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 higher volumes water 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),

Governor Brown Declares Drought State of Emergency, Office of Governor Edmund G. Brown Jr. (Jan. 17, 2014),

Paul Rodgers, California drought: Why is there no mandatory water rationing?, San Jose Mercury News (Feb. 15, 2014),

Driest Year on Record?, California Dept. of Water Resource (Feb. 28, 2014),

San Juan Capistrano- Prop 218, Water in the West (Oct, 10, 2013),

Smart Metering for Water Utilities, Oracle (Sept. 2009), available at

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

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

Characterization of the Ashepoo-Combahee-Edisto (ACE) Basin, South Carolina: Sediment Contaminants, National Estuarine Research Reserve System, available at (last visited April 1, 2014).

Index of Definitions: Bioaccumulation, United States Geological Survey, (last visited on April 1, 2014).

John R. Garbarino, et al., Heavy Metals in the Mississippi River, (Robert H. Meade ed., 1995),

Montana Osprey Project: Heavy Metal Studies, University of Montana Environmental Biogeochemistry Laboratory, (last visited April 1, 2014).

Nome Dredgers Resource Guide: A Quick Guide for 2012 Dredging Activities in Nome, Alaska (May 2012), available at

Northwest and Artic: 1897-1920 Gold, Alaska History and Cultural Studies, (last visited April 1, 2014).

Yereth Rosen, Alaska, concerned about gold miners’ health, to test them for mercury, Reuters (Aug. 25, 2012),


The Great Lakes, which consist of Lake Superior, Lake Michigan, Lake Huron, Lake Erie, and Lake Ontario, comprise one of North America’s national landmarks and treasures.  The Great Lakes account for approximately one-fifth of the world’s surface freshwater.  This makes the Great Lakes the third largest system of surface fresh water in the world behind the polar ice caps and Lake Baikal in Siberia. The Great Lakes alone account for approximately 84% of North America’s surface fresh water and support approximately 6,000 species of wildlife, including numerous species of fish. The Great Lakes are also important sources of drinking water and economic livelihoods. Recreational boating, fishing, hunting, and wildlife viewing account for about $53 billion in revenue for the states surrounding the Great Lakes. However, the Great Lakes and the species the Great Lakes support are under threat due to the effects of climate change.

Lake Superior is currently warming up faster than any other lake in the world. It is the largest lake in the world by surface area, but it is relatively shallow despite its great size. Over the last thirty years, the lake has experienced a 50% decrease in ice cover. Ice cover is essential to keeping the lake cooler because ice reflects solar radiation back into the atmosphere. As the ice cover decreases, the lake absorbs more solar radiation, causing the temperature of the lake to increase. Lake Superior’s water temperature has increased approximately 2.5 °C (4.5 °F) between 1979 and 2006.

Effects of Climate Change

Summer Stratification

As the temperatures of the Great Lakes continue to increase, there is a risk that summer stratification will begin earlier. This means that during the summer, the warm surface layer of water does not mix with the colder bottom water layer. As a result, oxygen from the top of the lake is not transferred to the bottom of the lake. This can be a problem because the decay of dead algae on the lake bottom may deplete oxygen in the cold bottom layer of the lake, leaving organisms in the lower layer oxygen deprived. Lake Superior is already experiencing summer stratification about two weeks earlier than it has in the past thirty years, and some scientists predict that Lake Superior will warm to such an extent that it will be ice-free in the next thirty years.


Climate change provides both a benefit to some fishes and a threat to other fishes. Walleye fish are thriving in the warm waters of Lake Superior, which is bringing more fishing business to the lake. However, invasive species, such as the sea lamprey, also find the warmer waters of Lake Superior inviting. The sea lamprey is a parasite that attaches itself to the side of a fish, particularly the trout, and as a result of its feeding, eventually kills the fish. The sea lampreys thrive in warmer water, and as the population grows, the trout population of Lake Superior may significantly diminish.

Water Level

Scientists have not yet come to a consensus on how climate change affects the water levels of the Great Lakes. Climate change may result in increased water withdrawals from the Great Lakes, thus potentially lowering the water levels. Some research supports the position that the lake system may be sensitive to climate changes with data showing that the Great Lake water levels have been consistently below the long-term average levels since 1997. In 1997, a reduction in the duration of ice cover correlated to a water temperature increase and doubled the evaporation rate. Since 1997, however, the water in the Great Lakes has fluctuated normally, albeit below the average levels.

If the water level is affected by climate change, much of the wildlife living near the lake will be threatened. Wildlife, such as moose, rely on the wetlands surrounding the Great Lakes for food and protection. The reduced water levels exposes and dries out the wetlands around the Great Lakes and threatens the unique ecosystem. Before scientists can definitively determine if climate change has any effect on the water level and thus local wildlife, however, more conclusive data must be produced.

Minimizing the Effects of Climate Change

In order to address the potentially shrinking water levels of the Great Lakes, state and national governments need to adopt and implement programs that focus on encouraging agricultural and urban water conservation. Conservation could be achieved through creating closed systems to recycle used water. Because of the potential risk to the Great Lakes’ wetlands, local governments need to formulate plans to protect the wetlands in order to maintain essential wildlife habitats and the unique ecosystem the wetlands support.

Also, the Great Lakes must not be overrun by invasive species of fish. Invasive species growth in the Great Lakes will need to be monitored and potentially controlled to ensure survival of native fishes.

In response to these suggestions, the Obama administration developed a five-year Great Lakes Action Plan in 2010. The plan seeks to address multiple issues: restoring the wetlands, controlling invasive species, and promoting accountability and education efforts. Estimates to implement this plan are at approximately $2 billion.


The Great Lakes will need to be monitored as global temperatures continue to rise. Fishes who thrive in the warmer waters of the Great Lakes should obtain support, and invasive species must be prevented from spreading throughout the Great Lakes. The local, state, and national governments should emphasize the importance of conservation programs to prevent water levels in the Great Lakes from decreasing further. Plans must be made to maintain wetlands at lower water levels so that the wildlife surrounding the Great Lakes does not lose its natural habitat.  Finally, citizens need to be educated about climate change and how it affects the Great Lakes.


The title picture is a satellite photo of the Great Lakes from the SeaWiFS Project.



Phillip Ross, Climate Change Causing Lake Superior to Warm ‘Faster than any Lake on the Planet’, Int’l Bus. Times (Oct. 15, 2013),

Lisa Borre, Warming Lakes: Climate Change and Variability Drive Low Water Levels on the Great Lakes, Nat’l Geographic (Nov. 20, 2012),

Dina Maron, Lake Superior, a Huge Natural Climate Change Gauge, is Running a Fever, N. Y. Times (July 19, 2010),

Global Warming and the Great Lakes, National Wildlife Federation, (last visited March 12, 2014).

Great Lakes Facts and Figures, Great Lakes Info. Network, (last visited March 12, 2014).

Interview by Cynthia Canti with Tim Kline, PhD student, University of Washington, School of Aquatics and Fisheries (Dec. 4, 2013),

How does Stratification Affect Water Quality?, Great Lakes, (last visited March 12, 2014).

If the rains failed to follow the plow, it’s safe to reach the same conclusion about the freeways as well. California, the nation’s most populous state and largest agriculture producer, is enduring a three-year drought that has grown into the state’s worst on record. With the critical Sierra Nevada snowpack at 12% its normal capacity this season (as of Jan. 30, 2014), some communities are at a real risk of running out of drinking water, and an estimated half million acres of productive farmland are expected to lay idle. Californians can no longer afford the luxury of debating climate change; they are living it, and the unprecedented decisions burdening state officials could very well be the forecast for the rest of the arid Western states.

 State of Emergency

January is typically California’s wettest month; however, as precipitation continued to elude the golden state, Governor Jerry Brown declared a state of emergency on the 17th. This decree, in part, put water right holders on notice of being forced to limit and potentially cease water diversions in the upcoming months.  While junior appropriators are first to be cut, “[s]ome riparian and pre-1914 water right holders may also receive a notice to stop diverting water if their diversions are downstream of reservoirs that are releasing stored water and there is no natural flow available for diversion,” according to AgAlert, the weekly newspaper for California agriculture.

State officials have implemented vast water rationing procedures to conserve what little water is left for the routinely dry summer months. Governor Brown’s decree called on all citizens to reduce water consumption by 20% and mandated urban water delivery suppliers to implement their water shortage contingency plans. Furthermore, the decree also instructed state agencies to employ water use reduction plans at all state facilities and placed a moratorium on non-essential landscaping projects at state facilities and on state highways.  Additionally, Governor Brown directed the State Water Resources Control Board to expedite the processing of water transfers to enable water to flow where it is most needed.

Governor Brown’s notice came to pass on January 31 when the California Department of Water Resources (“DWR”) announced that the State Water Project (“SWP”) would likely make zero water deliveries this year to all twenty-nine public water agencies it supplies. These adversely affected public water agencies help supply water to twenty-five million Californians and irrigate approximately 750,000 acres of farmland. Never before has the DWR announced a zero allocation to its customers. Further, deliveries to irrigation districts in the Sacramento Valley that hold senior water rights will be cut by 50%, the maximum amount permitted by contract with the SWP. This marks the first time since 1992 that deliveries to these districts have been cut.

Worse yet, in the coming weeks, the federal Central Valley Project, which supplies the majority of the California’s agriculture water and irrigates over two million acres, is expected to announce a bleak summer delivery projection as well.

When the Wells Run Dry 

Affected communities have been directed to subsist primarily on groundwater until the reservoirs return to adequate levels. However, as state officials are cognizant that California’s groundwater is already being depleted like never before, aquifer levels are now under closer supervision. In fact, recent data shows that the equivalent of full Lake Mead has been pumped from below the Central Valley in the past decade alone. Accordingly, the DWR has been directed to monitor well construction and deepening projects as well as produce an expansive public report on groundwater levels throughout the state by April 30th.

Governor Brown also directed the state’s Drinking Water Program to provide technical and financial assistance to communities at risk of running dry and establish emergency interconnections within the state’s public water systems to help sustain these threatened communities. So far, ten communities, mostly in the northern part of the state, have been targeted for immediate aide as they could run out of drinking water sixty days from February 19. Correspondingly, state officials have begun trucking in drinking water and helping lay pipes to connect these communities to neighboring public water systems.

The Ripple Effect 

The drought is causing heightened surface and groundwater usage, which is compounding water shortage problems and increasing groundwater contamination. Unable to rely on groundwater to relieve surface use, the Orland-Artois Water District ran out of water in late January after it delivered more than triple the amount of irrigation water in the first three weeks of the month than it had ever delivered in the entire month. Further, contaminants generated mainly from agriculture runoff are becoming highly concentrated in aquifers, as less water is available to dilute them. “The state has helped about 22 of 183 communities identified last year as reliant on contaminated groundwater to bring their supplies into conformance with environmental guidelines, but the rest are still building or preparing to build systems,” according to CBS News.

Making it Rain

California lawmakers recently proposed a $687 million drought-relief funding plan aimed to clean up contaminated drinking water supplies, improve irrigation and water conservation systems, and provide emergency food and shelter to furloughed workers in agricultural related industries. Notably, the plan also increases penalties for illegal water diversions. President Obama also took action, pledging $183 million in federal aid to the state through the Farm Bill, signed February 7.  The federal aid package allocated $60 million to shore up California food banks and provided $100 million to compensate farmers for livestock loss.

Watch and Learn

California’s biblical drought will likely raise produce prices in grocery stores across the country as the California Farm Bureau estimates a $5 billion impact resulting from idled farmland. Ideally, national ramifications would end there. However, we must recognize that what is happening in California cannot be quarantined. The unfortunate future of the American West has arrived, and other Western states need to both prepare for and learn from what is happening in California.

It almost seems fitting that California, arguably the most progressive state in the union, is the first to take direct action in the face of climate change. California, however, has been forced in this position, and forced to act swiftly. Other Western states have the limited luxury to develop water conservation and management plants in preparation for what is being thrust upon California. The precedent is hastily being set, and we must learn what we can from the failures and successes of California’s response to climate change.


The title picture is of the San Gabriel Dam and Reservoir, located in Los Angeles County, 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.


Jerry Brown, A Proclamation of a State of Emergency, Office of the Governor (Jan. 17, 2014), available at

California Department of Water Resources, DWR Drops State Water Project Allocation to Zero, Seeks to Preserve Remaining Supply, News for Immediate Release (Jan. 31, 2014), available at

Rueters, Water Contamination a Risk in California Drought, Experts Warn, CBS News (Feb. 19, 2014),

Norimitsu Onishi & Coral Davenport, Obama Announces Aid for Drought-Stricken California, N.Y. Times (Feb. 14, 2014),

Kate Campbell, Rare ‘Curtailment’ Notice Underlines Depth of Drought, AgAlert (Jan. 29, 2014),




Acequia Background

Every spring farmers and ranchers in southern Colorado’s San Luis Valley gather to participate in annual community acequia cleanings. Acequias, which take their name from the Arabic word for “water bearer” or “barmaid,” are traditional gravity-fed irrigation ditches of Spanish origin. They have existed in southern Colorado and New Mexico since settlers of Spanish decent began to inhabit the areas and have been central to local communities since before Colorado became a state. In fact, the San Luis People’s Ditch in Costilla County has Colorado’s oldest priority right, assigned in April 1852.

In traditional acequia-based communities, open ditches transport water to long, narrow plots of land, known as vara strips, to maximize the amount of users who have access to the water. A mayordomo, or ditch boss, which land owners, or parciantes, elect in a one owner-one vote system, controls the allotment of the water. One of the most significant and unique features of acequias is their communal nature. Not only do the users share in the cleaning and upkeep of the ditches, they also share the available water equally. Acequia communities share water equally when it is plentiful as well as when it is in short supply, and small-scale agriculture in southern Colorado remains intertwined with the traditional acequia method of water allocation.

Despite having existed even longer than Colorado’s prior appropriation doctrine, until recently, acequias existed outside the purview of Colorado water law. Acequias themselves may have a recognized priority right, but individual parciantes historically relied on the mayordomo to ensure that they received the proper allocation of water. Without their own priority rights, parciantes in southern Colorado had limited legal recourse within the prior appropriation regime to enforce informal entitlements to water.

2009 Acequia Recognition Law

In 2009, Colorado passed the Acequia Recognition Law, which allowed community ditches established prior to Colorado statehood and primarily irritating narrow strips of land perpendicular to the ditch to incorporate as an acequia ditch corporation. These corporations would then be able to draft bylaws that would allocate water equitably, rather than based on prior appropriation. Additionally, the acequia corporation could have the right of first refusal regarding the transfer of acequia surface water rights.

While the 2009 Acequia Recognition Law helped to solidify the cultural and economic significance of acequias in southern Colorado, two aspects of the legislation proved to be problematic. The 2009 law narrowly defined an acequia as a ditch that provided water primarily to long, narrow plots of land running perpendicular to the ditch, and in order to qualify as an acequia ditch corporation, two thirds of the irrigated land must fall within this limited definition. These limitations reflected the traditional form of acequia irrigation but excluded many modern acequia irrigators with non-conforming plots from taking advantage of the Acequia Recognition Law.

2013 Amendment

In attempt to rectify these inadequacies, the Colorado legislature amended the 2009 Acequia Recognition Law in 2013. The 2013 amendment deleted the original statute’s narrow language, thereby allowing ditches serving non-conforming plots to qualify as acequias and also allowing ditch corporations serving more than one third non-conforming plots to qualify as acequia ditch corporations.

New Opportunities

Following the recent legislative action, acequia irrigators and the communities in which they live have the opportunity to legally bolster the long-standing acequia tradition. To this end, the Getches-Wilkinson Center at the University of Colorado has partnered with nonprofits and local attorneys to assist acequia communities in taking advantage of the Acequia Recognition Law and the 2013 amendment. The Acequia Assistance Project unites practicing attorneys and law students to help unincorporated acequia organizations incorporate, conduct governance review for existing acequia corporations, and help individual irrigators understand and secure their water rights.


The title picture is of La Canova acequia near Velarde, New Mexico.



Colorado Revised Statutes § 7-42-101.5 (2013) (amending Colo. Rev. Stat. § 7-42-101.5 (2009)).

Gregory A. Hicks and Devon G. Peña, Community Acequias in Colorado’s Rio Culebra Watershed: A Customary Commons in the Domain of Prior Appropriation, 74 U. Colo. L. Rev. 387 (2003), available at

Tom I. Romero II, Uncertain Waters and Contested Lands: Excavating the Layers of Colorado’s Legal Past, 73 U. Colo. L. Rev. 521 (2002).

Devon G. Peña, Presentation: Colorado’s 2009 Acequia Recognition Law: Punching a Hole in Prior? (March 2, 2010), available at

University of Colorado, Acequia Assistance Project, (last visited March 4, 2014).

On January 9, 2014, West Virginia’s Governor, Earl Ray Tomblin, declared a state of emergency after a storage tank containing crude 4-methylcyclohexane methanol (“MCHM”) began leaking into the Elk River, located 1.5 miles upstream of a water-treatment facility in Charleston, West Virginia. MCHM is a chemical compound used at coal processing plants to separate coal particles from the surrounding rock.

Alerting the Public of the Contamination

According to authorities, the contamination occurred after thousands of gallons of MCHM leaked through a one-inch hole, bypassed a containment wall, and seeped into the Elk River. Charleston residents quickly began to notice a licorice-like odor wafting from the chemical storage site. Upon arriving at the scene, State inspectors quickly advised 300,000 people in nine counties (Kanawha, Boone, Cabell, Clay, Jackson, Lincoln, Logan, Putnam and Roane) not to drink or use the water. In addition, the contamination caused schools to close in at least five counties, and strict water bans prevented hospitals, restaurants, nursing homes, and other local establishments from using their water until further testing had been performed.

According to authorities, the contamination does not appear to pose lethal harm. “You’d have to drink something like 1,700 gallons of water to even approach a lethal dose,” said Paul Ziemkiewicz, Director of the West Virginia Water Research Institute. However, as a result of the chemical spill, approximately 300 residents had to seek medical attention. Symptoms ranged from nausea to rashes. State Department of Health & Human Resources Secretary, Karen L. Bowling, reported no patients were in serious or critical condition.

Once word leaked out about the contamination, panic set in amongst affected residents who quickly stripped store shelves of items such as bottled water, paper cups, and plates. “If you are low on bottled water, don’t panic because help is on the way,” said Governor Tomblin at a news conference the day after authorities detected the leak. The Federal Emergency Management Agency and several companies, including Pepsi and Coca-Cola, sent bottled water and other items for people unable to use tap water.

In the Wake of the Spill

Initially, Freedom Industries, the chemical supplier whose leaking storage tank caused the federal emergency, reported that the contamination involved approximately 7,500 gallons of MCHM. However, almost two weeks after the initial leak, officials revealed that a second coal-processing compound, a mixture of polyglycol ethers known as PPH, had leaked into and contributed to the contamination of Charleston’s water system.

While PPH is thought to be less toxic than MCHM, the late disclosure outraged local officials and residents who had been awaiting accurate information regarding the extent of the contamination. “It is very disturbing that we are just now finding out about this new chemical, almost two weeks after the [initial] leak,” said West Virginia’s Secretary of State, Natalie E. Tennant.

On January 17, a mere eight days after the initial spill began, Freedom Industries filed a Chapter 11 petition with the U.S. Bankruptcy Court in the Southern District of West Virginia. The Company used their bankruptcy documents as a forum to theorize on how the chemical spill occurred, stating that frigid temperatures caused a water line to burst, the ground beneath the storage tank froze, and some kind of sharp object punctured a hole in the side of the storage tank, causing it to leak.

While the bankruptcy filing has been described as “a tactic to freeze the two-dozen liability suits,” which have already been filed against Freedom Industries, it does not halt lawsuits against other third parties targeted in the spill. Some of the lawsuits also name West Virginia American Water Company and Eastman Chemical, the producer of the MCHM spilled. Furthermore, the bankruptcy proceedings do not strip the Freedom Industries of its responsibility to rectify the environmental damage caused by the spill.

While the full extent of damages remains unknown, Government entities, including the U.S. Attorney’s Office, are continuing to investigate the spill as well as mitigate the long-term effects.

The title picture is of the Elk River.


About 300,000 can’t use water after chemical spill near Charleston, W.V., NY Daily News (Jan. 10, 2014),

Chemical Spill in West Virginia Declared Disaster, Fox News Network (Jan. 10, 2014),

Company files for bankruptcy after West Virginia chemical spill, Fox News (Jan. 17, 2014),

David Zucchino, West Virginia puzzled, outraged over chemical leak, Los Angeles Times (Jan. 16, 2014),,0,7792964.story?page=1#axzz2qsGvvf86.

John Schwartz, A Second Chemical Was Part of West Virginia Chemical Spill, Company Reveals (Jan. 21, 2014),

Kiley Kroh, West Virginia Declares State of Emergency After Coal Chemical Contaminates Drinking Water, Think Progress (Jan. 10, 2014),

Nick Visser. Freedom Industries, Company Behind West Virginia Chemical Spill, Files for Bankruptcy, The Huffington Post (Jan. 17, 2014),

Paul Barrett, A Second Chemical Spilled in West Virginia, and the Company Said Nothing Until Now (Jan. 23, 2014),


During the first decade and a half of the twenty-first century, contaminated recreation water entered the public concern’s limelight. Last year lake closures due to E. coli contamination sky-rocketed in North America, most notably in the Midwest, affecting major recreational hubs in the Great Lakes region and stretching as far south as the Missouri and Arkansas Ozarks. For areas that generally stay open all year and rarely see the need for concern of bacterial infection, these lakes and streams closed to the public in hopes of reducing E. coli exposure.


Escherichia coli (“E. coli”) is bacteria predominantly found in human and animal fecal matter. The most common strains of E. coli are harmless, living and thriving in the intestines. However, the bacteria are prone to adaptation and can form strains that cause severe illness. The EPA cites 1982 as the first recognition of E. coli as the cause of an outbreak stemming from contaminated hamburger meat.  It wasn’t until 1999 that scientists identified E. coli as a waterborne contaminant in New York and Washington. Since 1999, waterborne E. coli has increased and caused beaches, lakes, streams, and watersheds to either shut down or close off to public recreational use. The Midwest is home to the largest lakes in the United States, and the influx of bacteria provides ample grounds for generally studying the development of E. coli as well as E. coli’s metamorphosis from harmless to dangerous.

Point Source Contamination – Friendly E. coli

E. coli most prominently enters water through “point sources.” Point sources include pipes, ditches, and wells that carry sewage and waste for discharge into water systems. The notion that water could dilute waste substances historically made lakes and especially streams hot spots for dumping. Organic, inorganic, and sewage waste continually cause water quality to decline and provide an atmosphere for optimal bacterial growth. E. coli found in lake and stream waters often indicates the presence of human fecal matter. In the Great Lakes, fecal matter pollution produced a 32% increase in the number of beach advisories and closures in 2003. E. coli presence alone is not the main concern in North American lakes and streams; rather, the type of E. coli and concentration provides area for concern. When the basic strain of E. coli adapts into a more dangerous pathogen, which significantly increases severe illness, humans and animals alike are at risk. However, water environments challenge E. coli’s survival because of the environment’s generally low temperatures, high salinity, and increased solar radiation. Due to these natural constraints on E. coli growth, E. coli that enters water systems via point sources usually contributes to a healthy aquatic ecosystem.

Non-point Sources – Don’t Eat the Sand!

Bacteria flourishing in human and animal intestinal tracks may make it through sewage and waste into the environment. However, studies conducted over the past decade have shown a new trend of contamination. While lake and stream water provide a semi-hostile environment for E. coli to replicate or survive in, these areas are not completely inhospitable. Furthermore, scientists now recognize soil and sand as creating an environment for E. coli to adapt, survive, and flourish, eventually leading to the development of pathogenic strains.

Recently, scientists have discovered that the shallow groundwater below beaches and adjacent to the shoreline harbor elevated levels of E. coli. When E. coli enters the water system, groundwater is often infected as well. The bacteria attach to soil or sand particles and can survive for far longer than free-floating bacteria. Sand protects E. coli from the environmental stresses bacteria experience while in lake or stream water, such as the effects of UV radiation. Sand also allows the bacteria to attach to grains where there is a steady flow of nutrients.  In sum, sand provides the ideal atmosphere for E. coli to survive, adapt, and replicate. Why is this concerning? Tidal washes, run-off, and erosion then transport the preserved and adapted E. coli strains into surface water. The E. coli found in the shallowest parts of lakes and streams resemble the genetic make-up of sand-nourished pathogens and less like the harmless bacteria found at point source locations. The higher concentration of pathogen E. coli creates a much higher risk of contracting a severe illness from the bacteria.

Moreover, in the past decade, with the currently increasing land temperatures, E. coli is surviving the coldest months. While the summer months have always seen an increase in E. coli concentrations, winters typically serve to combat and curb concentrations. Generally, E. coli survives anywhere from two to seven days in water; however, according to a beach contamination study of the Great Lakes, E. coli survived through the winter and tested at high levels in the frozen February sand. This means that come spring thaw, E. coli concentrations start at higher levels, setting up for contamination frenzies and closures all summer.

So, what you’re saying is, I can’t play in the water?

Across the Midwest, recreational lakes, beaches, and streams close every summer to minimize the risk of contracting illnesses due to E. coli exposure. While the prospect of contracting an illness deters most water enthusiasts, some cities, such as Chicago, are making strides in order to reduce general panic. Chicago, for example, is supplying added information to assist visitors to make their own informed decisions. For the past two summers, the Chicago Park District (the “District”) daily posted the E. coli water concentration at select beaches with frequent visitors. The District only closes beach and lake access if the concentration exceeds a certain threshold as mandated by the Environmental Protection Agency. Somewhat concerning, the daily postings do not account for the concentration of E. coli harbored in the sand. On the other hand, Canadian investigations and experiments have found that while some harmful strains of E. coli exist along shorelines and within the shore soil, the majority remains benign, resembling strains of bacteria found in our own bodies.

So, this summer, when there is an E. coli advisory, think about a few things before you swear off swimming, fishing, water skiing, or reading on the beach. Though current research shows increased concentrations of E. coli, higher concentration does not mean that all present strains are pathogenic and cause severe illness upon exposure. Rather, the majority of bacteria found in surface water and in shoreline soil is still categorized as harmless E. coli. While scientists work to find better ways of measuring E. coli concentrations, sources, and prevention, the question remains how safe, or unsafe, recreational lake and stream waters truly are.

The title picture is of Lake Michigan.


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Amy Latham et al., A Study of How Pollution Affects Wildlife in the Great Lakes, University of Michigan,  available at (last visited Jan. 27, 2014).

Basic Information about E. coli 0157:H7in Drinking Water, Environmental Protection Agency, (last visited Jan. 27, 2014).

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The final product of two decades of water use disputes has now resulted in a contentious lawsuit filed in the United States Supreme Court (“Supreme Court”). For more than twenty years, Florida, Georgia, and Alabama have been elbows deep in negotiations over the distribution of water shared by the three states. The negotiations involve a river system that begins in northern Georgia with Lake Lanier, which was created in 1950 by damming the Chattahoochee River. The river system continues south with the Chattahoochee River along the Alabama state border, where it then meets the Flint River near the Florida state line. At this junction, the two rivers flow into the Apalachicola River, which then empties into the Apalachicola Bay (the “Bay”). The Bay accounts for 10% of the nation’s oysters and provides over 2,000 jobs to the fishing industry in Florida.

The fishing and oyster industries in Florida encountered, and continue to battle, near collapse. On August 12, 2013, the National Oceanic and Atmospheric Administration declared a fishery disaster for oyster farmers in the Bay. This disaster threatens a deeply seeded tradition and the income of many Florida families, as the Bay produces 90% of Florida’s oysters. The Bay provides an ideal environment for oyster farming as the brackish water promotes oyster growth through decreased disease and predators. Reduced river flows emptying into the Bay disrupts the Bay’s salinity levels and leads to decreased oyster growth, resulting in decreased numbers of oysters to harvest and increased economic difficulties for the oyster farming industry.

Though the current conflict among Florida, Georgia, and Alabama remains in familiar territory due to the history of water disputes among these states, the current lawsuit proves to be a new frontier. Throughout the many years of disagreement, the states refrained from suing one another, electing to instead sue third parties like the United States Army Corps of Engineers (“Army Corps”). The Army Corps manages the system of dams and reservoirs shared by the three states. Past litigation addressed the Army Corps’ compliance with various federal statutes and management of the storage and water use issues in the river system. In 1992, Florida, Georgia, and Alabama commenced a study to determine the needs of the river system. The study lead to the creation of the Apalachicola-Chattahoochee-Flint River Basin Compact (“AFC Compact”). The AFC Compact developed an allocation formula for equitably apportioning the water resources of the river system. Florida’s need to file the current lawsuit suggests that the Army Corps failed to address each state’s water needs and the allocation formula failed to meet its intended purpose.

Florida has reached a point of desperation. Instead of continuing to negotiate with Georgia, Florida has escalated to involve the Supreme Court in an attempt to save one of their largest industries. In the most recent round of litigation, Florida emerged down for the count. The Eleventh Circuit Court of Appeals granted Georgia access to Lake Lanier, subject to restrictions, to provide water to Atlanta, an outcome Florida wished to avoid. With negotiations failing and lower courts ruling contrary to Florida’s interests, a lawsuit in the Supreme Court may be Florida’s only option to protect the Bay’s current brackish ratios and save the struggling fishery industry.

What Are the Arguments?

The fight for water originates in the competing needs of urban development and traditional agricultural endeavors. As urban development continues to grow, the demand for water outpaces the available supply. Georgia has been particularly motivated in urban development due to Atlanta’s constantly increasing water needs. Furthermore, as cities upstream continue to demand more and more water, the amount of fresh water entering the Bay will decrease.


From Florida’s perspective, Georgia continues to engage in unchecked consumption and unfair use of water shared by Florida, Georgia, and Alabama. In particular, Florida worries about the water use by irrigation wells in Georgia. According to Florida, the combined effect of increased water storage for Atlanta and South Georgia’s increased groundwater use has decreased water levels in the Bay, thus increasing salinity, and devastating Florida fisheries and oyster farmers. Florida Governor Rick Scott accuses Georgia of failing to engage in good faith negotiations while simultaneously consuming more water than necessary. Scott now alleges that Georgia’s actions make resolution possible only through a lawsuit. Florida has invoked the Supreme Court’s original jurisdiction in order to seek appropriate apportionment of water resources to redress existing harm and avoid continued harmful depletions caused by Georgia’s alleged unfair use. Throughout the past year, Florida suffered a drought and claims Georgia’s consumption only increases the threat faced by the Bay fisheries. And while the drought might be a factor, Florida argues climate data does not demonstrate that a lack of rain accounts for the freshwater reduction in the Bay. Without a ruling from the Supreme Court restricting Georgia’s consumption of water, Florida officials worry the Bay’s brackish levels will continue to fluctuate and continue to threaten the oyster farming industry’s survival.


Georgia officials have responded and accused Florida of filing a frivolous lawsuit motivated by a political agenda. Brian Robinson, a spokesman for Georgia Governor Nathan Deal, called the lawsuit “political theatre” used to gain favor with voters as an election year approaches. Georgia officials believe Florida’s mismanagement of the Bay area has enhanced the issues created by the recent drought, leaving Florida in need of a “boogeyman” to blame for the poor management. In response to accusations that Georgia has indulged in unfair water consumption, Georgia responds that other factors have played a more detrimental role: the Bay’s woes result from the recent drought, overharvesting of oyster beds, and Florida water mismanagement. Georgia strongly asserts that Georgia’s water consumption continues to create  minimal effects. Further, Georgia argues responsible water conservation measures have been enacted and followed by Georgia’s citizens both in major cities and agricultural communities.


At this time, Alabama officials have yet to decide if they will join the suit against Georgia. Jennifer Ardis, a spokeswoman for Alabama Governor Robert Bently, said the state will consider “all available options” to protect its water rights. Should Alabama choose to join the lawsuit, their support will most likely fall with Florida. Alabama senators have partnered with Florida senators in attempts to convince Congress to set stricter limits on Georgia’s access to water in federal reservoirs. However, Congress did not accept these limitations, and a lawsuit might provide the only solution Alabama needs to ensure access to sufficient water resources. Further, Alabama’s involvement with the AFC Compact suggests any decision by the Supreme Court will affect Alabama’s access to water resources.


The decades of conflict and the current lawsuit reflect a clash between urban expansion and traditional agricultural endeavors. Should the Supreme Court decide to hear the case, determining the fair use of the water resources available to Florida, Georgia, and Alabama will govern which interest takes priority in future conflicts and, therefore, the interest most likely to survive. However, significant doubt remains concerning the Supreme Court agreeing to hear the case. As recently as June 2012, the Supreme Court refused to hear an appeal from both Florida and Alabama lower courts concerning proper water use in Lake Lanier. If the Supreme Court refuses to hear the case or fails to find a solution to share the available water equally among the three states, Florida, Georgia, and Alabama will likely suffer economic hardships and struggle to provide the necessary water resources to their citizens.

The title picture is of Apalachicola Bay located in Florida.


Florida’s Motion for Leave to File a Complaint, Complaint, and Brief in Support of Motion, Florida v. Georgia (petition for cert. filed Oct. 1, 2013), available at

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Bill Cotterell, Florida Sues Georgia to Protect Oyster Farmers in Water Dispute, Reuters, (Oct. 1, 2013),

Gabriela Raffaele, Florida Sues Georgia to Protect Oyster Farmers, FIS United States (Oct. 3, 2013),

Dave Williams, Water War II: Florida Sues Georgia, Atlanta Business Chronicle (Oct. 4, 2013),

Allison Floyd, Florida Lawsuit Could Restrict Georgia Irrigation, Growing Georgia (Oct. 9, 2013),

Gary Fineout, Scott Says State Will Sue Georgia Over Water, Associated Press (Aug. 13, 2013),

Daniel Malloy, Florida Will Ask Supreme Court to Limit Georgia’s Water Use, The Atlanta Journal-Constitution (Aug. 13, 2013),

Toluse Olorunnipa & Michael C. Bender, Florida to Sue Georgia in U.S. Supreme Court Over Water, Bloomberg Sustainability (Aug. 13, 2013),