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.

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more than physics

People talk about water scarcity like it’s a physics problem: why don’t we tow icebergs from Alaska to alleviate the southwest’s water issues?  what about pumping water from the Great Lakes across the Rockies?  Sometimes that sort of grand thinking works, like the diversion of California’s water resources from the upper Sierra Nevada mountains southward to the Central Valley and Southern California.  But that’s only part of the equation.  One reason that California’s State Water Project and Central Valley Project are successful is that the source is virtually pristine snowmelt.  Move clean water from an area of relative abundance to an area of relative scarcity, add in a comment about humans adapting the environment to their needs, and voila, problem solved!

In my last post, I remarked on China’s limited water resources and their lack of wastewater treatment.  Well, not surprisingly, the Chinese government is trying their darndest to move water around to alleviate chronic water scarcity in the north (think Beijing) with relative abundant water from parts south (think the Yangtze River).  They’re apparently getting close on parts of this great diversion – the Danjiangkou Reservoir should be sending water northward next year.  The physics problem has been solved for a mere $81 billion!  Good job.

One small problem: the water to be transported is currently not fit for drinking.

A water pollution plan issued by the State Council, or China’s cabinet requires that the water quality for all five rivers that flow into the Danjiangkou meet a “grade III” standard by 2015.  But four of those rivers are now rated “grade V,” deemed for “agricultural use only” and the fifth river is considered “grade IV,” for “industrial use only,” reports China’s state-run news agency Xinhua.  “The target is very unlikely to be met as many pollution control projects lag behind schedule due to a fund shortage,” said Cheng Jiagang, vice mayor of Shiyan in Hubei province.

Oh.  What kind of fund shortage, when you just spent $81 billion on construction??

I’ve remarked previously on the lack of fame associated with building brand new shiny underground water infrastructure, and this appears to be a similar problem.  According to the above article, the local government needs about $500 million (just a fraction of that $81 billion price tag!) to build a wastewater treatment plant with nearly 700 miles of sewer pipelines.  So far, they’ve shuttered “329 factories in the last few years, but that has cut revenues by $130 million annually”.

Well, I hope they can find the money.  Until then…good luck to those intending to rely upon the diverted water.  Physics ain’t everything, folks.

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…

Cadiz project refuses to die

The Cadiz project to extract groundwater from the Mojave desert was just approved the other night to move forward, environmental impact statement complete.  They’ve used some loopholes to get non-traditional agencies to approve their environmental impact assessment, building along a railroad right-of-way for example, and partnering with a water agency in Orange County, roughly 200 miles away, as the project lead.

I read through a lot of their Environmental Impact Report (EIR), the comments by various agencies, and Cadiz responses.  Whenever possible, the project team’s response has been to throw paper at the problem, without really saying anything new.  The Final EIR is some 1700 pages!  One example of the project’s low quality assessment is their analysis of desert springs likely to be affected by the groundwater pumping.  The project asserted that no springs would be affected by the pumping for some semi-legit scientific reasoning.  Then they went out to survey the local springs.  Once.  At the end of the long dry season, before the rainy season began, in November.  What a surprise, they didn’t find any significant springs!  Thorough analysis requires at least multiple trips at different times of year, with the least weight given to surveys done in the very driest part of the year!  They also have provided no — zero — water quality data to show that the groundwater they extract will be drinkable at all.  As a water chemist, this seems like a major oversight to me, especially because it was the water chemistry that played a major role in killing the project 10 years ago…

No matter, the Santa Margarita Water District has approved the project and hungrily awaits its 5,000 acre-feet per year to be delivered from 200 miles away.  What’s that?  How will the water get to the Santa Margarita Water District?  Oh, of course, by using the Metropolitan Water District’s (MWD’s) Colorado River Aqueduct.  Though this sounds efficient and reasonable, did anyone check with MWD, the largest consolidated player in Southern California’s water market?  MWD rejected nearly this same plan just 10 years ago due to environmental concerns and potentially contaminated groundwater.  I was planning to write an Op-Ed for the LA Times or somewhere similar to highlight the comments that MWD made on the EIR, but I’m happy to say that an LA Times reporter beat me to the punch.  The main issue, besides the potential for naturally occurring arsenic and chromium to enter the SoCal water supply, is this:

Metropolitan has also informed Cadiz that the aqueduct space the company is counting on may not always be available, especially during dry years when demand for the Cadiz water would likely be the greatest.

…But Kightlinger said Metropolitan has spent the past decade developing supplementary programs, such as acquiring irrigation water and holding supplies in Lake Mead, that could fill the aqueduct in dry years.

“We would pull [the Mead water] and say there is no wheeling capacity available. We’ve filled up our aqueduct,” Kightlinger said. “That’s just something they need to understand.”

Oops.  Cadiz has been asserting that the aqueduct doesn’t run full — I read the MWD annual reports from the past couple of years, and turns out, MWD has been using nearly the full capacity of that aqueduct.  I guess I would trust the aqueduct’s operator over a third party that doesn’t really believe in science!

One final note is about finances, which I read about on a message board and therefore cannot verify.  Apparently the Cadiz group (CDZI) has a bond due next year, and not enough assets to pay it off, though they do have an inflated stock price.  It is in their interest to look like the project will go forward, so they can dump their stock at a high price to meet their bond call.  I have to wonder if this whole thing has been a show all along…

Bottom line, good luck with extracting all that groundwater in Mojave.  Cuz you’ll be trucking it to Orange County at this rate.