The Government of Haiti's water governance reform agenda

 Flooding in Cap-Haitien, Haiti.  Photo: United Nations.  

Flooding in Cap-Haitien, Haiti.  Photo: United Nations.  

It's been about two years since I completed a series of field studies of water governance in Haiti.  Our project in northern Haiti finished up about a year later.  It's gratifying to work on development projects on-the-ground, but it's also rewarding to take those experiences and share them with the broader international and academic communities.  Two articles I wrote about water governance in Haiti have been published recently.  The first is a broad look at Haiti's water laws and policies, and the institutions that develop and enforce those laws.  The article has been published by the Tulane Environmental Law Journal and is available online here.  

The second article is a more focused study on local institutions in the Trou-du-Nord watershed in northern Haiti.  The region has water resources, but many water users competing for a modest supply.  At present local institutions are insufficient to manage these resources and users adequately.  My article explores some institutional reforms local stakeholders, the Government of Haiti, and international donors may be interested in pursuing.  This second article has been published by AQUA-LAC, the journal of UNESCO's International Hydrological Program, as part of a special issue composed of articles written by myself and other colleagues who worked on the Trou-du-Nord watershed project.  The special issue includes a forward from Jovenel Moise, the President of Haiti.  President Moise's forward is included below:

This special issue of AQUA-LAC is a magnificent example of the solidarity expressed by the International Hydrological Program for Latin America and the Caribbean (IHP-LAC) in promoting the integrated management of the water resources of the Republic of Haiti. Indeed, in its report in 1972 on integrated technical assistance in Haiti, the OAS stated, “The development of Haiti’s natural resources is to a large extent linked to maximizing the rational utilization of its water resources. Failing these factors, the country’s agricultural and industrial development, as well as the life of its inhabitants, will be confronted by severe limitations” (OAS, 1972).

This issue has 9 articles written by authors from three countries: Haiti, the United States and Mexico. They cover very diverse fields, ranging from the reconstitution of extreme rainfall events in Haiti – currently a highly pertinent topic with climate change and extreme hydrological phenomena – to an analysis of water governance reform in Haiti, which emphasizes the numerous challenges that have to be overcome to achieve integrated and rational water management.

Furthermore, four articles refer to the water resources of the Trou du Nord watershed, which supplies the industrial zone of Caracol. They provide analytical elements on research issues that not only have to be taken further with respect to this watershed, but which can also be transposed to other watersheds in Haiti in view to carrying out comparative studies.

Regarding water intended for human consumption, the results of an evaluation of microbiological risks highlight the danger of Crytosporidium oocysts for the health of the population. The issue of water in emerging non-secured districts is also studied and presented in an article on water supply to Canaan.

The analysis of epidemiological transition linked to hydrometeorological disasters provides methodological tools and calls for specialists in water and health sciences to carry out multidisciplinary actions to establish, and experiment with, protocols aimed at facilitating the development of new tools for preventing and controlling certain water-borne diseases.

This special issue addresses the urgent need for the Haitian authorities to establish a national water policy. By relying on the basic principles of integrated water resource management, I strongly believe that this reform will lead the country in the short, medium and long terms to: (i) reduce the environmental risks linked to water, (ii) better satisfy the population’s needs for water, and (iii) solve conflicts between the different actors in this sector.

My administration is committed to this process by proposing legislative and administrative changes, and by making new choices for investment in the water sector by waging on stronger scientific and technical cooperation between and IHP-LAC. This is the context in which I have made the management and control of surface water a major goal of my governmental program.

Jovenel Moïse President of the Republic of Haiti

Flint Water Crisis: The Aftermath

At the beginning of this year I started blogging about the Flint water crisis, which was spiraling out of control and making national headlines (see my posts here and here). The headlines have moved on, but problems with water infrastructure and services linger.  Cara Cunningham Warren (University of Detroit Mercy School of Law) just released a new paper looking at the broader ramifications of Flint and cooperative federalism of water management, and reports some startling statistics: 

In 2015, at least 3.9 million Americans were exposed to lead in their drinking water at legally unacceptable levels. An additional 18 million Americans are at risk because their water systems are not in compliance with federal rules designed to detect the presence and to ameliorate the impact of lead contamination. What’s more, in 82% of the cases where the violation related to a health standard, no formal state or federal enforcement action was taken.

 The University of Southern California’s Suzanne Dworak-Peck School of Social Work has been doing some great work raising awareness of water issues.  Their online program, Nursing@USC, has offered to post an excellent visual aid explaining the evolution of the Flint water crisis on this blog.  Their infographic, and introduction to it, are below:

One year after the official announcement of elevated lead toxicity in Flint’s water supply, the city’s water is still not safe to drink. While Congress has yet to pass a bill to allocate funds, criminal charges have been filed against state officials and thousands of children have tested positive for toxic levels of lead exposure.

The impact on residents’ wellbeing is devastating—according to the World Health Organization, “the neurological and behavioral effects of lead are believed to be irreversible.” Interim solutions included drinking bottled water, purchasing filters and testing water at home, all of which required families to designate income toward fixing a crisis they could not afford. Roughly 40 percent of the city’s residents live under the poverty level, making it one of the poorest cities in the United States, struggling to pay for a resource that is considered by the U.N. to be a human right.

The crisis has yet to be resolved, just as other incidents of water toxicity have appeared in the District of Columbia, Indiana and Ohio. Clearly Flint is not the only vulnerable city, but the course of action exhibited the dangerous combination of environmental racism and lack of government oversight. The illustration below depicts the series of events that took place, which resulted in a catastrophic event from which lawmakers could learn.

This visual timeline was created by Nursing@USC, the online family nurse practitioner program at the University of Southern California’s Suzanne Dworak-Peck School of Social Work. The program prepares family nurse practitioners to treat physical and behavioral health, address social and environmental factors, and lead positive social change.

 Image produced by Nursing@USC

Image produced by Nursing@USC

The Florida Record examines my commentary on the Flint water crisis

 The Faka Union Canal in Florida drains water from the Big Cypress Swamp.  Photo by JaxStrong.

The Faka Union Canal in Florida drains water from the Big Cypress Swamp.  Photo by JaxStrong.

It's always nice when media outlets find, appreciate, and profile your research.  In the wake of the Flint water crisis I wrote about the ways in which the crisis was being used as a proxy for the age-old water privatization vs. human right to water debate.  Journalist Mark Powell of the Florida Record digs into that research in his latest piece, "Infrastructure Lacking in Wake of Flint Water Crisis, says Florida Law Professor."  Article copied below:

With the recent water crisis in Flint, Michigan, an environmental law professor at Florida International University (FIU) took the opportunity to publish a paper on the ethics, law and regulations of our greatest resource.

Ryan Stoa, a law professor at FIU who teaches water resources law, is also the co-director of the International Water Group of the Institute for Water and the Environment. In late February, he published a piece inJuristwhich provides academic commentary on prevalent legal issues by law professors and academic experts. In his piece, he highlights both sides of an argument spurred by the Flint water crisis.

The mismanagement of the water supply in Flint had many calling for local government resignations and a law requiring water to be declared a human right. Digging a bit deeper, the debacle has re-invigorated the classic public versus private water supply debate.

Those in favor of water as a government-controlled resource believe it will do away with the corruption of private companies that they believe doomed Flint. In contrast, those in favor of privatization often point to the lack of proper funding in government-controlled programs, and believe Flint’s situation could have been prevented with more oversight.

“I think it is inaccurate to suggest that only one approach can work, when there are many examples of successful public water service providers and private water service providers,” Stoa told the Florida Record. “Along these lines, there are misleading assumptions on both sides.”

Stoa believes that the issue is more complicated than the amount of government involvement, stating that the public and private sectors can–and often do–collaborate to provide the resource.

“Investments in the water sector aren't always invested wisely,” Stoa said. “If funds are available to bolster existing expenditures that usually helps, but re-thinking existing policies may provide some opportunities to improve water systems as well.”

An example of this is the state of Florida, which has a complicated water law system. While Florida does not necessarily privatize its water distribution system, it does give a surprising amount of control to districts, whose parameters are drawn out along hydrologic boundaries.

These districts are often exempt from local or state government overreach unless absolutely necessary. While they are often effective when solving issues within their own districts, they struggle when dealing with problems that occur outside their boundaries.

Despite Florida’s model, it’s easy to see how this model could fail and prove just as ineffective as other systems across the United States. As Stoa points out in his article, the American Society of Civil Engineers gives the country's water infrastructure a D+ rating, yet Congress continues to defund water maintenance.

“Much of our water infrastructure was built to tame and control the natural environment; some of that infrastructure has been effective,” Stoa said. “But re-thinking existing policies may provide some opportunities to improve water systems.”

 

Introducing 'Marijuana Agriculture Law'

 Photo: Brittney

Photo: Brittney

If you've been following this blog for the past few weeks, you've noticed that I've been teasing out my forthcoming article entitled "Marijuana Agriculture Law: Regulation at the Root of an Industry."  I wrote about marijuana appellations, as well as the potential for counties across the country to start adopting a marijuana ordinance.  I've been working on the article for the past few months, and I'm pleased to finally post a full draft online.  See here for access to the article.  The article will be published in the Florida Law Review sometime next year, but this draft is available immediately.  Major themes covered include the potential commoditization/consolidation of the marijuana industry, the environmental regulation of marijuana agriculture, and the administrative challenges of regulating this new industry.  Below is the introduction to the article:  

Across the United States, voters are weighing the costs and benefits of marijuana legalization.  As many as sixty marijuana legalization initiatives may appear on election ballots in 2016, legalizing the recreational or medicinal use of marijuana in as many as 17 states and adding to the growing number of states that have already legalized marijuana.  As states move toward legalization, governments will need to address a broad range of regulatory issues, including the distribution, sale, and consumption phases of the supply chain.  But legal marijuana’s track record so far suggests that the agricultural component of the marijuana industry is being ignored.  Whether states are failing to appreciate marijuana’s agricultural roots or choosing to disregard them, the industry’s direction will be out of state control until regulatory frameworks are in place.  

Nowhere has this been more apparent than in California.  In 1996, California voters passed Proposition 215, the Compassionate Use Act (CUA).  With the CUA California became the first state to legalize the medicinal use of marijuana, exempting patients and prescribing physicians from criminal prosecution.  The text of the act was short, and did not address how the state or local governments were intended to regulate the marijuana industry.  It did not, for example, assign regulatory authority to an administrative agency, articulate limits on possession or cultivation, or propose a broad regulatory framework from which the state or local governments could operate. 

In the wake of the CUA a legal medical marijuana industry was created in California, and the industry experienced tremendous growth, notwithstanding the absence of any meaningful state regulations.  But the CUA’s omissions prompted the state legislature to enact the Medical Marijuana Program Act (MMPA) in 2003, which, among other measures, restricted the number of plants medical marijuana patients or designated caregivers could cultivate, and assigned further regulatory authority to the Attorney General.  Even these limits, however, became legally ambiguous guidelines after the California Supreme Court ruled that the rights established by constitutional amendment Proposition 215 could not be limited by legislative act.  The upshot of these early experiments with marijuana legalization is that California’s burgeoning marijuana industry has been more or less unregulated for twenty years.

In the absence of regulation, marijuana cultivation in California has exploded, with approximately 50,000 marijuana farms accounting for 60% of all marijuana grown in the United States.  There are as many marijuana farms in Humboldt County, California, as there are wineries statewide.  And this un-checked growth in marijuana agriculture has consequences for the sustainability and potential growth of the industry.  Marijuana farming has been blamed for sucking rivers dry, poisoning soil and water resources with pesticides and rodenticides, and clearing mature forests.  Much of these criticisms are flawed, as research on the environmental impacts of marijuana farming is nascent and rarely acknowledges that farmers can grow responsibly and sustainably on private lands. 

Many farmers would welcome the security of being in compliance with state and local laws, while being distinguished from cartel operations or destructive “trespass grows” on public lands.  As it stands, farms on private property remain vulnerable to police raids and asset forfeiture laws, and are unable to take advantage of typical agricultural government services, such as crop insurance programs or pesticide-free certifications.  Because marijuana agriculture’s regulatory contours have remained ambiguous for so long, the marijuana agriculture industry has been poorly understood by states and the public.  This disconnect presents a threat to responsible management of legal marijuana markets. 

Fortunately, change is on the horizon in California.  In January 2016, the Medical Marijuana Regulation and Safety Act (MMRSA) came into effect, with ambitious proposals to create comprehensive regulations for marijuana agriculture.  The MMRSA assigns authority for various regulatory responsibilities to a variety of state agencies, including the Department of Food and Agriculture, Department of Fish and Wildlife, Department of Public Health, and the State Water Resources Control Board.  Said the author of the bill, “cultivators are going to have to comply with the same kinds of regulations that typical farmers do…it's going to be treated like an agriculture product.”  It took twenty years to get there, but marijuana cultivation has finally been recognized as an agricultural activity in California, and may now be regulated as such.

The same cannot be said for every state that has legalized, or is considering legalizing, medicinal or recreational marijuana.  In many states the immediate regulatory priority is the distribution, sale, and consumption of marijuana.  Colorado legalized recreational marijuana by passing Amendment 64: The Regulate Marijuana Like Alcohol Act of 2012.  For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot.  States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more than a retail product.  It is also an agricultural product, and by some measures, the largest cash crop in the United States.  Since marijuana prohibition laws were passed long before any regulations for cultivation were developed, states are facing an unprecedented challenge: regulate, for the first time ever, one of the country’s largest agricultural industries.  

Early indications suggest that states are making little effort to regulate marijuana cultivation, or fail to appreciate the disruptive potential of marijuana agriculture.  21 states may have marijuana legalization initiatives on their ballots for the 2016 elections.  Colorado, Washington, Oregon, Alaska, and Washington DC have already legalized the medicinal and recreational use of marijuana.  But few of these states are anticipating the unique regulatory challenges that marijuana agriculture presents.  Even fewer are prepared to tackle them.

This Article argues that marijuana is a burgeoning agricultural industry, and calls for regulations that recognize it as such.  As the field of marijuana agriculture law is incipient, this article provides a roadmap for the major regulatory issues states and the industry are likely to encounter.  Many agricultural policies and programs are created or supported by the federal government, and would not apply to marijuana agricultural activities that run afoul of federal marijuana prohibition laws.  Therefore, states and the marijuana industry will need to be creative in providing analogous regulatory functions.

The most immediate choice regulators will be forced to make is between an approach that incorporates the marijuana industry into the existing regulatory framework for agriculture (essentially treating marijuana like any other agricultural product), or an approach that creates a separate regulatory framework for marijuana cultivation.  While the former has its benefits, and may be achievable long-term, marijuana’s transition from the black market may call for a targeted regulatory scheme in the interim. 

Another fundamental issue facing the marijuana agriculture industry has not yet been conclusively resolved: is marijuana an agricultural commodity?  Commodities are fungible goods with no qualitative differentiation, such as wheat or soybeans.  Many existing farmers fear that marijuana markets will be flooded with cheap, indistinct marijuana grown by “Big Ag” conglomerates.  To counteract these concerns, some industry groups are advocating for states to adopt an appellation model of marijuana cultivation that would preserve markets for regional marijuana products and maintain quality standards.  States and counties can play a large role in this existential question by adopting or rejecting the appellation model, or by enacting other regulations that facilitate or preclude the consolidation of marijuana agriculture.

There is an environmental component to marijuana agriculture that will also require regulatory attention.  Pesticides and fertilizers facilitate plant growth, but may reduce soil and water quality.  There is a market for organic or pesticide-free marijuana that states and the marijuana industry may wish to cultivate.  Marijuana agriculture also requires appropriate quantities of water for irrigation and, when grown indoors, energy resources.  Regulators must balance an interest in providing resources to a growing industry with the need to manage those resources sustainably.  

When the environment does not cooperate, the federal government has been instrumental in providing stability to the agricultural industry by regulating crop insurance and providing disaster relief.  As marijuana farmers would not be eligible for these programs, states may want to provide their own support structures.  However, it may be difficult to avoid the federal government’s institutional and legal reach, presenting federal preemption concerns.

Another question concerns power sharing: where can/should regulatory authority be placed?  Local governments may play a large role in the direction of marijuana agriculture, as states with marijuana regulations have so far been broadly permissive of counties and municipalities creating their own (often more restrictive) marijuana agriculture regulations.  Local governments can utilize their lawmaking powers to shape agricultural policy for the marijuana industry, but this decentralized nature of policy-making may come at the expense of regulatory clarity for the state as a whole.

Keeping the regulatory framework centralized on the state level provides more consistency, but may be difficult to apply in states where political support for marijuana cultivation changes drastically by jurisdiction.  In addition, states will need to decide whether to consolidate regulatory authority for marijuana into one state agency, or to assign different roles and responsibilities to several agencies and regulate cooperatively.  Colorado has adopted the former model, while California the latter.  

In February 2016, Humboldt County passed a comprehensive commercial marijuana cultivation ordinance, one of the first of its kind.  As the heart and soul of California’s marijuana agriculture sector, Humboldt County has consistently played a leadership role in the development of the marijuana industry, and this ordinance may prove instrumental in shaping marijuana agriculture policies around the country.  The ordinance addresses many of the issues identified in this article, placing limits on farm size, water, and energy use, while developing an artisanal labelling program.  The Humboldt County ordinance is an ideal case study for the nascent field of marijuana agriculture law, and underscores the need for state and local governments across the nation to start developing their own regulatory framework.   

Never before has a major agricultural product entered legal markets with the pace and scale that marijuana is entering them today.  States face an unprecedented regulatory challenge, and ignoring the agricultural dimension of the marijuana industry is not a sound long-term approach.  This article will present and analyze the most significant legal and regulatory challenges states will face when legalizing marijuana.  Responsible and sustainable marijuana agriculture can be fostered at the state level, but only if regulations are responsive to the unique and unprecedented challenges that marijuana agriculture presents.

 

The Klamath River Dam Removal Agreement: Lessons for Negotiation

 The Klamath River.  Photo: Linda Tanner.

The Klamath River.  Photo: Linda Tanner.

An agreement to implement the largest river restoration project in the United States was signed last week on a fish cleaning table at the mouth of the Klamath River in northern California.  The agreement hasn't garnered much national attention, but serves as a model for negotiating a complex stakeholder agreement over water resources.  This week I've been running negotiation simulations in my Natural Resources Law and Ocean and Coastal Law classes to drive home the significance of multi-party conflicts over natural resources, and the challenges of coming to a mutually beneficial agreement when so many parties have an interest in the resource.  The Klamath River is a textbook example of a multiple use resource conflict.  

The river and its network of dams provide irrigation to farmers in Oregon's upper basin and California's lower basin, hydropower to energy markets, instream flows to federal public lands, domestic water and aquatic species for several tribes, and sustain a diverse ecosystem that includes three species listed under the federal Endangered Species Act (including the Coho Salmon).  The operator of the dams is owned by Berkshire Hathaway, the river provides recreation and tourism opportunities to local communities, and its path crosses the state boundary between Oregon and California.  In other words, stakeholders include large-scale farmers, small-scale farmers, federal agencies, endangered species, tribal governments, conservationists, corporate interests, two western states, and watershed communities.  For many years the dynamic of the conflict pitted the dam operator and farmers benefiting from the irrigated water dams provide against the downstream tribes and conservationists who were critical of the cumulative impacts dams were having on the watercourse as a whole.  There has been extensive litigation and political wrangling in the last several decades, intensifying the conflict.  Compounding these issues is a decline in the absolute quantity of water resources available in recent years.  

It seems remarkable, then, that this diverse group of stakeholders could have come to an agreement.  Upon closer inspection, it seems that ancient doctrines of water law and the judicial system may have played a necessary role in getting the parties to the negotiating table.  The United States federal government holds a reserved water right to sustain federal public lands, from which it must also protect and preserve the water rights of the several tribes.  In this case, the Klamath Tribes (established by the Klamath Treaty of 1864), had priority water rights.  In the western water law system of prior appropriation, senior water users have priority over junior water users, but it can take many years of legal battles to validate senior water rights.  In 2013, an arbitration court finally validated the tribes senior water rights over upstream farmers using the dams.  In a previous case, United States v. Adair, the judge concluded:

"Although the reservation has now been terminated, members of the Klamath Tribe and the tribe itself have the right to sufficient water to protect their hunting and fishing rights on lands of the former reservation and for agricultural purposes on those lands. Protection of these rights, the court notes, will require maintenance of a natural stream flow through both an existing marsh and forest land on the former reservation."

That court decision prompted the stakeholders to negotiate an agreement that would operationalize the tribes' legal victory.  And it didn't hurt, I suppose, that the dam operator's financial projections were ambivalent: it might have been more expensive to continue maintaining and licensing the dams than removing them.  These new legal and financial developments gave the parties the mutual reality needed to get the deal done, which included a second agreement designed to compensate farmers and ranchers who stand to lose from dam removal. 

The Klamath River restoration agreement is remarkable in its scope, representing the largest river restoration project in the country.  It is remarkable in its promise, providing hope to tribes, conservationists, and local communities dependent on the health of the river's ecosystems.  But it might be most remarkable in its resolution, providing a fascinating example of a multi-party stakeholder negotiation that will likely result in a ground-breaking restoration agreement.  While centuries-old water laws are much maligned, it is clear they still have a powerful role to play in twenty-first century water management.  

Water Privatization vs Human Rights: Lessons from Flint

This blog post initially appeared on JURIST.  It can be accessed in its original form here.

 Flint River.  Photo: Sarah Razak.

Flint River.  Photo: Sarah Razak.

When I teach Water Resources Law to my students, I often start each semester by juxtaposing two competing conceptualizations: water as a private commodity vs. water as a human right.  The contrast demonstrates the diversity in approaches to water management, while foreshadowing the public-private tensions that permeate contemporary water law debates.  Some students are attracted by the promises of privatization, including capital investments to upgrade infrastructure and the efficiencies of allowing market forces to allocate water where it is most valued.  Other students push back, noting the fundamental human need for water as a justification for holding water resources in common, while citing the negative externalities that frustrate attempts to monetize water accurately. 

Both viewpoints are playing out in the wake of the Flint, Michigan water crisis.  Last month I wrote about the rhetoric following the crisis, noting that many critics were echoing the human right to water perspective.   One Michigan state representative even proposed a bill that would declare water to be a human right.  To many observers, the crisis was caused by water managers holding financial considerations above public health and environmental justice.  Indeed, Flint's decision to switch from water provided by the Detroit Water and Sewerage Department to water provided by the Karegnondi Water Authority was largely a financial one, as the move was projected to save the city $19 million over eight years.  When the Flint city council voted to return to Detroit water, the city’s emergency manager opposed the move on financial grounds.  To many, water cannot be managed with such financial tunnel-vision, and a human right to water might rebalance water managers’ priorities.

But in the last several weeks, another view has (re)emerged.  Some have called for further privatization of water resources.  To these critics, the Flint water crisis is a crisis of public governance, one that may have been avoided had a private utility been in charge.  A private utility would still have received government oversight, while avoiding the messy political battles necessary to receive infrastructural investments.  A private utility, furthermore, would not have enjoyed sovereign immunity, providing an incentive to avoid litigation arising from water contamination.

So, which view is the right view?  It is important to get this right, to extract some broader lessons learned instead of dismissing the Flint ordeal as flukey mismanagement.  On the contrary, water infrastructure is crumbling across the country.   The American Society of Civil Engineers gives our drinking water infrastructure a D+ grade, and despite capital investments not keeping pace with upgrade costs, Congress has been spending less and less on local infrastructure maintenance.  The upshot of all this is that more and more pressure will be placed on water managers to provide safe, clean drinking water despite all these challenges. 

Just this week, the long-running water troubles experienced by residents of St. Joseph, Louisiana made headlines.  Their water has iron levels thirty-two times higher than the US EPA’s recommendations.  State engineers blame the iron concentration on faulty infrastructure in need of repair.  The small town’s representatives, though, have done little to address the problem.   In places where human and financial resources are scarce it will be difficult to promote sound water management, whether public officials are managing water resources directly or overseeing private operators.  As long as infrastructure continues to deteriorate and little to no resources are allocated to address water problems, we can expect to see more cases like Flint, Michigan, and St.Joseph, Louisiana.

For critics on both sides of the privatization vs. human right spectrum the Flint water crisis is Exhibit A for the need to reform.  Unfortunately, water resources can be mismanaged in many different ways, whether privately or publicly held.  Water users in Flint paid a staggering $864 a year for water.  But a report by Food and Water Watch found that on average private utilities charge more for water than public utilities.  Complicating the matter further are the many water management frameworks that constitute a public-private enterprise.  Around the country there are examples of both public and private water providers working well, while others are struggling to meet the needs of their communities in safe, sustainable, and equitable ways. 

Regardless of which end of the spectrum you’re on, what should be clear is that water is a vital human resource, and to manage it well requires investment and expertise.  In the face of crumbling infrastructure and shrinking budgets, it will be tempting for water managers of any utility to short-change the system in favor of short-term payoffs.  Short-changing Flint’s water quality in favor of cost-saving measures was not a unique trade-off, but rather a circumstance public and private utilities will likely find themselves facing in the future.  If Flint provides one lesson learned, then, it’s that water regulators may want to reconsider the costs and benefits of short-term water management thinking.  The nation’s water infrastructure is in need of repair, and water resources are in need of responsible governance.  There may be more than one way to accomplish those objectives, but it will be hard to do so without significant investments.  

Supreme Shocker: Environmental Law in the Scalia Era

 Photo: Ryan Stoa.

Photo: Ryan Stoa.

Last Thursday in my Ocean and Coastal Law class, we discussed the Supreme Court's majority opinion in Lucas v. South Carolina Coastal Council.  The opinion, written, by Justice Scalia, required the state of South Carolina to find "background principles" that would have prevented the plaintiff in the case from building on his property before the state enacted regulations that prevented construction on coastal lands for the purpose of environmental protection.  Unable to do so, South Carolina was eventually required to pay compensation for the regulation.  Although a controversial case, most of my students found Scalia's reasoning persuasive, a testament to his skills of argumentation.

After his passing, many have questioned what his death will mean for the Clean Power Plan.  I wrote last week about the stunning implications of the Supreme Court's stay of the plan (putting it on hold until the DC Circuit Court hears the case).  Since Scalia was part of the 5 justices voting for the stay (with 4 against), his passing makes it less likely the CPP will be struck down.  As many others have speculated (see examples here, here, and here), a justice appointed by President Obama, or a hypothetical President Clinton or Sanders, would very likely be more friendly to the CPP than Justice Scalia.  If the Supreme Court doesn't have a ninth justice by the time the DC Circuit issues its ruling, then a 4-4 decision from the Supreme Court would simply maintain the DC Circuit ruling.  And as has been noted, the government got a bit lucky there: the 3-judge panel selected from the DC Circuit court (which has a reputation for being conservative) consists of two judges appointed by Democratic presidents.   

Here's another wrinkle: one of the judges on the DC Circuit panel hearing the case is Sri Srinivasan, an early front-runner for the Supreme Court vacancy in the eyes of many observers.  If he recused himself from the Circuit or was confirmed by the Senate fairly quickly, another judge would be appointed to the Circuit court, which could alter the outcome of the decision.  Alternatively, if Srinivasan participates in the Circuit decision and then gets confirmed, he might recuse himself from the Supreme Court hearing of the case, leaving the door open for a 4-4 decision.

It will be interesting to see how this all plays out.  In the meantime, Dan Farber provides a summary of Scalia's environmental legacy that bears reflection:

Administrative law.  The Chevron test says that an agency’s interpretation of a statute is entitled to deference.  It can be set aside only if it is contrary to an unambiguous statute or if it is an unreasonable interpretation of an ambiguous statute.  There are only three cases in which the Supreme Court has ever held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking, UARG v. EPA, and Michigan v. EPA.  In all three cases, the “unreasonable” agency was EPA.  To be fair, in American Trucking, he did admit that another portion of the statute unambiguously required air quality standards to be based solely on health effects, not cost.

Property rights.  Justice Scalia wrote two major opinions elevating property rights over land use controls.  In the Lucas case, he held that a government regulation is a taking if it completely blocks development or other economic use of the land.  In the Nolan case, he held that even when the government would be justified in denying a permit completely, it can’t impose “logically unrelated” conditions on the permit, even if those conditions are in the public interest. In Stop the Beach Renourishment, he tried to freeze property law in place for all time by holding that a decision by a state supreme court reinterpreting state property law can be a taking.

Standing.  Justice Scalia wrote major opinions limiting standing for environmental groups in National Wildlife FederationDefenders of Wildlife, and Summers v. Earth Island Institute, Scalia narrowed standing law, making it more difficult for environmental groups to sue.

Federal jurisdiction. In Rapanos,  a plurality opinion by Scalia attempted to cut back drastically on federal authority over wetlands and streams.  Justice Kennedy, the swing voter, wrote a more nuanced opinion that gave the federal government more maneuvering room.

Flint water crisis evokes the 'human right to water' debate

 The Holloway Reservoir Dam, which supplied Flint, Michigan with water from 1955-1967 and 2013-2015.  Photo: Tony Faiola. 

The Holloway Reservoir Dam, which supplied Flint, Michigan with water from 1955-1967 and 2013-2015.  Photo: Tony Faiola. 

In the 1990s the 'Washington Consensus' became the conventional wisdom for managing water resources.  Based on the premise that privatizing water and selling it as a commodity would finance delivery services and infrastructure while allocating water more efficiently, many countries (from Bolivia to the United States) endorsed water privatization.  While some transitions were effective, many became high-profile disasters, in many cases pricing lower and middle class households out of the water market.  Being a good necessary for survival, this led to a backlash and global movement to reconceptualize water not as a commodity but as a human right.   In 2010 the United Nations General Assembly passed a resolution recognizing a human right to water.  122 countries voted in favor of the resolution; the United States was not one of them.

In many cases municipal water in the United States is supplied by regional government institutions or public-private partnerships.  As water allocation has historically been the purview of state law, a diversity of institutional arrangements have developed over the years, many of which work well.  Nonetheless, the Flint water crisis shows that the conceptual debate (with very real consequences) over water as a commodity or human right is alive and well.  Although Flint's water supply was never fully privatized nor guaranteed by human right, the crisis as it emerged showed the fundamental tensions government service providers must grapple with.

To be fair, it should be noted that water infrastructure is crumbling across the country.  Most of it was built in the twentieth century, and is now in dire need of repair or replacement.  The American Society of Civil Engineers gives our drinking water infrastructure a D+ grade, estimating that replacement costs for pipes alone would exceed $1 trillion.  Despite capital investments not keeping pace with upgrade costs, Congress has been spending less and less on local infrastructure maintenance.  As a result, state and local governments must pick up the tab, leading to skyrocketing water bills for consumers.  In Detroit water bills average nearly $150/month, and Flint's water rates are among the highest in the United States.  When Detroit shut off water connections to households that couldn't pay, the UN condemned the move as a violation of human rights.

Given these circumstances, it shouldn't be surprising that water policies have prioritized cost-cutting and short-term gains.  Flint's decision to switch from water provided by the Detroit Water and Sewerage Department to water provided by the Karegnondi Water Authority was a financial one, as the move was projected to save the city $19 million over eight years.  While that's a good chunk of change for a cash-strapped city like Flint, it's worth noting that even at the time of the decision, huge risks were apparent.  On the one hand, officials knew it would take three years to connect to the KWA.  On the other hand, officials also knew that an interim water supply was not guaranteed - the DWSD had a termination clause that would allow it to stop providing water to Flint after 12 months.  Sure enough, the clause was exercised, putting Flint on the clock to obtain an alternate water source.

There were a number of problems with the Flint River option, but it did have one major advantage: it was the cheapest option, saving the city $5 million over two years.   On the surface, though, the rhetoric echoed the responsibility of government to provide water to citizens.  Flint Mayor Dayne Walling said "water is an absolute vital service that most everyone takes for granted...It's a historic moment for the city of Flint to return to its roots and use our own river as our drinking water supply."  When the Flint city council voted to reconnect to the Detroit water system after water quality concerns emerged, however, the state's emergency manager cited costs as justification for opposing the move.  

The outrage over the handling of the crisis is predicated on a few different factors, including political affiliations, race, and class.  But weaving in and out of these debates is the tension between water being managed as a commodity and the fundamental dependency that human populations have on water resources.  Just like water privatization efforts in the 1990s and 2000s led to public fury and protests around the world, so the Flint water crisis flames are stoked by water management decisions repeatedly based on financial considerations.  President Obama offered his own critique, calling the crisis "a reminder of why you can’t shortchange basic services that we provide to our people and that we, together, provide as a government to make sure that the public health and safety is preserved."  In the wake of the disaster, one Michigan state representative declared water to be a human right, and proposed legislation that would make the same point: "Are there teeth behind this bill? Possibly not, but at least we're making a statement that everybody in Michigan has a right."

Given the state of the country's water infrastructure, Flint is unlikely to be a one-off disaster.  Local governments are in a tough spot, with few resources available to maintain crumbling infrastructure, and an obligation to provide basic services like water supply to their citizens. Flint can demonstrate to other municipalities around the country that setting water policies based on short-term financial considerations not only may not pay off in the long-run, it may also strike a nerve shared by many people who view water as one of the most basic and essential services a government provides for its people.  Understanding that sensitivity and cultural connection to water will be a prerequisite for navigating the tough water management decisions that lie ahead.

Introducing "Weed and Water Law"

 Satellite image of the Island Mountain area and the Eel River.  Taken from Google Maps.

Satellite image of the Island Mountain area and the Eel River.  Taken from Google Maps.

If you've been following this blog you've probably noticed that I've been exploring the environmental impacts of marijuana policy for some time now (see archived blog posts on the topic here).  While so many states have either legalized or are close to legalizing marijuana, almost none of them have created a regulatory framework to address environmental issues.  

Since May I've been working on an article about marijuana and water rights.  Water allocation is regulated at the state level, so there are a number of different water rights systems in the United States.  My article is the first to look at these various rights regimes and consider how they will interact with the marijuana industry.  The full draft of the article is now available here.  Below is the introduction:

In late June of 2015, a convoy of vehicles carrying enforcement officers from four different counties of northern California drove up and into the remote and rugged slopes of Island Mountain. The mountain had been given its name by 18th century settlers who observed that it was nearly surrounded by the waters of the Eel River and its tributaries. Today it represents “the dark green heart of the Emerald Triangle,” a region known for its prolific cultivation of marijuana. The enforcement officers conducted open-field searches on private lands, and by the end of the week-long ‘Operation Emerald Tri-County’ had confiscated 86,578 marijuana plants.

While police raids of marijuana farms is nothing new for the area, this particular operation raised some eyebrows. Unusually for a raid of this magnitude, no federal officials were involved – the raid was a wholly state operation. Since legalizing the medicinal use and cultivation of marijuana in 1996, California has been reticent to allocate state resources towards marijuana enforcement, decriminalizing possession of small amounts state-wide in 2010 and capping civil fines at $100. Also unusual were the lands being targeted by the county officers. Seventy percent of marijuana plants seized by law enforcement are illegally grown on public lands, but this operation went after privately held marijuana grows with some measure of legal protection under the state’s Compassionate Use Act. Until this point, a state raid of private lands was uncommon. The raid thus signaled a shift in the enforcement of marijuana laws, but not because the counties were cracking down on marijuana per se. Marijuana, like every other crop in the state, had fallen victim to water scarcity.

Months earlier, in January of 2014, the Governor of California issued a drought state of emergency in response to ongoing shortfalls in freshwater supplies. The declaration asked state agencies and officials to “take all necessary actions to prepare for these drought conditions.” Since then, the drought in California and across the United States has become a mainstream topic of conversation, dominating headlines and forcing governments to re-examine their water regulations. Water scarcity affects virtually all sectors of economic life, and as an agricultural commodity, marijuana is not immune. There is a paucity of research on marijuana and water supplies, almost certainly due to the covert nature of marijuana production. But in March of 2015, the first credible scientific study of the impacts of cultivation on water resources found that the demand for water to irrigate marijuana plants often outstripped water supplies. Data from the study came from the Eel River watershed.

‘Operation Emerald Tri-County’ is the clearest sign yet that the rapidly evolving forces of marijuana legalization and water scarcity are about to collide. The enforcement officers may not have been joined by federal officials, but they were accompanied by personnel from the state Department of Fish and Wildlife on suspicion of water abuses. Later the four counties claimed the raid itself was motivated by violations of state water regulations, not marijuana cultivation. After finding unpermitted stream bed alterations, diversions, and reservoirs, the officials moved to confiscate the privately grown plants.

In the aftermath of the raid, it became clear that the environmental intentions of the state may not have produced the greenest long-term consequences. Several victims of the raids were members of a political action group working with the counties to draft ordinances that would increase transparency and bring growers into compliance with environmental laws. The group’s director was dismayed that the raid would force growers back into the shadows, away from the state and county’s regulatory framework. A previous effort in 2010 was successful in partnering private growers with county officials to monitor plants and facilitate regulatory compliance, but a federal raid and subpoena of the program’s paperwork shut it down and broke up the partnership.  While states can and should enforce water laws in the marijuana industry, doing so without alienating the regulatory targets will be challenging.

This is especially true when considering the pace and mechanism of marijuana legalization initiatives. Marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington DC. Between now and election day 2016, an additional 14 states may place marijuana legalization initiatives on their ballots. In addition, 23 states and Washington DC have legalized medical marijuana, with up to seven states pending legislation. The fact that legalization is largely taking place through ballot initiatives suggests that the public won’t be waiting for state governments to get their regulatory ducks in a row. A majority of Americans favor marijuana legalization, raising the likelihood that state water law doctrines will be tested sooner rather than later.

Reconciling marijuana legalization within the structures of water laws and regulations reveals two broad conclusions. First, for many states the legalization of marijuana is likely to strain existing water regulation resources, disrupt water markets, and interfere with water rights. Marijuana is arguably the largest cash crop in the United States, and while the industry has already been using significant water resources, simply enshrining historical uses is not a viable option for many jurisdictions. On the other hand, states must bring marijuana producers into the fold lest the industry continue to operate in the shadows, and doing so will require some accommodations for producers to use water resources.

Second, and conversely, water scarcity will play an increasingly large role in the development of the marijuana industry. The tri-county raid set a precedent that more law enforcement officers and state agencies are likely to follow in order to safeguard precious water supplies. Even well-established water rights in the agricultural sector have been cut and re-negotiated, and marijuana producers joining the regulatory fray will need to navigate the various idiosyncrasies of centuries-old water laws to maximize their allocations. States are likely to place increased scrutiny on producers who choose to grow or irrigate outside of legal channels.

These broad conclusions stem from a systematic analysis that addresses the gap in understanding the relationship between water rights and marijuana legalization. Section II begins by describing status quo marijuana production taking place outside the context of state water law doctrines. While marijuana can be grown sustainably, unregulated production often leads to illegal and destructive water practices affecting downstream rights holders.

Sections III and IV envision a legal marijuana market governed by the predominant doctrines of US water law: prior appropriation and riparianism. Each system presents a unique set of legal and regulatory challenges, and for states like Colorado, these challenges are already evident. In the American West, prior appropriation states will need to adapt to the relatively rigid nature of priority water rights, as well as the federal government’s outsized role in water allocation and marijuana prohibition. States employing riparianism or regulated riparianism will have a slightly easier time incorporating marijuana cultivation into existing systems, as long as the doctrinal or regulated administration of water rights is holistically applied to the legal marijuana industry.

In Section V the theoretical becomes reality. California’s uniquely mixed system of riparian and appropriative rights provides a number of opportunities for marijuana cultivators to come into compliance with water laws. However, the state’s decentralized and haphazard approach to marijuana regulation creates uncertainty in the marijuana industry. That uncertainty bleeds into the administration of water rights despite the intentions of both cultivators and regulators.

Section VI concludes with recommendations for states in the process of legalization. By applying water laws to the emerging legal marijuana industry, this study identifies a number of key trade-offs states must make in reconciling marijuana cultivation with water scarcity. This section considers the costs and benefits of decentralization, restrictive cultivation licensing, and the “no action alternative.” While water laws will occasionally clash with the new marijuana economy, this Article identifies opportunities to smooth the transition.

Follow the Money: Florida's Land Acquisition Trust Fund

  WACISSA RIVER, FLORIDA.  PHOTO: FWC

WACISSA RIVER, FLORIDA.  PHOTO: FWC

Constitutional Amendment 1 wasn't controversial when it was on Florida's ballot last November.  Dubbed the Florida Land and Water Conservation Initiative, the amendment passed easily.  Controversy has flared up since then, as interpretations of the amendment vary.  Some say the money raised by the amendment - put into the Land Acquisition Trust Fund - can only be used to acquire conservation land.  Others (including legislative budget proposals) claim the funds can be used to cover existing expenses related to land and water management.  I wrote about this back in May, arguing that the language of the amendment probably leaves room for the Fund to cover existing operations, despite the name of the Fund itself.  I also wrote that acquiring land might not be the only mechanism to achieve sound conservation: 

Amendment supporters might consider focusing the debate on outcomes, not inputs.  Land acquisition might not by itself promote conservation, just as operational spending is not per se  unproductive.  An effective conservation framework in Florida requires lands that are thoughtfully managed to advance conservation goals.  So instead of bemoaning operational expenditures, it might behoove amendment supporters to ask for more detail instead:  Will staff salary allocations make new hires in areas where expertise is lacking or merely cover the existing bureaucracy?  What kind of "technology and information services" will be provided to the Department of Environmental Protection?  Will firefighting equipment purchased by the fund prioritize the protection of conservation areas?  Given that sea level rise presents a monumental challenge to coastal communities, will the fund be used to finance climate change adaptation measures Florida's cities are begging for from the state?

The Vero Communique picked up on my piece, and it looks like they've been doing just that by trying to track down the whereabouts and details of two major state-funded projects.  One of them was an allocation from the Land Acquisition Trust Fund to the St. John's River Water Management District:

Another project we researched is one of the [] projects where $ 2,750,000 was allocated to the St. John’s River Water Management District (SJRWMD).  SJRWMD was kind enough to respond to our inquiry about this project, as follows: “The $2,750,000 referenced in Rep. Mayfield’s column is a state appropriation from the Land Acquisitions Trust Fund. The District has not yet determined how this money will be used, but will be making that decision in the near future.”

This is the first instance I've encountered where a water management district has been given an allotment from the Fund with discretion on how to spend it.  It might imply that legislators are willing to place the burden of interpretation on implementing agencies by giving them both funds and the discretion to spend those funds in compliance with the amendment's terms.  It will be interesting to see how the SJRWMD decides to spend the appropriation in light of that power.

Regulating Marijuana: Water Agencies vs. Law Enforcement

 Photo: USFS Region 5

Photo: USFS Region 5

Marijuana legalization is spreading quickly across the United States.  One of the toughest challenges for state governments will be to create a regulatory infrastructure for the marijuana industry that strikes the right balance.  Enact policies that are heavy-handed and the industry will continue to show itself capable of surviving on the black market.  Fail to regulate at all and the legal marijuana market will struggle with uncertainty and negative externalities.  Colorado's nascent marijuana regulations have been relatively well-reviewed, in part because it had the luxury of starting from nothing.  But in California the marijuana industry has been entrenched for decades, while cultivation and consumption for medicinal use has been legal since 1996.  Nonetheless, the state has not prioritized regulation of the industry, nor made any meaningful attempts to innovate or adapt to changing conditions.  I've written in the past about the environmental impacts of excluding the industry from the regulatory framework (see here and here), as well as the difficulties states may have when choosing which of their many administrative agencies will take responsibility for regulation (see here).

Both of those issues are now converging in Northern California, where the state's regional water board is at odds with state and local law enforcement.  Adrian Fernandez Baumann reports on the North Coast Regional Water Quality Control Board's efforts to partner with marijuana farmers to regulate water resources:

The water board reps' basic pitch: Starting this summer, and going fully into effect next spring, the board would regulate cannabis cultivation on the basis of environmental impacts. Growers would be asked to invest time and money in the proper stewardship of the land and in repairing damage that had already been done. In exchange, the board offered, basically, an understanding: the government would give growers time to fix old problems and would provide a them with a framework to diagnose and repair issues. And all of it would be totally, officially, unconcerned with the legality of marijuana.

In principle the system should work, and some growers are enthusiastic.  But this program, and any others promulgated by state or local agencies, will face the same challenge: establishing sufficient (if not exclusive) control over marijuana regulation such that the actions of other agencies don't interfere.  This was a problem for a similar program that was eventually broken up by the federal government.  And considering that marijuana raids as recently as late June targeted private property owners, it may be a problem for the water board's program as well.

For law enforcement, there are strong incentives to ignore the water board's call for cooperation and to just keep raiding. Asset forfeiture laws allow police to seize large amounts of money and assets in pot busts. In 2014, Mendocino County seized $5.2 million in assets, including $3.9 million in cash.The Mendocino District Attorney's Office takes things even further with its "restitution" program, which co-opts a law intended to pay for meth lab clean-ups to extract more money from growers. Basically, the DA approaches busted growers with a deal: Give us some cash for each pound confiscated and you get no jail time. The amount is negotiable. Officially, it's $50 per plant and $500 per pound, but it often ends up in the tens of thousands of dollars. The funds then get divided up between the DA and the arresting agency, creating a revenue stream with little democratic oversight.  

There are advantages to decentralized regulation, among them the innovation and experimentation that local agencies create.  But there are drawbacks as well, and generally speaking, decentralization and fragmentation are not the same thing.  The former shifts power to local governments with local expertise, while the latter spreads overlapping mandates around between agencies and requires extensive coordination and cooperation.  The marijuana industry will implicate many state and local agencies, but to be effective and integrated, the state will need to set some ground rules for how those agencies interact.  If it does not, expect more programs working at cross-purposes.

Introducing "Water Governance in Haiti"

 The Trou-du-Nord River in northern Haiti, near its mouth in Caracol Bay.  Photo: Ryan Stoa.

The Trou-du-Nord River in northern Haiti, near its mouth in Caracol Bay.  Photo: Ryan Stoa.

Haitians will go to the polls on Sunday to vote in their national elections, seven months after the Haitian Parliament dissolved and left the executive ruling by decree.  Considering the sorry state of water services in the country, water has been on the political agenda for months.  But the administrative capacities are so low, and the information so scarce, that it's hard to know who the players are in the Haitian water sector, what laws govern them, or how capable those agencies are to carry out their mandates.

I just posted my latest article, titled "Water Governance in Haiti."  It looks at the Haitian water sector to get a clearer picture of the landscape.  The study was funded by the Inter-American Development Bank, and included an analysis of the regulatory capacities of local government agencies in northern Haiti (where foreign governments are funding a large industrial park).  Here is an excerpt:

The first phase of this study collected and analyzed the laws, policies, and institutions involved in water resources management in Haiti.  Results from that phase suggest that the laws and policies affecting water resources create a fragmented and uncoordinated water management framework, in which national ministries have overlapping mandates and rarely coordinate their efforts effectively.  In addition, while the legal framework transfers significant management authorities (and responsibilities) to local governments, there is little else in the way of statutory or regulatory guidance for these governments to rely on.  For that reason, the legal framework creates broad ambiguities regarding how local governments are to be financed, staffed, or otherwise carry out their water management duties.  These uncertainties could, in theory, create the interpretational space needed for local governments to experiment with water management strategies and techniques in ways that foster resilience and increase sustainability.  In practice, it seems more likely that opaque legal mandates would create confusion and leave local governments ill-equipped to tackled the daunting challenges of water management. 

The following case study of institutional capacities in the Trou du Nord watershed in northern Haiti suggests that most agencies and stakeholders have neither the human nor the financial resources in place to fulfill their mandates.  Some, however, such as DINEPA’s local representatives or the University of Limonade, are relatively well-staffed and exhibit the continuity of presence needed to justify targeted capacity building efforts.  Others, such as the sections and communes in the region, may have low levels of capacity in water resources management but merit engagement in order to secure broad participation in water management planning efforts.  The institutional capacity analysis that follows has been conducted with an eye towards informing the final component of the IDB project funding this study: an integrated water resources management plan for the Trou-du-Nord watershed.

The Trou du Nord river is located in the Trou du Nord Arrondissement, a subdivision of the Northeast Department of Haiti.  The Arrondissement contains four communes: Caracol, Saint Suzanne, Terrier-Rouge, and Trou-du-Nord.  These communes comprise the local government bloc of stakeholders most integral to a participatory water management planning strategy, as they represent the core geographic regions of the watershed, while exhibiting a level of regulatory and management activity that lower levels of government (i.e., sections within the communes) lack.  For the most part the four communes do not employ any full-time staff dedicated to water resources, though some activities fall within the broad scope of water management.  More important, perhaps, is the local support and buy-in that would be needed from each commune to effectively carry out a water management plan that modifies the status quo in any meaningful way.

Caracol is a flood-prone coastal commune on Caracol Bay, at the mouth of the Trou-du-Nord river.  It is sparsely populated, but due to the Caracol Industrial Park’s presence, demographics are in flux and electricity is reliable.  The commune reports a total annual budget of less than $195,000, of which over 40% comes from a European Union development project. The 39 staff receive an annual salary of around $4,320, but none are dedicated to water management per se.  A significant portion of commune tasks pertain to waste management, accomplished with wheelbarrows and two motorcycles.  There are no vehicles, nor is there a disposal site in the commune.  While commune staff do not engage in water management themselves, they do work closely with DINEPA staff on water projects when necessary.

On the opposite end of the watershed, the commune of Saint Suzanne sits at the source of the Trou-du-Nord river and comprises a significant portion of the watershed’s catchment area.  The overall budget and staff salaries are similar to those of Caracol, though in practice staff are often not paid on time.  The office has one functioning computer, one motorcycle, and no human or financial resources dedicated to water management.  DINEPA’s presence is minimal, supplemented by periodic wells drilled by international NGOs.  Staff conduct street cleaning, but lack an official disposal site.  Hygiene facilities are minimal to non-existent. 

The communes of Terrier-Rouge and Trou-du-Nord lie between upstream Saint Suzanne and downstream Caracol.  Terrier-Rouge is the eastern commune, sitting directly on the Route Nationale of the northern transportation corridor.  The industrial park has financed new housing projects and reliable electricity in the commune.  A municipal engineer on staff facilitates the issuance of construction permits, and the commune has hired eight staff to conduct reforestation work.  Most other staff are engaged in street cleaning.  The commune lacks a waste disposal site, though plans are in place to build a site capable of serving multiple communes.  DINEPA’s presence, and hygiene facilities, are minimal and supplemented by international NGOs.  The overall budget and staff salaries are similar to those of Caracol, with neither dedicated to water management in any meaningful way.

Finally, the Trou-du-Nord commune forms the western flank of the watershed.  The river flows through the commune before passing by the industrial park.  While no housing projects have been constructed its proximity to the park has enabled reliable electricity throughout the commune.  The commune is relatively well-staffed, with an engineer on hand to issue construction permits, and staff engaged in waste management and small-scale hygiene projects.  However, little infrastructure is available for these purposes, as the commune has only one tricycle and some wheelbarrows, no disposal site, and a dysfunctional water supply system.

The full study is available here.

 

The Environmental Impacts of Marijuana Prohibition, Ctd

 Photo: California National Guard.

Photo: California National Guard.

A reader sends along an interesting take from Mother Jones on the recent large-scale raids on marijuana properties in northern California.  The report supports my concerns (outlined here) that water-stressed areas might start experiencing an awkward convergence of water and marijuana legal frameworks as states begin focusing their limited enforcement capacities on properties allegedly violating both paradigms:

There were helicopters, SWAT teams, and nearly 100,000 marijuana plants yanked out of the ground, but last week's massive raid in Northern California's rugged Emerald Triangle was not your father's pot bust. Carried out by county law enforcement with no help from the DEA, it targeted private landowners—and not just because they were growing pot, police say, but because they were illegally sucking some 500,000 gallons of water a day from a section of the nearby Eel river that is now stagnant and moss-ridden.  In short, the cops say this was as much a water raid as a pot raid. 

I remain skeptical of using water rights violations as a justification for marijuana raids, largely because marijuana cultivation remains at-best a gray-market activity, making it difficult for growers to comply with state environmental regulations without making themselves vulnerable to federal seizures and arrests.  And as with other regulatory realms, the state will struggle to enforce consistently:

A leading advocate for Northern California pot growers scoffs at the notion that the raid was environmentally motivated. "This isn't about the environment; this is about business as usual," says Hezekiah Allen, director of the Emerald Growers Association [...] "There are 2,200 un-permitted water diversions for wine grapes in the Central Valley," he points out, citing a state report, "so I am curious when we are going to see the sheriff show up and chop down un-permitted vines. If we are agnostic about what the crop is, the same crime should lead to the same activity. That is all we are asking, just to be treated like any other crop."

"Everything is Connected" - Thoughts on the Environmental Encyclical of Pope Francis

 Photo: Aleteia.

Photo: Aleteia.

Laudato si' is the second encyclical of Pope Francis, and the first that is considered entirely his work.  Encyclicals are letters written by the Pope intended to provide authoritative guidance to bishops (or occasionally a wider audience) on a particular question or issue of high importance, considered significant in part for their rarity.  Pope Francis' predecessor, Benedict XVI, wrote three in his eight years of papal service, and before him John Paul II wrote 14 in his 27 years.  Encyclicals are not produced lightly, and signal that the issues addressed are of high priority to the Catholic Church.

That Laudato si' is largely focused on the environment and its degradation is therefore a watershed moment for international environmental lawmaking and the human-natural relationship in general.  So far many (examples here, here, and here) are pigeon-holing the encyclical as a manifesto on climate change, and that's unfortunate.  I've written about the overshadowing effect climate change has on other environmental issues (see here and here), and Laudato si' appears to be falling victim to that dynamic.  In reality the encyclical is much broader, questioning fundamental assumptions about human society and our relationship with the earth - and ourselves.  In particular, Pope Francis expresses skepticism in humanity's collective trust in technological progress, free markets, and utilitarian materialism.  Give the Pope credit for one thing at least: he's not afraid to ruffle some feathers.

Interspersed with these weighty pronouncements are some environmental law and policy positions I find significant in part because Pope Francis eschews the typical platitudes found in many environmental advocacy documents, instead honing in on some very specific prescriptions.  

Take water law for example.  One of the fundamental tensions in water management is a seeming contradiction between privatizing water resources and taking advantage of market fundamentals on the one hand, and the belief that water is a common good and a human right on the other hand.  Jewish and Islamic texts generally perceive water as a common good (Sharia literally means "the way to water").  Here is Pope Francis' position:

Even as the quality of available water is constantly diminishing, in some places there is a growing tendency, despite its scarcity, to privatize this resource, turning it into a commodity subject to the laws of the market. Yet access to safe drinkable water is a basic and universal human right, since it is essential to human survival and, as such, is a condition for the exercise of other human rights.

A human right to water has been advocated for by many in the last decade, pushing back against perceptions (such as the Dublin Declaration in 1992) that water is an economic good.  Unfortunately a human right to a finite natural resource is easier to pronounce than operationalize, and few who advocate for a human right to water have come up with a policy that reconciles universal water rights with the realities of water scarcity.  The Pope offers one solution, at once obvious and elusive: wholesale lifestyle change and a rejection of practical relativism.  "A misguided anthropocentrism leads to a misguided lifestyle."  In other words, environmental change can happen only through self-change and a less consumerist way of life.

Contemporary notions of democracy are similarly challenged by the encyclical.  It is the short-term thinking of politicians and their constituents that prevents the long-term thinking prudent natural resources management requires in the first place.  Intergenerational equity is not a new concept, but receives little support from status quo institutions.  Here Laudito si' uses it not only to justify long-term thinking, but also to reject the cost-benefit paradigm that is prevalent in even liberal environmental circles:

Is it realistic to hope that those who are obsessed with maximizing profits will stop to reflect on the environmental damage which they will leave behind for future generations? Where profits alone count, there can be no thinking about the rhythms of nature, its phases of decay and regeneration, or the complexity of ecosystems which may be gravely upset by human intervention. Moreover, biodiversity is considered at most a deposit of economic resources available for exploitation, with no serious thought for the real value of things, their significance for persons and cultures, or the concerns and needs of the poor.

Here I think the Pope gives too little credit to the potential of market forces to internalize externalities.  Valuation of ecosystem services is challenging, to be sure, but methodologies are being improved upon every day.  At the end of the day, is internalizing external costs a more difficult undertaking than adopting wholesale lifestyle changes?  Certainly there is value in having a better understanding of the value ecosystems provide.

Ultimately the encyclical acknowledges the role and need for environmental laws, but remains deeply skeptical of the institutions in place to enforce them:

Whether in the administration of the state, the various levels of civil society, or relationships between individuals themselves, lack of respect for the law is becoming more common. Laws may be well framed yet remain a dead letter. Can we hope, then, that in such cases, legislation and regulations dealing with the environment will really prove effective? We know, for example, that countries which have clear legislation about the protection of forests continue to keep silent as they watch laws repeatedly being broken.

To me that's not a rejection of environmental law as much as an acknowledgement that environmental laws are a necessary but not sufficient condition for a healthy environment.  But the encyclical starts to contradict itself some by promoting the principle of subsidiarity (the idea that governance should be decentralized to take advantage of local knowledge and conditions) while at the same time rejecting policies that may be effective in one jurisdiction or another.  "There are no uniform recipes, because each country or region has its own problems and limitations." Yet the Pope rejects carbon credits because they "may simply become a ploy" for continued degradation.  They may, or they may not.  But it seems to me that local experimentation should be encouraged, and if political actors can compromise on a cap-and-trade program, well, let's see what they can do.  

At the end of the day, Laudito si' is a remarkable document for its scope and ambition.  Not only does it elevate "the environment" to a higher position on political priority lists around the world, it frames a wide variety of seemingly disparate global challenges through the lens of environmental degradation.  Laudito si' is being hailed as a climate change piece, but in his first major encyclical, Pope Francis has done much more than advocate for climate change action.  Laudito si' questions fundamental assumptions about human social order and our relationship with both the earth and ourselves.   

Regulating the drought in California, Ctd

 Groundwater pumping in California.  Photo: General Physics Laboratory.

Groundwater pumping in California.  Photo: General Physics Laboratory.

For the first time in the Public Policy Institute of California's polling history, Californians now list 'water and drought' as the most important issue facing the state, almost twice as important as 'jobs and the economy.'  No wonder, then, that water law reform is developing quickly.  Last week the state Senate passed a bill that would finally make data from well logs (showing well location and depth) a matter of public record.  California had been the only Western state that did not provide public access to well logs.  According to stakeholders, the drought has precipitated rapid shifts in public opinion on water regulation:

This is the third time that Pavley has introduced legislation to make the well logs public. The data have been restricted to the well owner, the Department of Water Resources, and selected state agencies for more than 50 years. The Legislature required well drillers to file the completion reports starting in 1949, but two years later lawmakers, at the request of well drillers who claimed the information was a trade secret, halted public access to the documents.
Times have changed. John Hofer, executive director of the California Groundwater Association, which represents well drilling companies, said the organization will not oppose the bill.  “We’re not going to stand in the way,” Hofer told Circle of Blue. “It’s not an issue for us now. We’re not going to fight it. It’s coming.”

The legislation is a good start, but remains incomplete for two reasons.  First, because while the logs are made public, the actual owners and users of those logs remain confidential.  Public shaming of excessive water users in Silicon Valley led to California tightening public access to water consumption records in the late 1990s.  Public shaming may not be the most effective route towards use reductions, but knowing who is operating and using wells is important for groundwater management.  And that leads to the second concern: California water laws still lack a mechanism to monitor and distribute actual extraction data.  In other words, well users still aren't required to report how much water they're using.  Until then hydrological models will estimate supply and demand, but the legislature still has work to do to make extraction data more accessible.  Still, if public opinion on the drought remains steady, more reforms to California water law are sure to come.  Stay tuned.

Regulating the drought in California, Ctd

 California cabbage crops.  Photo: Naotake Murayama.

California cabbage crops.  Photo: Naotake Murayama.

In a sign of how wobbly California's water law regime has become, farmers with long-standing water rights in the Sacramento-San Joaquin Delta made an offer to the state of California late last month in which they promised to cut their water use by 25%, in exchange for a promise from the state that no further reductions would be applied.  It was a shrewd and unprecedented tactic, considering many farmers hold decades or even centuries-old water rights.  Under California's hybrid prior appropriation/riparian system of water law, many farmers obtained their water rights by making use of waterways in the early 20th century.  Because older rights take priority over newer rights, older rights holders are virtually guaranteed their allotment, even in times of scarcity.  But this year's drought is so severe that state regulators are enforcing mandatory cuts on even the most senior water rights holders.  

And that prompted farmers in the Sacramento-San Joaquin Delta to negotiate the 25% reduction settlement, which the state agreed to last week.  The feeling is that while 25% cuts are painful, at least farmers can plan for those reductions with some certainty, and avoid a doomsday 100% reduction scenario.  This farmer sums it up well:

“For me, 25 percent I can handle,” said Gino Celli, who farms 5,000 acres of tomatoes, alfalfa and corn in the delta. “Anything more than that — man, I’m done.”

Said another:

“There is a threat that the state might try the unthinkable and tell us that we cannot use any of the water,” said Dennis Gardemeyer, a delta farmer who helped spur the deal. “I and almost everyone in the delta think that will result in all manner of lawsuits and they will not prevail, but there’s always that threat.”

Now that the framework for agricultural water reductions are in place, farmers will have to choose between a painful but feasible voluntary reduction, or roll the dice with their existing rights and potential litigation.  It seems all but certain that cuts to long-standing rights holders are forthcoming:

Other cuts are virtually inevitable for farmers who don’t participate, said Felicia Marcus, chair of the state Water Resources Control Board. [...] Further cuts will go beyond any that have ever happened before: “Senior [water rights] holders have never been cut as much as they will be this year,” Marcus said. “Lawsuits are inevitable.”

Under the deal farmers in the Sacramento-San Joaquin Delta had until today, June 1, to submit their reduction plans to the state.  It will be interesting to see how many of the region's farmers submit plans and how many of those plans get approved.  It's not clear at this point what the state's criteria will be for evaluating those plans, but a pragmatic approach would favor reductions that can be easily monitored and enforced, like foregoing a crop entirely or fallowing a field.  In some cases cutback orders are being enforced by the honor system, and as little as one fifth of farmers may be complying with mandatory water reductions.  Negotiated water reduction deals are promising, but reducing the monitoring and enforcement pressure on state regulators should be a central component to any lasting water law reform.  

 

 

Does Florida's Land Acquisition Trust Fund really require land acquisition?

 Wacissa River, Florida.  Photo: FWC

Wacissa River, Florida.  Photo: FWC

Last November 75% of Florida voters supported Constitutional Amendment 1, the Florida Land and Water Conservation Initiative.  The amendment was designed to ensure that at least one-third of existing documentary excise tax revenues would be allocated to the Land Acquisition Trust Fund.  The Fund, in turn, would be used to promote conservation and natural resources, primarily through the acquisition of lands for conservation.

Before the Florida legislature abruptly adjourned last month before adopting a budget, supporters of Amendment 1 were outraged by the way in which lawmakers proposed spending Amendment 1's $750 million conservation funding.  Budgets in both the House and Senate propose spending conservation funding on existing operational costs.  The House budget proposal includes funds for staff salaries and firefighting equipment, while the Senate budget funds new patrol vehicles and fish farming regulations.  Supporters of the amendment claim those expenses aren't permitted:

"I don't think the words 'Land Acquisition Trust Fund' could be any more clear," said Will Abberger, chairman of Florida's Water and Land Legacy, the committee that sponsored the amendment. "It's not the 'land management trust fund.' It's not the 'existing agencies operations trust fund.' It's the Land Acquisition Trust Fund."

The sponsor committee claims that out of the $750 million available, only $8-10 million is reserved for the acquisition of land for parks and wildlife areas.  The Speaker of the House believes that is enough to satisfy Amendment 1's objectives:

"We should make sure we can maintain the 5.3 million acres of conservation lands we already own. We believe land should be purchased for strategic reasons, such as wildlife corridors and connecting existing state lands."

Unfortunately for the sponsoring committee, there is some ambiguity in the actual language of the amendment.  It sets aside funding "to finance or refinance" several broad categories of conservation work, including the acquisition and improvement of land; wildlife management areas; lands that protect water resources and drinking water sources; lands in the Everglades Agricultural Area and the Everglades Protection Area; beaches and shores; outdoor recreation lands, including recreational trails, parks, and urban open space; and rural landscapes, working farms, and ranches.

The broad nature of the amendment leaves ample room to interpret existing operational costs as viable uses of the Land Acquisition Trust Fund.  That operational spending would seem to violate the spirit of the amendment may have little bearing: even the ballot summary statement was clear that "management" of conservation lands would be fair game.

While lobbying continues before a special session is convened in June to finalize the budget, amendment supporters might consider focusing the debate on outcomes, not inputs.  Land acquisition might not by itself promote conservation, just as operational spending is not per se  unproductive.  An effective conservation framework in Florida requires lands that are thoughtfully managed to advance conservation goals.  So instead of bemoaning operational expenditures, it might behoove amendment supporters to ask for more detail instead:  

  • Will staff salary allocations make new hires in areas where expertise is lacking or merely cover the existing bureaucracy?  
  • What kind of "technology and information services" will be provided to the Department of Environmental Protection?  
  • Will firefighting equipment purchased by the fund prioritize the protection of conservation areas?  
  • Given that sea level rise presents a monumental challenge to coastal communities, will the fund be used to finance climate change adaptation measures Florida's cities are begging for from the state?

If lawmakers can't be forthcoming about proposed allocations, then amendment supporters are right to be skeptical.  Conservation isn't all about acquiring land, but if funds are being channeled toward operations and management instead, it's fair to ask how improved institutional capacities will produce the conservation outcomes that are at the heart of Amendment 1.  

 Lake Runnymede Conservation Area.  Photo: Andrew T. Sullivan

Lake Runnymede Conservation Area.  Photo: Andrew T. Sullivan

Regulating the drought in California, Ctd

On the Public Record, a pseudonymous blogger on California water issues, responds to my post outlining some drawbacks to bottom-up water management with an interesting observation on government discourse:

This is the second time we’ve needed people who are employed by universities, not water agencies to tell us this.  There is certainly no will to acknowledge this from within the state bureaucracies.  Local agencies are not magic: some are good, some are inept, some are overwhelmed.  We will find out which ones are which, but we’ll have lost years to the process.
 Sacramento Delta.  Photo: Daniel Parks.

Sacramento Delta.  Photo: Daniel Parks.

The stakes are so high in the California water sector I'm not surprised government agencies are keeping their heads down.  Groundwater regulations can ensure some measure of fairness between users and long-term sustainability, but there's no doubt reforms will turn some status quo winners into losers, and some losers into winners.  As a case in point, Maven's Notebook has a blog roundup on this week's California water news which features, in addition to this blog, an article demonstrating the trade-offs between endangered species, urban populations, and agriculture in the Sacramento-San Joaquin Delta.  There isn't an easy solution for water managers: 

Given tight water supplies, there’s little doubt that this additional water flowing from the Delta could have been used for other purposes. But some of the fish species that depend on the Delta are struggling mightily during this drought. Reallocating more water to other uses almost certainly would have caused further environmental harm, and increased the chances of stricter future regulations to protect endangered fish. 

The South Florida Water Management District orchestrates a similar balancing act between water needed for the Everglades, the sugar industry, and coastal populations.  Florida's water management districts are relatively well-funded and staffed, yet groundwater management still presents problems.  Local agencies in California now have to bear the responsibility for making complex trade-offs between groundwater users whether they are prepared for it or not.  Let's hope the legislature gives them the support they need.  

The Environmental Impacts of Marijuana Prohibition

The Environmental Impacts of Marijuana Prohibition

It's 4/20, international cannabis appreciation day.  What better time to consider the environmental impacts of marijuana prohibition?  I say prohibition, and not cultivation, because there has already been significant attention paid to the environmental impacts of cultivation.  Mostly these criticisms focus on the anarchic nature of marijuana farming culture, and the extent to which these lawless operations despoil the environment.  Withdrawing water without permits, clearing forested areas, and using fertilizers that run-off into nearby streams are among the impacts, and I'm sure there's truth to that.  But it's worth asking why that is taking place, and what role marijuana laws are playing.  This seems to be one school of thought in response to state measures to regulate marijuana farming:

The marijuana industry has long been the province of lawbreakers, and it seems unlikely that those who have been conducting their business without any legal oversight would readily adopt measures to protect the...environment from the impact of their actions.

Recent history suggests otherwise.  In 2010 Mendocino County and local growers developed a plant registration system that helped farmers and the county comply with environmental laws.  It showed promise until federal marijuana prohibition laws broke up the partnership:

Almost 100 growers participated, but the program was shut down in early 2012, after federal agents raided one of the grows and US Attorney Melinda Haag hinted that she might just take the county to court. Later that year, a federal grand jury subpoenaed the county's zip tie records. 

The environmental impacts of marijuana cultivation might be significant, but they are made worse by forcing otherwise law-abiding farmers out of the regulatory system.  While it's easy to speculate that most marijuana farmers don't have water use permits, it's more difficult to offer a solution that doesn't run afoul of state or federal prohibition laws.  In many cases when marijuana industry entrepreneurs have tried to comply with local or state laws, those efforts back-fired by making it easier for federal prosecutors to identify and prosecute them.  

All that might be coming to an end thanks to an obscure amendment and an ongoing case in the 9th Circuit Court of Appeals.  

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Regulating the drought in California: the drawbacks of a bottom-up approach

Regulating the drought in California: the drawbacks of a bottom-up approach

Much has been written about the ongoing drought in California.  Depending on how you define drought (and that's easier said than done), the current drought might be the worst in 1200 years or one of many similar dry periods the American West has experienced this millennium.  The difference matters, because if the drought is unique and can therefore be blamed on climate change, there is yet another imperative to do something about it (climate change, that is).  To me the answer matters more for the broader climate change regulation debate than for California's drought.  Whether or not the drought is typical or exacerbated by human-induced climate change, the supply of freshwater is not meeting the demands of California's population and economy, and that is creating a socioeconomic drought that requires meaningful regulation.

To that end a number of measures have been adopted by the state to reduce water use.  Nathanael Johnson at Grist usefully debunks some common myths about these regulations so far, including claims that agriculture has not been forced to cut back (myth), farmers are wasting water (misleading), and water laws don't allow water rights to be bought and sold (also not true, though I can't say I've heard anyone make this claim).   

But Johnson peddles a myth of his own by lauding the virtue of bottom-up regulation without fully exploring the drawbacks.  California's new groundwater law tasks local water agencies with developing management plans by 2020, with the aim of withdrawing water sustainably by 2040.  There is a lot to like about that decentralized approach, as Johnson notes: 

The legislature could have imposed rules from above that would be in place now, but lawmakers wanted to allow the people to craft rules that were contextually appropriate. That seems wise to me...We need rules informed by local knowledge and crafted by local water users.

Decentralization promotes contextual planning, local ownership and participation, diversification of the broader water system, specialized expertise, and in some cases, institutions defined by water bodies, not political boundaries (Florida is a good example).  For these reasons and others decentralized water management is in vogue in the international water NGO community.  But too often the costs of decentralization are not fully explored.  I've written about these shortcomings in Haiti and Rwanda, but even in the United States there are trade-offs that appear in the California context as well.  To name a few:

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