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.

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?

give SFPUC a chance

I’ve mentioned before that San Francisco is an interesting place because it has an environmentalist streak laced with impracticality.  This streak has, at times, interfered with the San Francisco Public Utility Commission (SFPUC) and its ability to make innovative upgrades to the existing water and wastewater treatment facilities in the city.  Most notably, despite passing an initiative in 1991 mandating a water recycling facility in the city — rather cutting edge at that time — SFPUC still hasn’t been able to find a place that residents find acceptable to build the plant.

It turns out that, given the chance, the SFPUC can do stuff well.  The one-year-old Tesla treatment plant treats up to 315 million gallons per day with UV disinfection, and recently was awarded a LEED silver certificationA recycling facility in Daly City has also recently begun supplying recycled water to TPC Harding Park’s golf course, with approximately 230,000 gallons per day.  A drop in the bucket compared to the needs of the whole city of San Francisco, but a step in the right direction.

Well, I’m happy to report that the voters of San Francisco have decided to let SFPUC continue to manage their water supply and plan for its future, as they resoundingly voted against Proposition F to restore the Hetch Hetchy.  I’m interested to see if SFPUC can finally get that water recycling facility built (they may have 2 others in the plans, too), which would decrease the city’s water demand.  I’m glad to see them make a push in this direction before the drastic measure of tearing down the O’Shaughnessy Dam.

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.

planning is for squares

I promised an assessment of the Hetch Hetchy reservoir inflows, outflows, and storage, and I intend to deliver something.  I looked into the reservoir, from the data available from USGS to the Restore Hetch Hetchy website to the San Francisco Public Utility Commission’s official position on Proposition F to the California Department of Water Resources (DWR) 2006 study on restoration of the Hetch Hetchy valley.  There are many things out there with opinions, but I intend to highlight the facts.

  1. Storage, inflows, and outflows.  The Hetch Hetchy reservoir has stored an average of 282,100 acre-feet over the past 5 years, with an extreme maximum storage of 363,300 acre-feet and a minimum storage of 154,200 acre-feet.  I can see a couple of jumps in the plots of storage vs. time that suggest the dam is occasionally operated to send water to other locations, so a true picture of the storage in the system would need to include all 8 reservoirs in the system and river flow at multiple locations.  Honestly I don’t have time to get to this.  But I can say that in the past 5 years, the SF utility system has used at least 363,000 – 154,200 = 209,100 acre-feet stored in the Hetch Hetchy reservoir.  The other 7 dams owned by the San Francisco Public Utility Commission (SFPUC) have a combined storage of 537,600 acre-feet [Urban Water Management Plan, 2010].  So just to store the water that was stored in Hetch Hetchy and used in the past 5 years, you would need to use approximately 40% of the remaining reservoir space in the entire 7-dam network, and it’s not like those reservoirs are normally sitting empty.
  2. Water storage needs.  The Restore Hetch Hetchy plan calls for water intake via pipes without the dam.  The storage can be maintained by the rest of the reservoirs on the system.  “Hydrologic analysis shows that it will be possible to fully meet system demands in 4 out of 5 years. In the driest years, 20% of system demands will need to be met from additional water storage or supply resources.”  This is a direct quote from the Restore Hetch Hetchy website.  Let’s examine this.  One in every five years, this new Hetch-Hetchy-free system would experience a water shortage.  Have you ever heard of a utility plan to have water shortages?  We have utilities to provide reliability, and even then 20-year, 50-year, and 100-year events can overwhelm the infrastructure we have.  A 20-year event is a disaster, rather than an inconvenience, when your planning basis is a 5-year event.  Civil engineers like to design for 20-year events, at a bare minimum, with floods like the 1993 Mississippi River flood or the 2005 Hurricane Katrina disaster bringing calls for 500-year and 1000-year designs for water management (in those cases, we’re talking levees rather than dams, but droughts can be equally devastating).
  3. New supplies. The second half of the above quote addresses where additional water supplies will come from in the dry years: “additional water storage or supply resources.”  Let me refresh your memory, San Francisco — California’s water supply is already overallocated.  I just drove down I-5 this weekend and saw farmers’ billboards complaining about “Congress-created dust bowl” with cuts in water supply listed.  Those weren’t Congress-created cuts, those were drought-created cuts combined with a federal judge upholding the primacy of the Endangered Species Act, specifically related to fish in the Bay-Delta, over California’s water allocations.  There isn’t enough water for everything we already want to do.  Please, Restore Hetch Hetchy, tell us where the water will come from.  Water storage measures and water recycling facilities take time, money, and planning, and can’t happen overnight once the dam removal is underway.
  4. Climate change.  Finally, I will just note that climate change is projected to decrease snowpack (nature’s water storage) in the Sierras and increase the frequency and duration of “extreme” events, both rainfall and drought.  To remove excess storage from the water supply system in light of this very real challenge to California’s water supplies is very short-sighted.

That’s enough for now about water flows.  Next time, I’ll tell you what the DWR’s own report recommended for the Hetch Hetchy restoration question.  Hint: it’s not what’s in Proposition F.

where’s the water recycling ballot measure?

San Franciscans will vote in just a few short weeks whether to spend $8 million to study removal of the Hetch Hetchy reservoir in Yosemite National Park.  Since this idea has been studied many times before, and there are no alternate water supplies readily available for the Bay Area (or California in general…), I’ve stated before that this is a bad idea.  I think a far more useful expense of money, energy, and discourse would be when San Francisco is going to get serious about water recycling…

Recently, the town of Novato, in the North Bay (Marin County), opened a 1.7-million gallons-per-day water recycling plant.  That’s not a very big plant, relatively speaking, but it is 1.7 million more gallons that Novato will be recycling than San Francisco, every day.  The article notes that San Rafael, another town in Marin County, also opened a water recycling plant just a few weeks ago.  Neither of these plants will produce drinking water, but rather will supply golf courses and agricultural users.  Fair enough, that means that those guys aren’t using drinking water.

Oxnard, a town in Ventura County, southern California, also recently opened a “world class” water recycling facility capable of treating 6.25 million gallons per day.  Again, so far this facility will meet needs of agricultural and golf courses, rather than drinking water, but this will have the capability to hook into a public water supply, given the high level of treatment that this water will undergo (microfiltration, reverse osmosis, UV, and peroxide treatments…the peroxide seems like overkill to me, but I guess a factor of safety never hurts…).

These places are putting San Francisco to shame.  Virtually nowhere in California can claim to have a water source that did not at some point degrade the environment.  Dams and canals were built.  But the best thing we can do is decrease our reliance on this infrastructure through smart water recycling and aquifer storage.  Only then can we revisit the dams and canals and whether we really need them.  So, San Franciscans, where’s the ballot measure about the city’s lack of any water recycling??

water v. ecosystems

Election season is gaining steam here in California (as a non-swing state, things have been a little later coming than in other parts of the country, I know).  So this means that the press is finally producing some in-depth coverage of ballot initiatives like Measure F in San Francisco, which would approve an $8-million study to remove and drain the Hetch Hetchy reservoir.  The San Jose Mercury looked into how long it would actually take for the Hetch Hetchy valley ecosystem to recover.  A lot of recovery would occur in the first 20 years after the dam removal, only with extensive help from volunteers to ensure that invasive species don’t take over the valley.  Ultimately, though, it would probably take 100-150 years before a visitor to the valley would have no visual evidence of the former reservoir.  Worth noting, sure.

But what about removing the dam itself?  “Removing it would involve constant blasting and thousands of truck trips. A rail line might have to be built to carry away the debris.”  Sounds very pristine.  That blasting could even temporarily disturb parts of Yosemite, depending on how loud it is…

The real kicker is that no one understands the impact of the loss of water supply reliability.  Would anyone today suggest that the proximity of Lakes Powell and Mead on the Colorado River makes at least one of those reservoirs unnecessary?  Well, if not for the combined capacity of both, the Colorado River would not have been able to supply Arizona, Las Vegas, and Southern California for so long.  Lake Powell has been able to mitigate the effects of long-term drought,  with its storage varying from 22.5 million acre-feet in the mid-1980s to 9.9 million acre-feet in 2005.  Lake Mead has similarly ranged from 25 million acre-feet in 1983 down to 10.8 million acre-feet in 2010.  Yes, both are located in beautiful canyon country in the desert southwest, but these two dams have been able to sustain a loss of roughly 26.8 million acre-feet from the regional water supply between the 1980s and the mid- to late-2000s, without people having to forego drinking water.  The capacity of Lake Powell alone is 24 million acre-feet…think the system doesn’t need that extra buffer?

I won’t get into the issues around power generation from water supply dams, but suffice it to say, you should be skeptical of anyone promising complete ecosystem recovery with no impact on the water supply.  The other cities in the Bay Area that get their water from the Hetch Hetchy also have reason to be concerned — why should San Francisco get to determine the fate of the reservoir without any voter input from the other affected cities?

credit: San Jose Mercury News

Preview of Hetch Hetchy removal?

The city of Monterey’s water supply is in transition.  Apparently the dam upon which they have relied for years, the San Clemente Dam, is filling with sediment and has been subjecting the Carmel River to accelerated erosion since 1921 (erosion is a balance between sediment coming in and sediment washing away, and the dam blocks the sediment coming in, leading to net washing away of the riverbanks).  The dam is in the process of being removed, while the city debates a new water supply – a combination of desalination, aquifer storage and recovery, and conservation.  The California Coastal Conservancy has also been involved in removing the dam and restoring habitat for steelhead trout and the California red-legged frog.  But between environmentalists and citizens of the Monterey peninsula, people aren’t that happy.

Environmentalists are disappointed that the city is headed towards desalination, an energy-intensive process that could possibly damage the environment through the discharge of its waste brine (the verdict is still out over how best to manage the wastes from desalination).  There’s already a desalination plant in Marina that sits idle because of high energy costs, and state utilities regulators rejected the Environmental Impact Review for the new desalination plant.  Recently, dozens of residents near the San Clemente Dam protested the use of a local roadway as the key access point for large trucks and other heavy equipment in connection with the $83 million project. Dam removal has been delayed by a month.

Is this a harbinger for how Hetch Hetchy removal would proceed?  I wouldn’t be surprised.  The Hetch Hetchy is a larger system, with estimates of $1-10 billion for its removal.  The San Francisco Public Utilities Commission has presented a series of facts to rebut some of the aspects to appear in the November ballot measure to study removal of the Hetch Hetchy reservoir.  Among other things, SFPUC notes that there is no good way to replace the storage capacity of the Hetch Hetchy (bigger than the other 5 drinking water reservoirs in the San Francisco Bay supply system combined) or the 500 MW of power from the O’Shaughnessy Dam.  Plus, the idea has been studied many times before in the past 20 years.  Furthermore, the cost would be prohibitive — as much as $700 to $2800 more per year for the average customer.  Sounds to me like a bad idea…

Plus, we have this example from Monterey that even when being removed, people find new ways to protest the dam/reservoir in question.  What a headache.  If it ain’t broke, don’t fix it?

same bat topic, same bat place

Why not continue one’s train of thought from previous posts?  Speaking of water in New York City, this article in the New York Times amused me for what it did not discuss.  As I’ve mentioned before, there’s a ballot measure in the city of San Francisco this November to spend $8 million to study whether the Bay Area’s main water source, the Hetch Hetchy reservoir, could be feasibly drained and dismantled.  I think the title of my previous post expresses my opinion on that topic.  There are many who agree with me, namely the mayor of San Francisco as well as many Bay Area business groups.  What’s funny about the New York Times reporting on this issue is that New York City could just as easily have been in a similar boat itself.

New York’s water supply comes from the Catskills, some 163 miles away.  The Pepacton Reservoir supplies the city with 25% of its water supply, and it displaced 974 people in four towns.  The outrage!  In fact, most reservoirs acquired by New York City around 100 years ago involved city representatives buying out local families and towns, then filling their quiet valleys with water to be stored for New York.  It was contentious, not surprisingly, but no one is begging the city to remove any reservoir to restore the small towns and quiet valleys to their previous state.  Contrast that with Owens Lake in southern California, which people are still mad about, and the Hetch Hetchy Reservoir in northern California, and you have to wonder, why isn’t there more water conflict in New York?

I think there are a couple of reasons why.  One is that these were not originally protected environments.  In fact, state-owned Forest Preserve land could not, under the state constitution, be sold to any other party, so the privately owned land in the Catskills was targeted by the city.  Another is that these are not remote areas today.  There are towns along the shorelines of many New York City reservoirs, many of which were relocated from now-flooded property.  Third, people don’t tend re-fight battles won by progress, at least in the US.  If a block of houses is demolished to build a mall, local citizens don’t tend to camp outside the mall for the houses to be rebuilt.  We seem to have a special blind spot for people displaced by progress.

But not the environment, which I think is interesting.  Scientifically speaking, we’re actually really bad at environmental restoration.  We’re good at spending money on it, but bad at even knowing if it’s working.  (This comment comes from research articles I’ve read about river restoration efforts in particular.)  So we have to balance the restoration effort against its likelihood of success as well as its cost.  The cultural difference between New Yorkers and Californians, though, is a big contributor in these water debates: I find that Californian environmentalists, especially from the San Francisco area, are very impractical about the infrastructure necessary for their lifestyles.  Full-on environmental restoration comes way before any consideration of cost or likelihood of success or alternative strategies.  So if we’re placing bets on cities likely to be viable 100 years from now, I guess I’d put money on New York over San Francisco.

San Francisco shoots itself in the foot

Recently, the idea of draining the Hetch Hetchy reservoir in the backcountry of Yosemite National Park has gotten some attention.  It all started with a Republican state representative who wanted to call out the liberals in San Francisco on their environmentalist hypocrisy — don’t judge the Central Valley farmers when your water is just as unsustainable.  Well, now the “drain Hetch Hetchy” movement has gotten enough signatures on their petition to put the issue on the ballot in San Francisco.


Where will San Francisco get its water from, if not from there?  The Bay Area is not sitting on a large reservoir of freshwater, and in fact the closest freshwater source, the Sacramento-San Joaquin Delta, is overallocated due to shipments to Central Valley farmers and Southern California.  Every city needs freshwater, and as I noted before, many major cities in the US depend on distant pristine sources.  To be honest, the environmental damage has already been done to the remote valley of Yosemite.  Draining and removing the dam would require more environmental damage than doing nothing, because you would need to bring in heavy equipment to do the dirty work.

My general sense is that Bay Area environmentalists, especially from San Francisco, lack practicality.  We cannot have the city of San Francisco if we dismantle its water supply.  We as a society apparently value some level of alteration to a pristine Sierra Nevada valley less than we value the existence of the city.  I think that’s an ok tradeoff!   San Franciscans pride themselves on their environmentalism, but they have twice rejected plans for a state-of-the-art water recycling facility in the city, which would increase its water sustainability substantially.  I would argue that the water recycling plant is where effort should be focused, not on a lost cause to restore a distant valley.