Today, the Senate Environment & Public Works Committee's Subcommittee on Water and Wildlife is holding a hearing entitled “A Renewed Commitment to Protecting the Chesapeake Bay: Reauthorizing the Chesapeake Bay Program." Here's something that should be on Congress's agenda: making the Bay-wide TMDL (“pollution cap”) enforceable to ensure that it is actually implemented.
First, some background: Congress created the Bay Program in 1983, establishing it under the Clean Water Act. The regional partnership, which now includes several federal agencies in addition to Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York and the District of Columbia, is world-renowned for the quality of its science and its monitoring capabilities. Yet, although approximately $4 billion has been spent on restoration efforts since 1995, the Chesapeake Bay remains “severely degraded.” While population growth in the region has certainly made Bay restoration efforts more difficult, the critical problem lies with the underlying premise of the Program itself: that a voluntary, cooperative approach among federal and state partners without genuine accountability and strong leadership results in improved Bay health. A quarter century of experience demonstrates conclusively that it does not.
Momentum to reform the Bay Program has been building (President Obama’s Executive Order on the Bay and EPA Administrator Lisa Jackson’s appointment of Chuck Fox to be her special assistant on the Bay are particular bright spots), but it remains to be seen if Congress will make the hard legislative changes necessary to transform the Bay Program from a voluntary, information-gathering program that values consensus over accountability into a genuine restoration program that demands results and works. If it does, it could have ramifications for watersheds across the country.
Last month, in our report Reauthorizing the Chesapeake Bay Program: Exchanging Promises for Results, CPR President Rena Steinzor and I recommended that Congress take a series of actions to reform the Bay Program. One of our proposals in particular – making the Bay-wide TMDL enforceable to ensure that it is actually implemented – would provide a long-needed correction to the Clean Water Act. If adopted, it could set the stage for broader TMDL reform that would improve water quality across the country.
Full textToday, I joined CPR Member Scholars Mary Jane Angelo, Holly Doremus, and Dan Rohlf in submitting comments to the U.S. Fish and Wildlife Service (FWS)—one of the agencies charged with primary responsibility for executing the Endangered Species Act (ESA)—suggesting several ways to improve the regulations for implementing interagency consultations under the Act. Under Section 7 of the ESA, which governs interagency consultations, any time that a federal agency like the Department of Defense or the Department of Transportation wants to take an action that will potentially harm an endangered species or its habitat, that agency must consult with either FWS or the National Marine Fisheries Service (NMFS)—depending on what kind of species is involved—to determine whether and how the action will affect the species or its habitat. Through this consultation, the agency is supposed to determine how to alter its action to avoid harming a listed species or preventing the listed species from recovering.
The Section 7 consultation process is one of the most important components of the ESA, since the federal government is perhaps the single largest threat to endangered species. Recently, the Bush Administration cast the spotlight on Section 7 when it passed a set of midnight regulations that would have allowed federal agencies to decide on their own, without consulting FWS or NMFS, whether their actions would harm an endangered species—effectively sidelining FWS and NMFS from the consultation process. CPR Member Scholars submitted comments at the time criticizing the regulations, and sent a letter in April to the Secretaries of the Departments of the Interior and Commerce, urging them to withdraw the rule. Fortunately, the Secretaries heeded the advice from CPR scholars and many others and withdrew the rule in May.
At the same that they announced the withdrawal of the Bush midnight regulations on Section 7, the Secretaries also invited the submission of comments “related to ways to improve the section 7 regulations while retaining the purposes and policies of the ESA.”
Full textThis item cross-posted by permission from Legal Planet.
The White House is considering a new executive order to limit floodplain development. The proposal covers roughly the same federal licensing, project, and funding decisions as NEPA. The heart of the proposal is section 4, which unlike NEPA imposes a substantive requirement (preventing or mitigating floodplain development.) The proposed language is after the jump. This is a very constructive step — we can’t keep putting people and infrastructure in harm’s way, nor can we allow development that increases flood risks elsewhere.
The Association of State Flood Plains Managers has a very helpful website. Information about flood issues can also be found in Berkeley’s archive on disasters and the law.
Full textThis is the fourth and final post 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. Prior posts are available here.
Groundwater, invisible as it meanders beneath our feet, provides about half of all drinking water in the United States and nearly all drinking water for rural populations. As water demand skyrockets, groundwater pumping rates far exceed replenishment rates. For instance, underlying the Great Plains is the Ogallala Aquifer, which has provided water for decades of farming. Now, this once dependable and seemingly infinite source is now disappearing in certain areas, reversing farming fortunes for many. In the Southeast, saltwater is entering the Floridan Aquifer due to low water levels, potentially contaminating the water supply for many communities.
Despite these threats and a future of increasing demand, many states have only recently begun to actively and comprehensively regulate groundwater, providing an opportune moment for water advocacy groups to push for public trust legislation. Historically, the public trust doctrine excludes groundwater from its protective scope. Yet applying the public trust to groundwater is a logical and sensible progression of the modern public trust doctrine, consistent with the focus on water. Groundwater is no less important to the public than the coastal and navigable waters that are protected under the traditional public trust doctrine. In many parts of the country, groundwater is the direct source of water for surface springs and other navigable bodies of water.
Full textCenter for Progressive Reform policy analyst Matthew Shudtz blogs on the Environmental Protection Agency's recent revisions to the Clean Air Act National Ambient Air Quality Standard for lead. The White House Office of Management and Budget pressured EPA to limit the number of lead monitoring stations, including one near Shudtz's South Baltimore neighborhood.
Full textThis item cross-posted by permission from Legal Planet.
Hardrock mining (as opposed to oil and gas drilling) on federal land is a topic that rarely hits the national news. And there are plenty of other high-profile items on the agenda in DC at the moment, like health care reform and climate legislation. So I was a bit surprised, but pleased, to see this editorial calling for reform of the General Mining Law in the NY Times.
The Times is right that this is an area ripe for legislative work. Hardrock mining on public lands is still governed by the Civil War-era General Mining Law, adopted when the federal government was barely in control of much of the west, and well before environmental protection was on anyone’s mind. It allows anyone to explore for minerals anywhere on the public lands that has not been explicitly withdrawn with no notice to, much less permission from, the land managers. Miners who find a valuable mineral deposit can exploit it without paying any royalties. The extent to which the environmental impacts of public land mining can be regulated, either by federal or state authorities, is hotly contested.
Full textA new report from the National Research Council on Friday slams a long-delayed Army Corps of Engineers hurricane protection study, saying it fails to recommend a unified, comprehensive long-term plan for protecting New Orleans and the Louisiana coast.
You know the story: as Hurricane Katrina swept across New Orleans, the city’s levee system broke apart and billions of gallons of water poured into the city. Two independent forensic engineering reports (here and here) found the levee failures were caused by a series of design and construction flaws, stretching back over decades, which were overseen, in all details, by the U.S. Army Corps of Engineers. The Corps has never refuted that basic point.
Congress ordered the Corps to develop plans for a more aggressive flood-control system for the Louisiana coast, insisting the Corps present “a final technical report for Category 5 protection.” (The surge associated with a Category 5 storm has about a 0.2% chance of occurring in any given year. A Katrina-level surge has about a 0.25% chance of occurring in any given year.)
According to the NRC:
Despite being given authority from the U.S. Congress for this project over three years ago, the [Army Corps’s] draft final technical report does not offer a comprehensive long-term plan for structural, nonstructural, and restoration measures across coastal Louisiana, nor does it suggest any initial, high-priority steps that might be implemented in the short term. Instead, a variety of different types of structural and nonstructural options are presented, with no priorities for implementation.
You can read more about these criticisms in Mark Schleifstein’s excellent piece in the New Orleans Times-Picayune.
Here, I want to focus on a legal point that is a lynchpin in the whole dispute. The problem with the Army Corps of Engineers' report is that it lays out a buffet of 27 alternative planning unit-level plans, but gives no indication of which ones should be pursued or what should be done next. As a result, the whole process could slip into a self-induced coma.
Full textThis is the third 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.
Water advocacy groups and environmental attorneys have used a myriad of creative tools to protect water resources, including establishing minimum stream flows and lake levels, purchasing or acquiring in-stream water rights for environmental and recreational purposes, and using federal regulations to restore water for fish. While each of these strategies may be an effective microscopic solution, a macroscopic, overarching duty to manage water resources sustainably for both people and the environment is missing.
One solution to this missing duty lies in an ancient legal tool – the public trust doctrine. This doctrine holds that certain natural resources belong to all and cannot be privately owned or controlled because of their inherent importance to each individual and society as a whole. As a clear declaration of public ownership, the doctrine also reaffirms the superiority of public rights over private rights for critical resources. It impresses upon states the affirmative duties of a trustee to manage these natural resources for the benefit of the present and future public and embodies some of the key principles of environmental protection: stewardship, communal responsibility, and sustainability.
Full textThis is the second 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.
As described in this earlier post, the public trust is similar to any legal trust. In the public trust framework, the state is the trustee, which manages specific natural resources – the trust principal – for the benefit of the current and future public – the beneficiaries. To date, the greatest and most consistent successes of the public trust doctrine involve cases of public access rather than resource protection – emphasizing the beneficiaries of the trust rather than fortifying the principal of the trust.
CPR’s forthcoming publication, Restoring the Trust: Water Resources & the Public Trust Doctrine, A Manual for Advocates, focuses on a novel use of the doctrine: to increase, fortify, and otherwise maximize the trust principal, or the natural resources protected by the doctrine. A handful of cases have succeeded in this particular application by requiring improved natural resources management. These cases fall into two broad categories of litigants seeking different purposes:
Illinois Central, the classic example of the doctrine as a limit on state action, arose from a populist movement that challenged the legislature’s grant of lakefront property to a private railroad company. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892). In ruling that a state cannot wholly abdicate control of trust resources to a private entity, the Supreme Court laid the foundation of the doctrine as an upper limit on state power. In Arizona, Native American tribes successfully challenged the state legislature’s bill to eliminate the public trust doctrine from being considered in a water adjudication. The Arizona Supreme Court expressly stated that the doctrine is a constitutional limitation on legislative power to give away trust resources. San Carlos Apache Tribe v. Superior Court, 972 P.2d 179 (Ariz. 1999).
Full textThis 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 text