Murky Boundaries of Federally Regulated Waters

I will do my best to stick to scientific matters rather than political opinions in this blog, but I have some specific beefs with the Trump administration based on the intersection between science and policy. I’m specifically opposed to a number of Trump’s proposed changes in his recently released budget proposal; to his appointees running the Department of the Interior and EPA, who are rolling back both environmental data collection and planning for climate change; and to Trump’s executive order regarding the Clean Water Rule. I will discuss some of the implications of cutting EPA’s funding by 30% and rolling back climate change rules on a different post – note that this directly affects my work as an environmental consultant, so take my opinion with a grain of salt – but I want to focus here on the Clean Water Rule and the controversy around it.

The “Clean Water Rule” was finalized under Obama’s EPA in 2015, and attempts to clarify one of the muddiest parts of the Clean Water Act, which turns 45 this year. The Clean Water Act empowered the government to regulate “navigable waters of the United States”, which is well and good, but most water in the U.S. is not navigable per se. Does this mean that if you don’t bother to dredge channels to keep them open for navigation by boat, that they don’t need to be kept clean? No, the Supreme Court has clarified, most recently in 2006, that “waters of the U.S.” include those water bodies with a “significant nexus” to navigable waters.

Although marginally clearer than the Clean Water Act language, this definition still presents challenges to those who work in the realm of science, rather than the realm of law, on a day-to-day basis. For example, a good water scientist/engineer is well aware of the hydrological connection between surface water and groundwater, wherein surface water can flow into or “recharge” groundwater, as well as the opposite behavior where groundwater flows into surface water. The influence of groundwater means that surface water bodies that appear otherwise unconnected may have a fully operational subsurface pathway between them, which may even govern their flow.

The other scientific wrinkle to the definition of “navigable waters” is that the pollutants in major rivers and lakes in the U.S. often originate from smaller creeks, channels, wetlands, and groundwater, which flow into the major bodies of water. Some of these, particularly in the American West, are ephemeral, so they’re only potentially navigable some parts of the year. So, if you’re limited to regulating navigable waters alone, you may not be able to control the inputs of pollutants to the water bodies.

The EPA under Obama attempted to clarify this rule, to set boundaries on what is and is not a body of water with “significant nexus” to navigable waters. Here’s where things get controversial. Let’s say you have a channel in your backyard that drains your septic system or your small organic chicken coop (I practically live in Berkeley). If that channel flows into an ephemeral creek, which flows into, say, San Francisco Bay, which is navigable, you could potentially be in violation of the Clean Water Act for discharging pollutants (in this case, nutrients with no place to go, which will lead to algal growth in the creek or the Bay). But, how could this happen to me?!! You, the septic system/chicken coop discharger, may seem like small potatoes, but these pollution issues are classic examples of the “tragedy of the commons”, and in fact, lots of smaller/moderate dischargers have a disproportionate effect on downstream water bodies, even those that are major drinking water supplies, as shown in the maps on this website. Hate to break it to you, but yes, your hypothetical septic/chicken coop discharges matter, when you measure the mass of pollutants you discharge to the larger body of water.

Lots of industries, including oil companies, developers, ranchers, and farmers, consider the Clean Water Rule to be a government overreach, because it would require new permits for filling in or modifying surface water bodies that had no reason to be federally regulated, in their opinion. The Trump executive order, issued February 28 of this year, requires Secretary Pruitt to review the Clean Water Rule, with the purpose of rescinding or revising it to refer to a different Supreme Court definition of waters of the U.S., this one a very narrow opinion offered by Justice Scalia. According to this amusing article, Scalia’s opinion came from looking up “waters” in the dictionary:

In his plurality opinion, Scalia pulled out the Webster’s New International Dictionary 2nd Edition and looked up the definition of “waters.” It “includes only those relatively permanent, standing, or continuously flowing bodies of water,” he wrote, like “streams,” “oceans, rivers, [and] lakes,” not water that “flows intermittently or ephemerally.”

The rub is that Obama’s Clean Water Rule has already gone through the rule-making process, including public comment/review, and has been made into law. It has, of course, also been held up by court challenges since 2015, but it would be naïve of the Trump administration to assume that their preferred definition of “waters of the U.S.” would pass muster without similar immediate legal challenges. And, as the article above notes, Justice Scalia is no longer on the Supreme Court, whereas Justice Kennedy, whose “significant nexus” language forms the basis of current interpretation of the Clean Water Act’s jurisdiction, is alive and likely to weigh in on any challenges that make it to the Supreme Court.

So, Mr. Pruitt – feel free to begin the arduous challenge of rescinding/rewriting the “Clean Water Rule”, but good luck finishing it quickly in a manner that will hold up in court.

making a dent

Hello and happy 2017! Although my personal politics largely deviate from those of President-Elect Trump, I’m hoping that nonpartisan matters of policy will remain unaffected – give them the benefit of the doubt for now. The nominee for EPA Administrator under the Trump administration is an attorney who has worked to fight EPA on behalf of oil and gas interests, and who doesn’t believe in climate change. How will he, if confirmed, approach issues that are less partisan, like aging water and wastewater infrastructure across the country? Can’t everyone agree that the crisis in Flint, Michigan should not be repeated?

In a recent editorial, David Sedlak, editor of my favorite journal, Environmental Science and Technology, proposed that President-Elect Trump could make America great again by starting with its water and wastewater infrastructure – a bargain can be had for a mere $100 billion, leaving plenty of room for more showy projects like roads and tunnels and bridges.

Well, imagine my surprise to see this press release from EPA in January, before Trump and his team formally take office: EPA Launches New Program With $1 Billion in Loans Available for Water Infrastructure Projects. Wow, the Trump folks are getting started early? A final gesture from the Obama administration?

Not quite. The program has approximately $17 million in existing funding, which EPA estimates can be leveraged at a ratio greater than 50 to one. By this math, the $17 million program budget “could allow EPA to make approximately $1 billion in loans and stimulate about $2 billion in total infrastructure investment.” My hopes are tempered, but I maintain hope that this $2 billion investment will start to make a dent in the problem.

The rub comes in the last sentence of the press release:

EPA estimates that the U.S. needs about $660 billion in investments for drinking water, wastewater, and stormwater infrastructure over the next 20 years.


So chalk this program up to good things that barely make a real dent in the problem. As Dr. Sedlak pointed out, the American Society of Civil Engineers has given our water infrastructure a grade of D now. I shudder to think of where we’ll be in 5 or 10 years if our politicians don’t commit soon to making a real dent in this need.

learning from the past

Dear readers –

A friendly reminder to go get a flu shot, if you haven’t gotten one already.  I’d been only about a week over my cold/strep throat bonanza this winter when I picked up the flu.  What a pain.  I highly recommend avoiding the flu in any way possible.  Then, if you do get the flu, follow the CDC’s advice and don’t go out at all (not for shopping, not for the doctor, not for work) at least 24 hours after your fever is past.  The CDC’s advice is not for the sick person, but rather for the healthy people that the sick person could easily infect on short errands.

That said, I’m home today, recovering from yesterday’s fever, and writing about another group learning from past issues.  Remember the “Restore Hetch Hetchy” ballot measure in San Francisco?  It basically enabled the City of San Francisco to vote on whether the water supply of the City, the peninsula, and much of the South Bay would be dismantled.  The measure was voted down (77% said no!), but the water utilities around the Bay, who are tasked with maintaining supply, have decided not to wait for the Restore Hetch Hetchy folks to rally the City for Round 2.  Instead, they passed an amendment to their contract (that is, the San Francisco Public Utility Commission, SFPUC, and the Bay Area Water Supply and Conservation Agency, which is made up of the 26 water agencies that purchase Hetch Hetchy water) that requires any modifications to the Hetch Hetchy reservoir to be approved by all 26 agencies.

Now I don’t think that SFPUC and the Bay Area Water Supply and Conservation Agency are necessarily against modifying the Hetch Hetchy, but consider that the ballot measure would have allowed the City of San Francisco to dismantle a water supply in which 2/3rds of the customers (who pay for operations and maintenance) had no voice.  That seems pretty unfair.  The Restore Hetch Hetchy folks of course call this an “end-run around democracy”, but what was the ballot measure in that case?

spy vs. spy, lobbyist-style

I wrote recently about the attempt by the last coal-fired steamer on the Great Lakes, the SS Badger, to circumvent environmental laws that would force it to upgrade to a modern propulsion system.  I really find it hard to justify such an outdated and messy mode of transportation, which dumps 509 tons of coal ash in Lake Michigan every year (an average of nearly one and a half tons per day).  That’s a lot of ash.

Well, the language to exempt the SS Badger from EPA’s oversight was stripped from a U.S. House of Representatives bill just last week.  Advocates from Michigan and Wisconsin had added an amendment to a Coast Guard reauthorization bill to exempt the ship, as a National Historic Landmark, from EPA oversight.  However, the reauthorization bill was passed without the amendment, meaning that the Badger’s permit to operate expires on December 19th, no exceptions.

Apparently, a rival ferry with diesel-powered engines, Lake Express, appealed to its own representatives, including one from Milwaukee, to vote out this amendment.  Lake Express offers ferry service about $50 more than the SS Badger, for service about 1.5 hours shorter (2.5 hours vs. 4 hours).  In a public statement, Lake Express noted that in the SS Badger’s own correspondence with the EPA, the company said it could pay for equipment to eliminate the need to dump coal ash by upping their ticket prices by just $4 per customer — which would still be much cheaper than Lake Express.  In other words, it’s less about the money and more about the effort…

The conclusion from all of this is, two rival companies appealed to rival lawmakers, and despite what might seem like corruption of the legislation process, the best outcome was reached, as far as protecting human health and the environment.  Whether you call the SS Badger’s National Historic Landmark status a loophole or an earmark, it was not successful.  The process works…

fracking gets uglier

There’s plenty of controversy around fracking in the US.  But here we have a relatively informed public, with public officials who must respond to the balance of public opinion (whether it’s heightened oversight or direct election), and a pretty good basis of environmental laws.  A fair number of countries have observed our issues with fracking and environmental hazards, and said, “Thanks but no thanks.”  Notable bans have arisen in France and Germany, with proposals in the UK.  But developing countries are hungry for the cheap energy source, and China, for example, wants in, to the tune of 6.5 billion cubic meters of gas by 2015 and 100 billion cubic meters by 2020 (the US produced some 170 billion cubic meters of natural gas in 2011).

The first red flag in my mind is cutting corners.  My understanding is that the majority of the problems with aquifer contamination in Pennsylvania arose from shoddy well construction.  Pardon my stereotyping, but Chinese industries aren’t exactly known for their meticulous high-quality work, especially when there’s profit to be made…This makes me nervous.

But the second red flag upsets me more: where will the frack water come from?  China is not a country of abundant water resources, especially in the north.  And in contrast to the US or Canada, its people have little recourse if they have complaints about depleted or contaminated water resources.  Where will the water come from?  Will Chinese central planners favor industry over people?  It has happened before (just Google “chemical spill China” and see how many different incidents pop up, e.g., this one).

Never mind that it apparently takes 3 years to get environmental laws on the books, and wastewater disposal (currently one of the main problems with fracking in the US) is not one of China’s strong suits.  Fracking might help the Chinese economy, but my bet is, it’s going to get really ugly really quickly.  I’m glad we have home-grown natural gas to rely upon — far less guilt.

pipelines aren’t all evil

I can’t put together a lot of analysis this week, but I can point you to some people who have.  In this case, we’re talking about pipelines for oil and gas delivery across the US.  I’ve mentioned some of the issues related to leak detection in the context of the Enbridge spill in Kalamazoo, Michigan before.  You might be surprised to know that there are already some 2.5 million miles of pipelines across the US for oil and gas delivery, and the number is going up with every new shale gas deposit or oil sands site.  ProPublica has compared the risk of pipeline failures vs. the risk of trucking oil/gas, using the analogy of travel by air vs. travel by car.  Yes, it’s risky (is anything truly risk-free?) but it’s less risky than the major alternative.

Apparently many of the leaking pipes are old, and were grandfathered in when regulations came out, just to avoid the excessive cost of digging up miles and miles of pipeline to check for their integrity.  I’d like to think that new pipelines could meet higher standards, such as in the case of the Keystone XL pipeline that Obama will evaluate in the next 4 years.  The National Academy of Sciences is also working on a scientific review of the risk to pipelines from carrying diluted bitumen, an especially corrosive form of crude oil; that report to advise government and industry is due out next year, and will probably play a significant role in the acceptance or rejection of the Keystone XL plans.

Let’s keep in mind that the oil and gas boom in the US and Canada is boosting our economy, and natural gas prices in the US are cheap enough now (sometimes 30-50% the cost in Europe and Asia) that factories may be able to offset our higher labor costs with lower energy costs, and relocate back to the US.  Let’s also keep in mind that there are environmental benefits to keeping oil and gas production subject to American/Canadian laws rather than in places we might consider more likely to cut corners.  Enbridge is in big trouble with regulators over the spill in Michigan.  It’s a big deal in Canada that scientists have found oil sands contaminants in snow and rain nearby to the mines and not been able to fully disclose their results.  Our two nations have an active population that is keeping an eye on these things.  Better to mine/refine/deliver oil and gas with much oversight and supervision, and to challenge our regulators to hold these companies to account, than to punt on development and send jobs abroad, in my mind.

Las Vegas takes charge

The Colorado River is over-allocated, such that in any given year, states only receive a fraction of the quantity of water they were originally promised in 1922 (they also promised nothing to Mexico, but have subsequently revised that part).  I’ve been pretty skeptical that any major treaty would be able to modify that treaty, since so many people are fighting over the water.  But a new pact is set to avoid any international standoffs in the Colorado River basin, between the US and Mexico, and my favorite water manager, Pat Mulroy of SNWA is behind things again.

Las Vegas is in a tight spot, in that it gets its water supply from pipes in Lake Mead, and the lake levels have been declining to levels that threaten to go below the intake pipes (their straws would be sucking air, rather than water, at that point).  Uh-oh for Las Vegas.  So the city is motivated for all downstream Colorado River compact states (Nevada, Arizona, and California), and now Mexico, too, to store as much water as possible in Lake Mead.  (Note to Cadiz, Inc: You’re fighting an uphill battle — Nevada will practically pay California to store water behind Lake Mead…)

Under the agreement, negotiated by UN-style earpieces for translated dialogue, Lake Mead will store Mexico’s excess water in wet years, and allow withdrawals of that “bank” in dry years.  Mexico will also be able to store much of its water supply there temporarily for the next 5 years, while improvements are made to irrigation canals that were damaged in a 2010 earthquake.  Las Vegas and other municipalities will also pay for improvements to Mexican canals to decrease losses, and then use the quantity of water that was formerly “lost” from the system.

Some people don’t just wait for disaster to make opportunities — they plan for worst-case scenarios.  Las Vegas has a plan on the books to build another pipeline into Lake Mead, once the lake hits a certain low level.  By signing practical, clever deals like this one — which, by the way, are a win-win all around — they forestall that expensive construction item, and enhance the reliability of the system for everyone.  Mexico has also avoided the cost of building its own reservoir south of the border, which is significant.

Apparently water managers from Australia, Asia, and Africa are already interested in borrowing language and ideas from this pact.  Props to SNWA for taking the lead and seeing this important deal through.

mandate for water

California had a few interesting outcomes from the elections a couple of weeks ago, when it comes to water.  Most of these were local ballot initiatives, like the “Restore Hetch Hetchy” proposition I’ve talked about before.  But one that’s a little more subtle is that the state legislature will have a Democratic supermajority to accompany Democratic governor Jerry Brown’s agenda for the next 2 years.  Brown is a moderate Democrat, so he won’t necessarily appeal to all Democrats, but he has set five near-term priorities:

  1. Calibrating state rules and regulations so they don’t discourage job creation and economic development
  2. Continuing work on the state’s high-speed rail project
  3. Evaluating the state’s education framework
  4. Delivering a budget to the Legislature in January
  5. Securing water reliability for the state

That last one is pretty interesting, considering that Gov. Brown has already issued the Bay Delta Conservation Plan, to build two massive tunnels to make deliveries to the Central Valley and Southern California more reliable.  Plus, remember that huge ballot initiative to spend $11 billion on improving water resources across the state, the one that was shelved so Gov. Brown’s education proposition would have more likelihood of success?  Well, the Democrats could pass it now, to the chagrin of small-government Republicans across the state (but on that note, if you’re a small-government Republican — let’s be honest — you live in the wrong state).

The state legislative analyst recently projected lower budget deficits and future budget surpluses for the state,  a first in a long time.  You know what legislators, especially big spenders, will want to do with budget surpluses?  Spend them!  Let’s hope that Gov. Brown’s priorities lead to wise spending on projects that the state needs (and you can guess which issues I’m biased towards…).

follow the yellow brick road

To follow on Wednesday’s post about management of San Francisco’s water supplies with and without the Hetch Hetchy Reservoir, I would like to put my consultant hat on.  (Ok, admittedly I am a consultant, though a new one, so the hat isn’t a stretch.)  Let’s talk about project management.  Major engineering projects require studies and paperwork before actual construction can begin.  In the case of potential O’Shaughnessy Dam removal, I have consulted the California Department of Water Resources (DWR) for planning stages.  The DWR studied the dam removal in 2006, compiling all the previous research to date, identifying gaps in the research, and recommending a path forward for further studies.  This is how they say things are done:

DWR’s description of what each level of study means and entails.

  1. Complete concept level studies.
  2. Complete appraisal-level studies.
  3. Complete feasibility-level studies.
  4. Complete detailed studies and programmatic documents.
  5. Complete environmental impact report and site-specific design engineering.

[See the image to the right for the difference between these levels of studies.]  So far, the concept level studies are partly complete for water replacement, power replacement, physical dam removal, valley restoration, and the future public use plan.

Thus, using our study definitions, most of the prior work is, at best, at the “concept level” of study. That is, the body of work to date, including the state’s work on the potential costs for the potential project, is not sufficient to support sound public policy…Completing all aspects of existing studies to a common level (concept or appraisal) would be a key milestone in the decision-making process, by providing a basis for recommendation to either terminate the study or proceed with feasibility investigations.

Translation: do some more studying to get everything up to par, then continue with in-depth studies about the feasibility of dam removal.  Then, if everything still looks good and the costs are acceptable, start your EIR and design engineering.  (Note that the EIR could still get rejected at the end of everything, just as a warning.)

Ok, so this is the path forward.  My understanding of the ballot measure, based on newspaper reports rather than the vague language of the ballot measure itself, is that San Francisco would spend no more than $8 million on the concept-level studies, then have a vote in 2016 about whether to go forward with dam removal.  That’s unfortunately not how things are done.

As listed above, the concept-level studies lead to feasibility studies, after which the go/no go decision can be reasonably made.  With concept-level or appraisal-level studies in hand, you can continue studying or rule out the project — you can’t start to design or build.  The DWR estimates that the concept-level study would cost $7 million in 2005 dollars.  The appraisal-level study would be another $13 million, the feasibility studies another $32 million, and the detailed studies/programmatic documents another $13 million.  To be clear, the DWR estimates another $58 million in expenses just to get to EIR and design phase.  I would estimate this to work out to nearly 10 years of work.

The total cost of dam removal is estimated to be $3 -$10 billion (2005 dollars) in the 2006 report.  It’s pretty reasonable to expect to spend roughly 1% of that price ($60 million) to determine whether the project should proceed, rather than just 0.1% ($8 million).  (For perspective, they estimate $3-6 billion to restore the Salton Sea, $1-2 billion to deal with Owens Valley, and $10-16 billion to meet California’s flood management needs.)

Look, the guys who drafted Proposition F have the right idea — they want San Francisco to recycle more water and manage stormwater better.  I approve of that.  But they’re pushing on this the wrong way.  I spoke with an employee of Kennedy/Jenks, the firm that designed San Francisco’s state-of-the-art water recycling plant earlier this year.  The firm has twice gotten to the design stage of the plant (that’s step 5 above), only to be killed at the last minute due to concerns about the plant’s location in the city.  It takes a lot of money and time to get to construction design stage, and then have to restart at a new location.  Spend that $8 million on an education campaign so that the next design iteration doesn’t get killed by NIMBY.  And building the extra infrastructure first means that the Bay Area won’t undergo water shortages every ~5 years while the projects are sorted out.

Jordan: still the good host

As I mentioned a few months ago, Jordan is a relatively responsible water manager in the Middle East, but political instability in its neighbors has been constantly disrupting its well-laid plans for years.  The most recent disruption is a flood of refugees from the Syrian conflict (civil war?  I’m no diplomat.).  Trying to be an ethical host, Jordan has been delivering water supplies to the refugees via water tankers all summer, but at the cost of its own people, many of whom do not have reliable water supplies in the interim.  In light of no tap water supplies, Jordanians have been lamenting that they don’t live in the well-stocked Syrian refugee camps, some protesting about the lack of water for the past two months by burning tires, blocking roads, and seizing a Water Authority tanker.

The real problem is that without government tap water, the local Jordanians are forced to purchase water from either the Water Authority, if they’re lucky, at roughly $0.011/gallon, or private suppliers at roughly $0.032/gallon, which is prohibitive to many.  They wait for sufficient water pressure to wash clothes and take showers, although blips in the electricity supply can prevent municipal pumping, causing locals to miss their window of opportunity.  The good hosts continue to go without, in order to grant their guests a minimum of water supply.

Jordan could be nearing the point of frustration with guests that leads to drastic measures: violence against the unwanted guests, perhaps.  But more likely is a push for nuclear power to drive desalination plants and produce power.  Just what the Middle East needs…