Archive for the ‘Environmental Law’ Category

My work for the Wildlife Conservation Board is to manage the Stream Flow Enhancement Program. This program has the goal of providing grants to fund projects that will increase the amount or quality or timing of water in the streams, rivers, and other watercourses of California.

One way of achieving this goal is to fund projects that change how water users use the water in waterways.

What does that mean?

Water is a very valuable, and highly regulated, resource in California. In this state, humans do not have free rein to use as much water as they want at any time that they want for whatever reason that they want from any watercourse that they want. Instead, to use water humans need to work within a system of water rights. This system serves to make sure that each water user (called diverters) along a watercourse gets the water they need, and that no other diverter takes water that is reserved for someone else.

The State Water Resource Control Board (SWRCB) is a state agency that was established in 1914 (a date that will be significant in a bit). The SWRCB oversees water rights, approves and tracks changes to water rights, makes sure that water users are complying with the terms of their right, and conducts other related activities.

Landowners and/or water diverters have a few options available to them for how to go about legally using water in a watercourse.

Properties that boarder a watercourse can likely claim a riparian water right. Photo courtesy of the Sacramento-San Joaquin Delta Conservancy.

One way is to show that they have a Riparian Water Right. This means that a parcel of property has a watercourse of some kind on it or along a boarder, and the landowner has the right to use some of the water in that watercourse (how much and for what purpose still needs to be spelled out in their riparian water right, but the landowner will get to use some of that water). Riparian water rights do have some significant limitations. One is that the water that is diverted out of a watercourse under a riparian water right must be used on that same parcel of property. It cannot be pumped away to use on some other piece of land. A second is that water diverted under a riparian water right cannot be stored and used later. Many California water systems have much more water in the winter and spring then they do in the summer and fall. One strategy that some people use is to collect water during the wet periods of the year, store that water, and use it during the dry periods of the year. This cannot be done under a riparian water right. The water must be used immediately.

If a riparian water right in not available, a diverter needs to secure an Appropriative Water Right. These come in two forms. If water has been diverted since prior to 1914 (see I said that date was going to come up again) without any interruptions that lasted for more than five years, then that water use could be claimed under a Pre-1914 Appropriative Water Right. The water could have been used for different purposes and at different locations over that time, but it does need to be proved to have been used. A Pre-1914 Appropriative Water Right does not need to be approved by the SWRCB. Also, the diverter can change the exact location where water is being pulled out of a watercourse (called the Point of Diversion), the location of where the water is being used, and the purpose to which the water will be used for, all without requiring prior approval from the SWRCB. A downside is that is may be difficult to prove continuous use of water since before the year 1914, and so Pre-1914 Appropriative Water Rights are more often challenged in court.

Water diversion structure along Battle Creek in northern California. Photo courtesy Aaron N.K. Haiman

If continuous use of water cannot be proved to date back to before 1914, a Post-1914 Appropriative Water Right will need to be obtained from the SWRCB. Post-1914 Appropriative Water Rights get complicated and nuanced. They can be acquired in one of two ways (registrations and permits/licenses), and each have numerous possible paths and varying requirements. However, while they are the most complex, difficult, time-consuming, and expensive, Post-1914 Appropriative Water Rights are also the most secure method for someone who wants to divert water out of a watercourse. These water rights are obtained from the SWRCB and are supported by various legal documents which make them difficult to challenge or overturn.

All water rights holders, regardless of the type of water right, must submit an annual Statement of Diversion and Use form with the SWRCB. These are publicly available documents that allow for the tracking and enforcement of water rights throughout the state.

Sometimes, changes need to be made to an existing water right. There are several paths that can be followed if a change is needed, and they depend on what type water right is involved and what type of changes are being sought, but that will be material for another post.

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How much is a Kirkland’s Warbler worth?

What is the monetary value of a California Condor?

Once of the significant changes that is being made by the current presidential administration to the US Endangered Species Act (ESA) is to take the economic considerations of a project or a impacted species into account. This will mean that if a particular project could generate a lot of money, it might be able to move ahead even if it destroyed an endangered species. Also, if measures to save a particular species are expensive, they may be ignored in favor of a profitable project.

This is a terrible change.

Protecting a species should be undertaken simply for its own right. If that is expensive, so be it. If it is difficult, so be it. If it is unprofitable, so be it!

Economic considerations have no place in deciding which species to save and whether or not some species to go extinct. Period.

If economic considerations do become part of the endangered species conservation decision making process, we will all have to answer the two questions that I began this post with. Many industries will be working hard to put dollar amounts on species, and to make sure those values are as low as possible.

Here is a short video from Beau and the Fifth Column, a youtube content creator I like, on the subject.

Let’s talk about the Endangered Species Act, Chickens, and Painters….

And here is a link to written testimony by Dr. Jane Goodall to the U.S. House of Representatives on the value and importance of the Endangered Species Act.

Dr. Jane Goodall to the U.S. House of Representatives

One result of adding economic considerations into conservation decisions will be more extent species. And this during an ongoing extinction crisis.





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epa-5-epaFounded on December 2nd, 1970, the U.S. Environmental Protection Agency (EPA) was a response by President Nixon, the U.S. Senate, and the U.S. Congress to two decades of growing concern of the American people about the deteriorating state of the environment in which they lived and the human health effects that resulted for that deteriorating state.

To address both concerns, the mission of the EPA (as stated on their website) has been to ensure that:

  • all Americans are protected from significant risks to human health and the environment where they live, learn and work;
  • national efforts to reduce environmental risk are based on the best available scientific information;
  • federal laws protecting human health and the environment are enforced fairly and effectively;
  • environmental protection is an integral consideration in U.S. policies concerning natural resources, human health, economic growth, energy, transportation, agriculture, industry, and international trade, and these factors are similarly considered in establishing environmental policy;
  • all parts of society — communities, individuals, businesses, and state, local and tribal governments — have access to accurate information sufficient to effectively participate in managing human health and environmental risks;
  • environmental protection contributes to making our communities and ecosystems diverse, sustainable and economically productive; and
  • the United States plays a leadership role in working with other nations to protect the global environment.

To accomplish this mission, the EPA develops and enforces regulations, gives out grants, studies environmental issues, sponsors partnerships, teaches people about the environment, and publishes their findings.


Las Angeles, CA air quality compared across decades. Photo courtesy of Green Building Law.

Over the course of its history, the EPA has increased the health and quality of the environment outside and inside our bodies. By regulating air quality under the Clean Air Act (1963) the EPA sets emissions standards that insure the air we breath, particularly in cities, is healthy. As a result, air quality has dramatically improved. This has decreased the rates of respiratory distress and disorders and so lessened the burden on our healthcare system. Not to mention making the views we get to see all the more spectacular.


Water comparison between two cities in Michigan. Photo courtesy of Michigan Radio.

By regulating water quality under the Clean Water Act (1972), the the EPA sets drinking water and wastewater standards that insure the water we drink is clean and safe. An example of this that should still be fresh in all of our minds is that of Flint Michigan where EPA standards were ignored, and the results were a tremendous negative impact on the health of the residents of Flint, particularly children.


By reducing the amount of new materials we, as a society, use more land can be left looking like the lower right part of this photo instead of the upper left. Photo courtesy of FreeYork.

By promoting recycling standards and educating people about recycling (using tools like their ‘Reduce, Reuse, Recycle’ campaign), the EPA has helped reduce the amounts of raw materials needed to produce the vast quantities of foods and produces that we all need to live our lives. This reduction in the amounts of materials we need means that we can now do more with less which reduces extraction costs and leaves more areas open and natural and beautiful.


Before and after photos of glacial retreat. Photo courtesy of NASA.

By regulating greenhouse gas emissions again under the Clean Air Act (1963), the EPA is helping to reduce the amount that our planet is going to warm and so lessen the catastrophic impacts that human caused global warming is going to have on all of our lives in the next few decades.

And don’t think for a second that people, organizations, corporations, etc will reduce their environmental impacts voluntarily. No voluntary environmental protection strategy has ever worked, and when left to their own devices, the environment and the health of the public citizen suffer. One example of this is that I have already written about is the history surrounding Love Canal. And there are many, many more stories such as this one out there.

It is for all these reasons and more that I find the current attacks on the EPA so disturbing. From the nomination of Scott Pruitt for EPA Administrator to the introduction by congressman Matt Gaetz (R -Florida) of H.R. 861. If passed H.R. 861 will terminate the EPA. This bill was co-sponsored by Thomas Massie (R-Kentucky), Steven Palazzo (R-Mississippi), and Barry Loudermilk (R-Georgia). Remember these four names. They are the names of individuals who are in favor of causing harm to the environment and to US citizens. Call your congressperson every day, and tell them repeatedly, that any support for H.R. 861 will directly harm We The People of the United States not to mention the citizens of many other countries, and the ecosystems we all require to live. Instead ask them to support the EPA and the incredibly important job they are doing in the months, years, and decades ahead.

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Information is important. With information each of us as individuals, and our society as a whole, can learn about the world. With information, we can all make decisions that make sense. With information, we can all discuss ideas.

Without information none of that is possible. Without information, we are, at best, at the mercy of our current, limited knowledge, and our base instincts. Without information we are, at worst, at the mercy of the limited knowledge and instincts of someone else.

This is why the gag order, and insistence that all reports and data be pre-screened before release to the public, issued by the President to the EPA are so concerning to me, and I think should be so concerning everyone else. This is exactly the kind of action that limits access to, and spread of, information. It will only hamper all of our abilities to operate as rational, critically thinking individuals. It is the kind of action that is put in place to control what we, as citizens, know and when we know it. This is censorship and it has no place in science or a free society.



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mjs plastic

Tiny plastic microbeads in personal care products are washing into public waterways. — credit: Alliance for the Great Lakes

In March of 2014, I wrote a post about microbeads. Microbeads, for those who might be wondering, are tinny spheres of plastic that are added to a variety of personal care products such as toothpaste, body wash, and soap to increase the abrasiveness of the product. The problem is that these pieces of plastic are so small that they pass right through filters and water treatment plants and then flow out into the environment where they can have serious consequences. The polystyrene that microbeads are commonly made of attract a range of chemicals that bind to their surface. When a fish mistakes a microbead for a fish or insect egg, it not only gets a piece of plastic in its stomach, but also a concentrated does of the chemicals that piece of plastic is carrying.

And some of the numbers around microbeads are staggering! Researchers at State University of New York found that an average one square kilometer of Lake Ontario contained approximately 1.1 million microbeads! All these particles move through our streams, lakes, and rivers and eventually find their way to the oceans where they contribute to the massive amount of plastics floating on the earth’s oceans. These plastics continue to have environmental health effects as they move through food webs. A recent study out of Oregon State University found that approximately 90% of the seabirds in the world had plastic in their guts.

So, what to do? Well, in March of this year, Representative Frank Pallone, Jr. (D-NJ) introduced H.R. 1321 to the U.S. House of Representatives which would amend the Federal Food, Drug, and Cosmetic Act to prohibit microbeads from being added to products. It calls for the phasing out of microbeads beginning on the 1st of July, 2017. And on the 7th of Dec. the House voted on, and passed, H.R. 1321! This legislation will now go to the US Senate for a vote, and then on to the President to be signed into law.

So, the U.S. Senate is the next hurdle. To help this bill over that hurdle, write to your senators and tell them that you want a vote on this issue, and that you want them to vote with the environment and ban microbeads from our waterways and the waters of the planet!


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California has a weird dichotomy (ok, it has many weird dichotomies, but I am only going to focus on one right now), and that is most of the people who live in this state are in the southern half, but most of the water falls in the northern half. So, what are we to do? Since people need water to survive, there are really only two options. Option one, bring the people to the water. Option two, bring the water to the people. Obviously, we as a society, have chosen option two.

So there are a lot of people in the desert who are not going to move and who need water (remember this point). So be it, we can figure out a solution to this problem. California took a page from the Romans, and in 1963 began building an aqueduct to bring water from the northern half of the state to the southern half. Once it was completed, the series of canals, pipes, pumps and reservoirs stretched over 400 miles from Clifton Court Forebay in the California Delta near the city of Tracy to (at its farthest point) Castaic Lake in western Los Angeles County.

To collect all that water and then get it to move all that distance, including over some significant mountains, requires some significant pumps. These things are huge and take a huge amount of energy to run. They are so large that when turned on, they can alter the flows of rivers. When the pumps are off, the Sacramento and San Joaquin Rivers flow together in the delta and then pass through the Carquinez Straights into the bay and eventually into the Pacific Ocean. When the pumps are turned on, much of the flows of those rivers change course the are drawn to the pumps, and not out to the bay. This leads to a bunch of problems.

One is that with less fresh water flowing into the delta, salt water from the bay spreads farther inland. This can alter growing conditions for crops and water quality for many cities. The altered flows also affect many fish species. Chinook Salmon and Green Sturgeon and Delta Smelt and Steelhead are all species of fish that are protected by the California Endangered Species Act, the Federal Endangered Species Act, or both! Some species of these fish use water currents to guide their migrations out to sea and then back up the rivers. If the currents lead them to the sea and then back up to the rivers then everything works fine. However, if the currents lead them to the pumps everything is not fine. As I’m sure you might guess, fish that get pulled into those giant pumps do not survive.

Since they are listed species, we the people of California need to work to protect these fish so that they do not get killed off. Ok, we can figure out a solution to this problem. The California Department of Water Resources (DWR) has built fish screens to stop fish from being drawn into the pumps. However, what happens is that get pulled close to the pumps, and then just mill around right in front of the screen. What do we do with all these fish? They have to go somewhere, or else there will just be more and more and more of them which will not be good for the fish. Ok, we can figure this one out too. DWR built a system of pipes and tanks so that the fish could swim down the pipe and be collected in the tanks. Then the tanks are loaded onto trucks and driven away to the a release site in the delta. Before I move on, I should say that a lot of study, engineering, and biology has gone into the design of those pipes and tanks to insure that the fish are not injured as they move through them. However, this process has now led to more problems. Many predatory fish, many of them Stripped Bass, have figured out that lots of fish come out of those release sites. Underwater cameras have shown that the fish actually hear the trucks coming and gather at the base of the release pipe to eat the fish as they come down. So while we thought we were saving the fish from death by getting them away from the pumps, we were actually just sending them to their death down the mouths of predators. Well, we think we can figure out a solution to this problem as well by establishing more release sites and mixing up the schedule of when different release sites are used. This should make it so that the predators do not have established sites for a meal and so do not gather in such numbers which should mean that the fish DWR release actually survive and swim away. However, this strategy is still being developed and judging from the long list of problems so far, there is no guarantee that it will not lead to even more of them that we cannot yet foresee.

And remember, all of this is so that we can bring water to people living in the desert.

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In the 1890s, a man named William T. Love had a great idea. He was going to dig a canal in western New York State from the Niagara River, around Niagara Falls, and into Lake Ontario. He was going to use the water flow through this canal to generate electricity for the growing communities in the area. It was going to make him a ton of money! So, he bought land, hired workers, and started digging. Unfortunately, his timing was not so good. His plan had been to generate direct current, but direct current has significant transmission limitations, and at around the same time, Nikola Tesla and others were helping to introduce alternating current to the world. Additionally, the US Congress passed a law prohibiting the diversion of water out of the Niagara River to help preserve the famous falls. Not to be deterred, William Love changed his plan. He was going to use his canal as a commercial shipping route around Niagara Falls. He had a whole urban area planned out which he called “Model City.” He mapped out parks and community centers, where roads and neighborhoods would be around the canal, the whole thing. However, after only digging about a mile of canal, building a couple of streets and a few houses, William Love ran out of money and abandoned the project.

And so, there the canal sat. It filled with water and was basically left undisturbed until the 1920s. Around this time, the City of Niagara Falls began using the canal as a dump site for the city’s garbage. In 1942 the Hooker Electric Company was given permission to use the canal as a dump site for their chemical waste. The canal was drained, a thick layer of clay was placed on the sides and bottom of the canal, and Hooker Electric began filling it with 55-gallon drums. In 1947, Hooker Electric bought the canal and both banks. The US Army and the City of Niagara Falls also used the area as a dump site until 1948 after which Hooker Electric was the sole owner and user. By 1953, about 21,000 tons of chemicals, many of them very toxic, had pretty much filled the canal, so about 20 feet of dirt was used to cover the canal, and soon vegetation began growing over the area where the canal had been.

During all this time, the human population around of the area had been growing. The City of Niagara Falls wanted to build new neighborhoods and school for its growing population, and it look at the land that used to be the Love Canal as usable property. It attempted to buy the land from Hooker Electric, but the company refused to sell because of safety concerns due to the toxic nature of the waste under the site. The City was not deterred and eventually expropriated the property, forcing Hooker Electric to sell the property. It did so in 1953, for the price on $1, and included an extensive caveat explaining the dangers of building on the land the potential for toxic exposure. The City of Niagara Falls, or private developers working with the city, then built the 99th Street School and several neighborhoods on and around Love Canal.

By the late 1950s, the City of Niagara Falls had removed some of the clay lining of the canal to use as fill dirt and had broken holes in other parts of the clay lining to run sewer lines. Further, the clay lining, which had been supposed to be impermeable, began to form cracks on its own. All this, combined with rain water, resulted in extensive exposure to chemicals for the people living in the area. Sink holes opened on the school grounds exposing drums of chemicals. These holes then filled with water and became puddles that children played in, people began to report puddles of oil or strange colored liquids seeping into their basements, children often returned home with chemical burns or rashes on their hands and faces after playing outside. In the 1970s, people were suffering from cancer, birth defects, and a wide range of other health problems. Finally, in 1979, the still fairly new Environmental Protection Agency declared the area around Love Canal an emergency disaster area. The 99th Street School was demolished, the nearby 93rd Street School was also destroyed, and many people were evacuated. Eventually about 800 people would be paid for their homes and moved out of the area. This was the first time that US Federal disaster dollars were used for something other than a natural disaster. All the buildings that had been built on or near Love Canal were raised, and a combination of Hooker Electrical (by then a subsidiary of Occidental Petroleum) and the City of Niagara Falls would pay millions of dollars to former residents, to divert water from the site, and to cover the most toxic areas with plastic liners, more clay, and more soil. The area is now surrounded by barbed wire to prevent people from entering the site.

The Love Canal disaster is important to learn about and remember partly because of its impact on environmental law in the US. It was partly due to the Love Canal disaster that, in 1980, the US passed the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) also known as the Superfund Act which established a fund of money to help clean up toxic sites and also laid groundwork for how to establish liability for the release of toxic chemicals into the environment.

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