Boats and Woes

A look at the city of Denver’s ban on swimming through an environmental justice lens

Environmental issues extend beyond simply ensuring that we respect and conserve our habitat. Environmental justice transcends environmental protection to incorporate issues of social justice.  By definition, environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.  In practice this means that all people, regardless of race and class, should have the same access to a clean and healthy environment. Furthermore, this concept imposes a duty on the government to ensure that government policies are in line with environmental justice principles.  Denver has developed a good plan for the city’s arrangement of public parks that is in line with environmental justice principles.  Denver’s guidelines for park accessibility state that each resident should live within six blocks of a park and that there should not be physical barriers between the two.  Nonetheless, close proximity to parks within the city does not guarantee equal enjoyment of Denver city parks.

Particularly troubling is the ban on swimming at a Denver public lake where high cost activities such as boating and water skiing are permitted.  This ban on swimming is reflective of the need for environmental justice across the Denver parks system because it has the repercussion of discriminating against lower income communities who cannot afford boating recreation.  A look at Denver’s history of discrimination and the ban’s illogical justification will demonstrate the need for reconsidering this prohibition.

Denver is an ethnically diverse city with almost an exact split between Non-Hispanic Whites and other ethnic groups.  Historically, the city was largely segregated by ethnicities, but this segregation is becoming less apparent.  In spite of this positive change, there continues to be inadvertent discrimination in not-so apparent ways.  A small, but growing body of research shows that in Denver access to environmental goods and exposure to environmental hazards are unequally distributed across low-income ethnic groups.  In particular, researchers established that in metro Denver, ethnic minority and low-income communities live closer to toxic hazards and that Denver’s wealthier neighborhoods have significantly more vegetation.  Furthermore, a study on a small sample of Denver neighborhoods showed that low-income communities of color have significantly less access to parks and to parks with play amenities, such as playgrounds and other recreational activities, than mid- to high-income white neighborhoods.  This study included a sample of six urban and six suburban neighborhoods, and four neighborhoods for each of the income categories (low, medium, and high).  In addition, the study classified each park based on the presence of formal and informal play opportunities.

Growing research also indicates the importance of access to nature and outdoor activities.  Studies show that access to nature can help reduce stress, induce cognitive development, and improve a community’s health and wellbeing.  Given the positive correlation between access to outdoor activities and the wellbeing of a community, it is important that Denver ensures it affords all communities the same opportunities.  Furthermore, studies show that nearly eighty percent of low-income minorities in Denver Public Schools have never been to Rocky Mountain National Park.  Such a statistic is representative of the need for Denver to provide its citizens with access to outdoor recreation activities, because there is something inherently wrong with living in such a beautiful state and not being able to enjoy the outdoor recreation it has to offer.

Reflective of this inadvertent discrimination are the rules of Sloan’s Lake, a Denver park, which allows water skiing, but bans all swimming.  The Denver municipal code states that it shall be unlawful for any person to wade, swim, or bathe in any river, creek, canal, lake, reservoir, or other stream or body of water in Denver.  The Denver Department of Environmental Health justifies this ban on swimming by stating that Denver’s lakes and streams receive runoff from Denver streets, yards, parks, industry, and wastewater treatment plants that can make people sick.  Nonetheless, the Denver municipal code allows swimming if the manager of environmental health finds that a natural body of water is safe to swim in.  Upon first inspection, the swimming ban at Sloan’s Lake seems necessary to protect park patron’s health, yet the park allows boating activities, such as water skiing, that run contrary to this purpose.  Water skiing entails skiers being submerged in water and subjected to the same pollutants that the city is trying to shield people from when banning swimming.  In addition, the city tests Sloan’s Lake on a bi-weekly basis for contaminants and is consistently found to have water quality levels that surpass state requirements, making it a safe lake to swim in.  Water skiing is an expensive activity that requires the possession of a boat, which many people cannot afford, while swimming is virtually cost free.  The effect of banning swimming but allowing boating is that Denver provides low-income members of the community with fewer amenities and recreation opportunities at Sloan’s Lake.

Sloan’s Lake is near a low-income minority community, who regularly use the park to picnic, relax, and enjoy the outdoors.  Lifting the swimming ban at Sloan’s Lake would allow a larger portion of its neighboring community to enjoy the amenities the park has to offer.  In addition to the safe water quality at the lake, Denver Parks and Recreation will have to consider other mitigating factors when determining whether swimming is appropriate, such as the construction of appropriate infrastructure to swim, the need to hire lifeguards, and other potential liabilities that could come from allowing swimming.  Nonetheless, the city allocated $4 million in 2012 for remodeling the boat marina at Sloan’s lake reflecting the city’s ability to fund projects in the name of recreation.  Denver should continue to work towards ensuring environmental justice across city policies and rules, lifting this swimming ban would serve that purpose well.


The featured image is of Bierstadt Lake in Rocky Mountain National Park. This photo is part of the public domain.


Heidi L. Beattie ET AL., Impact of Urban Nature on Executive Functioning in Early and Middle Childhood Environment and Behavior, SAGE PUBLICATIONS (2015).

DENVER CO. MUN. CODE § 24-9 (2015).

DENVER CO. MUN. CODE § 39 (2015).

Travis L. Flohrm & Alessandro Rigolon,  Access to Parks for Youth as an Environmental Justice Issue: Access Inequalities and Possible Solutions (April 2014).

Barry E. Hill, Environmental Justice: Legal Theory and Practice, 45 Envtl. L. Rep. News & Analysis 10236 (2015).

Alessandro Rigolon, Inequities in young people’s access to urban parks: an environmental justice investigation in Denver (July 24, 2015) (unpublished Ph.D. dissertation, University of Bologna) (on file with author).

Joe Vaccarelli, Marina Renovations Complete at Sloan’s Lake Park in Denver, DENVER POST (Nov. 18, 2015),

Nancy M. Wells & Gary W. Evans, Nearby Nature: A Buffer of Life Stress Among Rural Children  Environment and Behavior, SAGE PUBLICATIONS (2003).

Over the last thirty-five years, American Indian tribes have slowly forged a relationship with the Environmental Protection Agency (“EPA”). This began in 1980, when the EPA released a policy statement holding tribes to federal environmental standards.[1] Since then, however, only a small percentage of tribes have met the qualifications needed to carry out the Clean Water Act (“CWA”) through government-to-government partnerships.[2] In response to this shortcoming, this past August, the EPA proposed a new rule that reinterprets Section 518 of the CWA titled “Revised Interpretation of Clean Water Act Tribal Provision.”[3] Specifically, the new rule aims to relieve American Indian tribes’ burden of demonstrating inherent regulatory authority under the Montana test in order to apply for Treatment as a State (“TAS”) status under Section 518(e) of the CWA. The new interpretation will streamline the process for Indian tribes to manage water quality within their reservations, including managing water quality on nonmember fee simple land.

The EPA’s newly proposed rule marks a shift in what responsibilities tribes have in regard to federal environmental regulations. Congress passed the CWA in 1972 demonstrating its ongoing commitment to maintain the integrity and health of the national water supply.[4] In the 1970s, the federal government passed a number of environmental laws that mostly ignored, or hardly mentioned American Indian tribes.[5] Similarly, the original CWA omitted American Indian nations, although it is a broad, nationwide statute. In response to this oversight, Congress started incorporating tribes into various environmental statutes’ framework.[6]

In 1987, concerns about pollution on Indian Country prompted Congress to add a TAS provision to the CWA.[7] Under this amendment, the regulatory agency may treat a qualifying American Indian nation similar to a state government when creating and approving a reservation’s water quality standards (“WQS”). Moreover, the TAS provision permits qualifying tribes to apply for certain grants[8] and programs including National Discharge Elimination System (“NPDES”) permits,[9] nonpoint source management,[10] and dredge and fill permits.[11]

In 1991, the EPA promulgated the water quality standards TAS rule, which explains the WQS and CWA certification programs for tribes under Section 303(c) of the Clean Water Act.[12]  The TAS rule requires a tribal nation to meet certain criteria before it can effectively regulate water quality under the CWA.[13]  Federal recognition is the first requirement for a tribal applicant.[14] Moreover, a tribe is required to demonstrate the capability of carrying out substantial lawmaking responsibilities and authority over reservation land, as defined in Section 518(h)(1). Last, a tribe should have appropriate regulatory authority over the reservation’s water quality, in addition to demonstrating its ability to implement the CWA program.[15]

The EPA’s new rule aims to reduce the burden on tribes through cooperative federalism within the TAS process.[16] This effort to delegate American Indian tribes more autonomy in managing water quality standards implicates a landmark Supreme Court decision, Montana v. United States, which held that in the absence of a federal grant of authority, a tribe presumptively lacks inherent jurisdiction over the activities of nonmembers on nonmember fee land.[17] This is land owned by non-Indians, who are not members of the tribe. However, the Supreme Court defined two exceptions to this jurisdictional rule. The Court determined that a tribe could exercise civil jurisdiction over nonmember activities within its reservation in two limited exceptions. First, where the nonmember enters into a consensual relationship with the American Indian tribe or its individual members, through a lease, contract, commercial deal, or other type of arrangement, an exception to tribal jurisdiction is permitted. Second, the tribe may retain jurisdiction when the nonmember activity has a direct effect on or threatens the political stability, economic security, or the general welfare or health of the tribe.[18]

The Montana test has had wide-ranging implications for tribal governments to exercise consistent regulatory authority, environmental or otherwise, over the entire reservation, as many nonmembers own land within the parameters of these lands. In an effort to conserve both the EPA’s and tribal resources, the EPA will no longer require a tribe to meet the Montana test. Within its statement about the Revised Interpretation, the EPA stated, “tribal applications for reservations with nonmember fee lands, which require an analysis of tribal inherent authority under Montana, took 1.6 years longer to be approved, on average, than applications for reservations without such lands.”[19]

Consequently, a tribe will not have to demonstrate its inherent authority to regulate water within its reservation boundaries.[20] Instead, the EPA will permit an applicant tribe to rely on Congress’s delegation of inherent authority under Section 518 in order to establish its tribal sovereignty in regulating its land and waters without having to distinguish between member and nonmember land.[21]

The EPA’s new rule demonstrates important progress in Indian Country for two reasons. First, by treating tribal nations similarly to states recognizes inherent tribal sovereignty. The EPA’s new rule reflects the federal government’s modern trend of treating tribes similarly to a state government in delegating administrative authority. This delegation of authority is a product of the Self-Determination Era, which commenced with President Richard Nixon’s 1970 speech to the Congress on Indian Affairs.[22] The federal government helps in promoting and recognizing tribal self-governance through government-to-government partnerships.[23] The Self-Determination Era refers to somewhat of an American Indian “nation-building” movement, which included establishing tribal governments, courts, police forces, and schools.

Second, the Revised Interpretation is important because only about forty of the 300 Indian Tribes with reservations have obtained the EPA’s approval for TAS status.[24]  This is not to say that tribes cannot regulate their waters without TAS approval, but the EPA’s recognition provides further funding and certification programs to help legitimize and strengthen tribal water management. Tribes generally lack a tax base upon which to develop water management, but with TAS recognition, tribes receive money for water management projects. Thus, allowing tribes with ‘checkerboard’ reservations (that is reservations with large swaths of both member and nonmember land) to bypass the Montana test will make it easier for tribes to receive funding from the federal government for maintaining and improving reservation water quality.

Overall, alleviating this administrative barrier will make it easier for tribes to implement CWA programs targeted at reservation water quality.  It will save tribes both time and resources in their TAS applications, as well as relieve the EPA of identifying on a case-by-case basis whether an individual tribe can meet the Montana test.  Moreover, this rule should encourage more American Indian tribes to apply for TAS status in order to successfully implement CWA programs.[25] This is an important step because clean water is paramount to Indian tribes, not just for sustenance, but also for spiritual, medicinal, and cultural reasons.[26] For example, the most recent tribe to receive TAS status, the Santa Ana Pueblo, views the water within their New Mexico reservation as important for maintaining its own cultural heritage.

Comments for this new rule closed on October 6, 2015. The EPA should make a final determination on whether or not it will implement the Revised Interpretation soon, but the agency has not provided a precise timeline.

The featured image is of Dead Horse Point on the Colorado River.  This photo belongs to Clement Bardot.  Use of his photo does not represent his endorsement of the Water Law Review.


[1]  Washington, Dep’t of Ecology v. U.S.E.P.A., 752 F.2d 1465, 1471 (9th Cir. 1985) (quoting the Environmental Protection Agency announcement titled  EPA Policy for Program Implementation on Indian Lands released Dec. 19, 1980).

[2]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg. 47430-02, 47430–31 (Apr. 7, 2015).

[3]  Id.

[4]  33 U.S.C. § 1251 (2015).

[5]  Dean B. Suagee, Tribal Self-Determination and Environmental Federalism: Cultural Values As A Force for Sustainability, Widener L. Symp. J., Fall 1998, at 229, 232.

[6]  Id. at 233.

[7]  33 U.S.C. § 1377 (2015).

[8]  See, e.g., 40 C.F.R. 35.580-88 (2016); 40 C.F.R. 35.600-15 (2016); 40 C.F.R. 35.630-38 (2016).

[9]  33 U.S.C.  § 1377(f).

[10]  Id.

[11]  Id. at § 1344.

[12]  Amendments to the Water Quality Standards Regulations That Pertain to Standards on Indian Reservations, 54 Fed. Reg. 39098-01 (Sept. 22, 1989).

[13] Requirements for Indian Tribes to administer a water quality standards program, 40 C.F.R. § 131.8 (2015).

[14]  Amendments to the Water Quality Standards Regulations That Pertain to Standards on Indian Reservations, 54 Fed. Reg. 39101 (Sept. 22, 1989).

[15]  Id.

[16]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg. 47430-02, 47433 (Aug. 7, 2015).

[17]  450 U.S. 544 (1981).

[18]  Id. at 565-66.

[19]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg 47430-02 , 47436 (Aug. 7, 2015).

[20]  Id. at 47437.

[21]  Id.

[22]  Richard Nixon: “Special Message to the Congress on Indian Affairs,” July 8, 1970, available at

[23]  25 C.F.R. § 1000.4 (2016)(Congressional policy on tribal self-government).

[24]  Pueblo of Santa Ana Granted Federal Authority to Protect Water Quality, United States Environmental Protection Agency (Jul. 22 2015), (last visited Dec. 13, 2015).

[25]  Id.

[26]  Marren Sanders, Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner As A State, 36 Wm. Mitchell L. Rev. 533, 553 (2010).

Arizona Dep’t. of Water Res. v. McClennen, 360 P.3d 1023 (Ariz. 2015) (holding that: (i) Ariz. Rev. Stat. Ann. § 45-172 provides the only grounds for which the Arizona Department of Water Resources can deny an application for severance and transfer of a water right; and (ii) the statute defines “interested persons” as those with interests protected by § 45-172 and whose rights the transfer would affect).

In 2010, Freeport Minerals Corporation (“Freeport”) sent applications to the Arizona Department of Water Resources (“ADWR”) to sever water rights from Planet Ranch in Mohave County and transfer them to a wellfield near Wikieup. The proposed transfer would not physically remove any water, but rather it would give Freeport the right to use water for mining and municipal uses without losing priority.

Freeport previously entered into settlement agreements with the Arizona Game and Fish Department, the Hualapai Tribe, and the Department of the Interior, which Congress approved in the Bill Williams River Water Rights Settlement Act of 2014 (“Act”). The Act was scheduled to expire in December 2015 if Freeport failed to fulfill certain conditions, including the ADWR granting Freeport’s applications.

Upon receiving Freeport’s applications, the ADWR published notice in numerous Mohave County newspapers stating ‘any interested person’ could file a written objection. Mohave County (“County”) filed an objection to Freeport’s applications, arguing that the transfer would affect the county’s water supply, increase taxes, and was against the public interest. The ADWR rejected the County’s arguments, finding that the county did not have an affected water right. Additionally, the ADWR concluded it was not authorized to deny the applications on the basis it would cause an increase in tax burdens to residents or it would be against public interest. An administrative law judge upheld the ADWR’s decision finding that none of the County’s objections were based on the “limitations and conditions” enumerated in Ariz. Rev. Stat. § 45-172.

In December 2014, the County filed an appeal in superior court, which vacated the ADWR’s final decision in June 2015. Freeport and the ADWR filed appeals with the Arizona Court of Appeals and moved to transfer the case to the Supreme Court of Arizona (“Court”). The Court granted the petition for special action.

The Court first addressed whether the ADWR had authority to deny severance and transfer applications for reasons other than those listed in the statute. Section 45-172(A) provides: “[a] water right may be severed from the land to which it is appurtenant . . . [and] may be transferred for use . . . without losing priority theretofore established, subject to the following limitations and conditions.” One such limitation is that the ADWR director must publish notice of applications in a newspaper in the county where the drainage or watershed lies. The published notice must include that any interested person may file written objections within thirty days from the last day of published notice.

In construing this statute, the Court analyzed legislative intent. The statute identifies specific limits or conditions in approving water rights transfers. The Court found that the ADWR’s review of an application is a “licensing decision,” which prohibits the ADWR from basing its decision on any condition not specifically authorized by the statute.

The County argued that the ADWR has discretion under § 45-172(A) to consider other factors because the statute says water rights “may” be severed and transferred. However, the Court found “may” to refer to the ability to sever and transfer the water right. The Court reasoned that interpreting “may” to allow the ADWR broad discretion to deny an application overlooks the rest of the sentence stating “subject to the following limitations and conditions.” The County cited various statutes purportedly supporting that the ADWR could deny applications for reasons not listed in § 45-172(A), but the Court found them unconvincing. Thus, the Court found the ADWR did not abuse its discretion in denying the County’s objections, which were not listed in § 45-172(A).

The Court next addressed whether the County qualified as an “interested person” entitled to file objections to the transfer and severance applications. Because the phrase “any interested person” is ambiguous, the Court found it was subject to more than one meaning.

The County first argued that the Court should interpret the phrase “any interested person” as anyone having an interest or concern about the transfer and severance of water rights. The Court found this interpretation would allow almost anyone to file objections, rendering the word “interested” essentially meaningless. The Court specifically noted that words should not be construed in isolation, but rather taken together in context.

Read in context, the Court construed the phrase “any interested person” to mean any person having a statutorily protected interest that would be affected by the application for proposed transfer and severance. The Court concluded the County was not an “interested person” entitled to file an objection in this case because it had no such protected interest.

Second, the County contended that “interested persons” should encompass more than those persons who have existing water rights because the statute requires the director to give notice of the applications. The County reasoned that if “interested persons” were only those having an interest protected by statute, it could send notice directly to those persons, rather than circulating notice in a newspaper. The Court found this argument unpersuasive because publication requirements are not inconsistent with imposing limitations on who may file objections.

Third, the County argued it qualified as an “interested person” because approval of the severance and transfer would cause it injury. Specifically, the severance would increase tax burdens on county residents and could negatively effect water supplies. The Court found that this argument improperly conflated standing, which requires plaintiffs to allege sufficient injury in order to appear in court.

Fourth, the County claimed that the ADWR must first consult with the County before deciding on applications under Ariz. Rev. Stat. § 11-269.09(A). The County also contended it has an obligation under Ariz. Rev. State § 11-804 to protect water resources in the county. The Court found neither statute applied.

Last, the County argued the Court should construe § 45-172(A) liberally to “promote the ends of justice.” The County cited Armer v. Superior Court, in which the Court adopted this approach when interpreting the phrase “party beneficially interested.” Finding that “any interested person” was not synonymous with the phrase “party beneficially interested,” the Court declined to adopt this approach.

Accordingly, the Court vacated the superior court judgment and affirmed the ADWR’s final decision.

The featured image was taken near Phoenix, Arizona.  It is part of the public domain.

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.


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.


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,

Dep’t for Int’l Development, Growth, Building Jobs and Prosperity in Developing Countries,

Dick Wolfe, Synopsis of Colorado Water Law, Colorado Division of Water Resources (2011)

Energy Information Administration, System for the Analysis of Global Energy Markets (2006),

Energy Information Administration, Short Term Energy Outlook Supplement: Key Drivers for EIA short-term US Crude Oil Production Outlook (2013),

George King, Hydraulic Fracturing 101: What Every Representative, Environmentalist, Regulator, Reporter, Investor, University researcher, Neighbor and Engineer Should Know About Estimating Frac Risk and Improving Frac Performance In Unconventional Gas and Oil Wells, Society of Petroleum Engineers, (2012),

Justin Scott, Eagle Ford Water Recycling Thrives Following Change in Texas Railroad Commission Rules, Oil & Gas Journal, Aug. 13, 2014,

Martin Ravallion & Chen Shaohua, What Can New Survey Data Tell Us about Recent Changes in Distribution and Poverty?, World Bank Economic Review, 11(2): 357-82 (1996).

Richard Valdmanis, Water Demand from Fracking Less Than 1 Percent of Total, Reuters, Sept. 15, 2015,

The Allocation of Sunlight: Solar Rights and the Prior Appropriation Doctrine, 47 U. Colo. L. Rev. 421, 435 (1976).
United States Geological Survey, Hydraulic Fracturing FAQ’s,

United States Environmental Protection Agency, Natural gas Extraction – Hydraulic Fracturing,

United States Environmental Protection Agency, Oil and Natural gas Sector Hydraulically Fractured Oil Well Completions and Associated Gas during Ongoing Production (April 2014), available at

World Bank, Poverty and Equity Data (2011),

Yun Liang, From Coal to Natural Gas, (2013),


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.


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.


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, (last visited Nov. 5, 2015).

Gulf and Caribbean Fisheries Institute, Invasive Lionfish Web Portal, (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).

Lionfish Threaten Native Fish in U.S. Coastal Waters, CBS This Morning, (February 21, 2013),

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, (last visited Nov. 5, 2015).

Reef Environmental Education Foundation, Lionfish Quick-Facts,

Sixth Grader Credited with Scientific Breakthrough on Lionfish, (July 7, 2014),

Stephanie J. Green, Invasive Lionfish Drive Atlantic Coast Coral Reef Fish Declines, March 7, 2012.

United States Geological Service, Non-Indigenous Aquatic Species page, Pterois Volitans Fact Sheet, (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).


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.


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.


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.

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.

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.

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.


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.


Bart Watson, Economic Impact, BREWERS ASSOCIATION,

Bart Watson, U.S. Passes 4000 Breweries, BREWERS ASSOCIATION (Sep. 28, 2015),,

Craft Beer Industry Market Segments, BREWERS ASSOCIATION,

Dan Powell, CA Craft Brewers Leading in Water Conservation Efforts, CRAFTBEER (AUG. 31, 2015),

Howard Perlman, How much Water does it Take to Grow a Hamburger?, USGS: SCIENCE FOR A CHANGING WORLD (Aug. 7, 2015),

Julie Watson, California Craft Beer Brewers Balance Drafts and Drought, Associated Press (October 11, 2015),

Karim Nice, How Beer Works, How Stuff Works,

National Beer Sale and Production Data, BREWERS ASSOCIATION,

Penny Schwartz, Israeli Tech Helps Turn Boston’s Dirty River Water into Beer, HAARETZ (October 6, 2015),

Pervious Concrete Pavement, PERVIOUS PAVEMENT,

State Craft Beer Sales & Production Statistics, 2014, BREWERS ASSOCIATION,

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.


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,

Ben Brumfield, By the numbers: The massive Animas River spill, CNN, August 13, 2015,

Associated Press, EPA mine spill could have been prevented, government investigators say, ABC 15 ARIZONA, October 22, 2015,

Michele Swenson, Legacy of Hard Rock Mining in the West – Death of A River, a Community’s Response, HUFFINGTON POST, Sept. 2, 2015,

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.

Winter Operations of a Reclaimer and Settling Pond System, BFK TECHNOLOGIES, INC.,

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,

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).


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.


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.


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.


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.


Jodi Peterson, Big ruckus over little streams, HIGH COUNTRY NEWS, (Sept. 4, 2015),

Timothy Cama, President Obama asserts power over small waterways, THE HILL, (May 27, 2015, 10:05AM),

Jonathan H. Adler, North Dakota district court blocks controversial ‘Waters of the United States’ rule, THE VOLOKH CONSPIRACY, (Aug. 28, 2015),

David P. Steinberger, Who Controls the Water? The Answer is Now On Hold, THE NATIONAL LAW REVIEW, (October 15, 2015),

Featured image is part of the public domain.