News and Events

Letter To City Hall

United States: Environment 2012: Water Issues

Benne Hutson, John M. Lain, Dana P. Palmer and David E. Evans
Mondaq Business Briefing
January 23, 2012

With drought conditions threatening half the country and the clamor for stricter limits on more and more pollutants, water law issues will take center stage in 2012. Courts, EPA, state agencies, environmental groups and individual citizens will face new and difficult questions involving stormwater, nutrients, wetlands and water rights, questions that the election year will make only more political and divisive.

In the second of its series addressing this year's major environmental issues, the McGuireWoods environmental team identifies the following water issues to follow in 2012:
Read More.

City Council Rate Payer advocate awaiting mayor's approval.

Rate payer advocate announced.

Water Use Efficieny and Jobs
by Patrick Burns and Daniel Flaming, Economic Roundtable
Dec., 2011, 126 pages in PDF:

Water Use Efficiency refers to the suite of activities that make our use of water more efficient, including using recycled water, capturing and reusing stormwater (also known as rainwater harvesting), cleaning-up and remediating groundwater, and conserving water, including graywater.

Press Release

Los Angeles, Calif. (December 6, 2011) ? Public investments in water conservation and water efficiency stimulate economic activity that is twice as great as the initial investment. One person-year of employment is created for each $72,400 that is invested.

The Economic Roundtable studied over $1.2 billion of investments in recent water-use-efficiency projects in the Los Angeles area ? including a sample of 53 recent local stormwater, water conservation, graywater, recycled water, groundwater management and remediation projects ? to find how they affect the local economy. The results were released today in a new report, Water Use Efficiency and Jobs.

The ratio of jobs stimulated for every $1million invested is comparable to energy efficiency retrofitting, and higher than many traditional Los Angeles industries such as motion picture production and new home construction.

Paula Daniels, Mayor Villaraigosa’s senior advisor on food and water policy, said “This study shows that investment in local water use efficiency projects is as important for the local economy as it is for water quality.”

Los Angeles is the most populous region of California, with average daily water use of 135 gallons per person ? 49,275 gallons per person annually. Population growth and demands from other regions for an increasing share of the water that has traditionally come to Los Angeles is making it increasingly difficult and expensive for Los Angeles to import enough water to meet local demand.

Periodic droughts and the high costs of importing water from the Sacramento Delta and Colorado River Basin make the need to achieve greater water use efficiency even more urgent.

“More investment in LA County can help local businesses grow and build competitive strength in water conservation, ground water treatment or recharge, and water recycling services and technologies,” according to Gil Crozes, vice president of Carollo Engineers.

Mark Gold, president of Heal the Bay, said, “This study demonstrates that investment in green water jobs provides major economic benefits. This finding should remove all barriers to increased investments in conservation, recycling and rainwater capture ? all of which would greatly augment local, reliable water supplies while improving water quality.”

The study investigated the jobs that investments in water use efficiency open up for local workers. For every $1 million dollars invested, 12.6 to 16.6 annualized jobs are created, depending on the type of project. These local jobs impacts are comparable to those stimulated through energy efficiency retrofits of commercial buildings (13.6 per $1 million), and higher than construction of new housing (11.3 per $1 million) and motion picture production (8.3 per $1 million).

According to Patrick Burns, senior researcher at the Economic Roundtable, “locating new water sources is difficult. Los Angeles needs to use the water it has more efficiently, and a dividend from doing this is that we will open doors for job seekers, including young adults eager to gain skills in the emerging field of water use efficiency.”

Findings from the Economic Roundtable’s study indicate that there are much greater local benefits from investing in local water use efficiency projects than from equivalent investments in massive statewide projects. Local investments not only produce large multiplier effects in the local economy where water users live and work, but also by encouraging conservation of this increasingly scarce resource.

“The strong local multiplier effects of water use efficiency investments are further reason for increasing local investments in water recycling and other water efficiency projects, as well as for supporting state bond measures that can leverage our local funding,” stated Sharon Green, Legislative & Regulatory Liaison at the Sanitation Districts of Los Angeles County.

Gregory Irish, executive director of Los Angeles’ Workforce Investment Board (WIB), sees a role for local government to facilitate employment opportunities. “The City can work with the community college district to establish targeted workforce training and uniform certification programs for emerging occupations in water use efficiency.”

Report Outline

Executive Summary

LA‘s Water Supply and Users
Identifying Industries that Make up the LA Water Sector
Industry Analysis
Jobs and Occupations in the Water Sector
Case Studies of Water Use Efficiency Projects in LA

• Stormwater
• Recycled Water
• Water Conservation
• Groundwater / Remediation
• Graywater Systems Installation
• Location of Investments
• Policy Recommendations

The report also includes extensive data appendices, including definitions of industries in the water sector, definitions of O*NET skills for occupations, a contributors list for water efficiency projects used in the report, and additional information about graywater systems for residential dwelling units.

Desertification: The next dust bowl

Drought is the most pressing problem caused by climate change. It receives too little attention

By Joseph Romm

Which impact of anthropogenic global warming will harm the most people in the coming decades? I believe that the answer is extended or permanent drought over large parts of currently habitable or arable land - a drastic change in climate that will threaten food security and may be irreversible over centuries.

A basic prediction of climate science is that many parts of the world will experience longer and deeper droughts, thanks to the synergistic effects of drying, warming and the melting of snow and ice.

Precipitation patterns are expected to shift, expanding the dry subtropics. What precipitation there is will probably come in extreme deluges, resulting in runoff rather than drought alleviation. Warming causes greater evaporation and, once the ground is dry, the Sun's energy goes into baking the soil, leading to a further increase in air temperature. That is why, for instance, so many temperature records were set for the United States in the 1930s Dust Bowl; and why, in 2011, drought-stricken Texas saw the hottest summer ever recorded for a US state. Finally, many regions are expected to see earlier snowmelt, so less water will be stored on mountain tops for the summer dry season. Added to natural climatic variation, such as the El Niño-La Niña cycle, these factors will intensify seasonal or decade-long droughts. Although the models don't all agree on the specifics, the overall drying trends are clear.

I used to call the confluence of these processes 'desertification' on my blog, ClimateProgress.org, until some readers pointed out that many deserts are high in biodiversity, which isn't where we're heading. 'Dust-bowlification' is perhaps a more accurate and vivid term, particularly for Americans - many of whom still believe that climate change will only affect far-away places in far-distant times. Prolonged drought will strike around the globe, but it is surprising to many that it would hit the US heartland so strongly and so soon.

The coming droughts ought to be a major driver - if not the major driver - of climate policies. Yet few policy-makers and journalists seem to be aware of dust-bowlification and its potentially devastating impact on food security. That's partly understandable, because much of the key research cited in this article post-dates the 2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC). Raising public awareness of, and scientific focus on, the likelihood of severe effects of drought is the first step in prompting action.

American nightmare

I first heard of the risks in a 2005 talk by climatologist Jonathan Overpeck of the University of Arizona in Tucson. He pointed to emerging evidence that temperature and annual precipitation were heading in opposite directions over many regions and raised the question of whether we are at the "dawn of the super-interglacial drought".

The idea wasn't new. As far back as 1990, scientists at NASA's Goddard Institute for Space Studies in New York projected that severe to extreme drought in the United States, then occurring every 20 years or so, could become an every-other-year phenomenon by mid-century (1).

Events are starting to bear out these worrying predictions. Snowpack reduction, early snowmelt and a decrease in dry-season river flow in the American West, forecast more than two decades ago, have now been measured (2). In much of the northern Rockies, the peak of the annual stream runoff is up to three or four weeks earlier than it was half a century ago (3). Heat and drought - coupled with the greater impact of destructive species, such as bark beetles, aided by warming - have increased forest die-off and the risk of wildfire.

The palaeoclimate record dating back to the medieval period reveals droughts lasting many decades. But the extreme droughts that the United States faces this century will be far hotter than the worst of those: recent decades have been warmer than the driest decade of the worst drought in the past 1,200 years (4).

And much warmer conditions are projected. According to a 2009 report of the US Global Change Research Program (5), warming over mid-latitude land masses, such as the continental United States, is predicted to be higher than the forecast average global warming: much of the inland United States faces a rise of between 5 °C and 6 °C on the current emissions path (that is, 'business as usual') by the century's end, with a substantial fraction of that warming occurring by mid-century.

A 2007 analysis of 19 climate projections estimated that levels of aridity comparable to those in the Dust Bowl could stretch from Kansas to California by mid-century (6). To make matters worse, the regions at risk of reduced water supply, such as Nevada, have seen a massive population boom in the past decade. Overuse of water in these areas has long been rife, depleting groundwater stores.

Of course, the United States is not alone in facing such problems. Since 1950, the global percentage of dry areas has increased by about 1.74% of global land area per decade (7). Recent studies have projected 'extreme drought' conditions by mid-century over some of the most populated areas on Earth - southern Europe, south-east Asia, Brazil, the US Southwest, and large parts of Australia and Africa (8). These dust-bowl conditions are projected to worsen for many decades and be "largely irreversible for 1,000 years after emissions stopped" (9).

The concept of drought has not been ignored by the IPCC and other scientific groups; there is even a United Nations Convention to Combat Desertification. But the cumulative risks don't seem to have been fully recognized by the public and by policy-makers. And key questions remain to be answered, ideally in a dedicated report by an organization such as the US National Academy of Sciences or the IPCC.

Unanswered questions

Most pressingly, what will happen to global food security if dust-bowl conditions become the norm for both food-importing and food-exporting countries? Extreme, widespread droughts will be happening at the same time as sea level rise and salt-water intrusion threaten some of the richest agricultural deltas in the world, such as those of the Nile and the Ganges. Meanwhile, ocean acidification, warming and overfishing may severely deplete the food available from the sea.

What are the implications of dust-bowlification for energy generation? After agriculture, energy generation is responsible for the majority of freshwater withdrawals, and two key strategies for generating additional potable water - wastewater purification and desalinization - are both energy intensive. Future energy systems will need to be low on greenhouse-gas emissions and on water use. In particular, thermal power plants - including nuclear - may need to switch from evaporative or 'wet cooling' systems to dry cooling techniques, which, unfortunately, tend to be less efficient.

From an ecological perspective, what will be the effects of dust-bowlification on the global carbon cycle? In the past six years, the Amazon has seen two droughts of the sort expected once in 100 years, each of which may have released as much carbon dioxide from vegetation die-off as the United States emits from fossil-fuel combustion in a year. More frequent wildfires also threaten to increase carbon emissions. And as habitats are made untenable, what will be the effect on biodiversity?

At the same time, drought models need to be improved. They successfully chart the hydrological changes seen in the US Southwest and the drying seen at the global level (7), but regional predictions can be disturbingly variable. Some models forecast an increase in precipitation for East Africa, whereas others correctly predicted in 2010 that warming of the Indian Ocean would lead to drought in the region, such as this year's devastating drought in Somalia. The models need higher resolution and a better understanding of precipitation, sea surface temperature and the effects of vegetation.

Human adaptation to prolonged, extreme drought is difficult or impossible. Historically, the primary adaptation to dust-bowlification has been abandonment; the very word 'desert' comes from the Latin desertum for 'an abandoned place'. During the relatively short-lived US Dust-Bowl era, hundreds of thousands of families fled the region. We need to plan how the world will deal with drought-spurred migrations (see page 447) and steadily growing areas of non-arable land in the heart of densely populated countries and global bread-baskets. Feeding some 9 billion people by mid-century in the face of a rapidly worsening climate may well be the greatest challenge the human race has ever faced.

These predictions are not worst-case scenarios: they assume business-as-usual greenhouse-gas emissions. We can hope that the models are too pessimistic, but some changes, such as the expansion of the subtropics, already seem to be occurring faster than models have projected (10). We clearly need to pursue the most aggressive greenhouse-gas mitigation policies promptly, and put dust-bowlification atop the world agenda.

References

1. Rind, D. et al. J. Geophys. Res. 95, 9983-10004 (1990).
2. Barnett, T. P. Science 319, 1080-1083 (2008).
3. Stewart, I. T. et al. J. Climate 18, 1136-1154 (2005).
4. Woodhouse, C. A. et al. Proc. Natl Acad. Sci. USA 107, 21283-21288 (2010).
5. Global Climate Change Impacts in the U.S. (USGCRP/Cambridge Univ. Press, 2009).
6. Seager, R. et al. Science 316, 1181-1184 (2007).
7. Dai, A. J. Geophys. Res. 116, D12115 (2011).
8. Dai, A. Climate Change 2, 45-65 (2011).
9. Solomon, S. et al. Proc. Natl Acad. Sci. USA 106, 1704-1709 (2009).
10. Seidel, D. J. et al. Nature Geosci. 1, 21-24 (2008).

L.A. County responsible for polluted runoff that flows into sea, appellate panel rules

Flood control district said its channels and storm drains were just conduits for upstream polluters. The federal judges side with plaintiffs regarding the L.A. and San Gabriel rivers, but not Malibu Creek and the Santa Clara River.

By Tony Barboza, Los Angeles Times, March 11, 2011

In a victory for environmental groups, a federal appeals court panel has found Los Angeles County and the county flood control district responsible for discharging polluted storm runoff that flows down the Los Angeles and San Gabriel rivers to the Pacific Ocean.

An opinion Thursday by the 9th Circuit Court of Appeals sided with the Natural Resources Defense Council and Santa Monica Baykeeper, which argued that the county should be liable for allowing billions of gallons of heavily polluted stormwater to flow untreated each year into the region's rivers and eventually to the ocean, where it can sicken swimmers and surfers.

"This is a huge win and a turning point for clean water and public health in Southern California," said council attorney Aaron Colangelo. "The county is now on the hook to clean up this pollution problem, which they acknowledge causes human illness, beach pollution and undermines the regional economy."

The Los Angeles County Flood Control District, which oversees thousands of miles of storm drains and flood channels in the region, contends that it is not to blame for polluted storm runoff because its infrastructure does not generate or discharge pollutants.

But in a 36-page opinion for the three-judge panel, Judge Milan D. Smith Jr. concluded that it did not matter if the agency was the root cause of the pollution because the district still controlled its flow toward the ocean.

The environmental groups sued the county in 2008 in an effort to get the agency to treat or divert the runoff that is swept into and carries bacteria, heavy metals, pesticides and fertilizer to the sea. Water quality experts have identified storm runoff as the top source of water pollution at Southern California beaches.

The decision reverses part of a lower court's ruling last year that sided with the county. But it also said environmental groups had failed to show that the county was responsible for pollutants flowing down two other waterways: Malibu Creek and the Santa Clara River.

In a statement, county Assistant Public Works Director Mark Pestrella said that "we do not agree with the technical merits of the court's ruling on the Los Angeles and San Gabriel rivers" and that the county plans to petition the decision.

The flood control district has argued that its channels and storm drains are merely conduits for upstream polluters and has identified thousands of industrial sites and dozens of cities as sources of the contamination.

In one exchange cited in the opinion, the county claimed it could not be held responsible for dirty runoff even if it were so polluted with oil and grease that it caught fire.

Both sides have agreed that water quality regularly exceeds pollution limits in the region's rivers and in Santa Monica Bay and that it needs to be improved.

Tony Barboza

Celebrating WORLD WATER DAY WITH A VIDEO

Glenn Cornell Environmental Science Water Term Paper Notes

Glenn Cornell Environmental Science Water Term Paper Note (doc)

Glenen Cornell Environmental Science Water Term Papar Appendix (doc)

Glenn Cornell Environmental Science Water Term Paper bibliography (doc)

California’s Direct Potable Reuse Initiative (PDF)

L.A. County responsible for polluted runoff that flows into sea, appellate panel rules

Flood control district said its channels and storm drains were just conduits for upstream polluters. The federal judges side with plaintiffs regarding the L.A. and San Gabriel rivers, but not Malibu Creek and the Santa Clara River.

By Tony Barboza, Los Angeles Times, March 11, 2011

In a victory for environmental groups, a federal appeals court panel has found Los Angeles County and the county flood control district responsible for discharging polluted storm runoff that flows down the Los Angeles and San Gabriel rivers to the Pacific Ocean.

An opinion Thursday by the 9th Circuit Court of Appeals sided with the Natural Resources Defense Council and Santa Monica Baykeeper, which argued that the county should be liable for allowing billions of gallons of heavily polluted stormwater to flow untreated each year into the region's rivers and eventually to the ocean, where it can sicken swimmers and surfers.

"This is a huge win and a turning point for clean water and public health in Southern California," said council attorney Aaron Colangelo. "The county is now on the hook to clean up this pollution problem, which they acknowledge causes human illness, beach pollution and undermines the regional economy."

The Los Angeles County Flood Control District, which oversees thousands of miles of storm drains and flood channels in the region, contends that it is not to blame for polluted storm runoff because its infrastructure does not generate or discharge pollutants.

But in a 36-page opinion for the three-judge panel, Judge Milan D. Smith Jr. concluded that it did not matter if the agency was the root cause of the pollution because the district still controlled its flow toward the ocean.

The environmental groups sued the county in 2008 in an effort to get the agency to treat or divert the runoff that is swept into and carries bacteria, heavy metals, pesticides and fertilizer to the sea. Water quality experts have identified storm runoff as the top source of water pollution at Southern California beaches.

The decision reverses part of a lower court's ruling last year that sided with the county. But it also said environmental groups had failed to show that the county was responsible for pollutants flowing down two other waterways: Malibu Creek and the Santa Clara River.

In a statement, county Assistant Public Works Director Mark Pestrella said that "we do not agree with the technical merits of the court's ruling on the Los Angeles and San Gabriel rivers" and that the county plans to petition the decision.

The flood control district has argued that its channels and storm drains are merely conduits for upstream polluters and has identified thousands of industrial sites and dozens of cities as sources of the contamination.

In one exchange cited in the opinion, the county claimed it could not be held responsible for dirty runoff even if it were so polluted with oil and grease that it caught fire.

Both sides have agreed that water quality regularly exceeds pollution limits in the region's rivers and in Santa Monica Bay and that it needs to be improved.

tony.barboza@latimes.com

A MEMBER AGENCY TURNS ON THE METROPOLITAN WATER DISTRICT

Seven years after the Metropolitan Water District of Southern California (MWD) developed a new regional pricing system (which became effective in 2003), the San Diego County Water Authority (SDCWA) is challenging the rate structure and the allocation of costs applied to water the SCDWA imported through the MWD system.

The MWD passes on these major costs to the agencies that purchase its water:

1. Cost of securing the water supplies (called the "water supply rate")
2. Cost of maintaining the system's ability to convey and distribute water ("system access rate")
3. Cost of power to transport water ("system power rte")
4. Cost to treat the water.
5. Cost of incentives for end-users to conserve and recycle water (this is called the "water stewardship fee")

The rate structure is "unbundled," which means that MWD tracks all of the costs separately, charging for services and water used. For example, since the SDCWA has it sown water-treatment facilities, MWD delivers mostly untreated water to SDCWA and does not apply treatment fees.

SDCWA began purchasing water annually from the Imperial Irrigation District (IID) rather than rely only on MWD supplies. This IID water costs more than MWD water. SDCWA has had to move the IID water through MWD's facilities because there is no other way to transport the water.

MWD agreed to accommodate SDCWA's request to move the water through its facilities - but has been charging for system maintenance, pumping, and conservation incentives - three of the five costs. SDCWA claims that MWD is also charging for the actual water it purchased from IID but disguising it as a maintenance cost. In other words, SDCWA claims that is is paying the same fees as other MWD users (less the treatment fees) - but for its own water that it bought from IID.

SDCWA's claims that it should pay only for system maintenance and pumping . MWD asserts that any water moved through its system should have the water stewardship fee attached because conservation is so vital at a time of climate change and population growth. The author of this summary could not find an MWD statement about whether water-supply costs are hidden in the system-maintenance costs.

The arguments presented in the lawsuit and the final ruling will be of great interest to those of us watching water issues in the Southland.

Stephenie J. Frederick
Angeles Chapter Water Conservation Committee

WETLANDS: Regulation haters join chorus urging new Clean Water Act rules (02/17/2011)

Paul Quinlan, E&E reporter

Environmentalists and Washington lobbyists for agriculture, mining, homebuilding, road building, electric utilities and manufacturing industries have found something to agree on. It's time, they say, for the Obama administration to write new Clean Water Act regulation. Both camps say the rulemaking could settle a long-stalled legal argument over what wetlands qualify for federal regulatory oversight. Battles over the issue have intensified in recent years as permitting of wetland projects and enforcement of alleged permit allegations have been bogged down in a legal quagmire created by the Supreme Court's confusing ruling in a major 2006 wetlands case, Rapanos v. United States.

The heart of the dispute is what constitutes "navigable waters" -- where the 1972 Clean Water Act says the government can regulate discharges. The Supreme Court split on how to define federal jurisdiction, leaving regulators, landowners, farmers, developers and conservationists scratching their heads and fighting over technical questions about hydrology, geology, water chemistry and soil science. Developers and farm interests say the technical confusion makes it difficult and very expensive to get federal permits for work that affects wetlands. "It's unfair to landowners in a way that disadvantages them and gives the agency power and authority over economic decisions," said Don Parrish, the American Farm Bureau Federation's senior director of regulatory relations. Environmentalists are also frustrated and say that wetlands -- which are supposed to be protected as scrubbers for water pollution, wildlife habitat and sponges for stormwater -- are going unprotected. They're awaiting the release of a Clean Water Act guidance -- a document from the Obama White House reinterpreting what the Supreme Court and the George W. Bush administration have said about wetlands regulation. The White House announced on Dec. 20 that it was reviewing the guidance prepared by U.S. EPA. It could be released in coming weeks.

The Obama guidance would replace one prepared by the Bush administration in 2007 and perhaps, advocates say, allow time -- perhaps as much as two years -- for the writing of a new rule on wetland regulations. Environmentalists who contend the 2007 Bush guidance was heavily influenced by development interests are eager for a do-over by President Obama.

"We are asking for rulemaking; we are also supportive of guidance as a first step," said Jan Goldman-Carter, the water resources counsel of the National Wildlife Federation. "We just feel that the guidance needs to be secured and reinforced by a rule." The White House Office of Management has been hearing calls for a rulemaking in the past several weeks. OMB has been visited by lobbyists from both camps -- six from environmental and conservation groups and 21 from industry groups -- asking for action on wetlands.

"Our message was, we didn't think guidance on top of guidance was the right approach," said Parrish, who discussed wetlands in a Jan. 11 visit to OMB. He added that two Supreme Court justices -- the conservative Chief Justice John Roberts and liberal Justice Stephen Breyer -- have both called for rulemaking.

Rulemaking is complicated

But despite the rare consensus on rulemaking, the Obama administration will find writing a new rule is likely to be messy and politically bruising. Rulemaking could open the administration up to charges of hypocrisy, given Obama's pledge to reduce regulation and his efforts to woo the business community. The administration and its Democratic allies on Capitol Hill are already battling Republican efforts to hamstring U.S. EPA's regulatory power. And the effort would overlap with the launch of Obama's re-election campaign, which would add political fuel to inevitable arguments over cost-benefit analyses, technical discussions and public hearings that are part of any rulemaking.

Environmental interests say rulemaking in the Obama administration has a good chance of going their way. They felt otherwise in 2002, when they forced the Bush administration to abandon its plan to write a rule clarifying the Clean Water Act's jurisdiction.

While industry doesn't see the Obama administration as friendly to its interests, trade group representatives see some advantages to working on a rule with Republicans in charge of the House and Congress, overall, concerned about the health of the nation's economy.

"If you kind of drag them through a rulemaking, everybody gets their say, and then it's final, so it's done," said Glynn Rountree, environmental policy analyst for the National Association of Home Builders, which was among industry groups that lobbied the administration on Jan. 11.

EPA has declined to say whether rulemaking will follow the release of the new wetland guidance. "At this time, our focus is on the Clean Water Act Guidance document that is currently at OMB for review," EPA said in a prepared statement. "We are committed to a transparent process for developing this guidance that includes the opportunity for public review and comment, and intend to release the draft packages for comment as soon as possible."

House Republicans have attempted to halt EPA's effort to produce either guidance or rulemaking on the Clean Water Act by proposing to cut off funding for both efforts in a spending plan (Greenwire, Feb. 14). Parrish said the Farm Bureau supports the Republican plan as a needed "timeout" and a block to the guidance. "We still believe very strongly that a rulemaking is the proper approach here," he said. "We know for sure that guidance is the wrong way to go."

'Significant nexus'

At issue in the effort to determine what constitutes a discharge into "navigable waters" is the test devised by Justice Anthony Kennedy, the swing vote in the Supreme Court's Rapanos decision. Kennedy wrote that regulators must determine where there's a "significant nexus" between a wetland and navigable waters. His definition of that nexus is where wetlands "significantly affect the chemical, physical, and biological integrity of other covered waters."

Environmentalists and allies in Congress have attempted to clarify the Clean Water Act by amending the law to delete the word "navigable." But those efforts have repeatedly failed on Capitol Hill, leaving only regulatory solutions in the short run.

Maryland Democrat Ben Cardin is considering whether to take up that matter in Senate legislation. "That would be the preferable fix," said Jim Murphy, an attorney with the National Wildlife Federation. "But the political landscape is what the political landscape is, so I think EPA and the [Army Corps of Engineers] are dealing with that reality."

Kennedy's nexus test became the basis of a guidance from George W. Bush's EPA and Army Corps in 2007 that said the law should apply to navigable waterways, "adjacent" wetlands and tributaries of navigable waterways that flow at least three months a year.

The guidance also applied the law to wetlands that "directly abut" tributaries. Decisions about other areas should be "based on a fact-specific analysis" to determine whether a significant nexus exists, according to the guidance.

Environmental advocates want regulatory wetland determinations to be based on "aggregation," in which a decision about whether a wetland deserves protection would be based on whether the same decision, when applied to similar wetlands across a watershed, would affect the navigable waterway.

"If you have to prove that one little tributary is affecting the physical, chemical or biological nature of the Mississippi River, that's kind of hard to do," said Joan Mulhern, senior legislative counsel for Earthjustice. "The big regulatory environmental issue was whether you could look holistically at waters in a watershed to determine whether there was a significant nexus."

EPA estimates that the jurisdictional confusion has been a factor in hundreds of Clean Water Act investigations, including more than half of its enforcement docket in 2007. From a peak in the late 1990s, enforcement of the law has plunged by nearly 60 percent, as measured by both the number of cases EPA has initiated and the number of convictions the agency has obtained.

"The current guidance often requires time-consuming case-by-case determinations of Clean Water Act jurisdiction," EPA said in a statement. "This has delayed permits and has redirected taxpayer money from protecting the environment to answering jurisdictional questions that determine whether water resources can be protected under the Clean Water Act."

Lawsuit target

New regulation would almost surely ease EPA's burden, said Jonathan Adler, director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law and an opponent to broad interpretations of the Clean Water Act.

"Under a new regulation, you could have a situation where the agency presumes that significant nexus is there," Adler said. "Guidance forces them to engage in a much more detailed proof."

The expenses of disproving that a nexus exists has been equally frustrating to landowners and businesses on the opposite side of these disputes, said Rountree of the homebuilders' trade group.

"The problem is, you've got to do a hell of a lot of research to show if you have a significant nexus," he said. "You've got to do this long, expensive project to figure this out before you do anything else. It makes the whole project much longer in time span and also more involved up front." However unpalatable the Obama rulemaking may be to industry groups, the regulation would make an easy target for lawsuits, Adler said, whereas a guidance can only be challenged in individual cases where it's applied. "If the Obama administration is going to assert excessive authority, the industry would rather have that embodied in a clear, final action under a rule," Adler said, "because if the industry wanted to challenge the administration, they would have this final act to challenge."

Environmentalists say that despite the substantial political and legal hurdles, the payoff of a strong regulation makes rulemaking a significantly better gambit than new guidance.

"It can't be as powerful in its ultimate ability to protect waters as a rulemaking can," the National Wildlife Federation's Murphy said. "We're hopeful for strong guidance followed by a rulemaking. It's the fix that's needed."

DELTA STEWARDSHIP COUNCIL AND ITS DELTA PLAN

The 2009 Delta Reform Act (SB7X 1; Water Code secs. 85000 et seq.) established the Delta Stewardship Council as an independent state agency. (The "independence" presumably means that the Council is not part of the Natural Resources Agency, and it is not subject to direction or control by the Brown Administration.) The Council consists of four members appointed by the Governor and confirmed by the Senate, one member appointed by the Senate Rules Committee, one by the Assembly Speaker, and the chair of the Delta Protection Commission. See below for the makeup of the Council.

The statute requires the Council to adopt a comprehensive long-term management plan for the Delta that "furthers" the coequal goals of (1) providing a more reliable water supply for California and (2) protecting, restoring and enhancing the Delta ecosystem. The Council is supposed to complete the adoption of this plan, including an EIR, by the end of 2011.

The statute identifies eight objectives that are "inherent" in the coequal goals for management of the Delta. The Council is using these statutory objectives as an organizational framework for the Delta Plan. The objectives are:

1. Manage the Delta's water and environmental resources and the water resources of the state over the long term [i.e., until 2100].
2. Protect and enhance the unique values of the Delta "as an evolving place."
3. Restore the Delta ecosystem, including its fisheries and wildlife.
4. Promote statewide water conservation, water use efficiency, and sustainable water use.
5. Improve water quality to protect health and the environment consistent with achieving water quality objectives in the Delta.
6. Improve the water conveyance system and expand statewide water storage.
7. Reduce risks to people, property, and state interests in the Delta.
8. Establish a new governance structure "with the authority, responsibility, accountability, scientific support, and adequate and secure funding to achieve these objectives."

The Council issued the first staff draft of the Delta Plan on February 14. This draft is mostly a framework for discussion and development. The Council expects to issue new drafts monthly in March, April, and May. The May draft will be circulated with a draft EIR. The Council plans to issue further drafts in September and October, with a final draft in November.

Although the environmental community was sharply divided over the 2009 legislative water package, it is currently working together within the framework of the Environmental Water Caucus to provide comments on the Delta Plan. In January the Sierra Club joined with 29 other organizations in submitting comments to the Council regarding the Delta Plan and the scope of the EIR relating to the plan. These comments are accessible on the Web at http://www.ewccalifornia.org/home/index.php

Sierra Club role. The Sierra Club should be able to support the Council's objective to promote statewide water conservation, water use efficiency, and sustainable water use. The Club will be more wary about how the Council approaches the other objectives. It will be particularly concerned about the Council's proposals to "improve the water conveyance system and expand statewide water storage." The makeup of the Council suggests that it will be far more interested in expanding conveyance and storage than it is in restoring the Delta ecosystem.

The Club will also become deeply involved in whatever legislative or executive action the Council proposes to create a new governance structure that has "the authority, responsibility, accountability, scientific support, and adequate and secure funding" to achieve the statutory objectives."

DELTA STEWARDSHIP COUNCIL'S SEVEN MEMBERS:

[Note: Council members serve for four-year terms, except that two of the Governor's four initial appointees will serve for six-year terms. All of the current members will serve until 2014, unless they resign before that time.

Four appointed by Governor Schwarzenegger and confirmed by Senate--

• Phil Isenberg, Council Chair, Sacramento council member and mayor 1971-82; Assemblymember 1982-96; chair of the Delta Blue Ribbon Vision Task Force 2007-08.
• Felicia Marcus, NRDC western director since 2008; actively involved in CalFed process as EPA regional administrator during Clinton administration.
• Hank Nordhoff, chairman and CEO of Gen-Probe since 1994 (a bio-tech company headquartered in San Diego.
• Randy Fiorini, managing partner of Fiorini Ranch in Turlock since 1975; past president and board member of Association of California Water Agencies and of California Farm Water Coalition.

One appointed by Senate Rules Committee in March 2010--
Patrick Johnston, 20-year member of Legislature from Stockton, now President and CEO of California Association of Health Plans.

One appointed by Assembly Speaker Karen Bass in March 2010--
Gloria Gray, 36-year veteran of L.A. County Departments of Human Services and Health Services, elected member of Board of Directors of West Basin Municipal Water District in southwest L.A. County, a member agency of MWD.

Chair of the Delta Protection Commission--
Don Nottoli, member of Sacramento County Board of Supervisors since 1994.

The Executive Officer of the Delta Stewardship Council staff is Joe Grindstaff, who was the Director of the CALFED Bay-Delta Program in the Schwarzenegger Administration. The Council is financed by funding from flood control and water bond acts that were passed in 2006, so it is to some extent protected from the state's current budget problems.

WHAT DID WE DO WITH ALL THAT RAIN?

Unusually Heavy Precipitation October-December 2010

Despite a strong La Nina condition, the western United States received huge amounts of precipitation from October through December 2010. Only the Pacific Northwest experienced less precipitation than usual. Apparently a feature called a negative Arctic oscillation caused the jet stream to dip to the south, bringing storms to areas that normally would have remained relatively dry under La Nina conditions.

Effects of Increased Precipitation on Reservoirs in California

1. Because of water piling up behind Oroville Dam, the State Water Project has increased its allocations to 50%.
2. On January 7, 2011, Lake Isabella was at 42% of its capacity (it can be filled to only 66% of its capacity because of a weak auxiliary dam). If Lake Isabella receives too much water from its watershed during January and February, reservoir operators will have to send excess water downstream - well before the big agricultural areas need it. Some of this released water will be stored in aquifers and used later for irrigation (but because it must be pumped out, it is more expensive than water flowing by gravity down from Lake Isabella).
   
   An aside: the Kern Water Bank Authority is recharging its aquifer with water from local rainfall, from Lake Isabella, and from the State Water Project. This effort looks admirable, but the nearby Rosedale-Rio Bravo Water Storage District points out that the recent recharge amounts to only 10% of what Kern WBA had pumped out over the last few years. Rosedale-Rio Bravo is accusing Kerm WBA of taking Rosedale-Rio Bravo's underground water (Kern pumped out so much that Rosedale-Rio Bravo's water "migrated" into Kern's aquifer).
3. The operators of several reservoirs east of Fresno have been releasing water into the San Joaquin River and letting it flow to the Delta, because they thought it wise to increase capacity in the reservoirs (in case of heavy precipitation in January and February 2011) and because the Friant-Kern Canal was being repaired (normally excess water would be diverted into the canal). Releasing the water is a gamble. If January and February are dry, a good deal of agricultural irrigation water will have been lost.

Proper Water Storage: Dams vs. Underground Storage

We have been getting huge amounts of precipitation but not capturing as much of it as we should. Peter Gleick of the Pacific Institute believes that we are not using all of the underground storage available to us in California. In fact, we abuse the underground storage potential because we withdraw more than we put back in (e.g., Kern WBA). He points out that dams have brought great benefits and also great disadvantages. If dams are weak (as with Lake Isabella), they cannot be filled to capacity. They lose a great deal of water to evaporation. They fill with sediment. Only a one or two good dam sites remain in California, and there is no money to build dams.

Mr. Gleick believes that we need intentional and coordinated groundwater recharges on every major watershed. He praises the efforts of the Alta Irrigation District on the east side of the San Joaquin Valley, which has been recharging for decades.

To have coordinated, statewide groundwater recharge, we will need to have comprehensive statewide groundwater laws. We must intentionally monitor, measure, and report on all groundwater usage.

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Report targets waste, inefficiency in agricultural water use
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A state expert says small changes in irrigation practices could yield significant water savings.
By Bettina Boxall, Los Angeles Times
January 11 2011

California should more aggressively enforce the state's ban on wasteful water use and crack down on inefficient irrigation practices, a state watermaster recommends.

View the complete article.

Visit L.A. Times.

METROPOLITAN WATER DISTRICT
Water Summit
November 20, 2010

Three presenters, whose remarks are summarized below, stated that large amounts of water are used in the production of energy. In turn, large amounts of energy are used to extract, move, and treat water. We who are concerned about efficient water use have been aware of the latter; it is invaluable to learn about the former. To reduce water use, we need to use both energy and water much more efficiently.

"Energy-Water Nexus"
Dr. Mark Bernstein, Managing Director
USC Energy Institute

Demand for energy and water is increasing; but the climate is changing, making water less available in many areas. We are going to need more water to produce the greater amount of energy we will be demanding; we will need more energy to extract, move, and treat greater amounts of water.

Almost 10% of total national energy use is devoted to extracting, moving, and treating water. The amount of energy used to deliver water to residential customers in Southern California is equivalent to approx 1/3 of total average household electricity use. In a typical city, as much as half of the energy used can be associated with water.

To produce energy, we use water for the following:

• Oil and natural gas: drilling, completion, fracturing, refining.
• coal: operations, tailings, drainage, slurry.
• Power plants: Cooling and operations.
• Biofuels: growing, refining, distributing.

Irrigation represents 80.6% of all fresh water consumed in the U.S. Domestic consumption represents the next largest amount of fresh water consumption: 7.1%.

Actual extraction of water contrasts with consumption. Of fresh water extracted in the U.S., the various sectors extract as follows:

• Thermoelectric 39% (the next author says 48%)
• Irrigation 39%
• Public supply 14%
• Industrial 6%
• Livestock 2%

Concentrated solar power uses more water than photovoltaic solar.

Future transportation fuels are very thirsty:

• Unconventional fossil fuels are 2-4 times worse than conventional fossil fuels.
• Natural gas (range is better to 1-2 times worse)
• Electricity (2-3times worse) [Good if produced by wind or solar PV, worse by nuclear]
• Hydrogen (1-500 times worse) [Good if produced by wind, solar PV,worse by nuclear]
• Biofuels (1-1000 times worse)

We will be using more energy in connection with water:

• Because of stricter treatment standards
• Deeper aquifer drilling and pumping
• Desalinization
• Long-haul pipelines and inter-basin transfer

Reducing greenhouse gas emissions by certain technologies - and certainly by substituting biofuels for oil - will require us to use more water. But climate change will most likely reduce the amounts of water available in many parts of the world - e.g., in the American Southwest, where large populations are concentrating. We will need to use more energy to bring water to these arid areas. But producing more energy means using more water, which will be less and less available.

In roughly half of the continental United States, stream flow is very low in comparison with total water consumption. We will not be able to place many water-intensive power plants in this huge area.

We must try to increase the efficiency with which we us energy and water. We must turn to forms of energy that do not require a lot of water to produce.

"Water and Energy: The Critical Nexus"
Rob Renner
Water Research Foundation

The WRF sees a 50% increase in the amount of energy that we will use to extract, move, and treat water over the next 50 years.

In a typical water utility, 60%-80% of the energy consumption goes to pumping and treating water. For water utilities, costs are going to rise because climate change will impair and degrade water sources, regulations will become more demanding, and new contaminants will need to be removed from water.

Thermoelectric power generation consumes 21 gallons of water per kWhr. A typical residential house uses 20 KwHr/day - equating to 400 gallons of water per house per day. CONSUMERS USER MORE WATER TURNING ON THE LIGHTS THAN SHOWERING AND DRINKING!

John F. Kennedy: "Anyone who can solve the problems of water will be worthy of two Nobel prices - one for peace, and one for science."

"Water and Energy: The Critical Nexus"
Loraine White
California Energy Commission

Groundwater pumping uses more electricity during the summer months than does pumping for the three largest water conveyance systems (SWP, CVP, CRA) combined.

California's population of 39.1 million people is expected to grow to 54.3 million by 2040. That means a huge growth in demand for water and energy.

The current goal is to reduce water demand by 20% by 2020 (despite population growth). This means using both water and energy more efficiently. At this link, find complete slide sets.