Historical Perspectives: Does Mitigation Stand the Test of Time

Snowmass, Colorado – August 20-22, 2014

As part of the Colorado Water Congress’s (“CWC”) annual summer conference, Jim Lochhead, CEO and manager of Denver Water, moderated a four panelist discussion entitled “Historical Perspectives: Does Mitigation Stand the Test of Time?”  The discussion centered on Colorado trans-basin water projects and the mitigation of their environmental impacts.  The panelists were chosen to represent differing perspectives, and talk about what they have learned from the past and what has changed in regard to today’s physical and cultural environment.  Jim Lochhead noted that disputes over trans-mountain diversions are not new, and have existed since Coffin v. Left Hand Ditch Co. in the nineteenth century.  He also pointed out that in addition to cities on the front range of Colorado, many western slope cities make use of trans-basin diversions on both large and small scales.

Harold Miskel, formerly the water resource manager of Colorado Springs Utilities, and “Larry Simpson, formerly the general manager of the Northern Colorado Water Conservancy District, presented the perspective from the east slope of Colorado.  During his career, Miskel was involved with the Homestake Water Project; a water supply project jointly operated by the cities of Colorado Springs and Aurora that transfers west slope water from the Eagle River basin to water users on the east slope.  Starting in the early 1960s, and for the rest of his thirty-year career, Miskel took part in the conflicts that resulted from the project, many of which are ongoing today.  He acknowledged that the basin roundtables happening today are beneficial because they create better collaboration.  Although he also stated that in his experience there are three categories of people who get involved in the collaboration process: collaborators, opportunists, and obstructionists.  He noted that obstructionists, those who are willing to defeat you at all costs, can really hinder the progress of a project.

One of the main issues Miskel encountered during his work on the Homestake Project, was the 1041 permitting process.  Miskel discussed how that process was litigated for fifteen years, it is still not completely resolved today, and it caused the costs of the project to go up immensely.  Miskel’s experiences left him with the perspective that the 1041 permitting process needs revising, and he suggested that the new Colorado state water plan presents an opportunity to do just that.  Also, he stated that, while he does believe in the value of mitigation, the current process gives counties decision-making authority in state-wide issues.

Larry Simpson followed by sharing his experiences with the Windy Gap Firming Project. The Windy Gap Project is a water supply project designed to improve the reliability of supply to the Colorado Big Thompson Project, a trans-basin diversion that supplies water to northeastern Colorado from Lake Granby on the eastern side of the continental divide.  Simpson stated that he and Miskel’s experiences were similar. The Windy Gap Project was negotiated extensively with the Colorado River Water Conservation District and the Grand County commissioners, and ended up with large mitigation efforts and compensatory storage as part of the deal.  He gave the opinion that our current permitting and litigation process creates opportunities for stalling, which ultimately causes the costs of a project to increase.  He stated that compensatory storage essentially makes someone pay for something that he/she already owns, and could be considered a form of extortion.  Simpson ended by stating that he believed mitigation would not stand the test of time, because other interests and their successors will keep trying to take another bite out of the apple.

Eric Kuhn, general manager of the Colorado River Water Conservation District, and James Newberry, a Grand County commissioner, gave a perspective from the western slope.  Kuhn noted that the issues surrounding trans-mountain diversions having been going on since the 1930s.  In his view, this is one of the factors making current mitigation negotiations more difficult; in order to be successful in mitigation everyone needs to be included from the beginning.  He also said that the issues are not only trans-basin issues, but also inter-basin issues, and they need to be viewed as a connected system in terms of exports of water.

James Newberry addressed earlier comments about the 1041 permitting process.  He thought the process gave everyone a chance not to be blind-sided. He stated that from the Grand County perspective, the way that the Colorado Big Thompson Project was operated prior to the 1041 permitting negotiations did not do a good job of distributing the affects between all the parties involved.  He said the rivers of Grand County were being negatively impacted, and noted that the Fraser River was recently listed as endangered.  Newberrywas a part of the early negotiations with the Denver Water Board; he credited them for stepping out of their comfort zone, doing the right thing, and looking for solutions.  In Newberry’sopinion, leaders stepped up, created an adaptive management plan, and are now going forward joined at the hip.  He reminded the audience that while it is easy to identify problems, it is not nearly as easy to find solutions.  He drew a laugh from the audience by comparing “Free Tibet” bumper stickers to the Save the Fraser (River) campaign; it is easier to say it than to actually do it.  Newberry reiterated that he thought the 1041 permitting process was beneficial because it identified issues and did not streamline the process.  In his opinion, the process requires people at the grassroots level who understand what the rivers need, in order to help save them.

Lochhead ended the discussions by suggesting that if this experiment in partnering fails, we could end up in a state of gridlock.

Snowmass, Colorado – August 20-22, 2014

Conservation, reuse, and collaboration were prominent themes woven through this summer’s Colorado Water Congress.  From August 20-22, 2014, political leaders and prominent members of the water community traveled to Snowmass Village, Colorado to discuss pressing water issues.  As droughts have plagued the West, this year’s speakers commented on how both the government and citizens are responding to the changing climate.

On Thursday morning, Brown and Caldwell welcomed Melissa Meeker, the Executive Director of WateReuse Association & Research Foundation, to the stage to discuss water sustainability and the importance of reuse in our water supply portfolios. Based out of Alexandria, Virginia, WateReuse is a nonprofit organization that is working to promote sustainable water sources through education, research, and advocacy.  Using California as an example, Meeker noted that there is a chronic imbalance of supply and demand.  In states that have water shortages, balancing water demands with the limited resource poses an ongoing challenge.  Population growth and droughts are driving the discussion of reuse.  Meeker pointed out three main areas required in making water reuse part of our reality.  First, she noted, leadership is key.  States need strong advocacy to create flexible polices and provide funding for reuse projects.  Second, more research is needed in the area to come up with answers to critical questions.  Finally, Meeker stressed the importance of education and outreach so the public understands the reason behind the creativity with water projects.  She explained that nothing can terminate a project like public outcry.

Changing the public perception to view treated water as a water source people will want to use will require both education and branding.  As Meeker mentioned, “Every drop of water we consume or use has already been used. . . . Water reuse does not involve drinking directly out of your toilet.”  Rather, she explained, it involves taking wastewater and running it through various treatment processes for specific purposes.  Getting this message across will aid the spread of water reuse.  After conducting a public perception research project, she found that labeling water as certifiable and describing the process of reuse made participants more receptive to using treated water.

WateReuse is taking steps to educate the public about water sustainability. On September 28, 2014, it will host a media workshop as well as a gala to educate the press and public about water reuse.  The gala, taking place in New Orleans, Louisiana, will serve only food and beverages that are touched by reused water, including the wine.  As we see a shift in our climate, Meeker advises, the time is now to embrace reuse as a critical water resource.

Jim Yannotta, Manager of Aqueduct, Los Angeles Department of Water, also spoke about the role of conservation and water reuse in the midst of droughts.  Stormwater capture has become a priority to utilize rain before it reaches the oceans, Yannotta noted.  Los Angeles County is working on large-scale projects, such as improving dams, to store more water.  Additionally, the county is encouraging individual homeowners to use stormwater barrels and cisterns to capture water for personal use, such as irrigation.  Despite its population growth, Los Angeles’s conservation efforts have stabilized its water use.  Los Angeles is one of the top two or three conserving cities, but Yannotta urged it must do more, especially with regard to landscaping.  He applauded the state for using treated recycled water for activities such as golf, but noted that California does not allow for the direct reuse of recycled waste water. Rather, it only allows for indirect portable reuse.

Although reusing water can benefit drought communities, subsequent speakers raised concerns about costs.  For instance, Jason Mumm, Director of Financial, Commercial and Risk Services for MWH Global, spoke about the hidden costs associated with reuse.  MHW Global is an enterprise that focuses on wet infrastructure projects.  It is based out of Broomfield, Colorado.  When reuse starts, the decrease in water flow going into the waste stream will concentrate the wastewater that runs directly into the treatment facility.  Subsequently, that water will cost more to treat.  While Mumm acknowledges that conservation is beneficial, he wants people to take into account the hidden costs.

While reuse and conservation may ameliorate water issues, without cooperation, water shortages may give rise to allocation and control issues.  As Governor Hickenlooper eloquently stated: “Water can either divide us or unite us, and in the end, it is our choice.”  The Governor compared Colorado to California and noted that Colorado is in a position to avoid some of the water use conflicts California is facing.  He mentioned that with the Colorado Water Plan, we are “calculated and conservative” and are able to accomplish more working together than separately.  He further elucidated the great cooperation occurring in Colorado.  When the recent floods damaged infrastructure, the water community was a leader in collaboration efforts.  In a matter of months, it raised around twenty-two million dollars in grants to help restore the state.

Pat Mulroy, Senior Fellow for Climate Adaptation and Environmental Policy for Brookings Mountain West, also stressed the importance of partnership and responsibility within the water community.  Mulroy explained that on the Colorado River, people are not only citizens of a state, but also citizens of a basin.  She noted that partnership is necessary so that the citizens of the basin can “continue to forge their own destiny.”  Collaboration is also crucial to ensure that Lake Mead, a water source for Nevada, California, and Arizona, as well as Mexico, does not fall below a certain level.

Mulroy highlighted issues in California’s Bay Delta Area to show the consequences of failing to work together.  The result of not cooperating, she explained, is that people in the Westlands Water District are experiencing fifty to sixty percent unemployment rates.  Additionally, food banks are not able to provide for the unemployed farmworkers.  According to Mulroy, the struggle is based in a discussion “nested in fear, suspicions, and the unwillingness to see that in this uncertain future, as more people move to the West, as our climate is changing, our only hope for sustainability, and our only hope for certainty. . . is through strategic partnerships.”

In contrast, despite the diminishing levels of Lake Mead, when Nevada’s partners wished to utilize their reserves, Nevada remained silent.  Because of water shortages, California and Mexico needed the water banked in Lake Mead.  Nevada did not fight this request because it knew that one day it might also have to call upon some of its reserves.  Mulroy explained, “As long as we continue the journey we started in the [19]90s, where we listen as much as we talk, where we give as much as we take, where we try to make the whole work, we will avoid that future which none of us want to face: a future of empty reservoirs, a future of community without a water supply, [a future] of rich farmland not being in production.

As the changing climate threatens those living in the West, the duty to conserve and work together falls to every individual.  As Taryn Finnessey, Climate Change Risk Management Specialist for the Colorado Water Conservation Board, pointed out, by 2050, climate models are projecting a two-and-one-half degree to five degree Fahrenheit increase in temperature in Colorado.  Finding ways to conserve, reuse, and store water is necessary to maintain an adequate supply as the temperature rises.

The featured image is of attendants to the 2014 Colorado Water Congress Conference. Image at http://www.cowatercongress.org/cwc_events/Summer_Conference.aspx.

Lake Mead, the primary upstream reservoir for the state of Arizona, is currently estimated to contain approximately 39 percent of its total water capacity. In the month of July, the water level of the lake was at its lowest documented level since 1937. However, unlike today, in 1937 the low levels resulted from the completion of the Hoover dam on the Colorado River that was intended to collect water and form the nation’s largest man-made reservoir. As a result of the receding water level, multiple boat landings and marinas found on Lake Mead have either had to relocate or shut down operations entirely. The businesses that decide to continue operating encounter severe costs associated with transporting or reconstructing the mandatory electrical, fuel, water, and sewer lines.

If Colorado River Basin States do not develop methods to reduce water consumption while simultaneously surviving the extreme drought, Arizona could be forced to cut water deliveries to cities such as Phoenix and Tucson. Presently, Lake Mead supplies approximately half of Phoenix’s total water needs, while Tucson obtains nearly all of its water from the lake.

Specifically, if Arizona cannot reduce its water consumption, water delivery cutbacks could become necessary by the year 2019. Also, depending on future drought conditions, the potential for water cutbacks could be as high as 29 percent by the year 2026.  Officials from the Central Arizona Project (“CAP”), which manages the 336-mile water system, believe that cities could possibly make accommodations for the water reductions by obtaining water from other surface water sources, such as lakes and rivers.

Although the limited water supply is not by any means a new concern to states in the Southwest, the prospective water shortage in Arizona’s cities is being raised publicly for the first time. If states located in the upstream portion of the Colorado River Basin cannot provide for the water shortage, with water obtained from snow melt or rain fall, Lake Mead’s surface level is projected to reach 1,000 feet above sea level by the year 2020, which is nearly 220 feet below its water level capacity.

Despite the potential of a near, worst-case scenario, CAP officials continue to maintain a relatively positive attitude for the organization’s plan of action. First, officials believe that such water shortages should not affect Arizona cities for at least 10 to 15 years. In 2007, the Secretary of the Interior adopted guidelines that quantify the reductions at various water surface elevations of Lake Mead. CAP officials ensure that the maximum reduction under the guidelines is still enough water to supply all of the municipal demands. Second, the predicted water shortages by 2017 will mainly affect central Arizona’s agricultural system, which is already preparing for reductions in water supply. Finally, the Arizona Water Banking Authority stores excess water in underground aquifers and has done so since the organization’s creation in 1995.

Lake Mead’s receding water level presents a grave concern for lower Colorado River Basin States such as Arizona. However, a “key shortage declaration,” which is only initiated if Lake Mead’s water level reaches 1,075 feet, is unlikely to be made either this year or in 2015.


The title picture is of Lake Mead, straddling the Nevada-Arizona border.This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. The owner of this picture does not endorse the DU WLR.


Michael Wines, Arizona Cities Could Face Cutbacks in Water From Colorado River, Officials Say, The New York Times, http://www.nytimes.com/2014/06/18/us/arizona-cities-could-face-cutbacks-in-water-from-colorado-river-officials-say.html?_r=0 (last visited July 25, 2014).

Pamela Pickard, The Facts About Arizona’s Water Supplies, Central Arizona Project http://www.cap-az.com/index.php/public/blog/468-the-facts-about-arizonas-water-supplies (last visited July 26, 2014).

William M. Welch, West’s water worries rise as Lake Mead falls, USA Today http://www.usatoday.com/story/news/nation/2014/07/26/lake-mead-falling-in-sign-of-drought/13079009/  (last visited July 28, 2014).

The Associated Press, Water Levels at Nevada’s Lake Mead drop to new low, http://www.azcentral.com/story/news/arizona/2014/07/08/water-levels-at-nevadas-lake-mead-drop-to-new-low/12392335/ (last visited July 28, 2014).

How does “pebble” transform into a giant boulder? When it is followed by the word “mine.” Pebble Limited Partnership (“PLP”), a U.S. subsidiary of Canada’s Northern Dynasty Minerals Ltd., is seeking to develop its mineral claims and operate “Pebble Mine” in southwest Alaska. Conceivably, Pebble Mine could be the largest open pit copper mine in North America and one of the largest such mines in the world. Pebble Mine could have a significant economic impact on Alaska and the lower 48 states. Yet, Alaska Natives, fishermen, hunters, recreationalists, environmental advocates, trade associations, and various other groups contend the mine could have significant and irreversible negative impacts on the Bristol Bay watershed (“Watershed”), specifically the fish and wildlife that nurture therein and the Native Alaskan cultures that live and work therein.

Paramount amongst these interests is the world’s largest salmon hatchery.  Salmon, however, are not tolerant of copper. The U.S. Environmental Protection Agency (“EPA”) agrees with the salmon and, pursuant to authority apparently granted it by the Clean Water Act (“CWA”), is taking bold steps to possibly preclude the issuance of discharge permits before PLP even applies.  PLP responded by filing suit against the EPA, asking a federal judge to enjoin the EPA from exceeding its authority.  In short, it’s copper versus salmon, with salmon in the early lead in what could be a very, very long race.


First discovered in 1988, the Pebble Deposit is located exclusively on remote, state-owned land about 200 air miles southwest of Anchorage in the Bristol Bay watershed (the “Watershed”). The Watershed is comprised of six major watersheds and a series of smaller watersheds draining from the North Alaska Peninsula.  Pebble Mine would sit just 17 miles north of Lake Iliamna, the largest incubator of salmon in North America, and within a few miles of major fault lines causing historic seismic activity.

With a total population near 4,337, twenty-five Native Alaskan communities have lived and sustained their culture for 4,000 years in the Watershed. Subsistence hunting, fishing and gathering is nearly mandatory in the region. Due to its isolation, the region boasts few businesses and a high cost of living.

Government supplies the only substantial year-round employment. Fishing (commercial, sport and subsistence), hunting (sport and subsistence), and non-consumptive recreation (wildlife viewing and tourism) comprise the three largest non-government sectors, providing employment for 14,000 full and part-time workers and generating nearly $480 million in direct economic expenditures (i.e., money spent by these workers) annually.

While copper would like to be king in the Watershed, the wild sockeye salmon (“sockeye”) sits atop the throne. The Watershed produces an average of 37.5 million sockeye each year, nearly 50% of the world’s sockeye population. Harvesting over 27 million sockeye annually, Bristol Bay’s commercial salmon fishery is responsible for nearly 63% of jobs and 82% of annual expenditures in the non-government sector. The Watershed also supports four other species of Pacific salmon and is home to thirty-five other fish species (including some of the most renowned rainbow trout in the world), 190 bird species, and more than forty terrestrial mammal species, including caribou, moose, bears, and wolves.

Attempting to coexist with these desirable resources, the area also contains significant wealth in a variety of minerals.  In addition to Pebble Mine, other mining companies have claimed over 1,000 acres.


Pebble Mine is estimated to contain 81 billion pounds of copper, 5.5 billion pounds of molybdenum, 107 million ounces of gold, and significant amounts of other minerals. PLP estimates the deposit contains enough copper to meet approximately 33% of the U.S. annual copper needs for many years.

If built and operated to its maximum potential, Pebble Mine project could cover twenty-eight square miles. Within this area, the mine’s open pit would cover about seven square miles and extend three-quarters of a mile into the earth. The “tailings facility,” the containment area for the materials left over after processing the ore, could have nine miles of 740-foot high dams. Pebble Mine could produce over ten billion tons of “waste rock,” the material that is displaced during the process of mining but is not processed for ore.  This amount of waste rock would fill 108 million rail cars sixty-five feet in length — enough rail cars to circle the Earth at its equator over fifty times.  Approximately 70% of Pebble Mine’s waste rock would be “acid-generating,” that is, capable of oxidizing and leaching acids into the water supply for as many as 100 years.  Although PLP refers to Pebble Mine as merely “an idea,” over $720 million has been spent developing the idea thus far.

In May 2013, IHS Global Insight (“IHS”), headquartered in Englewood, Colorado, produced a detailed, sixty-nine page report addressing the potential contributions a conceptual Pebble Mine could have on the economies of Alaska and the United States. IHS based the report on a conceptual mine because, according to the report, “PLP does not have a definitive, approved, and permitted development plan in place.” During each year of an estimated five years of mine construction (the “construction phase”), IHS estimates that Pebble Mine could support over 16,000 jobs in Alaska and the lower forty-eight states, contribute $400 million to Alaska’s gross state product (“GSP”) and $1.6 billion to U.S. gross domestic product (“GDP”), and generate state and federal revenues of $323 million. For each of the initial twenty years during which minerals are produced (the “production phase”), IHS estimates the project could support 15,000 jobs in Alaska and the lower 48 states, contribute $1.1 billion to Alaska GSP and $2.4 billion to U.S. GDP, and generate over $670 million in state and federal revenues.


In May 2012, the EPA undertook to perform a scientific assessment of the impacts of mining on salmon and those relying upon salmon in Bristol Bay, purportedly in response to concerns raised by nine federally recognized tribes and other stakeholders and consistent with the EPA’s authority under Sections 104(a) and 104(b) of the CWA. The EPA compiled the assessment using a scientific team with expertise in varying disciplines such as fisheries biology, mining, geochemistry, anthropology. After considering comments from the public and scientists, the EPA submitted another draft for comment and review in April 2013. In January 2014, the EPA submitted a 630 page report titled, An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska (Final Report) (“Final Report”).

Just as IHS did not have a definitive, approved, and permitted development plan on which to base its economic opinion for Pebble Mine, the EPA had no final plans on which to base its scientific opinion. In lieu thereof, the EPA developed three “foreseeable” scenarios with a range of mine sizes and operating conditions. The Final Report focused on the Nushagak and Kvichak River watersheds in Bristol Bay, the major river watersheds closest to the Pebble Mine. Within these watersheds, the EPA further focused on the potential impacts to salmon and how these impacts might affect indigenous subsistence cultures and wildlife. Taking into account traditional operations and foreseeable failures of its hypothetical mines, the EPA concluded that mining in the Bristol Bay will have substantial, and perhaps irreversible, impacts on salmon, other fishes, fish habitats, wildlife, and Native Alaskan cultures.


On February 28, 2014, the EPA Region 10 gave notice to PLP, the State of Alaska, and the U.S. Army Corps of Engineers (“Corps”) that it is “proceed[ing] under its Clean Water Act section 404(c) regulations to review potential adverse environmental effects of discharges of dredged and fill material associated with mining the Pebble deposit in southwest Alaska.” In its February 28th letter, the EPA outlined a four-step process under Section 404(c): (i) to consult with the owners, the State of Alaska, and the Corps (collectively, the “stakeholders”), (ii) publish a Proposed Determination, (iii) receive public comments and develop a Recommended Determination, and (iv) consult with the stakeholders again. The EPA set an April 29, 2014, deadline to satisfy step one.


The reactions to the EPA’s assessment and actions have been wide and diverse. Naturally, the mining industry takes issue with the EPA’s Final Report, specifically arguing that the EPA’s hypothetical mining scenarios do not reflect reality, are biased, and violate the Due Process rights of the Pebble Deposit’s claimants.  Proponents of mining, and others with an interest in Section 404(b) permitting, are referring to EPA’s action as a “preemptive veto” of discharge permits for which PLP has yet to apply.

In May 2014, PLP filed suit against EPA in the United States District Court for the District of Alaska seeking to enjoin it from preemptively denying its prospective permits.  PLP’s CEO referred to the EPA’s action as a “massive federal overreach” and said, “Litigation is necessary in order to get the Agency’s attention and bring some rational perspective back to the US permitting process.”  The State of Alaska filed a motion to intervene in the suit as a co-plaintiff to “prevent the EPA from taking land by prematurely limiting development before the state’s permitting processes have a chance to work.”

Numerous politicians have also chimed in. The U.S. House Oversight and Government Reform Committee (“House Oversight”) has initiated an investigation into allegations of “political motivation and unfair bias.” According to documents already obtained by House Oversight, the EPA may have been considering a preemptive veto as early as 2010, perhaps even before federal tribes and others began asking EPA to assess the risks of Pebble Mine.

On March 26, 2014, Senators David Vitter (R-Louisiana) and Sen. Joe Manchin (D-West Virginia) introduced the “Regulatory Fairness Act of 2014” (“RFA”).  If passed, the RFA would prohibit the EPA from preemptively or retroactively vetoing a permit issued under Section 404 of the CWA.

On the other side of the coin, many individuals, businesses, environmentalists, and public interest groups are overjoyed by the EPA’s actions. According to one such group, the Wild Salmon Center, “There is too much at stake to conduct an experiment of this scale with a resource of Bristol Bay’s economic, ecological, and cultural value.” Trout Unlimited proclaims that pollution from Pebble Mine is a “virtual certainty” and represents “an epic threat to the region’s fish, jobs and a way of life for thousands of Alaska Natives.”  In another entity’s opinion, if mining development begins in the Watershed, “the scope of the disaster is the only question.”

Investors have also bailed on Pebble Mine.  Northern Dynasty’s original partner, Anglo American, pulled out of the project in September 2013, taking a $300 million hit in the process.  In April 2014, Rio Tinto donated its 19.8% interest in Northern Dynasty Minerals to the Bristol Bay Native Corporation (“BBNC”) Education Foundation and the Alaska Community Foundation.  Upon receipt, the BBNC publicly thanked Rio Tinto for its donation but admonished that “BBNC’s opposition to the proposed Pebble Mine has not changed.”  In June 2014, BBNC sold its stock for $6.48 million and plans to use the funds for scholarships and a cultural heritage program.

In November 2014, barring court order otherwise, the issue will be put to Alaska voters.  If passed, the “Bristol Bay Forever” initiative would “require legislative approval of any large-scale metallic sulfide mining operation within the Bristol Bay Fisheries Reserve, or which has the potential to adversely affect any anadromous waters within the reserve.”


No mine has ever failed to get permitting in Alaska.  But no previous mine has ever cast a shadow the size of Pebble Mine.  Although Pebble Mine’s executives (and lawyers) remain hopeful, the anti-Pebble Mine groups will certainly continue to vigorously oppose mining in the Watershed.  For now, the dispositive issue is whether and under what circumstances the EPA can pre-empt the ordinary process and summarily conclude that, based upon known science, there are no circumstances under which discharge permits could ever be issued to PLP under the CWA. Only time, politics, and, most certainly, years of litigation will determine the fates of Pebble Mine, the salmon, and everything the salmon represents.


The title picture is of Lake Iliamna in Alaska. The lake is the largest incubator for salmon in Bristol Bay Watershed. This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. Subject to disclaimers and Alaska Trekker does no endorse this blog.


Clean Water Act, 33 U.S.C. § 1254(a)-(b) (2012).

Clean Water Act, 33 U.S.C. § 1444(b)-(c) (2012).

About Bristol Bay, EPA, http://www2.epa.gov/bristolbay/about-bristol-bay (last visited Apr., 13 2014).

About The Bay, Save Bristol Bay, http://www.savebristolbay.org/about-the-bay (last visited Apr. 13, 2014).

Ana Komnenic, Northern Dynasty tanks as EPA blocks issuance of key permit, Mining.com (Feb. 28, 2014), http://www.mining.com/northern-dynasty-tanks-as-epa-blocks-pebble-mine-permitting-28247/.

An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska: Executive Summary, EPA (Jan. 2014), available at http://www.epa.gov/ncea/pdfs/bristolbay/bristol_bay_assessment_final_2014_ES.pdf (last visited Apr. 6, 2014).

Backgrounder, Alaskans for Bristol Bay, http://alaskansforbristolbay.com/backgrounder.php (last visited July 17, 2014).

Bristol Bay Native Corporation, Pebble Watch, “Bristol Bay Forever” initiative to appear on ballots Nov. 4 (June 24, 2014), www.pebblewatch.com.

Bristol Bay Native Corporation, Pebble Watch, State of Alaska petitions to join Pebble in civil suit against EPA (June 3, 2014), www.pebblewatch.com.

IHS Global Insight, The Economic and Employment Contributions of a Conceptual Pebble Mine to the Alaska and United States Economies (May 2013), available at http://corporate.pebblepartnership.com/files/documents/study.pdf (prepared for the Pebble Limited Partnership).

IHS Global Insight, The Pebble Project: Economics and Employment, Visual Capitalist http://www.visualcapitalist.com/the-pebble-project-economics-and-employment (last visited Apr. 13, 2014).

Letter from Dennis J. McLerran, Regional Administrator, U.S. Environmental Protection Agency, Region 10, to Thomas Collier, Chief Executive Officer, Pebble Limited Partnership, Joe Balash, Commissioner, Alaska Department of Natural Resources, &  Col. Christopher D. Lestochi, Commander, U.S. Army Corps of Engineers (Feb. 28, 2014), available at http://www2.epa.gov/sites/production/files/2014-02/documents/bristol-bay-15day-letter-2-28-2014.pdf.

Press Release, BBNC Education Foundation realizes $6.48 million from RioTinto donation (June 13, 2014), http://www.bbnc.net/Index.php/our-corporation/news-events.

Press Release, EPA moves to protect Bristol Bay fishery from Pebble Min, EPA (Feb. 28, 2014), available at http://yosemite.epa.gov/opa/admpress.nsf/names/r10_2014-2-28_bristol_bay.

Press Release, U.S. Senate Comm. on Environment & Public Works, Vitter, Manchin Introduce Bill to Stop EPA’s Preemptive, Retroactive Vetoes of Water Permits (Mar. 25, 2014), available at http://www.epw.senate.gov/public/index.cfm?FuseAction=Minority.PressReleases&ContentRecord_id=cc41ea2b-c8bc-ebb8-9ef7-46805692c73e.

Shane Lasley, Mining News: EPA effort to stop Pebble draws fire, Mining News (Mar. 30, 2014), http://www.petroleumnews.com/pntruncate/866460674.shtml.

The Pebble Limited Partnership, Why Mine?, http://www.pebblepartnership.com/why.html (last visited Apr. 13, 2014).

The Pebble Limited Partnership, Location, http://www.pebblepartnership.com/location.html (last visited Apr. 13, 2014).

The Pebble Limited Partnership: People, http://www.pebblepartnership.com/people.html (last visited Apr. 13, 2014).

The Pebble Mine Report: Bristol Bay’s Wild Salmon Ecosystems and the Pebble Mine: Key Considerations for a Large-Scale Mine Proposal, Wild Salmon Center, http://www.wildsalmoncenter.org/programs/north_america/pebblemine.php (last visited Apr. 13, 2014).

Why We Studied the Bristol Bay Watershed, EPA, http://www2.epa.gov/bristolbay/why-we-studied-bristol-bay-watershed (last visited Apr. 13, 2014).


Water is emerging as the “new oil.” Water has always been a precious commodity, particularly in arid climates and underdeveloped nations. Access to potable water is a fundamental right. As such, disputes over access to water have become increasingly common. In regions with growing populations these disputes have become volatile. The Middle East is no exception, and the water disputes in that region are further complicated by longstanding geopolitical tensions.

The history of water-related conflicts in the Middle East stretches over the past 5,000 years. Currently, the Israeli-Palestinian water dispute is center-stage in the international arena. Israelis and Palestinians coexist in a small region with a large population density.  The physical proximity of the two populations necessitates close collaboration with respect to use and allocation of scarce natural resources. Specifically, the Israeli-Palestinian conflict can be attributed, in part, to a dispute over the two major shared water sources: the surface water that originates in the Jordan River Basin and the mountain aquifers that extend from the West Bank into Israel.  The Palestinians believe that the Israelis wield their power to impede the flow of water to Palestinian communities.  In contrast, Israelis allege that Palestinians grossly mismanage their limited water supply to the detriment of all users.

The shortage of surface water and groundwater resources in the region inevitably exacerbates the already explosive conflict between the two communities. This makes finding a resolution to the on-going water shortage, which is now elevated to a crisis level, even more pressing.  Rather than permitting this shortage of water to add to the mounting tension in the region, this dispute over a scarce resource should be viewed as an opportunity to cooperate and find a solution that benefits both parties and helps establish the foundation of trust necessary to facilitate legitimate peace negotiations.  Though the security of Israel, maintenance of human rights and the Israeli settlement policies are each legitimate political concerns, the serious health dangers associated with open sewage, lack of water, and empty or polluted wells should be considered of equal importance by the actors in the region and the international community.


High-tech irrigation systems and public awareness aid Israelis in achieving more efficient water use than their Palestinian neighbors. Israel has a high per capita water use and has taken a firm stance on its unwillingness to reduce the water supply for urban or agricultural use. Most importantly, the Israelis view water as a security issue. Water is a political vehicle wielded to gain a stronger footing in the disputed territories. Furthermore, the Israelis believe the Palestinians misuse and mismanage their shared water supplies, thereby posing a direct threat to Israel.

The Palestinians believe water use is a right, which they are continually denied.  Palestinians view the denial of water rights as a major impediment to the Palestinian economy. A 2009 report by the World Bank asserted that the Palestinian economy endured substantial costs due to lost opportunities in irrigated agriculture as a result of water limitations. The study estimated the loss as 10% of GDP and 110,000 jobs. Moreover, health concerns also exist. According to UNICEF, over 90% of the water taken from Gaza Coastal Aquifer (“GCA”), Gaza’s sole aquifer, is insufficient for human consumption. Furthermore, the Palestinians believe that they are unjustly burdened by having to purchase their water from overpriced and unregulated sources. More than 80% of the people in Gaza purchase drinking water from unregulated, private vendors, despite the water’s likely contamination. This imposes an additional financial and health burden on the people of Gaza.

UNICEF officials assert that some families are paying as much as a third of their household income for water. The World Bank determined that Israel consumes 80% of the water available in the mountain aquifer which runs the length of the occupied West Bank  and is shared with other occupants of the West Bank.  According to the World Bank, Israelis use 240 cubic meters of water per person each year; West Bank Palestinians use 75 cubic meters, and residents of Gaza use 125 cubic meters. However, it is noteworthy that in some areas of the West Bank, Palestinians report living on as little as 6 cubic meters of water per person per year.

Historically, Gaza has been dependent upon its coastal aquifer because there are no streams or rivers.  However, due to water mining—where water is pumped out of the aquifer at a higher rate than replenished—seawater from the Mediterranean has permeated into the groundwater. As a result, the water salinity has reached undrinkable levels.  Moreover, this water is also contaminated by raw and partially treated sewage coming from Gaza every day and flowing into the shallow coastal waters. One recent United Nations report predicted that the aquifer will be inoperative by 2016 because of overuse and contamination.

While some politicians attempt to divert attention to other issues, 1.7 million Palestinians are running out of fresh drinking water in the Gaza Strip. Although the Oslo Peace Accords of 1993 ostensibly alleviated much of the tension between the nations over water allotment and sewage infrastructure, the fundamental dilemma remains that both sides have differing viewpoints of what should be achieved through a policy of water sharing. The Israeli government believes it has satisfied its obligations under international law. The Palestinians’ focus is on their desperate situation with respect to water rights. The disparate perspectives make collaboration very difficult The Joint Water Committee, established in accordance with the Oslo Peace Accords, has failed thus far to produce effective results and reform.


Environmental improvements in the region are stymied by political disputes. These disputes occur not only between the Israelis and Palestinians, but also among internal Palestinian political factions.  One example of the political impediment on the issue of water rights is illustrated by the completion of a wastewater treatment plant in November, 2013 to alleviate pollution of the GCA, which serves 400,000 people in the northern Gaza Strip. Gaza is reliant on Israel for its electricity supply. However, Israel is refusing to provide the additional three megawatts required to power the treatment plant until Gaza’s current electricity bills are paid. Hamas and the Palestinian Authority disagree over who should pay the debt. Until this debt is paid, or an alternative electricity source emerges, untreated sewage will continue to pollute the coastal aquifer. As a result, the contamination threatens not only the individuals in the Gaza Strip, but an Israeli desalination plant in Ashkelon.


Although there have been valiant efforts by a number of non-governmental organizations (“NGOs”) to ameliorate this water crisis, the efforts are piecemeal and have largely had a minimal effect. Now, the involvement of the Friends of the Earth organization (“FoE”), has the potential to make a significant impact. This group has extensive financial resources and has identified the water conflict between Israel and Palestine as its first priority. As a result, it has begun to attract the international political attention necessary to alleviate this crisis.

The FoE campaign “Water Can’t Wait” is aimed at drawing global attention to the water crisis facing Gaza. FoE placed an hourglass full of polluted water in Tel Aviv’s central Rabin Square. This effort was a visual representation on display of the tainted water both Israelis and Palestinians encounter.   Other organizations, such as UNICEF, have facilitated the construction and implementation of eighteen small neighborhood desalination plants, providing free drinking water to 95,000 people. These grassroots efforts have had some tangible positive impact.  However, these small NGO organizations will only be able to make small improvements absent a monumental shift in government policy. Nevertheless, there is some hope emerging from even these incremental measures.

Cooperative work on water issues has also led to greater collaboration on other aspects of the Israeli occupation. For example, the Palestinian village of Wadi Fuqin and the Israeli community of Tzur Hassadeh united to tackle water issues in 2010 and also came together to block construction of a separation wall, designed to separate the two communities by a physical barrier. The previous collective effort between these two communities to solve their mutual water issues built a foundation of trust. Working together to block the wall can serve as a model where everyone benefits.


Israel has a larger water supply due to large-scale desalination. Moreover, both sides need to deal with untreated sewage. Reigniting negotiations over water as a chief priority is logical from an economic, environmental, and partisan perspective. Both peoples could improve their living conditions. Palestinians would not have to purchase water from private companies. Furthermore, pollutants from rivers and streams would no longer affect the Israelis. A final agreement regarding water will provide the necessary foundation of trust required to put the political process between Israel and the Palestinians back on track.

Incremental problem solving between the two peoples, beginning with water and sanitation, can advance the overall peace effort by reaching a resolution on one of the issues that detrimentally affects both sides. The first step to finding a solution to shared water is to acknowledge that there is a water crisis and water disparities exist between Israelis and Palestinians. Next, Palestine will need independent water rights, which will require a proper infrastructure and enough water to manage. One potential avenue to accomplish this would require Israel to recognize Palestinian water rights to the Jordan River. Moreover, the Israeli government can provide the Palestinian Water Authority with water, free from charge. This can all be done without discussing more political and philosophical disputes, such as settlements or the sharing the sovereignty in Jerusalem.

The Palestinian Authority would then distribute the water to Bethlehem, Hebron, and Yatta, in the West Bank, where the need for water is greatest. This action would bolster the Palestinian public support for the more moderate Palestinian Authority, demonstrating that tangible concessions can stem from negotiation, rather than violence.  The Palestinian Authority, in turn, could make a goodwill gesture and declare that the sewage treatment plant, piloted by the World Bank in Hebron, will expand to include the treatment of all Palestinian domestic and industrial sewage that currently permeates into Israel vis-à-vis the Hebron Stream. The United States could lend financial support to this effort, which is estimated to require an additional $30 million contribution. Israel would likely garner wide support, particularly in Beersheba, where the people are inundated with untreated sewage. There is potential for change. Water can be the key to facilitating this change.


Environmental problems transcend ethnic, tribal, or sectarian boundaries. Given the geopolitical significance of the Middle East, it is imperative to resolve a dispute that has significant ecosystem repercussions within the greater region. It is evident that fair, sustainable, and equitable relations between Israel and Palestine cannot occur without agreed upon arrangements for water sharing. While the insatiable need for fresh water in an arid climate is currently wielded as a political tool, cooperation in the reallocation and innovation of water and water-related technology has the capacity to unite the nations.  The thirst for adequate supplies of potable water is a common denominator. With courage and foresight the leadership of both the Palestinians and Israelis can use the region’s water crisis as a bridge to further collaboration and an easing of tensions.


The title picture is of the Jordan River in Israel. This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license and the owner does not endorse this blog.


Arwa Aburawa, Can water end the Arab-Israeli conflict? Aljazeera http://www.aljazeera.com/indepth/features/2011/07/20117278519784574.html. (last visited Feb. 15, 2014).

Schein, Jonah, The Role of NGOs in Addressing Water Access in Israel and the Palestinian Authority, 5 Sustainable Development Law & Policy 19 (2005). http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1405&context=sdlp (last visited Feb. 15, 2014).

Matthew Kalman, Gaza warned of looming water crisis: Friends of the Earth Campaign highlights problem which it says is being exacerbated by hold-ups in Middle East peace process, The Guardian, Jan. 30, 2014 http://www.theguardian.com/environment/2014/jan/30/gaza-looming-water-crisis-friends-earth  (last visited Feb. 15, 2014).

Rory McCarthy, Israelis get four-fifths of scarce West Bank water, says World Bank: Palestinians losing out in access to vital shared aquifer in the occupied territories, The Guardian, May 27, 2009. http://www.theguardian.com/world/2009/may/27/israel-palestinian-water-dispute (last visited Feb.15, 2014).

Catherine Weibel and Sajy Elmughanni, A fresh solution to Gaza’s water crisis, UNICEF, Jan. 14, 2014, http://www.unicef.org/infobycountry/oPt_71763.html (last visited Feb. 8, 2014).

Thomas L. Friedman, Whose Garbage is this anyway? The New York Times, Feb. 8, 2014 http://www.nytimes.com/2014/02/09/opinion/sunday/friedman-whose-garbage-is-this-anyway.html (last visited Feb. 13, 2014).

Hilal Elver, Celebrating water cooperation: Red Sea to Dead Sea: Israel-Palestine Joint Water Committees work has been referred to as ‘water apartheid,’ and ‘pretence of cooperation.’ Aljazeera  http://www.aljazeera.com/indepth/opinion/2014/01/celebrating-water-cooperation-r-201412072619203800.html (last visited Feb. 15, 2014).

The Palestinians’ West Bank: Squeeze them out, The Economist May 4, 2013, http://www.economist.com/news/middle-east-and-africa/21577111-jewish-settlements-expand-palestinians-are-being-driven-away-squeeze-them (last visited Feb. 15, 2014).Oded Eran & Gidon Bromberg, A New Road Map to Middle East Peace: Start with Water, Friends of the Earth Middle East. http://foeme.org/www/?module=projects&record_id=54 (last visited Feb. 20, 2014).

Martin Asser, Obstacles to Arab-Israeli peace: Water, BBC News, http://www.bbc.co.uk/news/world-middle-east-11101797 (last visited Feb. 20, 2014).



In 2012, Colorado and Washington became the first two states to legalize marijuana for recreational use. While using, possessing, and growing marijuana remains illegal at the federal level, twenty states and Washington, DC have legalized marijuana for medical purposes. Maryland also allows medical use as a defense in court. Notwithstanding its illegality at the federal level, the medicinal and recreational marijuana industries have been operating under tricky circumstances, namely the lack of access to banking and insurance services. While the burgeoning industry works out its financial issues, the challenge of bringing an illegal crop into the semi-legal market requires addressing an issue that farmers across the arid west encounter: Where to get water to grow plants.

Growing Marijuana

Legalization does not change the fact that growing marijuana is a water intensive endeavor.  Outdoor growing operations may require anywhere from one to fifteen gallons per plant, per day.  For comparison, growing one square foot of potatoes in Colorado requires only about sixteen to twenty-nine gallons of water per growing season. The retail price for marijuana ranges from $150.00 to $300.00 per ounce, whereas the recent price of potatoes is about $0.04 per ounce. Given the wide ranges of potential revenue and estimates of water requirements for growing marijuana, growers can expect a return of about $0.22 to $6.67 per gallon of water “invested” in each plant of marijuana grown outdoors (assuming two ounces of marijuana are harvested from each plant). Compare those figures with the return of about $0.02 to $0.03 per gallon of water to grow one square foot, yielding about eleven to fourteen ounces, of potatoes. The cost of obtaining water sufficient to maintain the marijuana growing operation may constrain production, but clearly, there is an economic advantage to growing weed. However, water is but a single cost that a business must account for among many.

Growing indoors is another option for marijuana growers, especially since grow operations in Colorado must be in an enclosed and locked space. Indoor growers can expect a return close to, or even exceeding, the upper range noted above. Further, there are many methods of growing indoors, and water use varies greatly. Although water savings from reduced evapotranspiration – the amount of water lost by evaporation and released from plants – growing indoors are significant, growing indoors requires energy-intensive equipment that increases energy costs. The growing area is also restricted, constraining the number of plants that a grower can cultivate. Nonetheless,the quantity of water required to cultivate marijuana outdoor or indoor is sure to raise an eyebrow or two, especially given persisting drought conditions in western states.

Environmental Concerns

One of the problems legalization may remedy is that illegal grow operations cause environmental degradation. The United States Forest Service estimates a cost of up to $15,000 per acre to remediate polluted watersheds from illegal marijuana growing operations, partly due to the uncontrolled use of fertilizers and pesticides. In California, illegal grow operations are blamed for pollution harming salmon populations in the Eel and Klamath Rivers. By bringing marijuana out of the black market, states could allocate the use of water in producing marijuana and hold growers accountable for environmental violations, instead of chasing down criminals (or so the thinking goes). However, unless the cost to obtain water legally is less than that of the illegal method, the economic incentive is to stay on the run and use “free” water for grow operations. Illegal marijuana growers, as opposed to legitimate farmers, operate in the black market and have no incentive to follow water use rules. The risk to an illegal marijuana grower’s investment remains constant even when following the rules because the product is illegal. Proponents of the newly legalized industry point to the self-regulating nature of the business, where law-abiding companies single out rule breakers to maintain market competitiveness, advance the legitimacy of the industry, and create an incentive to follow the rules.

Political Concerns

In July 2013, the Board of Pueblo County Commissioners unanimously approved a plan to build greenhouses and grow marijuana on a property with groundwater rights. Rural residents who depend on water to sustain their agriculture-based community opposed the plan. Residents resisted the use of water rights for marijuana cultivation, with one neighbor noting the scarcity of water in a nearby ditch. In September 2013, La Plata County commissioners heard concerns from a resident forced to haul water by truck to his home because of a lowered water table, allegedly due to a marijuana grow operation. Notably, La Plata County prohibits commercial operations from using its water to grow marijuana, potentially affecting a grow operation’s ability to obtain reliable water.

Both opponents of the marijuana industry and those concerned with water conservation are likely to voice their disapproval to  city and county commissioners who approve land for growing marijuana. These stakeholders possess a political check and can back up their resistance to the industry by voting for marijuana foes. Such a scenario may force municipal governments to address new water issues typically left for state administrative bodies to address, as opposed to water issues limited to their local jurisdictions.


Newfound industries face unique challenges. Emerging from the black market, the marijuana industry is only beginning to address issues that will lend itself to the world of legitimate business. From the Federal Government to the local board of commissioners, legalizing marijuana affects every regulatory aspect of business. Of course, if Uncle Sam decides to enforce his laws and send the industry back to the black market, marijuana growers will have more concerns than water use alone.


The title picture is of an outdoor, organic cannabis garden and is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license to Cannabis Training University. The use of this picture does not in any way suggest that Cannabis Training University endorses this blog.


Controlled Substances Act, 21 U.S.C. § 841 (2010).

La Plata County, Colo., Code ch. 94, art. 4 (2012).

Office of National Drug Control Policy, Marijuana Resource Center: State Laws Related to Marijuana, http://www.whitehouse.gov/ondcp/state-laws-related-to-marijuana (last visited March 3, 2014).

Bureau of Labor Statistics, Mid-Atlantic Information Office: Average retail food and energy prices, U.S. city average and Midwest region, http://www.bls.gov/ro3/apmw.htm (last visited March 29, 2014).

United States Geological Survey, Water Science School: How Much Water Falls during a Storm, http://water.usgs.gov/edu/sc2.html (last visited March 29, 2014).

Kristen Wyatt, Marijuana Industry Relieved as Feds Allow Banking, Denver Post (February 14, 2014), http://www.denverpost.com/marijuana/ci_25145150/marijuana-industry-relieved-by-banking-memo.

John Ingold, Colorado Firefighters Found Large Pot Garden During Waldo Canyon Fire, Denver Post (August 22, 2012), http://www.denverpost.com/ci_21368074/colorado-firefighters-found-large-pot-garden-during-waldo.

John Ingold, A Colorado marijuana guide: 64 answers to commonly asked questions, Denver Post (December 31, 2013), http://www.denverpost.com/marijuana/ci_24823785/colorado-marijuana-guide-64-answers-commonly-asked-questions.

Alastair Bland, California’s Pot Farms Could Leave Salmon Runs Truly Smoked, National Public Radio (January 13, 2014), http://www.npr.org/blogs/thesalt/2014/01/08/260788863/californias-pot-farms-could-leave-salmon-runs-truly-smoked.

Dana Kelly, Bringing the Green to Green: Would the Legalization of Marijuana in California Prevent the Environmental Destruction Caused by Illegal Farms?, 18 Hastings W.-N.W. J. Envtl. L. & Pol’y 95, 101 (2012).

Leading California Marijuana Attorney Says Growers Must Focus on Water Conservation, PRWeb (March 22,2012), http://www.prweb.com/releases/marijuana-attorney/california/prweb9316223.htm.

Colorado State University Extension, Seasonal Water Needs and Opportunities for Limited Irrigation for Colorado Crops http://www.ext.colostate.edu/pubs/crops/04718.html (last visited March 3, 2014).

Colorado State University Extension, Fertilizing Potatoes, http://www.ext.colostate.edu/pubs/crops/00541.html (last visited March 29, 2014).

Nick Bonham, County OKs pot greenhouse, Pueblo Chieftain (July 11, 2013), http://www.chieftain.com/special/marijuana/1456099-120/marijuana-property-county-pueblo.

Wax Jones, Marijuana: Pueblo County Approves Grow Facility Despite Water Rights complaints, Westword (July 15, 2013), http://blogs.westword.com/latestword/2013/07/marijuana_pueblo_county_approv.php.

Chuck Slothower, La Plata County Grapples Over Sale of Retail Marijuana, Durango Herald (October 1, 2013), http://www.durangoherald.com/article/20130930/NEWS01/130939945/0/taxonomy/La-Plata-County-grapples-over-sale-of-retail-marijuana.

Emery Cowan, County Sets Medical Pot Rules, Durango Herald (June 26, 2012), http://www.durangoherald.com/article/20120627/NEWS01/706279930/0/SEARCH/County-sets-medical-pot-rules.


On January 17, 2014, California Governor Edmund G. Brown Jr. declared a state of emergency addressing the severe drought conditions in the state. The past year was the driest in recorded state history, and as of February 27, 2014, surveys estimated only 24% of average snowpack. The Governor’s state of emergency declaration calls on Californians to reduce their water usage by 20% and directs state agencies to impose various efforts aimed at conserving water. In addition, the Governor stated, “I’ve declared this emergency and I’m calling all Californians to conserve water in every way possible.” Yet, despite this declaration and the severity of the situation, most major water providers and the Governor opted for voluntary cuts, choosing not to impose mandatory water restrictions with fines for excessive use.

Current Conservation Options

No Californian Governor has ever ordered mandatory statewide water restrictions, and while that option is within the Governor’s power, major uncertainty exists over how enforcement of that rationing would work. While the state holds the power to allocate water within it, the responsibility of managing and distributing that water lies at the local level, spread out amongst over 3,000 water providers, ranging from cities to municipal water districts, to private farm districts operating wells. The bottom line is these entities rely on selling water, not conserving it. A 20% percent reduction in water consumption and the subsequent loss of revenue would undoubtedly result in future rate increases. As a result, reducing water consumption through mandatory conservation measures are unpopular for cities and utilities.

Prior to the current drought, many water providers elected to implement tiered water rates to encourage conservation. Tiered water rates set a lower price for the initial basic use allocation. After that base, each additional water-use block or tier increases in price, causing a user of more water to pay at a higher rate than a user who stays within the basic use allotment. Tiered water rates stay within the voluntary classification of rationing that California has opted to use, while also using a market-based approach to achieve water conservation results.

Proposition 218

Passed in 1996, Proposition 218 limits the ability of local governments in California to raise taxes or fees without the approval of property owners while also including a proportionality condition by requiring that those taxes and fees cannot exceed the cost of providing the public service. In 2006, the California Supreme Court clarified that Proposition 218 applied to local water, refuse, and sewer charges. The result of this ruling meant that water providers could not charge one group of water users more in order to subsidize the fees of another group of water users. For instance, agricultural water users like farms and ranches who traditionally use much larger water volumes for their crops and livestock could not be charged at a higher rate than urban water users who use smaller volumes for domestic purposes.

In the 2011 case City of Palmdale v. Palmdale Water Dist., the California Court of Appeals held that an existing tiered pricing structure had instilled a “dramatically higher and disproportionate” pricing structure on irrigation users and violated the proportionality requirement in Proposition 218. While it remains unclear if the application of Proposition 218 will dissuade the use of tiered pricing systems in California, prior cases have shown that water providers must prove that they satisfy the proportional cost of service associated with a tiered pricing structure. Water providers must prove proportionality of the costs increases they pass on to consumers in relation to the increased service cost to provide that water.

Smart Metering

The creation of the proportionality requirement potentially created a unique opportunity for water providers to refine their conservation pricing policies through the use of smart metering. Smart metering has two main components: meters that measure chronological intervals, and a communication channel that allows the water provider to obtain readings on demand. Many Western states already use real time or near real time data collection software to monitor their distribution and collection systems. Detailed accounting is essential in order to ensure that both temporal and quantitative requirements are met. Smart metering offers essentially the same information, breaking down individual customer usage by time intervals and quantity. In the case of complying with Proposition 218’s proportionality requirement, a water provider could establish peak use hours where the energy costs associated with providing that water are higher. Then by using smart metering to compare usage to those peak times, water providers could provide the necessary proof to overcome the proportionality requirements.

The benefits of smart metering could also enable individual customers to monitor their own usage habitats by reading their own meters from inside their home. This technology would provide consumers current usage-data to evaluate and base water use decisions on.

Potential Issues

While smart metering does offer a potential solution to the use of tiered pricing systems under Proposition 218, it is important to acknowledge how difficult it would be for some water providers to comply with the proportionality requirement. While comparing energy costs to demand may be relatively simply, the calculation becomes far more complicated when integrating multiple supply sources into the cost of service equation. Cost of service must consider where a municipality received its raw water supply: whether supply comes from a gravity fed ditch, groundwater pumping, or, as here in Denver, pumped under the continental divide. These different sources would have a dramatic effect on how to equate the cost of service. Water providers may have to untangle the costs of each of their water sources, in combination with the costs of storage, treatment, and distribution, in order to be ready to comply with the scenario posed by Proposition 218.


As California continues to struggle with drought, water conservation policies will come under further scrutiny. If the courts decide that tiered pricing in combination with smart metering passes Proposition 218’s proportionality requirement, the result may be a valuable water conservation tool for California.


The title picture is of the San Gabriel Dam and Reservoir, located in Los Angeles County, California, in December 2013. The picture is attributed to Shannon1 and licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. The use of this picture does not in any way suggest that Shannon1 endorses this blog.


Bryan Barnhart, Rebecca Anderson Smith, Upgrading Conservation Pricing Proposition 218, Smart Meters, And The Step Beyond Tiered Rates, California Water Law Journal (Jan. 3, 2014), http://blogs.mcgeorge.edu/waterlawjournal/upgrading-conservation-pricing-proposition-218-smart-meters-and-the-step-beyond-tiered-rates/.

Governor Brown Declares Drought State of Emergency, Office of Governor Edmund G. Brown Jr. (Jan. 17, 2014), http://www.gov.ca.gov/news.php?id=18368.

Paul Rodgers, California drought: Why is there no mandatory water rationing?, San Jose Mercury News (Feb. 15, 2014), http://www.mercurynews.com/science/ci_25153774/california-drought-why-is-there-no-mandatory-water.

Driest Year on Record?, California Dept. of Water Resource (Feb. 28, 2014), http://www.water.ca.gov/waterconditions/.

San Juan Capistrano- Prop 218, Water in the West (Oct, 10, 2013), http://waterinthewest.stanford.edu/resources/forum/san-juan-capistrano-prop-218.

Smart Metering for Water Utilities, Oracle (Sept. 2009), available at www.oracle.com/us/industries/utilities/046596.pdf.

In 1898, the discovery of gold in Nome, Alaska triggered a new gold rush. Miners commonly used mercury to recover gold from ore and, over time, mercury and unrecovered gold accumulated in the aquatic environment and settled into the sediment below. Now, over 100 years later in Nome, summer gold prospectors seek their fortune in the mercury-laden sediments dredged up from the sea floor. Using shovels, sluice boxes, and boat-mounted excavators to dig up sediments, miners look for gold and remobilize toxic heavy metals in the process.

Heavy Metals

Heavy metals commonly enter aquatic environments as the result of natural processes, such as rock weathering and soil erosion. At low concentrations, these metals support metabolic activity in aquatic organisms and have little to no detrimental effect. However, at higher concentrations, these heavy metals can become toxic. Releases associated with anthropogenic activities such as mining, municipal wastewater treatment, manufacturing, and the use of fertilizers and organochlorine insecticides have significantly increased heavy metal concentrations in aquatic environments.

Sediments serve an important environmental role in absorbing heavy metals. Metals such as cadmium, chromium, copper, lead, and mercury precipitate out of the water over time and become concentrated in the sediments below. When remobilized, these sediments may act as a non-point sources of pollution, releasing high concentrations of heavy metals and directly impacting overlying waters, aquatic species, and other organisms dependent upon the contaminated water source for nourishment.

Heavy Metals in the Aquatic Environment

Water and sediment contamination has a significant correlation with the heavy metal content of aquatic organisms, such as fish. However, studies show that heavy metal levels are higher in aquatic organisms than in the surrounding environment. This is due to bioaccumulation, a process by which the amount of heavy metals present in an organism progressively increases over time because the rate of intake exceeds the rate at which the body can eliminate the substance.

Heavy metal contaminants in water sources have triggered significant fish and bird kills. In Montana, a once large, upstream copper mining and processing industry contaminated the upper Clark Fork River environment with toxic heavy metals. By the mid-1950s, high levels of copper and other metals caused significant fish kills, and most of the fish that once inhabited the area disappeared. Presently, efforts are in place to remove and clean up contaminated sediment, and fish have returned to the river. However, the negative impacts still linger. Osprey chicks in the area, identified as an indicator species because they eat fish from a specific area located very close to the nest, show blood mercury levels one hundred times the level considered problematic for humans. Further, blood mercury levels will increase over time as these birds mature and consume more heavy metals.

The Threat to Human Health

Remobilized heavy metals may also present a significant threat to human health. Consuming fish contaminated with heavy metals carries significant health risks, which may include, among other things, still-births and miscarriages; hypertension; severe damage to the body organs and the nervous, digestive, and immune systems; and even death.

For thousands of years, residents of Nome have relied upon fishing activities for “cultural and nutritional sustenance.” Today, these fishing activities continue in Nome’s public mining areas and other offshore locations where miners dredge up sediments and toxic metals. Although health officials in Alaska express concern with the risks miners face from exposure to mercury, the effects of dredging up heavy-metal rich sediments may be farther reaching. Where dredging and other releases of long-sequestered sediments occur in areas contaminated with heavy metals as a result of human activities, these operations have the potential to remobilize heavy metals, severely impacting the aquatic environment and local animal and human populations.


The title picture is of a gold mining dredge in Chatanika, Alaska. The picture is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license to Darren Giles. The use of this picture does not in any way suggest that Darren Giles supports this blog.



Maria Lucia Kolowski Rodrigues and Milton Luiz Laquitinie Formoso, Geochemical Distribution of Selected Heavy Metals in Stream Sediments Affected by Tannery Activities, 169 Water, Air, and Soil Pollution 167 (2006), available at http://www.environmental-expert.com/Files%5C0%5Carticles%5C9340%5CGeochemicalDistribution.pdf.

Zafer Ayas, et al., Heavy metal accumulation in water, sediments and fishes of Nallihan Bird Paradise, Turkey, Journal of Environmental Biology (July 2007), available at http://www.jeb.co.in/journal_issues/200707_jul07/paper_04.pdf.

Characterization of the Ashepoo-Combahee-Edisto (ACE) Basin, South Carolina: Sediment Contaminants, National Estuarine Research Reserve System, available at http://www.nerrs.noaa.gov/doc/siteprofile/acebasin/html/modules/watqual/wmsedcon.htm (last visited April 1, 2014).

Index of Definitions: Bioaccumulation, United States Geological Survey, http://toxics.usgs.gov/definitions/bioaccumulation.html (last visited on April 1, 2014).

John R. Garbarino, et al., Heavy Metals in the Mississippi River, (Robert H. Meade ed., 1995), http://pubs.usgs.gov/circ/circ1133/heavy-metals.html.

Montana Osprey Project: Heavy Metal Studies, University of Montana Environmental Biogeochemistry Laboratory, http://cas.umt.edu/geosciences/osprey/heavyMetalStudies.php (last visited April 1, 2014).

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