self-positioning balls are simply dumped into a reservoir. The balls cling to the surface, do not blow away, and do not require complex engineering, which makes them a cost effective measure. Conservation balls also protect water quality in ways that monolayers cannot. Conservation balls block out ultraviolet rays that can have damaging effects on water quality.

Los Angeles area reservoirs suffer more use, higher temperatures, and are much larger than many other reservoirs. Traditional methods of reducing evaporation, such as solid mats or earthen covers are not feasible for Los Angeles reservoirs for a variety of reasons, from being cost prohibitive to being engineering impossibility. Large floating mats often fold over themselves, a large fold in a Los Angeles Reservoir cover would be problematic to fix. Conservation balls solve this problem by dispersing themselves around the reservoir. Furthermore, conservation balls are made of polyethylene. Polyethylene is commonly used to prevent evaporation. Polyethylene shade covers can reduce evaporation loss up to 85%, and prevent algal growth. Polyethylene shade covers are suspended covers, and do not float like the conservation balls.

Polyethylene is widely considered the best material to suppress evaporation. A number of conservation ball manufacturers claim that their product prevents evaporation loss by 90%. Despite the lack of academic studies focusing on the evaporation reduction from polyethylene formed into a ball, surfaces covered with polyethylene in a variety of forms substantially lowers evaporation rates compared with uncovered surfaces. This holds true even for only partially covered surfaces. While conservation balls limit evaporation, one noted flaw of the conservation ball is how it’s round shape. Surface covers that leave one large area exposed are more successful at suppressing evaporation than covers with many small holes. The balls naturally create spaces in between each other due to the spherical shape; this in turn causes higher levels of evaporation than a solid cover that does not cover an entire surface.

Los Angeles is the first major city to use this product. How the city fares with this investment will provide significant evaporation reduction information to other cities with similar problems.

CONCLUSION

Los Angeles’ use of conservation balls is an example of a city using an innovative, relatively unknown, and relatively inexpensive product as a solution to an otherwise cripplingly expensive infrastructure project. Like any new public works project there has been scrutiny over the project and questions regarding why municipalities were not using this product sooner. To some naysayers this solution is another waste of taxpayer dollars, while others within the media and California view this project as having great potential.

However, this project by the PWD shows how small investments can have potentially long-term payoffs that prevent later environmental and political fallout. Covering a reservoir in conservation balls is a lot cheaper, in the short and long-term, than constructing a new, underground reservoir. Mayor Eric Garcetti hailed the conservation balls as saving both taxpayers and drinking water. The day may come when Los Angeles and California, as a whole, have to create solutions to challenges regarding their water systems that require much more complex answers than conservation balls. To know what role the conservation balls may play in solving future challenges, the true savings and benefits of this project must be known, not just the projected benefits. Los Angeles estimates that the balls will save 300 million gallons of water a year. Time will tell how accurate those estimates are. If this project is successful then it potentially could model for other cities across the world.

Department of Water and Power workers release the final 20,000 of 96 million black shade balls during a news conference at the Los Angeles Reservoir on Aug. 10, 2015. Photo by Gene Blevins/LA DailyNews.


Sources:

Ca. Exec. Order No. B-29-15 (Jan. 17, 2015) available at www.ca.gov/docs/4.1.15_Executive)Order.pdf.

Mayor Garcetti Announces Completion of Innovative ‘Shade Ball’ Cover Project at Los Angeles Reservoir, Mayor, City of Los Angeles (Aug. 10, 2015), http://www.lamayor.org/_mayor_garcetti_announces_completion_of_innovative_shade_ball_cover_project_at_los_angeles_reservoir.

EPA Long Term 2 Enhanced Surface Water Treatment Rule, 40 C.F.R. § 141.700 (2006).

U.S. EPA, Uncovered Finished Water Reservoirs Guidance Manual (1999) available at http://www.epa.gov/safewater/mdbp/pdf/uncover/ufw8p.pdf.

David Verlee & David Zetland, Extending water supply by reducing reservoir evaporation: a case study from Wichita Falls, Texas, in Proceedings of Mine Water Solutions in Extreme Environments (2015) available at http://www.kysq.org/pubs/Verlee_Zetland_Mine_Water_Solutions.pdf.

S. Assouline Et Al., Evaporation Suppression From Water Reservoirs: Efficiency Considerations of Partial Covers, 47 Nat. Resources Res. (2011).

Brian Clark Howard, Why Did L.A. Drop 96 Million ‘Shade Balls’ Into Its Water?, Nat’l Geographic (Aug. 18, 2015), http://news.nationalgeographic.com/2015/08/150812-shade-balls-los-angeles-California-drought-water-environment/.

Robert Ferris, ‘Shade balls’ protect LA water supply during drought, CNBC (Aug. 13, 2015, 11:56 AM), http://www.cnbc.com/2015/08/13/shade-balls-protect-la-water-supply-during-drought.html.

Danny Clemens, Millions of ‘Shade Balls’ to Prevent Evaporation in California Reservoirs, Discovery (Aug. 12, 2015), http://www.discovery.com/dscovrd/tech/millions-of-shade-balls-to-prevent-evaporation-in-california-reservoirs/.

Andrew Theen, Portland’s new Kelly Butte Reservoir is open, funneling water to city taps, Oregonlive (Apr. 28, 2015, 4:44 PM), http://www.oregonlive.com/portland/index.ssf/2015/04/portlands_new_kelly_butte_rese.html.

Sarah Zielinski, The Colorado River Runs Dry, Smithsonian Mag. (Oct. 2010), http://www.smithsonianmag.com/science-nature/the-colorado-river-runs-dry-61427169/?no-ist.

Xi Yao Et Al., Evaporation Reduction by Suspended and Floating Covers: Overview, Modelling and Efficiency, 28 Urban Water Security Research Alliance Technical Report (Aug. 2010).

Veronique du Turenne, Those reservoir balls – are they safe?, L.A. Times (June 10, 2008, 4:54 PM), http://latimesblogs.latimes.com/lanow/2008/06/franciscos-post.html.

Mary Pflum, Bird-plane collisions on the rise, CNN (Jan. 1, 2001), http://www.cnn.com/2001/TECH/computing/01/11/birds.planes.t_t/.

Douglas Smith, Critics of Cover for Elysian Reservoir Hit the Roof, L.A. Times (Dec. 8, 1988) http://articles.latimes.com/1988-12-08/news/gl-1139_1_elysian-reservoir.

Judy Pasternak, Cover the Reservoirs? Many Can’t See It, L.A. Times (Oct. 5, 1988) http://articles.latimes.com/1988-10-05/local/me-2779_1_hollywood-reservoir.

Alan Citron, Contaminants Pose New Problems for Playa Vista Complex, L.A. Times (Nov. 8, 1987), http://articles.latimes.com/1987-11-08/local/me-21638_1_galanter.


National Forest Service’s Proposed Directive

Approximately 121 ski areas, across thirteen states, operate on National Forest Service (“Forest Service”) lands. The Forest Service authorizes these ski areas’ operations by issuing long-term special use permits under federal law. Special use permits do not confer water rights on the holder, but most water rights for snowmaking is necessary for the operation of most ski areas. Ski areas acquire water rights under state law necessary for snowmaking and other general uses. Since 2004, the Forest Service has made a series of revisions to the water rights clauses in ski area permits that limit permit holders’ use and ownership of the water rights.

 

The National Forest Service posted notice of its proposed internal directives amendment on June 23, 2014. The two new clauses constitute the Forest Service fulfilling its mandate to provide recreational use of Forest Service lands. There are six assertions in the second clause of the proposal that directly apply to prior appropriation states, including Colorado.

The Forest Service has the authority under the Organic Administration Act to regulate and condition the use and occupancy of Forest Service lands. More specifically, the Multiple Use Sustained-Yield Act of 1960 authorizes the Forest Service to develop and administer the surface resources of national forests to provide for outdoor recreation, among other uses.

The Forest Service’s 2014 proposed directive contains the provisions of the 2012 Directive, but the Forest Service provided the public an opportunity to participate by publishing the proposal. The 2012 Directive clarified and modified the 2011 Directive, but retained many of the same provisions. First, the 2012 Directive clarified that availability of the water for operation of ski areas would not be adversely affected under the provisions, unless necessary for the Forest Service to fulfill legal requirements. Essentially, the Forest Service is suggesting that the provisions will not interfere with the water availability for ski areas unless it must take action to pursuant to its obligation to maintain federally owned Forest Service ski area water rights. As to ownership, the 2012 Directive next clarified the “joint in tenancy with survivorship” requirement and stated that ski areas could transfer or sever their ownership interests with consent of the Forest Service. Third, the 2012 Directive removed the restrictions on the holder’s ability to sever water rights for water diverted from non-NFS lands for use on NFS lands in the same permit area.

The new proposed directive arose in response to the District Court of Colorado’s 2012 ruling in National Ski Areas v. United States Forest Service. The court in that case vacated the 2012 Directive because the agency failed to comply with procedural requirements in promulgating the rule. In that case, The National Ski Areas Association (“NSAA”) brought suit against National Forest Service seeking an injunction to set aside the 2011 and 2012 Directives. NSAA alleged that the Forest Service should have allowed a notice and comment period. The court ultimately agreed and held that the Agency additionally needed to conduct a Regulatory Flexibility Act analysis of the impact of the directives on small business entities that hold ski area permits. However, the court declined to rule on the substantive aspects of the directives.

The Forest Service subsequently published the 2014 directive for notice and comment in compliance with the APA. This clause first asserts that it supersedes existing national and regional ski area rights clauses in the current Directive. Second, it restricts water rights and water developments under a ski area permit to those that are necessary for and that primarily support the operation of the ski area. Third, it prohibits issuance of new or modified permits to holders not in compliance with all requirements of the directives. Fourth, it does not require the transfer of water rights to the United States under the terms of prior permits. Fifth, it states that the holder of a permit must grant a limited power of attorney to the Agency Officer to execute documents to effectuate any transfers of rights to subsequent permit holders. Sixth, it requires permit holders to waive any right to compensation against the United States for the transfer of water rights as a result of the provisions. The Forest Service states that these revisions are necessary for water availability for ski resorts, as well as for greater accountability and consistency in authorization of water uses and ownership of water rights.

Cory Gardner’s Amendment Aims to Protect State Water Rights

More recently, the Forest Service proposed an amendment to its internal directives that adds two clauses to the Special Uses Handbook, FSH 2709.II, chapter 50, which addresses permit holders of ski area water rights.

Senator Cory Gardner mentioned this recent Forest Service rule in his proposal on the Senate floor of his amendment to the Senate budget. Gardner’s amendment aims to protect the supremacy of state water law, and one provision of the Forest Service proposal provides that the provision would supersede state water law.

Gardner’s amendment itself proposes to establish a deficit-neutral reserve fund relating to “protecting communities, businesses, recreationists, farmers, ranchers, and other groups that rely on privately held water rights and permits from Federal takings.” On Thursday, March 26, Gardner’s amendment to protect private water rights from federal overreach passed by a vote of 59-41.

“Here is a land where life is written in water” began Cory Gardner’s speech on the Senate floor. The quote, he explained, is written on a mural in the Colorado State Capital Rotunda. Gardner moved to the basic justification for his amendment: “to make sure that we are protecting that life blood of Colorado, our water.” Gardner proposes protection against intrusions by the federal government attempting to challenge the supremacy of state water law. Gardner’s proposed amendment challenges federal agency rights by asserting state supremacy to legislate and control water rights. Among others, Gardner mentions the “new Forest Service Ski Area Rule” as an example of an agency seeking to impose a limitation on water rights at the federal level without going through the same water law channels that govern the rightful owners of Colorado water rights and permits.

Effect of the Amendment

Gardner’s recent amendment illustrates the ever-present tension between private ski area water rights holders and federal agencies. The potential magnitude of the effect of Gardner’s amendment is great, particularly because the current prior appropriation doctrine’s relationship with ski area water rights is at stake. However, the Forest Service has demonstrated the need for federal regulation in order to ensure that ski areas have the necessary water for providing future recreational use to the American public.

 

The title image features the iconic Beaver Creek ski resort in Colorado. This file is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license and the owner does not endorse this blog.


Sources:

Senator Cory Gardner, Gardner Amendment Protects Water Rights, YouTube (Mar. 25, 2015), https://www.youtube.com/watch?v=3vVYI_SjiYA.

 

Notice of Proposed Directive; Request for Public Comment, 79 Fed. Reg. 35513 (June 23, 2014).

161 Cong. Rec. S1807 (Mar. 24, 2015), https://www.congress.gov/congressional-record/2015/03/24/senate-section/article/S1790-1.

Nat’l Ski Areas v. U.S. Forest Serv., 910 F.2d 1269 (Colo. 2012).

 


Background

One of the largest megaprojects in the world has started construction—the Nicaragua Canal. When finished, the canal will be over three times the length of the Panama Canal and will accommodate some of the world’s largest ships. The project did not arise out of thin air. The United States had interest in building a canal in Nicaragua over a century ago.

In the beginning of the 1900s, the United States was searching for a place to build a canal that would connect the Pacific and Atlantic Oceans.  Nicaragua and Panama both wanted the bid.  In 1902, the U.S. Senate voted and, by a mere eight votes, awarded the canal to Panama.  A few years after the loss of the bid, Nicaraguan President, General Emiliano Chamorro, gave the U.S. the perpetual and exclusive right to build a canal in Nicaragua in exchange for three million dollars.  This agreement is known as the Bryan-Chamorro Treaty (“Treaty”). The U.S. and Nicaragua entered into the Treaty on August 5, 1914. The Treaty was only renewable every 99 years.  Because Nicaragua gave the U.S. the exclusive rights to build a canal in Nicaragua, Nicaragua itself was legally unable to build a canal. This inability made it difficult for Nicaragua to compete with Panama economically, and, as a result, the country has suffered in the world marketplace for decades.

In 1970, the U.S. and Nicaragua bilaterally abolished the Treaty. Now, the Nicaraguan government has granted a Chinese company, Hong Kong Nicaragua Canal Development Investment (“HKND”), the right to build a canal.  December 10, 2013, the Nicaraguan Assembly passed the canal concession. The Nicaraguan government did not inform the public of the bill until the bill had already been ratified. The bill gives HKND the power to build two ports, a railroad, an oil pipeline, and roads.  The bill also gives HKND the power to expropriate land along the canal route­—effectively giving HKND the right to displace an estimated 20,000 to 30,000 Nicaraguan landowners.  No countries or businesses placed a bid to build the canal in Nicaragua. HKND won the canal project without bidding and has a 50 year renewable contract with Nicaragua to build, operate, and profit from it.

HKND, headed by investor Wang Jing, expects the project to take five years to build and cost 50 billion dollars.  The canal will span about 173 miles, while the Panama Canal is only 48 miles, to connect the Pacific and Atlantic Oceans.  The canal’s width will vary between 755 feet and 1,706 feet.  It will be around 90 feet deep.  Nicaragua and HKND state that the size of the canal will accommodate some of the world’s largest ships, something the Panama Canal cannot do.

The megaproject has drawn public interest from around the world.  The project clearly implicates many issues whose resolve will unfold within the coming months and years.  The major issues concern the rights of Nicaraguan landowners and the anticipated environmental impacts of the canal.

The Rights of Nicaraguan Landowners

A central issue and subject of debate, especially in Nicaragua, is the displacement of Nicaraguan landowners along the canal.  Nicaragua is one of the poorest nations in the Western Hemisphere.  The current Nicaraguan President, Daniel Ortega, has sold the majority of the country on the idea of the canal by emphasizing the tremendous economic impact the canal will have on the county.  Ortega states that the canal will create 50,000 jobs for Nicaraguans, bring in benefit taxes from the Chinese government, and produce revenue from its operation.

However, many people are concerned that Ortega’s promises are not what they seem. They are apprehensive because HKND will initially own the entire canal; Nicaragua will only gain one-per-cent ownership of the canal each year.

An even greater area of concern surrounds the fact that the Nicaraguan government has given up part of its sovereignty to HKND and Wang.  The agreement between the country and HKND allows the company tremendous power in the land area along the canal—allowing it to not only build the canal, but displace landowners currently living near the canal line.

HKND does not deny that it will have to displace 20,000 to 30,000 landowners, but agrees to pay them fair market value for their land.  Large landowners, will likely be okay because they will receive enough money to move somewhere else.  Small farmers and landowners, called campesinos, avidly protest the canal.  The small bits of land they own are all they have, and displacement would be detrimental.  Many campesinos are indigenous to the land and have had the small bits of land on which they live for generations. They hoped to give their land to their children one day.  The land is worth little on the market, but the families’ emotional attachments to their lands are priceless.  Giving up their land for the canal or the hotels and roads that will surround it seems like a step in the wrong direction.  They view the canal not as an opportunity to increase the Nicaraguan economy, but as a forfeiture of the country’s independence to China. Campesinos fear that displacement will not only cause the loss of their livelihood, but also will likely force their families to be homeless.

Environmental Concerns

Another issue for the canal concerns the lack of research on the canal’s environmental impacts. While scientist around the world have expressed the need for an environmental impact study, HKND has only released one. On December 16, 2014, HKND released the study, but the study was not research on the canal project itself, only on the preliminary construction. Even more worrisome, HKND paid for the study itself and hired the firm that executed it.

The study stated that there would likely be many problems resulting from the preliminary construction, some that cannot be remedied. For example, there is potential for fuel spills. Such fuel spills may harm the fresh fish, agricultural activity, and soil. Additionally, the canal is to run through Lake Nicaragua. Lake Nicaragua is Central America’s largest fresh water lake. Many people rely on it as a source of potable and irrigation water. The canal may damage this precious resource by seeping salt water into the lake.

One scientific association, Association for Tropical Biology and Conservation (“ATBC”), released a statement regarding the building on the canal. ATBC reported that the canal would affect around 1,545 square miles of “forest, coast, and wetlands.” Additionally, ATBC stated that the canal would affect “the habitat of at least 22 species that are vulnerable and in danger of extinction.”

Many other international scientific organizations have issued concerns regarding the canal’s environmental impact. Most of the organizations ask that the construction halt until adequate and independent research addressing the areas of concern is performed. However, the Nicaraguan government seems unconcerned about the consequences the canal may have on its people, land, and animals.

Conclusion

Ortega promises his people that the canal will greatly strengthen the Nicaraguan economy and give many of its citizens jobs. For this reason, most Nicaraguans support the building of the canal. Most people believe that it will transform Nicaragua from one of the poorest countries in the Western hemisphere into a resort-style country like Panama. However, whether these dreams of wealth will come to fruition is far from certain.

What is certain is that people will lose their homes and that the government is not taking adequate measures to protect the environment. International human rights and environmental organizations have cried out to the Nicaraguan government to slow down and take more precautions. As construction progresses, the international world will be watching how these issues are addressed and what consequences unfold.

 

The title image features the United States’ proposed canal through Nicaragua in 1870, which was never realized. This image is part of the public domain.

 


Sources:

Jon Lee Anderson, Breaking Ground on the Nicaragua Canal, The New Yorker, January 2, 2015, available at http://www.newyorker.com/news/news-desk/breaking-ground-nicaragua-canal.

Jon Lee Anderson, The Comandante’s Canal, The New Yorker, March 10, 2014, available at http://www.newyorker.com/magazine/2014/03/10/the-comandantes-canal.

Reese Erlich, The Nicargua Canal, NPR: Latino USA, March 13, 2015, available at http://www.npr.org/2015/03/13/392826942/the-nicaragua-canal.

Pablo Fonseca, Nicaragua Constructs Enormous Canal, Blind to its Environmental Cost, Scientific American, February 11, 2015, available at http://www.scientificamerican.com/article/nicaragua-constructs-enormous-canal-blind-to-its-environmental-cost/.

Silvana Ordoñez, Who’s behind the ‘Nicaragua Grand Canal’ – and Why?, CNBC: Transportation, February 25, 2015, available at http://www.cnbc.com/id/102451065.