Opening the Floodgates of Federal Funding

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

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

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

Making a Splash: Water Quality and Water Supply

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

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

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

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

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

A Watershed Moment

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

 

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

 


Sources:

John Flesher, $372.5M in Federal Funds Awarded to Conservation Projects, Washington Times, Jan. 14, 2015, http://www.washingtontimes.com/news/2015/jan/14/340m-in-federal-funds-awarded-to-conservation-proj.

Brad Haire, New Widespread Federal Program to Focus Conservation Efforts at the Local Level, Southeast Farm Press, Jan. 14, 2015, http://southeastfarmpress.com/government/new-widespread-federal-program-focus-conservation-efforts-local-level.

Natural Resources Conservation Service, U.S. Dep’t of Agric., Regional Conservation Partnership Program, http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/farmbill/rcpp/ (last visited Feb. 13, 2015).

Timothy Cama, USDA Launches Water Conservation Program, The Hill, May 24, 2014, http://thehill.com/policy/energy-environment/207312-usda-launches-water-conservation-program.

Heather Layman, Regional Conservation Partnership Program Awards Announced, The Nature Conservancy, Jan. 14, 2015, http://www.nature.org/newsfeatures/pressreleases/regional-conservation-partnership-program-awards-announced.xml.


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

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

Causes of Decline

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

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

Katrina’s Impact on an Influential Individual

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

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

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

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

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

Critics of the Lawsuit

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

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

Possible Effects of the Lawsuit

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

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

 

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

 


Sources:

Coastal Wetlands, Environmental Protection Agency, http://water.epa.gov/type/wetlands/cwt.cfm (last visited Feb. 10, 2015).

Nathanial Rich, The Most Ambitious Environmental Lawsuit Ever, New York Times Magazine, (Oct. 14, 2014) http://www.nytimes.com/interactive/2014/10/02/magazine/mag-oil-lawsuit.html?_r=0.

Signs of Progress for the Mississippi River Delta, Environmental Defense Fund, http://www.edf.org/ecosystems/signs-progress-mississippi-river-delta (last visited Feb. 10, 2015).

Status and Trends of Coastal Wetlands, National Oceanic and Atmospheric Administration, http://www.habitat.noaa.gov/protection/wetlands/ (last visited Feb. 10, 2015).

Monica Palaseanu-Lovejoy, How Hurricanes Shape Wetlands in Southern Louisiana, Smithsonian Museum of Natural History, (Nov. 5, 2013) http://ocean.si.edu/blog/how-hurricanes-shape-wetlands-southern-louisiana.

Bd. of Comm’rs of the Southeast La. Flood Prot. Authority-East v. Tenn. Gas Pipeline Co., LLC, 29 F. Supp. 3d 808, (E.D. La. 2014).

John M. Barry, Suing Exxon, http://www.johnmbarry.com/bio.htm (last visited Feb. 17, 2015).

Alan Neuhauser, Bobby Jindal Signs Bill to Block Lawsuits Against Oil and Gas Companies, U.S. News, (June 6, 2014) http://www.usnews.com/news/articles/2014/06/06/bobby-jindal-signs-bill-to-block-lawsuits-against-oil-and-gas-companies.

SB 469, http://www.legis.la.gov/legis/ViewDocument.aspx?d=913687 (last visited Feb. 17, 2015).

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


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


Background

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

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

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

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

Issue

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

 

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

 


Sources:

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

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

Administrative Procedure Act, 5 U.S.C. §§ 702, 704, 706 (2011).

Status Reports and Legal Update, http://www.roarcolorado.org (last visited Jan. 25, 2015).

Life and Work, http://www.christojeanneclaude.net/life-and-work (last visited Jan. 25, 2015).

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

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

OTR Legal Proceedings, http://www.overtheriverinfo.com/index.php/about-over-the-river/otr-legal-proceedings (last visited Feb. 6, 2015).

OTR Supporters, http://www.overtheriverinfo.com/index.php/otr-supporters (last visited Feb. 6, 2015).

The OTR Experience, http://www.overtheriverinfo.com/index.php/about-over-the-river/the-otr-experience (last visited Feb. 6, 2015).

Rags Over The Arkansas River, http://www.roarcolorado.org/archive/index.html (last visited Feb. 6, 2015).


There’s a need

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

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

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

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

Problems with indoor farms

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

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

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

Closing thoughts

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

 

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


Sources:

USDA Economic Research Service, Irrigation & Water Use (last updated June 7, 2013), http://www.ers.usda.gov/topics/farm-practices-management/irrigation-water-use.aspx.

USDA Economic Research Service, Western Irrigated Agriculture tables 1-8 to -11 (last updated June 7, 2013), http://www.ers.usda.gov/data-products/western-irrigated-agriculture.aspx.

Samantha Masunaga, Rosemead cemetery aims to be a model of drought-tolerant landscaping, Los Angeles Times, Dec. 14, 2014, http://www.latimes.com/local/california/la-me-rosemead-cemetery-20141214-story.html.

Rutgers University, Floating Hydroponics Greenhouse (last visited Jan. 18, 2015), http://aesop.rutgers.edu/~horteng/floating_hydroponics.htm.

Gloria Dickie, Q&A: Inside the World’s Largest Indoor Farm, Nat Geo Food, July 17, 2014, http://news.nationalgeographic.com/news/2014/07/140717-japan-largest-indoor-plant-factory-food/.

GE Reports, Lettuce See the Future: Japanese Farmer Builds High-Tech Indoor Veggie Factory, July 9, 2014, http://www.gereports.com/post/91250246340/lettuce-see-the-future-japanese-farmer-builds.

Water for farming Running dry, The Economist, Sep. 18, 2008, http://www.economist.com/node/12260907.

Monica Kim, Salad Inc.: Can plant factories save us from climate change? Modern Farmer, Dec. 14, 2014, http://modernfarmer.com/2014/12/salad-inc/

Cornell University Controlled Environment Agriculture, People of CEA (last visited Jan. 22, 2015), http://www.cornellcea.com/about/people/albright.html.

US Bureau of Labor Staistics, Occupational Outlook Handbook: Agricultural Workers, Jan. 8, 2014, http://www.bls.gov/ooh/farming-fishing-and-forestry/agricultural-workers.htm.


People all over the world share the experience concerning access to and use of water resources. The particular problem may be too much water causing destructive floods, too little water to sustain human livelihood, too many people vying for a limited amount, or even all three problems. Bangladesh, one of the most densely populated countries in the world, experiences drastic seasonal variations in water availability.

Small Country, Lots of Water

Nearly 160 million people cohabitate roughly 90,000 square miles (slightly smaller than Iowa), a population density of nearly 1,800 people per square mile. Floodplains encompass 80% of Bangladesh as three rivers flow from the Himalayas through the country (the Brahmaputra, the Ganges, and the Maghna) to create the largest river delta in the world at the Indian Ocean. On average, Bangladesh sits only thirty three feet above sea level. Few countries are more threatened by the immediate impacts of climate change than Bangladesh. Its unique geography and population density mean more intense and chaotic monsoon oscillations and fluctuations in snow melt patterns feeding the Himalayan rivers impact Bangladeshis directly and substantially.

Inequitable Land Distribution Amongst Rural Farmers

Dkaha, the capital, is one of the world’s most densely populated cities, but nearly 70% of Bangladeshis still live in rural areas and engage in agricultural practices as their main source of income. Inequitable distribution and landlessness plague Bangladeshi society as so many people compete for property. Nearly 89% of the population owns less than 2.5 acres of land and 13% of rural Bangladeshis own absolutely no real property. Those who do not own land squat on government-owned land, or engage in sharecropping, using the land of an affluent owner for a steep price. The largely poor population struggles to access property ownership through an ineffective, complicated, and often corrupt institutional framework to secure land title.

Lack of Legally Protected Water for Rural Farmers

Formal access to water is tied to land ownership. All water in Bangladesh is owned by the national government, which allocates appropriations through permits and licenses based on recognized land ownership. Owners of water rights can create protections on their land through drainage systems and canals during the runoff season and can formally access their water allocations during the dry season. Without legal title to their property, many farmers in rural Bangladesh have no formal access to water for irrigation during the farming season and lack the ability to protect fields from flooding during the wet season. This informality is an accepted norm in Bangladesh, where rural poor eke out a living for six months a year on borrowed land and borrowed water.

The other half of the year, the rivers flow at their highest rates due to snowmelt in the Himalayas and monsoonal rains fueled by the Indian Ocean. Most of the floodplains, where rural farming primarily occurs, is under ten or more feet of water, leaving no access to land for living, let alone farming. Income for these rural residents disappears for six months as nearby villages are cut off from one another, along access to infrastructure such as hospitals and schools as nearby villages are cut off from one another. The inability to work and the isolation from society creates a breeding ground for hunger, domestic violence, illiteracy, and a lack of medical care.

The national government recognizes the problems of landlessness and water access on paper through various poverty reduction strategy reports to the World Bank and other international development agencies. Unfortunately, legislative reforms to the land allocation and tenure systems in the last two decades failed to put land in the hands of the landless. Instead, corruption and bribery continues to concentrate land ownership with the wealthy, further exacerbating the land and water access problem in rural areas.

Turning the Tides of Sustainable Livelihoods

Where the government fails to meet the needs of its people, Bangladeshis themselves find creative solutions to the landlessness problem. Enter Shidhula Swanirvar Sangstha, a Bangladeshi non-profit founded in 1998, that creates floating villages in the country’s northwestern region. Even though Shidhula initially helped villages create floating schools, libraries, and hospitals, complete with wireless internet access, these structures failed to meet the income and nutritional needs of farmers and their families. Recently, Shidhula expanded their development services to include floating farms, operated primarily by women, educated by Shidhula’s adult education programs on the floating schools. These farms recycle oil drums, plastic jugs, bamboo, and discarded netting to create enclosed tilapia ponds, duck coops, and vegetable gardens. The gardens provide fresh vegetable and protein in the otherwise lean flood season, sustaining families both nutritionally and economically. The communally operated structures enable women to earn income for their families when traditional farmable land is inaccessible. Empowering women to provide for their families helps redefine gender roles in Bangladesh’s traditionally conservative Muslim society.

Traditionally an obstacle, Bangladesh’s annual floods are now an opportunity for development in rural communities. To date, Shidhula operates over 100 boats, with plans to build more. These floating villages, complete with reliable food sources, can provide stability for floodplain dwellers in the face of climate change impacts on flood and monsoon patterns.

The title image features a man fishing in a flooded agricultural field in Bangladesh. This image is licensed under the Creative Commons Attribution 2.0 Generic license by the image owner who does not endorse this blog.


Sources:

USAID, Country Profile: Bangladesh Property Rights and Resource Governance, (Nov 2010) available at http://usaidlandtenure.net/sites/default/files/country-profiles/full-reports/USAID_Land_Tenure_Bangladesh_Profile.pdf.

Shidhula Swanirvar Sangstha, http://www.shidhulai.org/index.html, (last visited Jan. 19, 2015).

Amy Yee, Farming on Water to Prevent Effect of Rising Waters, New York Times (Nov. 18, 2014), http://www.nytimes.com/2014/11/19/business/energy-environment/bangladesh-farming-on-water-to-prevent-effect-of-rising-waters.html?_r=1.

The CIA WorldFact Book: Bangladesh, https://www.cia.gov/library/publications/the-world-factbook/geos/bg.html (last visited Jan. 19, 2015).

Ben Schiller, In Bangladesh, Floating Schools, Farms, and Health Clinics Help Stay on Top of Rising Waters, Co.Exist, http://www.fastcoexist.com/3034613/in-bangladesh-floating-schools-farms-and-health-clinics-help-stay-on-top-of-rising-waters (last visited Jan. 19, 2015).


Background

Colorado has legal marijuana, a booming economy, and an excellent quality of life; it’s a popular place to be. The state’s population is expected to double between 2010 and 2050. Such a growth trend will put a tremendous amount of pressure on Colorado’s already limited water supply. Experts from a diverse array of fields have begun developing and implementing solutions designed to alleviate pressures Coloradans are facing today and preparing for major population growth. Urban sprawl accounts for a great deal of Colorado’s infrastructural growth, and transporting water to rapidly expanding suburban areas is presenting a substantial challenge to water management groups and supply planners.

Issue

The Denver Metro area is working to meet its expanding populace’s water needs, and organizations across the state are currently involved in efforts to improve water storage capabilities and water transportation infrastructure. Managing Denver Metro’s water needs involves a great number of parties, and balancing the sometimes-competing interests of those parties can present a challenge. Even though most parties complying with Denver Metro’s water management plan are interested in improving upon water storage and infrastructure, parties often differ on how plans should exact improvements.

In 1967, the United States Army Corps of Engineers began constructing the Chatfield dam on the South Platte River, and its construction led to the creation of the Chatfield Reservoir. In 1974, Colorado State Parks began leasing the reservoir and surrounding area for recreational use and, in 1976, the area was developed into what is now known as Chatfield State Park (“Chatfield”). The park is located 25 miles southwest of Denver, and it is one of Colorado’s most popular state parks. Chatfield has an area of nearly 5,400 acres open to a wide variety of recreational activities and hosting over 1.6 million visitors per year.

On May 29, 2014, the Omaha District of the United States Army Corps of Engineers (“Corps”) authorized the Chatfield Storage Reallocation Project (“Project”), a plan to reallocate portions of Chatfield in an effort to provide more water storage for suburbs and rural areas south of Denver. The Corps’ Project will require flooding 500 acres of the park in order to raise the current water level by up to twelve feet, when the reservoir reaches rare high water marks. Proponents of the Project have touted it as a restoration of the South Platte River – which runs through Chatfield – and plans for the Project say it will increase water yield by 8,539 acre-feet (or roughly 2.8 billion gallons) per year. The Corps asserts that the Project is environmentally and economically conscious, and that it is the least environmentally damaging option even though it will significantly change the topography and environment at Chatfield.

Some Colorado environmentalists aren’t buying the Corps’ proposal, however, and the Project is not without opposition. On October 8, 2014, the Audubon Society of Greater Denver (“Audubon Society”) filed a petition for review of the Corps’ decision to move forward with the Project. The Audubon Society would like to prevent the Project’s construction because the plan will destroy large groves of cottonwood trees, destroy habitats many species of birds and fish rely upon, and leave an unpleasant ring of mud flats around the reservoir. In its complaint, the Audubon Society alleged violations of the National Environmental Policy Act, the Clean Water Act, and the Administrative Procedure Act. According to the complaint, the Audubon Society strongly believes that the Project will irreparably destroy the nature Chatfield visitors enjoy, that the destruction of natural areas will result in revenue losses, and that those losses will negatively impact parks across the state that are partially funded by Chatfield’s large number of visitors. The Audubon Society asserts that authorities have summarily dismissed alternative plans that would be less damaging and less expensive. In submissions to the Corps, the Audubon Society has put forth ideas for alternative plans: in one it suggested using offsite gravel pits adjacent to Chatfield for additional water storage, and in another it suggested using a different reservoir, Rueter-Hess, to supplement water storage needs. The Corps dismissed both ideas in its decision without clearly showing why these alternatives were not as or more reasonable than the Chatfield Project. While the Corps and other supporters of the Project have argued that plans include the creation of new wildlife habitats and the replacement of park structures, the resulting damage would significantly change and impact all wildlife, vegetation, and visitors who rely on Chatfield.

The Water Infrastructure and Supply Efficiency partnership (“WISE”) is working on a plan parallel to the Project. The WISE partnership includes Denver Water, Aurora Water, and ten other water districts, and the partners are interested in improving upon water infrastructure across the Denver Metro area. On October 21, 2014, Denver Water and the South Metro Water Supply authority agreed to pay thirty-four million dollars to purchase the Western Waterline from the East Cherry Creek Valley District, and the purchase will allow for more water to be delivered to districts in the south metro Denver area. While the Western Waterline will not provide a complete alternative to the Project, it will increase districts’ abilities to move, share, and reuse water. The Corps oversees WISE like it does the Project, and because of the shared interests of WISE and the Project, the two should be considered and implemented together. As of now, however, the Corps is not conjunctively approaching the two projects. Interestingly, when it comes to investing in WISE and/or the Project, water districts in the south metro Denver area are currently being selective about which to support, and several districts that initially supported the Project have shifted (or are in the process of shifting) support to WISE and other options because of the Project’s damage and cost.

Conclusion

As Denver’s metropolitan areas continue to expand, and as those areas’ populations continue to grow, the water management groups will face great challenges arising from the scarcity of water. Groups with sometimes-divergent interests will be forced to compromise during the process of creating and implementing solutions, and litigation will likely play a large role in determining the speed and direction of projects. Water providers developing solutions must take into consideration potential environmental and societal costs, and they must take steps to mitigate damages. Even where the scarcity of water presents immediate challenges, Coloradans will expect careful, well-thought-out solutions that do the least possible damage to natural areas. Colorado’s many environmental advocacy organizations will likely commence litigation when and where they feel less damaging alternatives are available as solutions.

 

The title image is an aerial shot of Chatfield Reservoir, including the dam and portions of the state park. This image was produced by a government official in his/her position as an employee and is therefor part of the public domain. The government does not endorse this blog.

 


Sources:

Cathy Proctor, Pipeline Deal Brings Denver’s South Suburbs Closer to New Water Supply, Denver Business Journal (Oct. 30, 2014, 5:00 AM), http://www.bizjournals.com/denver/blog/earth_to_power/2014/10/pipeline-deal-brings-denvers-south-suburbs-closer.html.

 

Alan Prendergast, Chatfield Reservoir: Lawsuit Claims “Massive Environmental Damage” From Project, Denver Westword (Oct. 10, 2014, 12:50 PM), http://blogs.westword.com/latestword/2014/10/chatfield_reservoir_lawsuit_environmental_damage.php.

 

Bruce Finley, Chatfield Reservoir Water Supply Project OK’d by Feds, Faces Lawsuit, Denver Post (Oct. 09, 2014, 12:52 PM), http://www.denverpost.com/environment/ci_26695640/chatfield-reservoir-water-supply-project-okd-by-feds.

 

Chatfield Reservoir Reallocation Project, Colorado Water Conservation Board, http://cwcb.state.co.us/water-management/water-projects-programs/Pages/ChatfieldReservoirReallocationProject.aspx (last updated Oct. 2014).

 

Chatfield History, Colorado Parks & Wildlife, http://cpw.state.co.us/placestogo/parks/Chatfield/Pages/History.aspx.


Background

Climate change is threatening to destroy villages in Alaska. The Arctic, which encompasses about one-third of Alaska, is warming around twice as fast as the rest of the world. As a result, ice and permafrost are melting at an alarming rate. This year, Arctic sea ice cover is at its sixth lowest level measured since recording began in 1978. Ice coverage is in a downward trend and the Arctic is losing about 13% of sea ice per decade. Permafrost (permanently frozen subsoil) is a less publicized problem but is just as important as sea ice melt. Over 80% of Alaska is held together by permafrost, but now, due to climate change and warming, the permafrost is melting. As a result, the ground on which Alaska Native villages are built is softening and becoming more susceptible to erosion.

Alaska Natives suffer a wide array of challenges from permafrost melt. To appreciate the challenges, it’s important to know that historically, Alaska Natives migrated throughout Alaska to follow fish and wild game. However, when the Department of the Interior’s (“DOI”) Bureau of Education required Alaska Natives to settle near bodies of water for easier access, this migratory lifestyle had to adapt.

Flooding

The most pressing issue facing Alaska Native settlements is flooding. Heavy rainfall, snowmelt, and the sudden release of water from breaking ice blockages are all causing floods. The Alaska Division of Homeland Security and Emergency Management recorded a much higher number of floods in recent years than ever before. From 1978 to 2008 there were 228 flood disasters. About 40% of these flood disasters occurred between 2000 and 2008.

Permafrost melt exacerbates flooding and flood-induced erosion because it softens the ground. This leads to various problems such as loss of land and contaminated water supplies. The town of Newtok, for example, is losing up to 113 feet of land per year and the villagers are in the process of relocating their entire community to nearby higher ground before their village is completely destroyed. The floods have also exposed their water supply to sewage.

Relocation

Newtok is not the only village relocating; the Government Accountability Office (“GAO”) found in 2009 that out of 31 villages in imminent danger, 12 decided to relocate. Relocation is a significant stress on the Alaska Natives. Before the DOI’s settlement mandate, Alaska Natives could move to different locations more easily in order to avoid erosion and flooding. But now it is more difficult to relocate because they have adapted to more sedentary lifestyles. In an analysis of the GAO report, Robin Bronen found that no government agency has the authority to relocate communities, no governmental organization exists that can address the strategic planning needs of relocation, and no funding is specifically designated for relocation. In fact, the Stafford Disaster Relief and Emergency Assistance Act, a federal act meant to assist state and local governments with disaster relief, can only assist Alaska Natives who remain in and repair their original community and not the Alaska Natives who must permanently relocate. This is a problem given the high cost of relocation. For example, Newtok, a village of 350 people, has an estimated relocation cost of about $375,000 per person. And because there’s no single government agency dedicated to relocation, villages must coordinate with multiple agencies, significantly slowing the process.

Subsistence

Another issue Alaska Natives face is river warming’s effects on subsistence hunting and fishing. Hunters primarily use rivers to get around due to the lack of road infrastructure in Alaska. They ride snowmobiles on the frozen rivers in the winter and use boats in the summer. The rivers are too unsafe to use during spring when the ice is melting and fall when the ice is forming. Because ice is now forming at a slower pace, hunters have less time in the year to use these transportation corridors. As a result, groups such as the Athabascan people are finding it more difficult to hunt moose, caribou, and other game.

Some Alaska Native communities’ access to salmonoids will also change. As temperatures warm, glaciers will melt at an increased rate and the melt will increase river flow. However, summer river flow will eventually be much less than it is now for many streams and rivers because there will be considerably less glacial ice to melt. The change in river flow, temperature, and sediment loads will have varying effects throughout Alaska. Some communities recently experienced record runs of salmon and are also enjoying positive outcomes for flounder and pollak. However, western Alaska has experienced substantial decreases in the salmon population.

Increased ice melt is also affecting community interactions. Research indicates that when hunters are forced to relocate they become depressed because the knowledge they can pass on to younger generations becomes less relevant. This stress can lead to an increase in drinking and violence, which are already at concerning levels in this region. A member of the Qikiktagrugmiut discussed with a reporter about how the shorter ice fishing seasons are limiting interactions between village elders and youth and negatively impacting the culture.

 Closing Thoughts

Alaska Natives face many climate change and warming-induced problems. There are many more costal and oceanic issues, which require addressing. For example, a recent report found that increased temperatures in northern waters are allowing pathogens to migrate northward and infect subsistence foods (such as whales) that are important for coastal communities. As the pathogen example demonstrates, the issues facing the Alaska Natives are very broad and can include problems that most of us would never even consider.

Compared to the lower-48, Alaska and its residents are distinctly challenged by melting ice and permafrost and general warming. The United States needs to address the emerging environmental challenges of Alaska Natives and other indigenous Arctic peoples.

 

The title image features the Aialik Glacier in Alaska. The file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license, the owner of which, does not endorse this blog.


Sources:

Karen Northon, 2014 Arctic Sea Ice Minimum Sixth Lowest on Record, http://www.nasa.gov/press/2014/september/2014-arctic-sea-ice-minimum-sixth-lowest-on-record (last visited Oct. 13, 2014).

Gov’t Accountability Office, Alaska Native Villages: Limited Progress Has Been Made on Relocating Villages Threatened by Flooding and Erosion 7, 12, 24-27 (June 2009), http://www.gao.gov/new.items/d09551.pdf.

Robin Bronen, Climate-Induced Displacement of Alaska Native Communities 1-2, 4-9, 12-14, 19 (Jan. 30, 2013), http://www.brookings.edu/~/media/Research/Files/Papers/2013/1/30%20arctic%20alaska%20bronen/30%20climate%20alaska%20bronen%20paper.pdf.

U.S. Army Corps. Of Engineers, Study Findings and Technical Report: Alaska Baseline Erosion Assessment 4-7 (Mar. 2009), http://www.climatechange.alaska.gov/docs/iaw_USACE_erosion_rpt.pdf.

Suzanne Goldenberg, Alaska on the edge: Newtok’s residents race to stop village falling into sea, The Guardian, May 13, 2013, http://www.theguardian.com/environment/interactive/2013/may/13/newtok-alaska-climate-change-refugees.

Gary P. Kofinas et al., Resilience of Athabascan subsistence systems to interior Alaska’s changing climate (July 8, 2010), http://www.fs.fed.us/pnw/pubs/journals/pnw_2010_kofinas001.pdf.

U.S. Forest Service, Climate Change: Anticipated Effects on Ecosystem Services and Potential Actions by the Alaska Region 12 (2010), http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fsbdev2_038171.pdf.

John Callaway, A Changing Climate: Consequences for Subsistence Communities, http://www.nps.gov/archeology/months/callaway.pdf (last visited Oct. 13, 2014).

Harvey Liefert, Parasites spread across the Arctic under the “new normal” (July 2, 2014), http://www.earthmagazine.org/article/parasites-spread-across-arctic-under-new-normal.