This is the first of four posts on the application of the public trust doctrine to water resources, based on a forthcoming CPR publication, Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, which will be released this summer. If you are interested in attending a free web-based seminar on Thursday, July 30, at 3:00 pm EDT, please contact CPR Policy Analyst Yee Huang, or register here.
While the United States has a strong private property system, that system is a product of common property ownership of certain resources. Doubtful? For centuries, people have enjoyed public access to resources such as the ocean, certain bodies of water, tidewaters and tidal lands, shorelines, and most sensibly the air. Much of the commerce during the foundational years of the United States depended on common, public access to rivers for transportation of goods. Imagine the hassles if a ship had to negotiate passage through each privately owned section of a river!
In legal terms, this idea of common property ownership is captured in the public trust doctrine, a legal doctrine imported from ancient Roman and English law and common to many cultures around the world. The doctrine holds that certain water-related natural resources belong to all and cannot be privately owned or controlled because of their overwhelming importance to each individual and society as a whole. Similar to any legal trust, the public trust doctrine has three primary components: the trustee, the trust principal, and the beneficiaries of the trust. In the public trust framework, the state is the trustee, which manages specific natural resources – the trust principal – for the benefit of present and future generations – the beneficiaries.
In its traditional form, the doctrine only encompasses navigable water resources – larger bodies of water that historically accommodated commerce and transportation. As a result, the traditional doctrine ignores many surface water resources and groundwater. Yet these latter resources also provide vital public benefits, including drinking water and recreational, environmental, and aesthetic needs.
Full textPerhaps – as a byproduct of a recent, revealing report by the Government Accountability Office and the economic downturn – the bubble of market growth for the bottled water industry may finally deflate, if not outright burst. Pop! The report, released last Wednesday, further debunks the myth that the quality of bottled water is better than tap water (see also CPR Member Scholar Christine Klein's exploration of this myth).
According to the GAO, regulation of bottled water is generally weaker than regulation of municipal drinking water (tap water). The two types of water are regulated under different agencies: the Environmental Protection Agency regulates tap water under the Safe Drinking Water Act (SDWA) while the Food and Drug Administration regulates bottled water as a food product under the Federal Food, Drug, and Cosmetic Act (FFDCA). The EPA sets national maximum contaminant levels for tap water according to the use of best available, peer-reviewed science and requires municipalities to test their water frequently and report immediately and publicly any violations of contaminant levels. The FDA regulates bottled water according to the EPA standards but has neither the legal authority to enforce compliance and mandate product recalls nor the resources to conduct inspections – a crucial difference that defenders of bottled water often fail to mention.
Among the GAO report’s findings:
A majority of consumers cite health and safety as the primary reason for purchasing bottled water, but with the lack of strict enforcement and regulation by the Food and Drug Administration, is their faith in bottled water misplaced? Recognizing that certain situations – disasters and emergencies, namely – unquestionably require bottled water, nearly all municipal water supplies in the United States are safe, clean, and inexpensive. The quality myth, circulated by those who pledge allegiance to the bottle, is just that: a myth, and now with a GAO report to make that clearer than ever.
Full textIt’s a frackin’ mess out there in the world of natural gas extraction – exploding houses and water wells, dying cattle, and curious rashes. The Subcommittee on Energy and Mineral Resources of the House Natural Resources Committee recently held a hearing to explore the risks of hydraulic fracturing, or fracing (sometimes spelled, “fracking”), which is currently exempt from regulation under the Safe Drinking Water Act. Representatives Diana DeGette (D-CO), Maurice Hinchey (D-NY), and Jared Polis (D-CO) introduced a bill to close the exemption, known as the “Halliburton Loophole,” secured by the eponymous company under the Bush-Cheney Administration in 2005. The proposed bill would also require the industry – the only industry exempt from the nation’s Safe Drinking Water Act – to disclose the chemicals used in fracing.
The hydraulic fracturing process is used in most natural gas wells. A highly pressurized solution of water, sand, and chemicals are injected into wells that extend thousands of feet into the earth’s crust, creating fissures in the layer of shale where natural gas can flow upward to be collected.
Among the chemicals used in fracing is benzene, which was found in water bodies in Colorado and Wyoming and linked to gas drilling. In an extreme case, a house in Bainbridge, Ohio, exploded when the neighborhood water accumulated so much methane that the house lifted off its foundation. A later study by a state agency concluded that pressure caused by fracing pushed the gas into the aquifer. Industries refuse to disclose the chemicals in their fracing solutions, claiming that the information is proprietary and akin to revealing the formula to Coca-Cola.
Last month, the Obama Administration urged Congress to resolve the uncertainty in the protection of the nation’s waters and wetlands under the Clean Water Act (CWA). In a letter signed by the heads of several agencies, the Administration noted the confusion, delay, and even neglect in protecting the nation’s waters in the aftermath of two Supreme Court decisions: SWANCC and Rapanos. Reports from the EPA and the EPA Inspector General have documented the impacts – 20 million acres of wetlands and isolated waters are no longer protected (subscription required).
At issue is the reach of the Clean Water Act, passed in 1972 with the lofty mandate of restoring the integrity of the nation’s waters and eliminating pollution by 1985. Although the latter goal is still out of sight, significant progress has been made in restoring the quality of the nation’s water. Under separate provisions of the Act, the EPA and the ACOE have jurisdiction over “navigable waters,” defined as “waters of the United States.” Those five words have generated tomes of commentary, leaving developers and environmentalists alike writhing in confusion.
Full textNever mind the unusual wave of intersex fish or the mutant frogs appearing in a waterway near you.
Earlier this week the Associated Press published the results of an investigation of pharmaceuticals in the nation's waters. The reporters found that U.S. drug companies have legally released at least 271 million pounds of pharmaceuticals into waterways, including compounds such as: lithium, used to treat bipolar disorder; warfarin, a blood thinner also used as a rodenticide and pesticide; and tetracycline hydrochloride, an antibiotic. This investigation follows an equally disquieting finding published last year that trace amounts of pharmaceuticals were found in the drinking water of 24 major metropolitan areas.
Full textA recent article in the Los Angeles Times described the latest absurdity in the never-ending search to quench the thirst for water: ownership of rainwater and, more precisely, the illegality of rainwater harvesting. Residents and communities in parts of Colorado are turning to this ancient practice of collecting and storing rain to fulfill their domestic water needs, including flushing toilets and watering lawns. Using this grey water, as it is called, relieves pressure on water resources and can be extremely efficient. Many long-time water users, however, object to the practice. Full text
Rivers, lakes, and other water bodies across the country -- including those that provide our drinking water -- are contaminated with an eclectic cocktail of pharmaceuticals, fertilizers, and nutrients. Genetic mutations thought to exist only in the realm of science fiction are now readily observed in fish and other aquatic species. Overall, the EPA estimates that only 12 percent of the nation's waters have been surveyed, and of that small percentage more than half can no longer be used for at least one designated use. A recent article in Inside EPA details plans inside the Environmental Protection Agency to strengthen the protection of water by reviving a much-discussed but ill-fated rule to regulate water pollution from non-point sources. Full text
Florida's beaches draw millions of tourists each year, and coastal towns like Palm Beach have a great interest in protecting the beaches against erosion and sea-level rise. They have experimented with various adaptation and reinforcement techniques, some more successful than others, but none is a permanent solution. In an administrative hearing on March 2, Judge Robert Meale rejected a beach renourishment project proposed by Palm Beach, criticizing both its harmful environmental impacts and the worthless engineering models that supported the project. Full text
Center for Progressive Reform Policy Analyst Yee Huang blogs about the implications of state water law on bottled water operations. In the decade between 1994 and 2004, the bottled water industry enjoyed a meteoric rise as consumers flocked to their product, paying more per gallon than gasoline and neglecting a virtually free source of water -- the tap. Bottled water drinkers formed fierce allegiances to their favorite brands, elevating bottled water beyond a beverage to a symbol of refinement. More recently, opposition to bottled water has grown, built around an eclectic mix of advocates including activists, restaurateurs, and religious leaders. Proposals for bottled water operations evoke vocal protests in local communities. Production of bottled water requires large quantities of energy and generates tons of waste with long-term environmental impacts. (To read the entire blog entry, click on the headline.) Full text
CPR Policy Analyst Yee Huang blogs on the significance of virtual water and water footprints. Full text