THE COSTS OF CONFLICTING ENVIRONMENTAL POLICY: A CASE STUDY IN MILWAUKEE1

ABSTRACT: The history of the Milwaukee water pollution abatement program is examined as a case study to investigate the costs of conflicting environmental policy. The recent U.S. Supreme Court decision concerning the Milwaukee case is described as a milestone in U.S. water pollution abatement policy which will help preclude the type of environmental policy conflict which has been found to be so costly to Milwaukee. The implications to U.S. water pollution abatement policy of the 13-year history of conflict in Milwaukee are presented.     

Institutions for Interstate Water Resources Management1

Abstract:  This paper evaluates alternative approaches to management of interstate water resources in the United States (U.S.), including interstate compacts, interstate associations, federal‐state partnerships, and federal‐interstate compacts. These governance structures provide alternatives to traditional federalism or U.S. Supreme Court litigation for addressing problems that transcend political boundaries and functional responsibilities. Interstate compacts can provide a forum for ongoing collaboration and are popular mechanisms for allocating water rights among the states. Federal‐interstate compacts, such as the Delaware River Basin Compact and federal‐state partnerships, such as the National Estuary Program, are also effective and complementary approaches to managing water resources. However, all of these approaches can only make modest improvements in managing water resources given the complicated and fragmented nature of our federalist system of government.     

DEVELOPMENT OF FEDERAL RESERVE RIGHTS1

ABSTRACT: The concept that has been termed “Indian Rights to Water” is one manifestation of the area of federal reserved rights that is a major concern of states in arid regions. The federal reserved rights are those that are reserved in fact or by implication in federal actions, acts, reservations, and treaties. Federal actions include such things as navigation improvement and flood control projects. The Federal Court System, since the Civil War has been promulgating, developing, and protecting federal reserved water rights. The development of those rights can be traced from early cases through the landmark cases such as U.S. v. Rio Grande and Irrigation Co. (1899); Winters v. U.S. (1908) with the origin of the Winters' Doctrine of Indian Rights; Federal Power Commission v. Oregon, commonly called the Pelton Dam Case (1955); Arizona v. California (1963); U.S. v. District Court for Eagle County (1971); to existing suits on surface water sources such as that on appeal in regard to reserved federal water rights on the Truckee River. It can be shown that the federal position has been consistent through all the years in that the federal rights have been protected, expanded, developed, and preserved in a more or less predictable manner.     

A CRITIQUE OF WATERSHED MANAGEMENT EFFORTS IN THE LOWER MISSISSIPPI ALLUVIAL PLAIN1

ABSTRACT: Integrated watershed management in the Lower Mississippi Alluvial Plain (Delta) requires blending federal, state, and local authority. The federal government has preeminent authority over interstate navigable waters. Conversely, state and local governments have authority vital for comprehensive watershed management. In the Delta, integrating three broad legal and administrative regimes: (1) flood control, (2) agricultural watershed management, and (3) natural resources and environmental management, is vital for comprehensive intrastate watershed, and interstate river basin management. Federal Mississippi River flood control projects incorporated previous state and local efforts. Similarly, federal agricultural programs in the River's tributary headwaters adopted watershed management and were integrated into flood control efforts. These legal and administrative regimes implement national policy largely in cooperation with and through technical and financial assistance to local agencies such as levee commissions and soil and water conservation districts. This administrative infrastructure could address new national concerns such as nonpoint source pollution which require a watershed scale management approach. However, the natural resources and environmental management regime lacks a local administrative infrastructure. Many governmental and non governmental coordinating organizations have recently formed to address this shortcoming in the Delta. With federal and state leadership and support, these organizations could provide mechanisms to better integrate natural resources and environmental issues into the Delta's existing local administrative infrastructure.     

The Supreme Court,the commerce clause,and natural resources

The Supreme Court's interpretation of the commerce clause controls the balance of power between state and federal governments in the United States. An understanding of the relationship between the different government levels is essential for resource managers concerned with resource and environmental issues. This study examines selected Supreme Court decisions between 1976 and 1988 to answer three questions raised by the commerce clause: (1) Is the regulated item an article of commerce? (2) Do state laws burden interstate commerce? (3) Is federal commerce regulation limited? The balance of power among the justices and the commerce clause theories affecting the federal role in resource management are also examined. Since ratification of the Constitution, the Supreme Court has continuously increased federal power, but states have power to act independently as long as contradictory federal laws do not exist and state law does not impermissively affect commerce. If Congress regulates an individual's use of resources, their power is unquestioned. Future Court decisions will not significantly reduce the federal role in resource management even if the Court's membership changes. Even the supporters of states' rights on the Court realize increased federal power is a necessary part of the country's evolution. The purpose of the commerce clause is to create a national economic unit with free location principles. The Court supports this purpose today and will in the future.     

RESOLVING INTERSTATE WATER CONFLICTS IN THE EASTERN UNITED STATES: THE RE-EMERGENCE OF THE FEDERAL-INTERSTATE COMPACT1

ABSTRACT: As population growth occurs in regions of the eastern United States that do not have abundant water supplies, new transbasin diversions may be required. Such diversions are exceptionally politically divisive and are at the core of most of the interstate water conflicts that presently exist in the eastern states. This study examines alternative means by which these conflicts might be resolved. The strengths and weaknesses of these alternatives are examined. The study concludes that the federal-interstate compact should be the preferred alternative by which interstate water conflicts in the eastern United States are resolved.     

WATER QUALITY SIMULATION AND PUBLIC LAW 92–500 Case Study: Southwestern Illinois1

ABSTRACT: Section 208 of the Federal Water Pollution Control Act Amendments of 1972 has provided the Southwestern Illinois Metropolitan and Regional Planning Commission (SIMAPC) with a unique opportunity for comprehensive planning of the region's water quality. SIMAPC initiated the 208 study by researching available technology for the analysis of point and nonpoint sources of pollution and establishing criteria by which to judge the various technniques. This led to SIMAPC'S choice of continuous simulation of stream and reservoir water quality as the most appropriate analytical tool for their needs. A continuous simulation model was calibrated and verified on three basins in the SIMPAC region. It was then used to produce load source analysis, pollution event frequency analysis, and pollution event duration analysis for ten pollutants under existing stream conditions and then under alternative future conditions. These results enabled the weighting of pollutant sources, analysis of the effectiveness of control measures, and quantitative analysis of the marginal benefit of each alternative.     

Management of Water Shortage in the Colorado River Basin: Evaluating Current Policy and the Viability of Interstate Water Trading1

Wildman, Richard A., Jr. and Noelani A. Forde, 2012. Management of Water Shortage in the Colorado River Basin: Evaluating Current Policy and the Viability of Interstate Water Trading. Journal of the American Water Resources Association (JAWRA) 48(3): 411-422. DOI: 10.1111/j.1752-1688.2012.00665.x Abstract: The water of the Colorado River of the southwestern United States (U.S.) is presently used beyond its reliable supply, and the flow of this river is forecast to decrease significantly due to climate change. A recent interim report of the Colorado River Basin Water Supply and Demand Study is the first acknowledgment of these facts by U.S. federal water managers. In light of this new stance, we evaluate the current policy of adaptation to water shortages in the Colorado River Basin. We find that initial shortages will be borne only by the cities of Arizona and Nevada and farms in Arizona whereas the other Basin states have no incentive to reduce consumptive use. Furthermore, the development of a long-term plan is deferred until greater water scarcity exists. As a potential response to long-term water scarcity, we evaluate the viability of an interstate water market in the Colorado River Basin. We inform our analysis with newly available data from the Murray-Darling Basin of Australia, which has used interstate water trading to create vital flexibility during extreme aridity during recent years. We find that, despite substantial obstacles, an interstate water market is a compelling reform that could be used not only to adapt to increased water scarcity but also to preserve core elements of Colorado River Basin law.     

STATE WATER LAW REFORM: IDENTIFYING LEGAL AND MANAGERIAL ISSUES AND OPTIONS1

ABSTRACT: Statutory and case law at the state level provide critical legal frameworks for water management. As many state governments struggle to improve efficiency in water management and resolve conflicts over water usage, they must continually assess the efficacy of their state water law. Most states have water laws that are disconnected and overlapping. This article presents a methodology to assess state water law and take first steps toward a comprehensive state water resources act. The methodology is driven by issues and conflicts in water management. It synthesizes management and legal analyses into a process that incorporates the diverse perspectives of state water stakeholders. The results of the analysis are identification of management issues, profiles of state water law, and explorations of legal options that are available to the state government. Illinois is provided as a case study for this methodology.     

Reasonable Use?: The Challenges of Transboundary Groundwater Regulation in the Eastern United States

Regulating groundwater in the Eastern United States (U.S.), particularly transboundary aquifers between states, is a challenge given the patchwork quilt of common law, statutory frameworks, and agency rules. Such regulation is made more challenging by the need for better quantification of pumping and use. These dynamics are exemplified through several case studies, including the first ever U.S. Supreme Court case related to groundwater withdrawals (set in the Eastern U.S.). As dynamics such as expanded irrigation, population increases, and ecological considerations influence groundwater use across the Eastern U.S., water use will continue to be an important driver for economic activity and interaction within and between states. To effectively regulate transboundary aquifers, governance solutions must incorporate current science into decision making and be implemented at local, state, regional, and federal scales.     

ENFORCEMENT LIMITATIONS IN WATER QUALITY CONTROL1

The Federal role in the enforcement of water quality requirements is of recent development. It began with the enactment in 1956 of the Federal Water Pollution Control Act as permanent law. It has been expanded by successive amendments to the Act to cover the pollution of navigable as well as interstate waters which endangers the health or welfare of persons, and to cover violations of water quality standards established for interstate waters. Two different enforcement procedures are prescribed in the law to be followed in the two types of enforcement actions. While questions have arisen of jurisdiction, States' rights, and disregard or duplication of local efforts, such questions do not lastingly impede the exercise of Federal enforcement authority and are of value in establishing a body of precedents. Limitations have their basis in the statutory distinctions between interstate and intrastate pollution which govern the application of the enforcement authority, even though a case of intrastate pollution may be as serious or more serious than a case of interstate pollution. An additional limitation results from the statutory time intervals between procedural stages in an action. Lack of data is a limitation but can always be overcome and at most causes delay. State laws which protect the confidentiality of required reports are more of a limitation. Investigative teams may obtain the needed information, however, for consideration in public meetings. Public support for effective water quality control measures, especially enforcement, and for the expenditures needed to enhance the environment, is widespread. Such support may be instrumental in modifying or eliminating existing statutory limitations.     

INTERSTATE WATER ALLOCATION COMPACTS IN THE WESTERN UNITED STATES - SOME SUGGESTIONS1

ABSTRACT: Agreements between states, or compacts, provide a mechanism for resolving transboundary resource issues. The twenty-two compacts allocating the water of rivers among states in the western United States are examined to provide guidance for drafters of future compacts. The method of allocation selected for a compact reflects the state's allocation of the risk of dry years. Allocations based on models have been unsuccessful. Percentage allocations are good for fairly apportioning risk, but conflict with principles of prior appropriation. Guarantees of minimum flows should be used with great care, to avoid any state becoming a guarantor of natural phenomena over which it has no control. Disputes should be anticipated, and a dispute resolution mechanism agreed upon. Arbitration or litigation are likely to prove the most politically acceptable. Compacts should be comprehensive in scope, encompassing groundwater as well as surface use. Federal claims should also be addressed, and some form of protection from subsequent changes of federal policy should be incorporated in the agreement and its ratifying legislation.     

Hydropower Relicensing and Climate Change1

Viers, Joshua H., 2011. Hydropower Relicensing and Climate Change. Journal of the American Water Resources Association (JAWRA) 47(4):655‐661. DOI: 10.1111/j.1752‐1688.2011.00531.x Abstract: Hydropower represents approximately 20% of the world’s energy supply, is viewed as both vulnerable to global climate warming and an asset to reduce climate‐altering emissions, and is increasingly the target of improved regulation to meet multiple ecosystem service benefits. It is within this context that the recent decision by the United States Federal Energy Regulatory Commission to reject studies of climate change in its consideration of reoperation of the Yuba‐Bear Drum‐Spaulding hydroelectric facilities in northern California is shown to be poorly reasoned and risky. Given the rapidity of climate warming, and its anticipated impacts to natural and human communities, future long‐term fixed licenses of hydropower operation will be ill prepared to adapt if science‐based approaches to incorporating reasonable and foreseeable hydrologic changes into study plans are not included. The licensing of hydroelectricity generation can no longer be issued in isolation due to downstream contingencies such as domestic water use, irrigated agricultural production, ecosystem maintenance, and general socioeconomic well‐being. At minimum, if the Federal Energy Regulatory Commission is to establish conditions of operation for 30‐50 years, licensees should be required to anticipate changing climatic and hydrologic conditions for a similar period of time.     

Evolving policies to regulate pollution from animal feeding operations

Due to concentrations of animals at large facilities, animal feeding operations (AFOs) have emerged as a major potential source of water pollution. The federal government regulates concentrated animal feeding operations under its point-source pollution permitting regulations. A major determinant of whether an operation must apply for a permit is the number of animals at an individual lot or facility. This paper examines federal mandatory controls and voluntary guidelines that seek to reduce contaminant pollution from AFOs. Land treatment practices are delineated due to their importance in reducing the injurious by-products of agricultural production. An evaluation of proposed revisions to federal regulations on confined animal feeding operations suggests they diverge from their goal of controlling water pollution. Federal regulations focus on the size of operation and amount of manure governed by the permitting process to the exclusion of other criteria related to the impairment of water quality. Given the uncertainties about the amount of pollution from AFOs, lack of enforcement of existing regulations, localization of problems, and possible alternatives for addressing the pollution, more demanding federal regulations may not form an appropriate response.     

THE LEGALIZATION OF GROUNDWATER STORAGE1

ABSTRACT: California's courts have recently recognized the existence of underground aquifer storage rights that permit public agencies to (1) store imported waters in aquifers; (2) prevent others from expropriating that water; and (3) recapture the stored water when it is needed. The article describes the two appellate decisions that represent the common-law development of aquifer storage rights. Each decision related to separate aquifers that were subject to separate types of groundwater management programs. One decision involved an aquifer under the southeastern San Francisco Bay area that was managed under statutory authority and is entitled, Niles Sand and Gravel Co. v. Alameda County Water District 37 C.A.3d 924 (1974); cert. denied 419 US 869. The other decision involved an aquifer under Southern California's San Fernando Valley that was managed under judicial authority and is entitled, City of Los Angeles v. City of San Fernando 14 Cal.3d 199 (1975). The two decisions provide separate, but complimentary, public interest rationales for aquifer storage rights: (1) to protect water supplies necessary for the overlying community; and (2) to increase water supply efficiencies by using natural underground reservoirs wherever practicable. The Article reviews the relationship of aquifer storage rights to conventional groundwater rights and indicates aspects of the storage right that may need additional development.     

CONFLICTS IN ATTAINING NATIONAL GOALS FOR BOTH WATER QUALITY AND ENERGY PRODUCTION1

ABSTRACT: The “policy environment” is defined herein as the institutional setting in which planning is conducted and policy decisions are made with regard to meeting two of the Nation's high priority goals: water quality protection and energy independence. The simultaneous pursuit of these goals has resulted in numerous conflicts among the energy industry, environmentalists, and government. An analysis of selected energy development-water quality conflicts shows that these conflicts can be described in terms of one or more of the following policy environment characteristics: resource scarcity, sense of urgency, lack of experience, administrative complexity, uncertainty about future policies and regulations, technological complexity, and uncertainty about impacts. These characterics provide a useful framework for formulating potential strategies for the resolution of energy development-water quality conflicts.     

RURAL NONPOINT SOURCE POLLUTION CONTROL IN WISCONSIN: THE LIMITS OF A VOLUNTARY PROGRAM?1

ABSTRACT: This paper examines the relationship between best-management practices, institutional needs, and improved water quality within the watersheds of Wisconsin's program for controlling rural nonpoint source pollution. The first section describes the federal requirements for state nonpoint source programs and the legislative and management methods the state of Wisconsin uses to put those requirements into practice. The emphasis of the paper, described in the second section, is the institutional difficulty in evaluating the success of a large, integrated water quality program. Measurements which are investigated include (1) watershed water quality before and after implementation of BMPs; (2) program participation as measured by eligible vs. participating landowners, BMPs considered necessary vs. BMPs implemented, or dollars allocated to the NPS program vs. dollars expended; and (3) institutional goal coordination and management effectiveness. It is found that, despite the size and sophistication of Wisconsin's NPS program, there is little if any improvement in ambient water quality in these watersheds, probably because of a general lack of adequate participation in this voluntary program.     

A PARTICIPATORY APPROACH TO WATERSHED MANAGEMENT: THE BRAZILIAN SYSTEM1

ABSTRACT: Brazil is currently facing the challenge of implementing a new water resources management system to promote the rational and sustainable use of the country's waters. This system is based on the following principles of water management: (2) stakeholders' participation; (2) the watershed as the planning and management unit; and (3) the economic value of water. Stakeholders' participation and the involvement of civil society in the decision making process is guaranteed by permanent seats in the watersheds' management committees. These committees are the highest decision level for the establishment of water policy and for planning its use. The executive branch of the committees is the watershed agency or the water agency. This paper presents the recently approved Brazilian water resources management system and discusses the participatory approach followed to validate and to ensure prompt response to decisions regarding water use by all stakeholders. The formulation of the National Water Law (January/1998) was also supported by extensive consultation with civil society, professional associations, state and municipal governments as well as with federal governmental agencies and private sector organizations. It also presents an overview of the formulation of the National Water Law. Finally, as watershed committees have been created and are already operating in a limited number of watersheds, some of the major obstacles to the success of the new system are discussed along with alternatives for overcoming such obstacles.     

LIVESTOCK GRAZING MANAGEMENT IMPACTS ON STREAM WATER QUALITY: A REVIEW1

ABSTRACT: Controlling agricultural nonpoint source pollution from livestock grazing is a necessary step to improving the water quality of the nation's streams. The goal of enhanced stream water quality will most likely result from the implementation of an integrated system of best management practices (BMPs) linked with stream hydraulic and geomorphic characteristics. However, a grazing BMP system is often developed with the concept that BMPs will function independently from interactions among controls, climatic regions, and the multifaceted functions exhibited by streams. This paper examines the peer reviewed literature pertaining to grazing BMPs commonly implemented in the southern humid region of the United States to ascertain effects of BMPs on stream water quality. Results indicate that the most extensive BMP research efforts occurred in the western and midwestern U.S. While numerous studies documented the negative impacts of grazing on stream health, few actually examined the success of BMPs for mitigating these effects. Even fewer studies provided the necessary information to enable the reader to determine the efficacy of a comprehensive systems approach integrating multiple BMPs with pre‐BMP and post‐BMP geomorphic conditions. Perhaps grazing BMP research should begin incorporating geomorphic information about the streams with the goal of achieving sustainable stream water quality.     

A Nationally Consistent NHDPlus Framework for Identifying Interstate Waters: Implications for Integrated Assessments and Interjurisdictional TMDLs

The US Environmental Protection Agency’s (EPA’s) Total Maximum Daily Loads (TMDL) program promotes nationally consistent approaches for documenting the progress in restoring impaired waters. EPA’s TMDL program provides tracking systems comprising both database and geographic information systems (GIS) mapping components. The GIS mapping is implemented using the National Hydrography Dataset (NHD). The EPA and the US Geological Survey have developed an enhanced NHD product (NHDPlus) that is applied in this study to define an interstate waters framework for the conterminous United States. This NHDPlus-based framework provides an efficient watershed-oriented approach for selecting interstate waters. Greater consistency in approaches for interstate waters is essential for providing improved techniques for integrated assessment and management programs. Improved analysis tools for interstate waters are clearly important from a federal perspective. Insights based on tools for federal interstate waters are also of interest for state water quality agencies when they deal with complicated interjurisdictional challenges that can require leveraging support from a wide range of stakeholders. Summaries are provided on the degree of consistency documented for inland waters where states have provided TMDL listing GIS information for shared interstate NHD reaches, and summaries are provided on the patterns for interstate assessments organized according to the ecoregions developed for EPA’s Wadeable Streams Assessment. The relevance of this interstate waters framework in leveraging the TMDL program to provide enhanced support for watershed oriented management approaches is also explored.