Florida, Georgia, and Alabama have been battling over water in the Apalachicola, Chattahoochee, and Flint River Basins (“ACF Basin”) since 1990. The twenty-seven years of litigation has been primarily focused on what each state contends is the proper apportionment of water from the ACF Basin to each state. And now, the battle is coming to a head in the United States Supreme Court. Once the dust settles, the future of the ecology in the Apalachicola Bay, the operation of the Buford Dam, and the water resource needs of the city of Atlanta will finally be decided.

This dispute is indicative of larger issues facing watershed and water resource management elsewhere in the country as it is motivated by the same competing forces that drive disagreements over how our most vital resource should be utilized. Georgia wants more water to feed its rapidly growing metro Atlanta area, Alabama wants more water to stay in the rivers of the Basin to continue to support its power generation and industrial needs, and Florida argues that increased water usage in the Basin has resulted in reduced flows that cause serious injury to its seafood industry and to the ecology of the Apalachicola Bay.

The Court held oral arguments on January 8th, 2018. Gregory G. Garre argued on behalf of Florida, and Craig G. Primis argued on behalf of Georgia.

These interests have played out in courtrooms, before Special Masters, district courts, appellate courts, and now, the Supreme Court, possibly resulting in an equitable apportionment decree that puts this three-decade war over the waters of the Flint, Chattahoochee, and Apalachicola Rivers to rest.

 

Background

Understanding the context in which this litigation will play out before the Supreme Court is vital to comprehending what the positions of the parties are, why they are so entrenched, and why this fight has been going on for almost three decades. Without it, the dispute over the ACF Basin may appear to be a mere squabble between three states over how much water they feel entitled to. But in reality, this battle is indicative of the water resource struggles that communities all over the nation are dealing with.

The struggle at the center of this litigation is about how to balance solid economic growth with environmental protection—values and positions growing states must consider. Acknowledging this history allows for a more complete understanding of why these three states have been so contentious since the 1980s and why each state has argued their positions so vigorously. Further, it illustrates the implications that an equitable apportionment decree would have on the lives of the millions of people who live in the ACF Basin.

The origin of the conflict goes back to the early 1980s when the Basin suffered periods of serious drought and the metro Atlanta area began to experience huge population growth. The state of Alabama is concerned with reserving enough water for municipal, industrial, and power generation. Florida is distressed with the effect of lower river flows on the ecology of the Apalachicola Bay. And Georgia uses water from the Basin as the main source of drinking water for the city of Atlanta, whose metro area now has a population of almost six million people. Atlanta’s growth has come without much forethought about water supply and management.

All these competing interests—coupled with the fact that the ACF watershed is the smallest in the nation to supply the majority of a metropolitan area’s water—adds to the complexity and ferocity of the litigation over the years. These interests are diametrically opposed and motivated by very different sets of needs across the Basin. For example, both Florida and Alabama look for solutions that fit their needs: Alabama uses water for cities and industry and Florida leaves water in the Basin to protect the ecology of North Florida. The one thing that the two states seem to be able to agree on is blaming Georgia for a lack of environmental awareness and engaging in few conservation efforts.

The Apalachicola, Chattahoochee, and Flint Watershed, Wikimedia Commons.

Buford Dam

Most of the litigation over the years has been focused on the Buford Dam project that created Lake Lanier in Gainesville, Georgia and the small fishing town of Apalachicola, Florida. As Atlanta continues to take more and more water out of the Chattahoochee River, water levels in the Apalachicola Bay have fallen to historically low levels due to decreased flow in the Apalachicola River. The Chattahoochee meets the Flint River and other tributaries at Lake Seminole near Bainbridge, Florida, to form the Apalachicola River, which flows into the Apalachicola Bay. Historically normal flow levels are crucial for the health of the Bay, which supports one of the most fertile seafood industries in the United States. Ten percent of the country’s oysters and about ninety percent of Florida’s oysters come from the Bay. Despite its small size, Apalachicola has been in litigation with the city of Atlanta for almost thirty years.

The impetus for all of this fighting and the spark that started the “water wars” between the states was a bad drought in the 1980s that lead Atlanta to implement water rationing. In response to this, the city of Atlanta worked with the U.S. Army Corps of Engineers to take 1623.44 acre feet of water per day from the Chattahoochee in the Lake Lanier area. Alabama quickly challenged this decision and sued the Army Corps. Florida joined the suit to protect its own interests in the Basin. Both states were concerned with the effect on river flows. Alabama needed natural flows for farming, industry, and hydropower and Florida needed natural flows to sustain its seafood industry in the Apalachicola Bay.

The parties came to an agreement in 1992 to begin a five-year comprehensive study sponsored by the Army Corps that froze water-usage levels and started a period of negotiation to solve their differences outside of court.

 

Negotiations falter

In 1997, the three states entered into the ACF River Basin Compact. The agreement was meant to bring the states together to negotiate their interests in the Basin in order to find an equitable means of appropriating the water, but Georgia—some three years before the deadline of the negotiations—submitted a request to increase water withdrawals from Lake Lanier over the next thirty years. The Army Corps denied the request for increased withdrawals, but Georgia’s attempts served to sour the negotiations. Georgia appealed the denial, and Alabama and Florida both challenged the request for increased water distribution from Lake Lanier for the City of Atlanta. The negotiation period subsequently expired, the attempted compact achieved little, and the parties continued to litigate for the next three decades.

In the course of that litigation, Georgia argued that it had the right to divert water from hydropower generators for its municipal water supply to the city of Atlanta. This water would be stored in Lake Lanier. However, the D.C. Circuit court rejected that argument, holding that reallocation of storage space in the lake would be a major operational change that would require congressional approval. Georgia sought United States Supreme Court review of that decision, but the Justice Department recommended that the Court not grant review. The case went unheard.

After review was denied, the case was transferred to the U.S District Court for the Middle District of Florida. This round of litigation focused on whether Atlanta had the right to rely on Lake Lanier as its primary source of water. Florida and Alabama argued that maintaining water supply for Atlanta was not within the original purpose of the Buford Dam project and it would, therefore, need congressional approval for changes to the operation of the dam. The Court, in 2009, accepted this argument and set aside the Corp’s approval because the Corps failed to get the necessary congressional approval before changing the operation of the dam, which constituted an abuse of discretion.

In 2011, the U.S District Court’s ruling was reversed by the Eleventh Circuit due to concerns about cutting off the water supply to the millions of people living in the Atlanta metro area. The Eleventh Circuit found that the Corps had never formally reallocated storage in the reservoir and that water storage was, in fact, within the purpose of the Buford Dam project. The Court found that storage was within the intent of the project because of a report made during the project’s planning phase. That report had stated water storage for the city of Atlanta was intended to be one use for the project.

 

Remanded to the Corps

Pursuant to the 2011 finding, the district court remanded the case with instructions for the Corps to reconsider the Buford Dam plan in order to determine its legal authority over dam operations in a way that would be in accordance with Georgia’s growing water needs. To do this, the Court told the Corps to complete its analysis of its water supply authority and to release its conclusions within one year. The result of this ruling placed the litigation over the Basin into a state of greater unpredictability and put the burden on the Corps to determine their legal authority over the entire project.

Unsurprisingly, the Corps did not meet their July 2012 deadline to complete the report. But it did start signaling that it was willing to rule in Georgia’s favor for more water for Atlanta, finding that “it has always been apparent from the plain text of the Newman report that the Corps proposed, and Congress authorized, a system that was expressly intended to ‘ensure an adequate water supply for the rapidly growing Atlanta metropolitan area’ downstream.” Moreover, the Corps states that they have and will continue to “operate the Buford project with this goal in mind,” rebutting the argument that operating the dam in this way would contravene the Congressional intent.

 

Recent developments

However, this 2011 finding did not put an end to the dispute. In 2014, Florida convinced the United States Supreme Court to hear their claims against Georgia and sought an equitable apportionment of the waters of the ACF Basin. Equitable apportionment actions ask the Court to issue a decree allocating interstate waters and dictating how much water each state can use. In this instance, Florida requested the Court to divide the waters of the ACF Basin between the two states. Florida’s argument continued to focus on the fact that Atlanta’s suburbs were withdrawing too much water from the Chattahoochee and damaging the ecology of the Apalachicola Bay.

In order to protect the bay, Florida, in its complaint against Georgia, asked the Court to restrict Georgia’s consumptive water use to levels that existed in 1992. Florida felt this restriction was necessary to combat the increased salinity in the Bay, which it argues has caused the oyster industry there to collapse. Georgia, however, claimed that its water use did not cause injury to Florida and that its use only had a minor impact on the flow in the Apalachicola River at the state line. Further, Georgia argued that the problems facing the Apalachicola Bay are the result of a changing environment and poor management by Florida.

Alternatively, to make its case, Georgia claimed that the burden is on Florida to show by clear and convincing evidence that Georgia’s current water use causes material injury or damage to Florida’s substantial interests. One of these interests would likely be the oyster fisheries in the Apalachicola Bay. Yet, even if Florida was able to convince the Court of its injury, the Court would have to decide whether the nature and intensity of the injury are enough to justify the impacts that would follow from the reductions in Georgia’s water use that Florida is seeking.

 

Special Master’s Report

The Court appointed a Special Master to oversee the litigation in November 2014, and a hearing was held in late 2016. The Special Master issued an order compelling the states to participate in more mediation geared at settlement. The Court directed the parties to file confidential reports by January 26, 2017 that showed their efforts to come to an agreement.

After receiving the reports, the Special Master issued a report of his own in mid-February, recommending that the Supreme Court deny Florida’s claims because, according to the Special Master, it did not meet the standard of providing clear and convincing evidence that its alleged injury is able to be remedied without the Corps as a party to the suit. While the report is not legally binding, it does inform the Court’s view of the evidence at trial and provides the Supreme Court Justices with a frame to view how the law should be applied to the case. After the report was made, both states had the opportunity to file exceptions and responses, which the Court reviewed prior to making a decision on whether to hear the case and scheduling oral arguments.

In late May, Florida filed its exceptions to the Special Master’s report, arguing that the Master erred in several areas by imposing a heightened standard for establishing redressability of the injury Florida contends it is suffering. Florida’s exception specifically took issue with the conclusion that even after proving that it suffered injury, the Special Master required Florida to prove redressability by clear and convincing evidence. Florida contended that the Army Corps of Engineers’ ability to use its discretion in operating dams under its control precludes a finding of redressability, as the Army Corps’ discretion is outside of Florida’s control. Additionally, Florida argued that the Master failed to account for the ways in which Florida’s injuries could be redressed irrespective of the Corps’ discretion in what the Corps may or may not decide to do about the operation of the Buford Dam. Florida’s final argument spelled out the ways in which the Master was not able to account for the principles of equity and the role of the United States Supreme Court in resolving interstate disputes. Essentially, Florida reiterated its position that equitable apportionment by the Supreme Court was its last hope to save the Apalachicola Region from irreparable damage.

Georgia, not filing its own exception, instead responded to Florida’s exception in late July maintaining its position that Florida had not met its burden of proof from demonstrating injury. Georgia argued that the Special Master applied the correct legal standard in finding that: (a) Florida failed to prove effective redress via clear and convincing evidence; (b) Florida failed to prove that imposing a consumption cap on the Basin would provide the State with effective relief from its claimed injury and that any cap would be “uncertain and speculative”; and (c) Florida failed to prove that it would receive any meaningful benefits from increased overall flows into the Apalachicola Bay. Additionally, Georgia claimed that the manner in which the Special Master considered the role of the Army Corps was proper. Georgia did not defend the guarantee standard employed by the Master, instead reframing the Special Master’s report in a light favorable to its position.

In reframing the report, Georgia argued that the Master applied the correct legal standard when he found that Florida failed to prove its case because the Master required Florida to prove effective redress, something that Georgia believes Florida was not able to do. Georgia argued that Florida had failed to prove that a consumption cap in the Basin would provide the State with the relief it requested from the Court. That line of argument, Georgia contended, is supported by the fact that Florida’s claims of injury cannot be rectified by the Corps because of how the Corps operates its reservoirs in the Basin. Georgia asserted that any benefit to Florida from a consumption cap would be uncertain and speculative because Florida failed to prove that the Corps would use its discretion to pass additional water to the Apalachicola Bay during times of drought. Florida admitted that the only way to materially increase flows during drought is to involve the Corps and change the way the dams on the Basin operate to allow more water to reach the bay, but the Special Master found Georgia’s modeling to be reliable and Florida’s suffering from critical shortcomings that prevented the Master from finding that the Corp’s could redress Florida’s injury. From this, Georgia argued that Florida failed to prove any meaningful benefit from increased overall flows and the Master’s consideration of the role of the Corp’s in the dispute was proper.

 

Amicus curiae

After Georgia filed its response, both the United States and the State of Colorado filed amicus curiae briefs supporting of Georgia’s position and bolstering the Special Master’s conclusions.

The United States filed a friend of the court brief in this matter because the operational protocols of the Army Corps of Engineers played a critical role in the Special Master’s recommendation and the United States wanted to ensure that the Court fully understood those protocols before arguments were held. Furthermore, the United States stated that it is concerned with protecting the Corp’s ability to operate its system of dams in the region for congressionally authorized purposes and in compliance with other federal statutes. The brief from the United States also addressed Florida’s contention that imposing a consumption cap on Georgia would allow for greater flows to reach the Apalachicola Bay. Contrary to Florida’s argument, the government argued that the consumption cap would have little effect towards restoring historical flows to the bay due to constraints on how the Corps must operate the system of dams in the ACF Basin.

For its part, Colorado filed a brief in this dispute because of its long history of interstate water disputes and to protect its interest in preserving a strong burden of proof in equitable apportionment decrees. Interestingly, Colorado takes no position on the merits of Florida’s case. Rather it is primarily focused on the burden-of-proof question because a decision from the Court could potentially establish precedent affecting Colorado’s rights and obligations under its current—and possible future—equitable apportionment decrees. Colorado wants to ensure that the complaining state in these kinds of fights bears the weighty burden of proving both its injury and its right to relief by clear and convincing evidence. It emphasizes that this burden applies through the entire course of equitable apportionment case and that to win out, the state seeking an equitable apportionment must prove, according to that higher standard, the effectiveness of redressability.

 

Florida responds

In late August, Florida filed its supplemental reply to its May exception responding to some of the concerns raised by the United States and Colorado. Florida acknowledged Georgia’s position, recognizing that Georgia contends that it has not wasted any water or injured Florida in any fashion. However, relying on the report made by the Special Master, Florida urged the Court to accept some of the findings made by the Master. Specifically, Florida urged the Court to accept that it has suffered injury as a result of unreasonable upstream water use by Georgia—including that this harm is the result of decreased flows in the Chattahoochee River coupled with the largely unrestrained agricultural water use by Georgian farmers in the Basin. Because Florida characterizes these statements from the Special Master as “findings,” it argues that the Court must accept both the injury and Georgia’s inequitable conduct through overuse of the waters in the Basin. Moreover, Florida contends that Georgia’s claim that the case cannot move forward without the inclusion of the Corps as a party is unfounded. Florida took this position because the Special Master found that the case may proceed without the Corps because Florida would be left without any solution for its injury if the case were to be dismissed.

Additionally, Florida also argued that because Georgia failed to file an exception, the Court should accept the Master’s report as the case goes to oral arguments. However, if the Court were to accept the Master’s report, doing so would seemingly ignore the fact that Special Master’s final conclusion was to dismiss the case. In fact, the Special Master concluded that there was no guarantee that the Corps would not offset any additional flows available to Florida and achieved through a consumption cap on the Flint River. The Master found that the Corps could hold back waters in reservoirs on the Chattahoochee River, and that reduced flows on the Chattahoochee would mitigate any additional flows on the Flint River Florida. Florida, maintained that the Special Master made a mistake of law when reaching that determination about dams on the Chattahoochee because the Court has never placed that kind of requirement—one where the party seeking an equitable apportionment decree must envision what the Corps may or may not do—on a party before.

Interestingly, after the Special Master submitted his report, the Corps issued a Record of Decision that spoke to how the Corps would respond to an equitable apportionment decree if one were issued in this case. The Corps stated that it would take the apportionment into account and adjust its operations accordingly. Florida, in its sur-reply, points to the fact that the United States affirmed that decision in its amicus curiae brief, stating that the United States has said that it stands behind that statement by the Corps and that any decision by the Court would necessarily affect the laws to be considered by the Corps when deciding how to operate control of waters in the ACF Basin. Therefore, Florida argues that the United States should accommodate a decree if one were made in this case; and even if it did not, a decree would still likely provide a meaningful redress to Florida’s injury because increased flows resulting from a decree would materially improve conditions in the Apalachicola region.

Finally, Florida refuted Georgia’s arguments about unclear or uncertain redressability by contending that it is at the very least reasonable to predict that the Corps would respond to a decree by adjusting its operations to be in compliance with that decree and other applicable law. To prove this point, Florida urged the Court to examine Georgia’s arguments to illustrate the fact that that Georgia is merely speculating by arguing about what the Corps would or would not do.

 

Oral arguments

On October 10, 2017, the Court set oral arguments on the exceptions to the Special Master’s report in due course. Due course should bring the case before the Court during the October term, which is usually over in June or July. When the parties appear before the Court, Florida will likely argue that, because negotiations between the states have been so contentious and fraught over the years, an equitable apportionment decree may be the best way to finally sort out where the waters of the ACF Basin should go.

However, an equitable apportionment is not the only solution. The states could agree to an interstate compact or Congress could take direct action to apportion the waters in the Basin. An interstate compact may be the cheapest way to resolve the issues between the parties, but the likelihood of a compact being successful is doubtful given the long history of litigation.

The last time the parties attempted to directly negotiate in 1997 not only failed to come to an agreement, but also exacerbated tensions and spawned even more litigation. Georgia refused to give up its demands for the water needed for Atlanta. Similarly, Florida has not given up its claims for adequate downriver flows to preserve water levels in the Apalachicola Bay. These positions make coming to a formal compact agreement unlikely.

The likelihood of Congress getting involved is equally slim. Congress has been unwilling in the past to wade too deeply into contentious disputes like this. Congress would have to gather a substantial amount of expert information on the dispute and then make an informed decision on the best use of waters in the Basin.

While the dispute has been going for almost thirty years, Congress appears to be preoccupied with issues like health care, disaster relief, and tax reform. Because neither a compact nor Congressional action appear to be viable solutions, this case will have to be decided by the Supreme Court if it is to be resolved decisively.

 

Looking to the Supreme Court

 At oral arguments, the Court will hear that Florida and Georgia are looking for completely different uses of the water from the Basin. This will be unlike other instances where the Court has made equitable apportionment decrees in the West because, in the Western cases, the Court was asked to consider how much water was necessary to support agriculture in Colorado, Kansas, or Texas. In this case, the Court will be asked to weigh the consequences of its decision on the growing city of Atlanta and the ecology of Apalachicola Bay. On the one hand, the growth and developmental future of Atlanta—one of the fastest growing cities in the nation. And on the other hand, the possibility that reduced flows in the Chattahoochee will destroy an entire river ecosystem—putting the final nail in the coffin of one of the country’s major shellfish-producing areas.

Florida will likely argue that Georgia is requesting the Court to withhold water while also not taking necessary steps to solve Atlanta’s drinking water supply problem. Georgia, in turn, will probably argue that it has no other choice but to take the water it needs to fuel its explosive growth and that there are no other viable solutions to its water supply issues. But as many in the West already know from past experiences, equitable apportionment decrees often do not leave any of the parties happy.

The Court has a tough road ahead. It will have to unravel the almost thirty years of litigation and find a balance in a watershed that supplies drinking water for almost four million people. The three rivers, the Flint, Chattahoochee, and the Apalachicola provide water for industry in Alabama and power generation throughout the three states. They support agriculture in South Georgia and Alabama, recreation in the Chattahoochee River National Recreation area, and fisheries further south in the Apalachicola Bay.

Moreover, the Flint is home to one of the most diverse aquatic ecosystems in the country and is one of only forty rivers left in the U.S that flows for more than two hundred miles without being obstructed by a dam. The Basin provides thirty-five percent of the freshwater and nutrients to the Eastern part of the Gulf of Mexico, which in turn supports both fisheries valued at $5.8 billion as well as the traditions of families who have been living off the water in the region for generations. While it is not entirely conceivable to predict what the Court will do to resolve all of these problems, it is somewhat possible to envision how the Court will approach the issues that run throughout this dispute.

First, the Supreme Court Justices will use the recommendation of the Special Master to inform themselves of the issues and the law affecting the dispute before them. But Special Masters have somewhat limited judicial experience due to being from private practice, are given limited guidance as to how to guide the parties, and do not receive extensive oversight on the matters of law from the Court. Second, the dispute is likely to spark up again in the future, even if the Court issues an equitable apportionment decree. Atlanta continues to grow and keeps taking more and more water out of the Basin each day. Florida claims that this will keep reducing water levels in the Apalachicola Bay to the detriment of the seafood industry and ecology of the region. Since the dispute has already been going for thirty years, it seems unlikely that it will end so simply unless the Court can craft a solution that is acceptable to both parties far into the future.

 

What would that solution look like?

An effective solution would have to be something that gives both parties what they want without making either feel like the “loser.” The plan would have to give Atlanta the water resources it needs to continue growing, but on the condition that the City engage in water conservation programs while looking for other, permanent alternative sources of water.

For Florida, the Court should set a minimum flow requirement on the Chattahoochee that would allow for the river to return to its natural flow level and increase the health of the Apalachicola Bay. In order to maintain confidence in the solution, Florida should be allowed to monitor these flows in order to keep Georgia accountable and to appease the seafood industry that claims to have been harmed so extensively by reduced flows.

An answer like this would make Georgia happy while also compelling the State to find its own solutions to its water needs. It would also help save the ecosystem and industry of Florida while finally forcing Atlanta to get serious about water conservation efforts or finding a source of supply that is not so environmentally taxing. And if it is able to be resolved in this way, it would illuminate a problem that is facing the country as a whole: how to balance urban growth and expansion with environmental conservation while preserving unique ecosystems in a manner that allows for both people and the natural world to thrive.

Gracen Short

Image: Oyster Boats Sit Idle Near the St. George Island Bridge Over the Apalachicola Bay. Flickr user smuzz, Creative Commons.

 

Sources

Florida v. Georgia, SCOTUSblog (2017), http://www.scotusblog.com/case-files/cases/florida-v-georgia-2/ (last visited Aug 30, 2017).

DEPT. OF THE ARMY, OFFICE OF THE CHIEF COUNSEL. MEMORANDUM FOR THE CHIEF OF ENGINEERS. SUBJECT: Authority to Provide for Municipal and Industrial Water Supply from the Buford Dam/Lake Lanier Project, Georgia. (June 2012) http://water.sam.usace.army.mil/WSA_Memo_Jun_12.pdf.

Alyssa S. Lathrop, A Tale of Three States: Equitable Apportionment of the Apalachicola-Cha ahoochee-Flint River Basin, 36 Fla. St. U. L. Rev. (2009) http://ir.law.fsu.edu/lr/vol36/iss4/6.

Jody W. Lipford, Averting Water Disputes: A Southeastern Case Study, 30 Perc Policy Series 1 (2004) https://www.perc.org/sites/default/files/ps30.pdf.

In Re: MDL-1824 Tri-State Water Rights Litigation. 644 F.3d 110. (11th. Cir. 2011).

Megan Baroni. Lessons From the Tri-State Water War. 35 State and Local Law News 1 (2012) https://www.americanbar.org/publications/state_local_law_news/2011_12/winter_2012/tri-state_water_war.html.

David Copas, The Southeastern Water Compact, Panacea or Pandora’s Box? A Law and Economics Analysis of the Viability of Interstate Water Compacts, 21 Wm. & Mary Envtl. L. & Pol’y Rev. 697 (1997) http://scholarship.law.wm.edu/wmelpr/vol21/iss3/5.

Atlanta Regional Commission, U.S. Supreme Court: Equitable Apportionment. Natural Resources Section (June 6, 2017) https://atlantaregional.org/natural-resources/water-wars/u-s-supreme-court-equitable-apportionment/.

Pema Levy, Southeast Water Wars: Georgia Winning Over Alabama and Florida. Int’l Business Times (July 23, 2013) http://www.ibtimes.com/southeast-water-wars-georgia-winning-over-alabama-florida-1356799.

Michael Keene, The Failings of the Tri-State Water Negotiations: Lessons to be Learned from International Law, 32 Ga. J. Int’l & Comp. L. 473 (2004)  http://digitalcommons.law.uga.edu/gjicl/vol32/iss2/8.

Bill Cotterell, Water Wars Between Florida, Georgia Advance at U.S. Supreme Court. Reuters (Nov 3, 2014) https://www.reuters.com/article/us-usa-florida-oysters/water-wars-between-florida-georgia-advance-at-u-s-supreme-court-idUSKBN0IN28420141103.


The Water Law Review is proud to announce the elected Editorial Board for Volume 22!

Editor-in-Chief — Kole Kelley
Managing Editors — Joeseph Chase, Alicia Garcia
Business Editor — Sydney Donovan
Online Content Editor — Michael Larrick
Production Editor — Jeremy Frankel
Sources Editor — Haley McCullough
Symposium Editor — Christopher McMichael
Legislative Reports Editor — Erica Montague
Article Editors –Kristina Ellis, Andrea Hagler, Garrett Kizer, Travis Parker, Alex Tressler
Court Report Editors — Kate Mailliard, Lindsey Ratcliff
Outreach Editor — Julia Bowman


In the world of California water, nothing is a sure thing. But when you’re Governor Jerry Brown, even one step forward can seem like two steps back.

The seventeen billion-dollar plan to build two tunnels under the Sacramento-San Joaquin Delta (“Delta”) in California, currently known as California WaterFix (“CA WaterFix”), has been a concern for environmentalists and Central Valley landowners since the plan was initiated in 2005. But in the past two years, the Delta plan has experienced a rollercoaster ride of successes and setbacks. Formerly known as the Bay Delta Conservation Plan, CA WaterFix made headway this summer when, after an extensive ten-year environmental study and scientific inquiry, the Delta plan received the “go ahead” from both federal agencies responsible for the protection of species under the Endangered Species Act (“ESA”) and from the state’s Department of Fish and Wildlife. The U.S. Bureau of Reclamation and the California Department of Water Resources also completed their final Environmental Impact Statement and Environmental Impact Report last year in compliance with federal and state law. Despite overcoming these legal hurdles, construction of the thirty five–mile long tunnels is unlikely to start anytime soon. Experts anticipated the project could begin construction as early as next year, but concerns over cost distribution—in conjunction with current claims alleging that the plan violates the California Environmental Quality Act (“CEQA”)—are likely to slow, if not kill, CA WaterFix’s momentum.

Governor Brown and the California Department of Water Resources proposed the plan known as CA WaterFix. The controversial plan would take water from the Sacramento River and transport it south under several Delta islands via two tunnels located 150 feet underground. The tunnels would end at Clifton Court Forebay. Near the Forebay are pumps that send water south through California’s aqueducts. Proponents hope the Delta plan would improve water flows through the Delta and allow water to flow with fewer interruptions. Roughly thirty percent of municipal water in Southern California comes from Northern California via the Sacramento-San Joaquin Delta. State officials are fearful that the Delta’s current delivery system is outdated and harms the Delta’s ecosystem. They expect the twin tunnels will stabilize the water supply for two-thirds of California in the face of climate change, since the majority of the state’s water is located in the north, but the majority of the state’s population is located in the south. Large southern water districts, like Coachella, Highland, Rialto, Indio, Palmdale and inland San Diego, are predicted to increase their water consumption in coming years. California’s largest supply of clean water is dependent on fifty year–old levees, and experts worry the current system cannot adequately capture and store water when it is available.

Although state officials for the Delta plan argue that the tunnels will improve the Delta’s ecosystem, many environmental groups and government agencies in the Delta region are opposed to the tunnels. They believe that CA WaterFix cannot comply with the ESA, despite biological opinions from the state and federal agencies that suggest otherwise. The possible extinction of Delta smelt has been of particular concern. Consistent abuse (by, for example, overfishing) of one of the continent’s largest wetlands has contributed to the decline of Delta smelt in the area. Delta smelt, Chinook salmon, and steelhead are among the Delta-inhabiting fish protected under the ESA. Current challengers to the Delta plan’s compliance with the ESA likely hope for a result similar to the one in Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), in which the Supreme Court ordered a permanent injunction against the construction of a controversial dam and held that the ESA prohibited completion of a dam where its operation would either eradicate an endangered species or destroy its critical habitat. The dam in Hill was nearly completed when environmental groups brought suit, and Congress had already allocated large sums of public money for the project. In this case, unlike in Hill, construction of the twin tunnels has yet to begin and funding for the project is insecure.

In compliance with the 2009 Delta Reform Act and pursuant to CEQA and the National Environmental Policy Act (“NEPA”), an Environmental Impact Report and an Environmental Impact Statement were finalized last December.

CEQA has historically proven to be a powerful weapon in the courtroom. In Citizens of Goleta Valley v. Board of Supervisors, 801 P.2d 1161 (Cal. 1990), the Supreme Court of California said the courts must “scrupulously enforce all legislatively mandated CEQA requirements.” CA WaterFix may be required to redo the environmental review process if the project’s challengers can prove that the constructions and functioning of the tunnels will harm wildlife, like the Delta smelt. As of the August filing deadline, at least fifty-eight environmental groups and local governments have sued under CEQA in opposition to the Delta plan. The plaintiffs include Sacramento Valley water agencies, Sacramento County, and San Joaquin County.

Many of the lawsuits’ main claims are that the environmental reviews were not properly conducted. The Golden Gate Salmon Association, the Natural Resources Defense Council, the Defenders of Wildlife, and The Bay Institute filed a joint claim against Secretary of Commerce Wilbur Ross, Administrator for Fisheries at the National Oceanic and Atmospheric Administration Chris Oliver, and the National Marine Fisheries Service on June 29, 2017. The plaintiffs’ main claim is that “reliance on the uncertain future mitigation measures to conclude that [CA WaterFix] will not jeopardize the [Chinook salmon] species or adversely modify its critical habitat violates section 7(a)(2) of the ESA.” They assert that a biological opinion’s no jeopardy conclusion must be “reasonably specific, certain to occur, and capable of implementation.” The Bay Institute, the Natural Resources Defense Council, and the Defenders of Wildlife filed a similar claim against Secretary of the Interior Ryan Zinke, the U.S. Fish and Wildlife Service, and its Director Greg Sheehan, also asserting that the biological opinions backing CA WaterFix’s proposal are inadequate.

In addition to the legal challenges, CA WaterFix has also struggled to secure sufficient funding for the project. Many Delta and Westland farmers hold the view that construction of the tunnels will disrupt Delta residents’ culture and lifestyle, so it is unsurprising that they do not want to bare any of the costs associated with the tunnels’ construction—and legally, they do not have to. Brown pledged that local water districts would bear all the costs of construction; however, a recent audit by the Interior Department found the federal government improperly subsidized farmers for a portion of the tunnels’ planning costs. California water districts may have to pay back the improperly contributed $85 million in taxpayer funds.

All the while, getting approval from water districts has been a whirlwind. Westlands Water District, California’s largest irrigation district and a major water agency served by the Central Valley Project, decided not to join CA WaterFix. The Westlands’s board voted against the project in mid-September, asserting the current financial structure of the project was not feasible. The Westlands District said it could not afford to support the project because of a unique cost-allocation formula imposed by the U.S. Bureau of Reclamation on the Central Valley Project. The cost-allocation formula, originating in a 1939 deal from the Roosevelt administration, exempts a large group of water users in the district from helping fund the Delta tunnels. The deal inflates Westlands customers’ costs by several billion dollars. Until recently, Westlands’s vote appeared especially discouraging, but the project is not doomed yet. The largest water district in Southern California, Metropolitan Water District of Southern California, did approve a $4.3 billion buy-in in October to support CA WaterFix. The vote of approval does not ensure the survival of the Delta project, but it is a step in the right direction. Silicon Valley’s water district, the Santa Clara Valley Water District, voted in mid-October to provide “conditional support” for the Delta project. The district offered to contribute to a smaller and less expensive project, offering $200 million instead of the expected $600 million. Brown and his administration are still advocating for twin tunnels, but if more water districts fully supported the building a single tunnel, Brown might have to seriously consider the idea.

The original plan envisioned that the largely urban agencies supplied by the State Water Project would pay fifty-five percent of the construction costs while the largely agricultural districts of the federal Central Valley Project, like Westlands, would pay forty-five percent. One suggested alternative to this financial plan is requiring wildlife refuges and farmers with senior water rights to bear some of the construction costs. However, neither group is legally obligated to contribute to the cost of construction, despite being first in line for the Delta water. It is fair to assume that farmers would be more willing to chip in for the project if it meant more water for them, but if the farmers’ water rights are already being satisfied, they cannot legally enlarge their water use anyway. Another consideration is the farmers’ economic stability and ability to fund a project of this size.

Major water purchasers were expected to continue to vote for or against the funding of CA WaterFix in the late months of 2017, but as of January 2018, the Department of Water Resources is still considering limiting the project to one tunnel instead. A revised plan may command a new set of environmental impact studies and other permits. The one-tunnel option also needs approval from the districts previously supporting the two-tunnels plan. It has also been suggested that rather than build the two tunnels, the state can increase water storage capacity (above and below the ground), reuse and recycle water, and build more water desalination facilities. The fifty-year old system currently in place does not allow the state to capture and store large amounts of storm water in the wetter years. Some state officials believe the Delta plan is the only option for serving the nineteen million Southern Californians. Backers have tweaked the Delta plan constantly since its introduction in 2005, and the plan might see additional changes in the future. Current lawsuits are likely to slow construction plans, especially considering the first round of biological opinions took nearly ten years. If the suits are successful and the opinions must be re-evaluated, construction could be stalled for years. To comply with environmental limits, one proposal has been to build a new diversion point in the Sacramento River in a northern delta that will feed the tunnels without harming fish populations. Current lawsuits will run their course over the next few years, but these suits are by no means a guaranteed halt on the project.

Kate Mailliard

Image: Delta Smelt. Flickr user USFWS/Peter Johnsen, Creative Commons.

 

Sources:

Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978).

Citizens of Goleta Valley v. Bd. of Supervisors, 801 P.2d 1161 (Cal. 1990).

Alex Breitler, Delta tunnels: Time to fish or cut bait, Record Net (Sept. 17, 2017), http://www.recordnet.com/news/20170917/delta-tunnels-time-to-fish-or-cut-bait.

Bettina Boxall, One possible delta tunnels deal would give cheap water to farmers – and more expensive water to cities, L.A. Times (Jan. 25, 2018), http://www.latimes.com/local/lanow/la-me-tunnel-deals-20180125-story.html.

Bettina Boxall, Southern California water agency approves pitching in $4.3 billion for massive delta tunnels project, L.A. Times (Oct. 10, 2017), http://www.latimes.com/local/lanow/la-me-mwd-tunnels-20171010-story.html.

Bettina Boxall, Water district vote deals major blow to California’s delta tunnel project, L.A. Times (Sept. 19, 2017), http://www.latimes.com/local/lanow/la-me-westlands-tunnels-20170919-story.html.

Dale Kasler, State moves step closer to downsizing Delta tunnels project, Sacramento Bee (Jan. 16, 2018), http://www.sacbee.com/news/state/california/water-and-drought/delta/article194935194.html.

Dale Kasler, Dozens are suing to block Delta tunnels. Will it matter?, Sacramento Bee (Aug. 21, 2017), http://www.sacbee.com/news/state/california/water-and-drought/delta/article168497632.html.

Ellen Knickmeyer, Audit: US Misuses Taxpayer Cash for California Water Project, U.S. News, (Sept. 8, 2017), https://www.usnews.com/news/best-states/california/articles/2017-09-08/apnewsbreak-us-taxpayer-money-misused-for-water-project.

Matt Weiser & Phillip Reese, State’s population growth expected to outstrip water conservation in coming years, Sacramento Bee (Feb. 14, 2015), http://www.sacbee.com/news/local/environment/article10311635.html.

Ryan Sabalow & Dale Kasler, Let the lawsuits begin: Delta tunnels get official state green light, Sacramento Bee (July 21, 2017), http://www.sacbee.com/news/state/california/water-and-drought/delta/article162979533.html.

Ryan Sabalow & Dale Kasler, Follow the money – Delta tunnel foes try new strategy, Sacramento Bee (Sept. 15, 2017), http://www.sacbee.com/news/state/california/water-and-drought/delta/article173506241.html.

Ryan Sabalow & Dale Kasler, Brown administration says it’s willing to consider one-tunnel approach to Delta project, Sacramento Bee (Oct. 17, 2017), http://www.sacbee.com/news/local/article176447091.html.

Tori Sundheim, California’s Bay Delta Conservation Plan and Governor Brown’s Tunnels, U. Denv. Water Law Rev. Blog (Mar. 18, 2013), http://duwaterlawreview.com/california-browns-tunnels.

Press Release, Cal. Dep’t of Water Res., California WaterFix Receives Authorization under the U.S. Endangered Species Act Federal Agencies Issue Biological Opinions for Proposed Project (June 26, 2017), http://cms.capitoltechsolutions.com/ClientData/CaliforniaWaterFix/uploads/CWF_PressRelease_BiOps6.26.17.pdf.

U.S. Bureau of Reclamation et al., Final Environmental Impact Report/Environmental Impact Statement (Dec. 22, 2016), http://baydeltaconservationplan.com/FinalEIREIS/2016DirectDownload.aspx.

Cali. WaterFix, https://www.californiawaterfix.com (last visited Sept. 23, 2017).

CA Water Law Symposium: Chuck Bonham on going big in the Delta, Maven’s Notebook (Mar. 1, 2017), https://mavensnotebook.com/2017/03/01/ca-water-law-symposium-chuck-bonham-on-going-big-in-the-delta/.

The Metro. Water Dist. of S. Cali., http://mwdh2o.com/DocSvcsPubs/WaterFix/index.html (last visited Sept. 23, 2017).

Pub. Policy Inst. of Cali., Just the Facts, http://www.ppic.org/publication/water-use-in-california/ (last visited Oct. 13, 2017).

Complaint at 13, The Bay Institute v. Zinke, No. 17-03739 (N.D. Cal. June 29, 2017), https://www.nrdc.org/sites/default/files/the-bay-institute-et-al-v-zinke-complaint.pdf (last visited Oct. 22, 2017).

Complaint at 12–13, Golden Gate Salmon v. Ross, No. 17-03742 (N.D. Cal. June 29, 2017), https://www.nrdc.org/sites/default/files/golden-gate-salmon-association-et-al-v-ross-complaint.pdf (last visited Oct. 22, 2017).


Tension over declining water rights has been rising in Nevada’s Diamond Valley almost as fast as the water table has been falling. Some believe a new water-market approach will finally solve the valley’s troubled water supply. But will it work?

The Diamond Valley of central Nevada has been over-appropriated since the 1960s. In 2014, a rancher with the most senior rights holder in the valley initiated legal action to halt pumping for junior irrigators. Alfalfa farmers, who use about two hundred irrigator systems to produce 120,000 tons of hay every year, have responded with furor over the suit—and have even been blamed for illicit cattle killings at the ranch. In 2015, water right wrangling culminated in the state engineer declaring the basin a Critical Management Area, requiring water-rights holders to develop a groundwater management plan or face the mandatory curtailment of pumping.

In response, researchers from Duke University Nicholas School of Environment and Eureka County officials have developed a novel water market scheme in which traditional water rights will be divided up into shares for barter. Researchers said they imported many of their proposed ideas for Diamond Valley from Australia. The plan, which is currently under consideration by the state engineer, proposes moving Diamond Valley away from the traditional prior appropriation model (and its central tenet of seniority) in favor of a system based on tradable water “shares.” Researchers and supporters of this approach—including many local farmers—believe that a water market will ease tension among water users in the valley as well as help replenish an over-appropriated basin. While the plan faces numerous logistical and legal hurdles before implementation, many across the drought-ridden West are nevertheless watching how things progress in the Diamond Valley to see if this type of water market can offer new solutions for an age-old problem.

What is a water market?

Before analyzing the details of the Diamond Valley plan, it is first necessary to discuss the basics of water markets in the West. All prior appropriation states have at least some form of water market—that is that common law or statutory legal framework allows a water right to be sold from one person to another. Most of these transfers are permanent; however, some forms of water markets allow for a more temporary trading. The process for transferring water rights under this system can be expensive, bureaucratic, and risky. Water markets, like the one proposed for Diamond Valley, attempt to improve efficiency and flexibility through commodification, which refers to the “unbundling” of water rights into its component parts: water and property divided into separate interests. Water users can then buy and sell these unbundled water rights as a fungible commodity.

The commodification of water resources is not a new invention, and not all commodification schemes are water markets with a profit motive. Many water commodification systems are already in use in the American West, such as mutual ditch companies, which are non-profit corporations formed to furnish water to shareholders. A mutual ditch company stores and transports irrigation water for use by its shareholders in return for payment of assessments for operating costs.

Another type commodity scheme is a water bank, which is a tool for leasing water for a limited period on a voluntary basis between water rights holders and users. It provides temporary transfers of water entitlements based on how much and when a water user needs more water without a permanent change in water rights. Several states have experimented with the possibilities of a water bank. For example, Colorado implemented one on the Arkansas River in the mid-2000s, however no transactions have occurred.

Other states have experimented with commodification in large-scale water projects. Farmers in California’s Palo Verde Valley have entered into an agreement to lease a portion of their water with the Metropolitan Water District, the water agency that serves Los Angeles, San Diego, and much of the rest of urban Southern California. The model seeks to protect farmers even from their own financial temptation. In addition to an up-front payment of $3160 an acre, the agency pays them eight-hundred dollars an acre for fallowing portions of their farms each year, and has invested six million dollars into the community.

Another example of water marketing is the Colorado-Big Thompson (C-BT) project. The C-BT project provides supplemental water to municipalities and irrigated farms in Northern Colorado through tradable C-BT units. Each unit entitles the owner to a pro-rata portion of the project’s water supply. Transfers of C-BT units are not subject to water court review, and may be accomplished easier than a traditional transfer subject to review by the state water court system, where individual litigation and review may take years. As a result, real estate developers often purchase C-BT units to support new development projects in Northern Colorado.

How will Diamond Valley’s Water Market Work?

Nevada water law, like most western water regimes, is based on the prior appropriation system. In prior appropriation, seniority governs allocation and the oldest water rights are preserved at the expense of the more junior rights in times of shortage. In a stark departure from prior appropriation, the Diamond Valley plan is proposing that all water rights holders in the valley become shareholders in a total allocation of both ground and surface water. The plan calls for implementation of four changes: (1) “unbundling” of present water rights into shares and allocations for management of “long- and short-term interests” and third party impacts; (2) development and implementation of “sharing plans” to sustainable use; (3) appointment of a board comprised of experts, in partnership with the state engineer, to “prepare, plans, and oversee implementation of the new system”; and (4) establishment of registers and metering systems to “finance private investment and increase the speed and transparency of water rights and volumes trades.”

In their proposal for Diamond Valley, researchers explain:

“In an unbundled system, the component of a water right that defines the long-term interest is defined as a share. The water that is available for use within a time period (e.g., year or season) is then defined as a seasonal allocation. A share can be thought of as a perpetual entitlement to a portion of any water that is allocated for use. A seasonal allocation can be thought of as an acre foot of water available in a particular season. In an unbundled system, this acre foot can be used, traded, or, with adjustment for losses, saved for use in a subsequent season. The number of seasonal allocations a person receives is a function of the number of shares he or she holds in that particular water resource. When an allocation is made, it is recorded in a water account, but not recorded on a share certificate.”

To unbundle the existing water rights, the plan calls for a board—appointed by Eureka County officials—to determine the total amount of water available and then make allocations each water year in proportion to the number of shares held before the start of the that irrigation season.

In order to transition to the new system, the plan envisions that the board would initially assign shares on a basis of one share per acre-inch of the original right and then applying a formula—a so-called “seniority coefficient”—to account for seniority so that those giving up more senior water rights would get more shares in return. Valley shareholders can then buy and sell allocations with county water officials tracking usage through water meters. The plan also proposes that the board annually reduce allocations per share for two to three decades until the water table of the aquifer stabilizes.

Proponents of the water market argue that the ability to trade shares will reduce risk of abandonment or waste. Under prior appropriation’s beneficial use doctrine, farmers were forced to use their water or risk legal abandonment and forfeiture of their water right. However, under the market’s scheme, farmers will be able to get money for their surplus water by selling their allocations to others who need more. This would increase efficiency basin-wide as it would take away the need to use extra water for the sake of preventing abandonment.

What legal challenges will Diamond Valley need to overcome?

One significant legal issue in Diamond Valley will be how the water market can address the anti-speculation doctrine. This doctrine, codified under Nevada Revised Statute 533.040,

expressly prohibits a water right from being transferred to parties who do not beneficially use the water. The anti-speculation doctrine seeks to prevent “hoarding” of water by non-users, which could distort supply for farmers and artificially inflate prices. In a traditional prior appropriation system, beneficial use staves off speculation, but in a water market, many worry that ‘water barons’ might stockpile shares to drive up prices, making it unaffordable.

In response, academic proponents of water markets have argued that water rights are usufructuary, and that a water right different from ownership of the water itself. Water’s usufructuary nature makes it a semi-privatized—yet community-based—resource, and not an ordinary commodity. For instance, as compared to oil, wheat, or some other traditional commodity, private interests own the product and private entities buy and sell that product. However, water will still be the property of the public, but profit will now be available through trading that public product. By avoiding full privatization of the resources, water-market proponents argue that speculators will avoid water-right investment because of the risk of government or community regulation, thus preventing unwanted water monopolies.

Another problem has been the “buy and dry” of rural communities over the past few decades where agricultural-to-municipal water transfers have left local farming communities economically strained. In the buy-and-dry scenario, a rapidly growing municipality upstream buys senior water rights from rural farmers downstream, re-diverting it elsewhere. With no water left to farm the land, the fields—and the towns with less of a tax base to rely on—begin to dry up, further depressing the local community. One of the most striking examples of this phenomenon is Crowley County, Colorado. Similarly, in California’s Palos Verdes Valley, farmers have filed a lawsuit alleging that the Metropolitan Water District (“MWD”) is creating a water bank out of their fallowed fields and forcing the traditional farming culture out of the area. The farmers argue the MWD is using monetary pressure to reduce water use on their land, so that saved water can then be shipped to coastal, Southern California cities. In the case of Diamond Valley, what would prevent outside entities from buying up shares and exporting allocations out of the valley? Proponents have argued that, as compared to Crowley and Palos Verdes’ agreements with far off urban areas, shares in this system will be divvied up among all irrigators in the valley. To cope with this, the plan proposes charging “exit fees” for water users who want to permanently transfer water out of the system. Further, the yearly reduction to stable levels may make water right investment, coupled with the expense of transportation and infrastructure development, impracticable to a “high and dry” scenario because outside interests will not be able to rely on fallowing fields as a means of acquiring water.

A final issue will be how any trade or sale of shares (and the resulting change of use of that water) would protect any existing rights from injury—the no-injury standard will need to be addressed. Nevada requires that the state engineer review water right transfer applications to ensure the transfer will “not conflict with existing rights.” This rule creates enormous disincentives to transfer by driving up the transaction costs of any exchange, typically requiring a fact-specific, time-consuming, and expensive inquiry into return flows, irrigation ratio efficiencies, and consumptive use patterns to predict the impacts of a proposed transfer. However, in the case of Diamond Valley, injury issues would likely not surface under the proposed plan because the trading of shares/allocations around the valley would not affect any other shareholder because they have their own independent allocation of water, especially since most irrigators rely on pumping, not on surface flows. Of course, this assumes that proper enforcement exists and that all shareholders follow the rules.

Conclusion

In addition to the implementation challenges described above, plan proponents also have to get buy-in from the state and local irrigators. The final groundwater plan requires approval by half of the irrigators and the state engineer. And even if approved, the plan could also face challenges in court as well. Nevertheless, the Diamond Valley’s proposed water market represents either an exciting opportunity for innovation or another failed challenge to the hegemony of the prior appropriation doctrine in western states. While a water market includes the possibility of many solutions, its implementation stands as a direct challenge to many century-old standards of water law.

Ryan Hull

Image: View north along Nevada State Route 278 near Eureka Airport in Diamond Valley. Wikimedia user Famartin, Creative Commons.

 

 

Sources

Nev. Rev. Stat. Ann. § 533.040 (West).

Nev. Rev. Stat. Ann. § 533.370 (West.)

Alex Lash, For Biotech Cowboys, It’s No Ride into The Sunset, Xconomy (July 8, 2015), http://www.xconomy.com/national/2015/07/08/in-translation-for-biotech-cowboys-its-no-ride-into-the-sunset/.

Anne Knowles, Putting Stock in Trading Water at Forum, Nev. Appeal, (Aug. 20, 2015) http://www.nevadaappeal.com/news/local/putting-stock-in-trading-water-at-forum/.

Abrahm Lustgarten, A Free-Market Plan to Save the American West From Drought, The Atlantic, March 2016, https://www.theatlantic.com/magazine/archive/2016/03/a-plan-to-save-the-american-west-from-drought/426846/.

Erin McKenzie, Nevada City Tests Blueprint for Buying, Selling Water Rights, Duke U., Nicholas Inst., (August 19, 2016), https://nicholasinstitute.duke.edu/articles/nevada-city-tests-blueprint-buying-selling-water-rights.

Michael C. Young, Unbundling Water Rights: A Blueprint for Development of Robust Water Allocation Systems in the Western United States, Duke U., Nicholas Inst., (Sept., 2016), https://nicholasinstitute.duke.edu/sites/default/files/publications/ni_r_15-01.pdf

Water Info. Program, Ditches & Diversions (2017), https://www.waterinfo.org/colorado-water/ditches-diversions

John Fleck, Palo Verde Irrigation District Sues Metropolitan Water District Over Colorado River Water, Jfleck at Inkstain, (Sept. 21, 2017, 4:44PM), http://www.inkstain.net/fleck/2017/09/palo-verde-irrigation-district-sues-metropolitan-water-district-colorado-river-water/

Mark Squillace, The Water Marketing Solution, Colorado Law Scholarly Commons, (October 2, 2017, 9:35AM), http://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1753&context=articles

Sandra Zellmer, The Anti-Speculation Doctrine and Its Implications for Collaborative Water Management, 8 Nev. L. J. 994, 1011 (2008) http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1127&context=nlj


Hurricane Harvey brought more than fifty inches of rain that submerged thirty percent of Harris County, Texas. A storm of this caliber would have devastating impacts on any city, however, Houston’s aging infrastructure and expansive areas of impermeable pavement left it uniquely exposed. The city of Houston is situated only fifty feet above sea level on old swampland, forty miles from the coast.

The city’s stormwater drainage system is composed primarily of a series of natural bayous (slow moving rivers) and man-made channels that divert runoff out of the city and into the Galveston Bay. Many of the city’s bayous are inadequate to handle normal rainfall, much less a major hurricane. “The main bayou through downtown, Buffalo Bayou, is pretty much still a dirt mud channel like you would have seen 100 years ago,” says U.S. Geological Survey hydrologist Jeff East.

Additionally, Houston’s lack of zoning regulations further exacerbated the cities flood vulnerability. Houston, a rapidly growing city of nearly 2.4 million residents, does not require builders to use flood mitigation techniques such as permeable pavement and green areas to better absorb rainwater, or retention ponds for runoff. As a result, the city has expansive areas or pavement and impervious surfaces “that make it extremely difficult for the water to drain into the soil. Instead, it runs into the bayous and, in this case, into people’s homes,” says Sam Brody, a professor at Texas A&M, Galveston.

In response to the changing weather patterns across the country, cities such as Chicago have turned to green infrastructure as a way to work alongside the traditional infrastructure to more effectively manage stormwater under these conditions.

Need for a New System

Chicago has the largest wastewater capture quarry, water treatment facility, and water treatment plant in the world. However, Chicago still continues to experience significant flooding from stormwater runoff. In the past five years, there have been approximately 181,000 claims totaling over $753 million in flood-related property damage.

Brenna Berman, Chicago’s chief information officer, says that the city is, “still getting the same amount of rain annually that we got [in the past] but it’s coming at a different rate than it once did. However, we’re getting rain more quickly, rain for a shorter period of time, most likely due to global warming.” Therefore, the same solution does not work the same in every location.

A Greener Solution?

In response, Chicago has been installing green infrastructure to hold and treat stormwater. Currently, Chicago is in the midst of a five-year, $50-million plan towards creating ten million gallons of stormwater storage in hopes of reducing stormwater runoff by up to 250 million gallons per year. Permeable pavement has been installed in bike lanes and alleys, which allows for water to be soaked into the ground rather than flowing into the sewer system. Additionally, there are bioswales, tree pits, and infiltration planters, which are areas of vegetation and soil collecting and filtering stormwater that prevent flooding and allow cleaner water to enter the sewer system. Although there are a number of green infrastructure solutions available, there is not much data available regarding which types work best and how well they are working. That’s where City Digital comes in.

City Digital, a partnership of companies based at University of Illinois’ UI LABS, heads the pilot project which combines sensors and cloud computing as an innovative solution to stormwater runoff. The project aims to develop the next generation of sensing and monitoring tools for green stormwater infrastructure. The partnership is comprised of large, multinational companies including Microsoft, ComEd, Siemens, Accenture, Tyco, and HBK Engineering, as well as academic institutions such as the University of Illinois, Illinois Institute of Technology, Northwestern University, and Argonne National Laboratory.

These companies, universities, and the City of Chicago are collaborating together to identify and solve large-scale infrastructure challenges in order to develop solutions that can be broadly commercialized.

How it Works

Beginning in August of 2016, City Digital has been installing low cost sensors and innovative software tools throughout the city in order to monitor and evaluate the city’s current green infrastructure.

The ultimate goal of this smart green infrastructure monitoring is to create a system of sensors that combines weather information with surface and groundwater monitoring to evaluate the amount of water present, whether or not it is entering the green infrastructure, and what the water undergoes once it enters the infrastructure. Additionally, the system will measure the pH levels and the temperature of the water. Above the ground, the sensors work to monitor the weather conditions, such as precipitation amounts and air pressure levels. Below ground, the sensors monitor soil moisture, chemical absorption rates, and water quality to determine if the infrastructure is managing the water as intended.

The data collected by the sensors is then communicated via cellular network into an analytics platform. There, the effectiveness of the various green-infrastructures can be monitored in real time. As of this past spring, there are six sites throughout Chicago that are transmitting more than 20,000 streams of real time data that translate into site specific recommendations for green infrastructure being built in the future.

Ultimately, the purpose is not only to determine if the green-infrastructure is working, but where and when certain types of green infrastructure are most effective. Specifically, whether the green infrastructure is preventing rainwater from entering the sewer system and what green designs work best for different types of rain and lengths of the storm.

Supporters of the pilot project urge that smart green infrastructure monitoring can be a low-cost alternative to traditional monitoring. Joshua Peschel, one of the key players of the Chicago pilot project says, “the traditional way of monitoring stormwater infrastructure, if done at all, is with expensive measurements that are often very sparse in space and time. This project seeks to fill the data gaps by adding unique measurement techniques and intelligence to these new green streets in Chicago.”

By providing innovative, low cost monitoring for green infrastructure, the pilot project is changing the way not only Chicago, but cities all over the world address stormwater issues. The pilot project is designed to create a pathway to commercialization so that successful pilots can easily and directly be extended throughout other areas of Chicago and even further to other cities both nationally and globally.

A Nationwide Concern

Pollution generated by urban stormwater runoff is not limited to Chicago. According to Larry Levine, a senior attorney in the Natural Resource Defense Council’s water program, “Stormwater runoff is one of the largest water pollution issues facing the U.S. today.” While Chicago’s stormwater project stemmed from concerns regarding flooding, other cities across the country are turning to green infrastructure to solve serious pollution issues that are destroying important natural waterways.

In Seattle, Washington the Green Duwamish River faces many threats to its health and sustainability due to pollution from stormwater runoff. In the Puget Sound region bordering the river, like many other regions in the U.S., was largely developed without stormwater controls due to lack of information and understanding of the harmful effects of polluted runoff. As a result, polluted runoff threatens the salmon, economy, and health of the communities that depend on the viability of the Green Duwamish River. Specifically, uncontrolled stormwater runoff from surrounding developed lands can cause flooding, erosion, and toxic contamination. In response, King County, who manages the area, is aiming to implement a similar green infrastructure to Chicago’s stormwater pilot project.

Other cities across the country such as Philadelphia, New York, and Portland have also been implementing stormwater projects over the past few years with federal funding. Further, Levine notes that these stormwater runoff control projects address the key issue of nonpoint source pollution (“NPS”) in the Clean Water Act. While it is relatively straightforward to regulate point source polluters such as a manufacturer releasing chemicals into a river, it is increasingly difficult and costly to regulate NPS because it comes from many diffuse sources.

States report that NPS is the most significant single source of water pollution in the country. However, with rise of green infrastructure and stormwater control programs across the country, a much-needed remedy to NPS could be on the horizon.

Conclusion

Although the likelihood of a storm like Hurricane Harvey hitting Houston again is slim, what will continue to plague and pose the most severe threat to the area is stormwater. Without a change in infrastructure, as seen in the Chicago Pilot, the city will continue to face devastating impacts from average rainwater runoff.

Alicia Garcia

Image: A “green rooftop” – An example of green infrastructure that can help naturally divert, collect, and filter stormwater. Pixabay user StockSnap, Creative Commons. Chicago Storm Water Pilot Project

Sources

Meg Graham, New City Digital Programs Target Stormwater, Underground Mapping, Chi. Trib. (Sept. 2015) http://www.chicagotribune.com/bluesky/originals/ct-city-digital-pilot-projects-bsi-20150914-story.html.

Whet Moster, In a City of Big Water Projects, Is Chicago’s Little Green Infrastructure Working?, Chi. Mag. (Dec. 12. 2016) http://www.chicagomag.com/city-life/December-2016/How-Big-Data-Can-Help-Little-Green-Infrastructure-in-Chicago/.

Jen Kinney, Chicago Uses Sensors to Judge Green Infrastructure, Next City (Dec. 15, 2016) https://nextcity.org/daily/entry/chicago-sensors-green-infrastructure-study.

Sean Thorton, How a Smart City Tackles Rainfall, Gov’t Tech. (Jan. 4, 2017) http://www.govtech.com/data/How-a-Smart-City-Tackles-Rainfall.html.

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Background

The popularity of craft beer has been steadily increasing as more people want to support small, local businesses and desire a more complex tasting beer. As demand for craft beer has increased, so has supply. By the end of 2016, there were over 5300 craft breweries in America, with another 2000 in the planning stages—a seventeen percent increase from 2015. The Brewers Association categorizes an American craft brewery as “small” if less than six million barrels a year, “independent” if less than twenty-five percent of the brewery is owned or controlled by a non-craft brewer industry member, or “traditional if the majority of beer derives flavor from traditional brewing ingredients and their fermentation).

While beer lovers the world over can appreciate a good craft beer, behind the industry lies a slew of adverse environmental consequences. One of the most pressing environmental issues craft breweries are facing is the processing and disposal of wastewater. When brewery wastewater is dumped into public waters without being treated, it can cause plant, algae, and bacteria growth, which all lead to reduced oxygen levels and can eventually lead to the eutrophication of a body of water, making it uninhabitable to most aquatic life. This is mostly an effect of the solid waste in brewery wastewater – including spent grains, yeast, and hops – that can weigh up to fifty pounds per barrel of beer produced.

Production and Regulation

Water is the most essential part of the brewing process. Not only does water make up about ninety percent of the actual finished product, it is used in every part of the production process from growing hops to cleaning the equipment after a brew. As a result, one barrel of beer takes about seven barrels of water to create using traditional methods. Accordingly, breweries use an enormous amount of water. The United States produces more than twenty million barrels of beer a year, and although craft breweries only contribute to twenty percent of total U.S. production, the craft brewing industry can potentially place a huge strain on water supplies. However, craft breweries have shown themselves to be sustainably minded and oriented toward conservation. Many craft brewers have been able to decrease the amount of water used in production from seven barrels to just three per barrel of beer.

The Clean Water Act (“CWA”) regulates the discharging of all pollutants discharged into United States waters. The CWA has specific requirements for discharging industrial waste into publically-owned water treatment facilities. Unlike most domestic wastewater, brewery wastewater is high in sugar, alcohol, solids, and temperature which municipal water treatment plants were not designed to process. For this reason, breweries are often required to pre-treat their wastewater before sending it to municipal treatment plants. Violating the Clean Water Act can lead to enormous fines, which can cripple a craft brewery as most are relatively small businesses. Yuengling, a major craft brewery out of Pennsylvania, was recently charged with allegedly violating the CWA by the Department of Justice for not pre-treating its wastewater. Although both parties entered into a consent decree—a settlement agreement where the defendant does not admit liability—the brewery still had to pay 2.8 million dollars in penalties for violating the CWA as part of the settlement. Aside from the CWA, municipal water regulations may also affect craft breweries by limiting certain types of pollution such as: biochemical oxygen demand (BOD), chemical oxygen demand (COD), total suspended solids (TSS), total dissolve solids (TDS), and pH. Such local regulations can also carry huge fines if violated.

Wastewater Treatment Advances

Managing wastewater is one effective way that craft breweries have found to reduce overall water consumption – saving water and simultaneously reducing costs of operations. Bear Republic Brewing Company out of Sonoma, California has installed a bio-electrically enhanced wastewater treatment mechanism called EcoVolt in response to the crippling drought that California breweries are facing. EcoVolt is unique as the first and only industrial-scale, bio-electrically enhanced treatment system. The system introduces electrically active organisms that eliminate up to ninety percent of the biological oxygen demand—a pollutant. The system also converts carbon dioxide into biogas—mixtures of gases—hat can be used to generate heat and electricity for Bear Republic’s production process. EcoVolt allows Bear Republic to reuse around twenty-five percent of its wastewater, which cuts down the amount of water used for production to 3.5 barrels per barrel of beer instead of the traditional seven. As an added benefit, the system cuts Bear Republics’ baseload electricity use in half. Savings in both water and energy use have cut the brewery’s operational costs by hundreds of thousands of dollars annually. As Bear Republic has proven, installing new wastewater treatment systems is an effective way to save water and simultaneously reduce costs of operations in the long run. However, it is often too expensive for smaller microbreweries to install.

New Belgium Brewing Company out of Fort Collins, Colorado utilizes a different treatment process than Bear Republic. New Belgium uses microbes to consume residual biomass leftover from the brewing process. Aside from cleaning the water, the microbes also produce methane that is collected and turned into electricity that powers New Belgium’s production process. After being exposed to the microbes, the water is sent through an aerobic digester, which breaks down any remaining organic matter through the use of oxygen. New Belgium claims that its wastewater comes out so clean after the aerobic digestion process that the brewery could legally discharge it directly into the nearest river if it so wished.

As of now, wastewater is generally banned for human consumption, however Clean Water Services in Oregon is trying to change that. Oregon regulations have long allowed treated wastewater to be used for the industrial processes of the brewing process, but not as a part of the final product to be consumed. Clean Water Services petitioned the state for permission to use wastewater that has been treated with the company’s “high-purity” treatment system in beer, and were granted limited permission to do so. As a test run, Clean Water Services gave its treated wastewater to the Oregon Brew Crew, whose members made small batches of beer for a sustainable water brewing challenge. The company has recently installed its “high-purity” system at the four wastewater treatment plants it owns and operates in the Portland area, and the purity of the water exceeds even the most stringent standards for water quality. Clean Water Services is so confident in the effectiveness of its treatment system that it claims it can turn sewage into drinking water.

Conclusion

Although craft brewing is a water-intensive process, the industry has fortunately proven itself to be highly water conscious and dedicated to conservation. Most craft breweries are installing advanced wastewater treatment systems to offset both costs of production and costs to the environment. Although such options still remain relatively expensive, advanced wastewater treatments have proven to be a financially strategic option for those craft breweries that can afford it. Furthermore, such treatment options have the potential to cut a craft brewery’s water use in half, and in places where it may soon be legal to include wastewater in the finished product, water use could potentially be cut even further. Especially in the West, where drought periodically plagues the land, it is important that these advances in wastewater treatment continue to proliferate.

Jeremy Frankel

Image: Craft Beer Sampler. Flickr user QuinnDombrowski, Creative Commons.

 

Sources

Bear Republic Brewing Company and Cambrian Innovation Unveil Pioneering Wastewater Treatment to Energy System, Cambrian Innovation (Jan. 15, 2014), http://cambrianinnovation.com/bearrepublic_announcement.

Cassanra Profita, Why Dump Treated Wastewater When You Can Make Beer With It?, NPR (Jan. 28, 2015), http://www.npr.org/sections/thesalt/2015/01/28/381920192/why-dump-treated-wastewater-when-you-could-make-beer-with-it.

Hannah Fish, Effects of the Craft Beer Boom in Virginia: How Breweries, Regulators, and the Public Can Collaborate to Mitigate Environmental Impacts, 40 Wm. & Mary Envtl. L. & Pol’y Rev. 273 (2015).

Home Brew Competition to Feature Beer Made with Water from Wastewater Treatment Plant, Clean Water Services (Sept. 7, 2016), https://www.cleanwaterservices.org/newsroom/2016/home-brew-competition-to-feature-beer-made-with-water-from-wastewater-treatment-plant.

James Tilton, Drinking Beer is Not a Conservation Measure, U. Denv. Water L. Rev. (Nov. 24, 2015), http://duwaterlawreview.com/drinking-beer-not-a-conservation-measure.

K.C. Cunilio, An In-Depth Look at Yuengling’s 10 Million Dollar Clean Water Act Settlement, Porchdrinking.com (July 28, 2016), https://www.porchdrinking.com/articles/2016/07/18/in-depth-look-yuenglings-10-million-dollar-clean-water-act-settlement.

RJ Alexander, Sustainable Craft Brewing: The Legal Challenges, TriplePundit (June 6, 2012), http://www.triplepundit.com/2012/06/legal-issues-in-beer-brewing.