Ecology Law Currents

Will the Wilderness Act Be Diluted in Drakes Estero?

Nell Green Nylen, Elisabeth Long, Mary Loum, Heather Welles,
Dan Carlin, Brynn Cook, and Sage Adams*

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<<< See Update 1, November 29, 2012, Below >>>
<<< See Update 2, December 10, 2012, Below >>>

Introduction and Background

Drakes Bay Oyster Company (DBOC)[1] runs a commercial shellfish farming operation in Drakes Estero, a 2,500-acre network of five finger-like bays that extend into the Point Reyes Peninsula, north of San Francisco, California.[2] In 1976, Congress designated more than 25,000 acres of wilderness and 8,003 acres (including the Estero) of potential wilderness within the Point Reyes National Seashore.[3] This marked the first time Congress used the “potential wilderness” designation, creating a new category for areas that would become full wilderness without further legislative action once temporary uses inconsistent with wilderness values ceased.[4] Since that time, Congress has designated more than 250,000 acres of potential wilderness—referred to in this Article as “congressionally designated potential wilderness areas” (CDPWAs)—associated with twenty-nine different wildernesses in thirteen states.[5] DBOC’s aquaculture business remains the sole nonconforming use preventing Drakes Estero from converting to full wilderness.[6] Its authorization to operate is set to expire before the end of 2012.[7]

Part of the onshore operations of Drakes Bay Oyster Company, which farms nonnative shellfish in Drakes Estero, an area Congress has designated as potential wilderness. Photo credit to Nell Green Nylen.

Hydraulic Fracturing and Groundwater Contamination: Can Disclosure Rules Clarify What’s In Our Groundwater?

Rachel Degenhardt*

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Hydraulic fracturing is a process whereby chemical additives, sand, and water are pumped into underground source rocks at high pressures in order to release natural gas and oil for fuel production.[1] There are a number of potential environmental impacts associated with this process, including risks of groundwater contamination, the mishandling of wastewater, and the potential migration of gases and hydraulic fracturing chemicals to the surface.[2] Despite these concerns, the Safe Water Drinking Act currently provides an exemption for the oil and natural gas industry and excludes the process known as hydraulic fracturing from regulatory efforts of underground injection controls.[3] This lack of regulation, coupled with the recent rise in domestic oil and natural gas production in the United States, has led to intense debate surrounding this controversial extraction process.[4]

Student Review of Selected Panels at the 2012 Water Law Symposium "Water and Growth: The Imperative for Sustainable Approaches to Uncertainty"

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Click here for videos of all sessions or on each session for its video.

All review authors attended the 2012 Water Law Symposium hosted at the University of California, Berkeley, School of Law on January 21, 2012. The panel reviews are based on their own observations and reflections. No citations should be attributed directly to the panelists themselves.

Seawater Desalination: Climate Change Adaptation Strategy or Contributor?

Angela Haren Kelley*

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While droughts and water supply challenges have plagued California for decades, climate change will increase the strain on California’s water management system.[1] Seawater desalination—the process of removing salt and other minerals from seawater—is often hailed as the solution to the state’s water supply challenges.[2] However, proposals to build seawater desalination plants, which demand enormous quantities of energy, could be a shortsighted fix that will ultimately exacerbate climate change due to corresponding greenhouse gas (GHG) emissions. This article explores seawater desalination and alternative strategies for California to adapt to climate change, and concludes that an effective adaptation approach will require strategies to reduce GHG emissions.

Seawater desalination plant in South Korea. Photo credit to roplant.

Clean Water Act Liability for Stormwater Discharge Regardless of Who Muddied the Waters

Yana Welinder[*]

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Introduction

Regulating pollution from stormwater that flows over structures and paved surfaces, collecting waste and sediments and ultimately spilling into rivers and oceans, can be a true “administrative nightmare.”[1] However, on March 10, 2011, the Ninth Circuit clarified that, when stormwater pollution cannot be attributed to any particular polluter, liability under the Clean Water Act (CWA)[2] can nevertheless be imposed upon the entity that controls the discharge of stormwater into watercourses.[3] As such, the court in Natural Resources Defense Council v. County of Los Angeles held the Los Angeles County Flood Control District (District) liable for excess stormwater pollution detected by monitoring stations located in storm-sewer systems channeling stormwater to the Los Angeles River and the San Gabriel River.
San Gabriel River. Photo credit to Eazylanish.

Acceptability of the Deschutes Groundwater Mitigation Program

Eva Lieberherr*

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“We can’t create water or increase the supply. We can only hold back and redistribute what there is.”[1]

In the last decade, the Deschutes River Basin in Central Oregon has faced growing urbanization, shifting water uses, and increasing ecosystem health concerns. This has led the Oregon Water Resources Department to experiment with a voluntary market-based approach to water management. To meet groundwater demands while maintaining instream flows and upholding prior water allocations, the Oregon Water Resources Department developed the Groundwater Mitigation Program in 2002. A program will be more effective and viable if it is deemed acceptable by its participants. As such, this research focuses on how acceptable the Groundwater Mitigation Program is to its participants.[2] Comparing two hypothetical alternative scenarios to the Groundwater Mitigation Program, I determine acceptability by the following criteria: usability, accountability, enforcement, equity, information dissemination, cost-effectiveness, and utility. The research incorporates a mixed-method approach, conducting interviews and surveys of program participants. Results indicate that although the Groundwater Mitigation Program is more acceptable than the proposed alternatives, a lengthy groundwater permitting process, passive enforcement, and a lack of information nonetheless make the program unfavorable to its participants. Increased awareness could promote acceptance of the Groundwater Mitigation Program, and at the same time, contribute to the effectiveness of the program.

The Deschutes River near Bend, Oregon. Photo credit to MonkeyBoy22.

BP’s Well Evaded Environmental Review: Categorical Exclusion Policy Remains Unchanged

Jaclyn Lopez*

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Introduction

Sea snot, tar balls, and designated oiled carcass holding locations are just a few of the many appalling and lingering consequences of the failure of BP’s Macondo well in the deep waters of the Gulf of Mexico. The catastrophe began on April 20, 2010 when the well’s blowout preventer failed and caused a fiery explosion aboard the Deepwater Horizon, the oil rig owned by Transocean and leased and operated by BP. The accident killed eleven rig workers and led to the largest oil spill in American history. Plugging the well took three months plus an additional two months to kill the well. Called an unprecedented environmental disaster by some and the Crime of the Century by others, BP’s oil spill resulted in an estimated total discharge of 4.9 million barrels (205.8 million gallons) of oil, largely unmitigated, into the Gulf of Mexico. While the precise cause of the well’s failure is still unknown, what has become evident is that the drilling plans for BP’s broken well never underwent full environmental review – a review that could have helped prepare the company and local and federal governments for such an eventual catastrophe.

Smoke plumes from spill-response crews gathering and burning oil in the Gulf of Mexico near the site of the leaking Macondo well. Photo taken June 22, 2010. Photo credit to Dr. Oscar Garcia / Florida State University.

Whale of an Opportunity: Coast Guard Study of Los Angeles/Long Beach Port Access Routes Holds Great Potential for Reducing Ship Strikes within Santa Barbara Channel

Brian P. Segee*

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Introduction

As global whale populations slowly recover from historic hunting that brought numerous species to the brink of extinction, the increasing number of whales killed by collisions with ships threatens to slow or even reverse this recovery in some areas. Along the west coast of the United States, this conflict is most clearly evident in the Santa Barbara Channel, which not only provides essential habitat for numerous whales, including the densest seasonal population of blue whales on the planet, but also serves as the primary formal shipping lane for traffic into and out of the nation’s busiest port complex at the Los Angeles and Long Beach Harbors (LA/LB). While ship strikes have been implicated in the deaths of blue whales off the California coast since as early as 1980, the incidence of strikes has steadily risen, and in 2007 an unprecedented five blue whales were struck and killed in the Santa Barbara Channel.[1]

A New Dawn for the Sacramento-San Joaquin Delta? Assessing the 2009 California Delta/Water Legislation

Richard M. Frank*

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Introduction

The California legislature’s major, substantive achievement of 2009 was the passage of a five-bill package designed to address the multiple ills that have befallen the California Delta[1] and compromised statewide water policy. The bills were signed into law with great fanfare by California Governor Arnold Schwarzenegger last November.

This Article focuses on three related topics: (1) the legal, scientific and political developments that gave rise to this important and controversial legislation; (2) the key features of each of the five bills; and (3) the extent to which the legislation represents sound environmental policy and the likelihood that its broad objectives will be realized.

Harnessing the Potential of the Clean Water Act to Address Ocean Acidification

Miyoko Sakashita*

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In the halls of Congress and at the climate conference in Copenhagen, the question of how we can agree to reduce greenhouse gas pollution looms large. Under the sea’s surface, the question is whether the carbon dioxide (CO₂) reductions will come soon enough. Each day the oceans absorb another 22 million tons of CO₂ from the atmosphere, altering seawater chemistry and making it more acidic. Ocean acidification is rapidly advancing, with harmful consequences for marine life and ocean ecosystems on the horizon. Yet, ocean acidification has received far too little attention in the public and policy debate around climate change. We need a fresh approach to the problem of ocean acidification, and there is no need to wait for a new climate law or treaty. Instead, the Clean Water Act offers a framework with the potential to begin to address this dire problem.

Student Review of Selected Panels at the California State Bar’s 2009 Environmental Law Conference at Yosemite

 

 

Jessica Intrator, Lala Wu, Holly Wagenet, Sarah Barker-Ball,

Camille Pannu, & Emily Jeffers*

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Weed in the Wild: Environmental Consequences of Marijuana Cultivation on Public Lands
Speaker: Chief Ranger Steve Shackelton, Yosemite National Park

Yosemite Chief Ranger Steve Shackelton has a lot on his plate. Together with only sixty rangers to cover Yosemite’s nearly 1200 square miles,[1] he oversees the safety of more than 3.5 million visitors annually.[2] Yet, an unprecedented problem threatens Chief Shackelton’s ability to meet his goals: illegal cultivation of marijuana within the park has recently turned his team of safety rangers into drug enforcement agents and taken them away from their other duties.

Colorado, Centennial State at the Headwaters*

Justice Greg Hobbs, Colorado Supreme Court**

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Circumference

We gather here to learn and celebrate,

to greet dear friends and meet new ones,

to recognize those among us who have gained

our admiration for the circumference of their views

and the bounty of their good-natured insight.

In this treasured land of scarcity and opportunity,

we seek the wealth of learning from each other

the strength of understanding what we cannot know alone,

to honor our differences, avoid rancor, bridge difficulties,

welcome one another’s accomplishments.

And when the prairie morning peeps into the eastern sky

and when the mountain evening breaks a westerly glow,

when unexpected storms crack our certitude and drought

parches our creativity, then may the waters from your

source to our mouths bless, keep, and sustain us.

Colorado’s Winter Snow and Spring Melt Law

In 1861 at the outset of the Civil War, Congress carved Colorado out of four preexisting territories at the headwaters of four great watersheds: the Platte, Arkansas, Rio Grande and Colorado. Today, eighteen states and the Republic of Mexico rely upon spring melt from the snows of Colorado winters. Nine interstate compacts, two equitable apportionment decrees of the U.S. Supreme Court, and two treaties between the United States and Mexico allocate the waters of the Great Divide.[1] As a result, Colorado has two primary duties: to deliver almost two thirds of these waters to places outside of the state and to make the optimal use of the one third the state is entitled to consume.

Fishing for Justice or Just Fishing?

Fraser M. Shilling*

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California is not unique among states by virtue of having both a sizable urban fishing population and environmental pollution leading to fish contamination. Nor is it alone when it comes to having both highly diverse communities actively engaged in fishing and a political and social tradition of elitist decision making about both protecting fish populations and the people eating the fish. In many ways consumption of contaminated fish in California is an example of a confluence of contemporary social and ecological problems, for which there is no adequate statutory or regulatory framework. I describe here a case study of contaminated fish consumption that reflects many of the environmental, social, and political conditions experienced by poor and disenfranchised communities in California and the United States.

Spreading the Water Wealth: Making Water Infrastructure Work for the Poor*

Patrick McCully and Lori Pottinger **

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Want of clean water, decent sanitation, and adequate food and energy strips people of their dignity and their most basic rights. Inequitable access to water, especially for growing crops, is a major factor in global poverty and a death sentence for millions each year.

According to the World Bank, “[t]he ‘easy and cheap’ options for mobilizing water resources for human needs have mostly been exploited.”[1] If the World Bank were right, this would be a depressing message for the 1.1 billion people without easy access to safe water.[2] The good news is, the Bank is wrong. Many technologically easy and relatively cheap options for water provision exist that can help lift hundreds of millions of people out of poverty, end widespread hunger, and reduce the daily workload of women and children. The bad news is that the World Bank-led large-dam lobby is aggressively supporting a resurgence in water mega-projects.[3]

An Argument For Placing Logging Roads Under the NPDES Program

Kevin Boston & Matt Thompson *

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Introduction

Recent judicial decisions addressing the impact of forest management on water quality suggest that EPA’s clarification of regulations under the Clean Water Act (CWA) may become increasingly important. Courts currently must decide whether water pollution from forest roads and their drainage systems meets the criteria for point source pollution, rendering such sources subject to National Pollution Elimination Discharge System (NPDES) permit requirements under the CWA. Two federal district courts recently reached conflicting decisions regarding this very issue. In Environmental Protection Information Center v. Pacific Lumber Co. (“EPIC”), the court found that ditches and culverts associated with a forest road drainage system fall within the CWA’s point source category.[1] However, in Northwest Environmental Defense Center v. Brown (“NEDC”), a case now on appeal in the Ninth Circuit, another district court reached the opposite conclusion.[2] Differences in the rulings center largely on whether the disputed pollutant—fine sediment generated from forest roads—is discharged into streams naturally or as a result of human activity.[3]

Can California’s Water Problems Be Solved?

Peter H. Gleick *

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Introduction

The title of the speech is from a presentation titled “Can California’s Water Problems Be Solved?” but, in retrospect, this rhetorical question seems a bit ridiculous.[1] Of course California’s water problems can be solved. The important questions to ask here are not about the possibility of finding a solution, but rather the probability of and strategy by which to do so: a more accurate title may have been “Will California’s Water Problems be Solved?” or “How to Solve California’s Water Problems” or “Does California Have a Water Problem?” or “A Sustainable Vision for California’s Water” This short article will touch on all of these permutations.

Would it be Unethical to Dump Radioactive Wastes in the Ocean? The Surprising Implications of the Person-Altering Consequences of Policies

Gregory Scott Crespi *

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Introduction

Should we put all of our high-level radioactive wastes into ordinary steel barrels that have perhaps 200-year expected containment capabilities in salt water, and then dump them all into the depths of the Pacific Ocean and forget about them? Such a policy would free the billions of dollars spent annually on radioactive waste storage for other pressing social needs. Despite these benefits, however, most would regard such a radically present-oriented policy as an egregious violation of our ethical obligations to distant future generations. There is broad consensus that we have ethical obligations to undertake policies that benefit distant future generations and to eschew policies that impose significant harms upon them, at least when these choices do not require excessive current sacrifice relative to the magnitude of long-term benefits.

However, it proves impossible to articulate a satisfactory rationale for this position solely on the basis of conventional secular and consequentialist ethical premises[1] (“conventional ethical premises”). The long-term consequences of radically present-oriented policies and the ethical questions they present are quite subtle and complicated by what I call the problem of person-altering consequences. The decision whether to undertake such a policy should be regarded as an empirical question and should be made solely on the basis of an assessment of the consequences for existing persons, and not upon any claimed ethical obligations to future generations distant enough from us in time for their members to all have had their genetic identities significantly altered by those person-altering consequences. We have no ethical obligations to these distant future generations based on conventional ethical premises to consider their rights or interests in making environmental or other policy decisions, because virtually nothing that we could possibly do would harm any specific future persons, counter-intuitive as this claim may seem.