Sunday, December 29, 2013

TO DRINK MORE WATER

"I never drink water; I'm afraid it will become habit-forming." W.C. Fields

"Thousands have lived without love, but not one without water." W.H. Auden

The closing days of December trigger many people to make New Years "resolutions"--which essentially are promises to oneself to change some behavior in the new year about to begin. Commonly, such resolutions are later forgotten or unfulfilled as the new year progresses.

If you are planning to make New Years resolutions for 2014, at the top of your list should be a resolution to drink more water!

Developing a habit to drink a healthy amount of water on a regular basis in essential for overall good health. As kids, when another kid would say something we thought silly or wrong, we would say "You're all wet." Actually, it turns out that we all are "all wet." Depending on body size, a person comprises water somewhere in the range of 55% to 78%, with a midpoint of about 67%, according to one report. Blood is 83% water, the brain 90%, muscle 75% and bone 22%.

The benefits of drinking sufficient water are numerous, according to several reports. Some of these benefits include the following:

* water keeps skin moisturized and reduces development of lines and wrinkles. Insufficient water intake results in water retention, leading to puffy skin.

* drinking water suppresses appetite and can help a person to lose weight.

* water helps to flush toxins from the body, aids in metabolization of stored fat, and promotes bowel regularity.

* drinking water enhances delivery of oxygen to the brain, improving cognitive functions and alertness. Water also supports electrolyte levels to benefit nerve functions.

* water helps to keep joints lubricated.

* adequate water can relieve headache and back pain due to dehydration.

* water regulates body temperature and fuels muscles.

* water moisturizes air in the lungs and transports nutrients and oxygen to cells.

As Sen-No-Rikyu is quoted as saying:

When you hear the splash
Of the water drops that fall
Into the stone bowl
You will feel
that all the dust
Of your mind is washed away.

So, have a Happy New Year by resolving to drink more water in 2014!

Sunday, December 22, 2013

HAPPY XDAYS!

I digress from water for a moment.

A friend told me that, at a recent Christmas party, she wished everyone a Merry Christmas. "The people were shocked and dumbfounded", she related. "No one says 'Merry Christmas' anymore!" they exclaimed to her.

They were correct. Today, it seems, people are afraid to express "Merry Christmas." Instead, they tend to utter "Happy Holidays" or similar phrase incorporating the word "Holiday". Media. in all forms, including greeting cards, wish or refer to "Happy Holiday" or "Seasons Greetings."

Maybe it all started many years ago, when signs and print advertisements said "Xmas" instead of "Christmas." The abbreviation was justified on the ground of space limits. However, saving only four letters seems a lame excuse.

It is unclear why people shy away from saying "Merry Christmas." Perhaps it is due to a misguided attempt to be politically correct. Or it may be related to a national secularization of anything religious. It is interesting, however, that the word "holiday" obviously is derived from "holy day.", and one of the dictionary definitions of the word "holiday"is "holy day." So, why not greet using the word "Christmas?"

But, wait, there is more! One cannot blame our courts for the reluctance to refer to Christmas. For example, the US Supreme Court held that a creche (nativity scene) erected in a park in a city did not violate the prohibition in the First Amendment of the COnstitution against establishment of religion. The Court wrote: "It would be ironic, however if the inclusion of a single symbol of a particular religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so 'taint' the City's exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol--the creche--at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and Legislatures open sessions with prayers by paid chaplains would be a stilted over-reation contrary to our history and to our holdings. If the presence of the creche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and our religious heritage, are equally offensive to the Constitution.+

Can you imagine Bing Crosby sitting at his piano next to a "holiday" or "Xmas" tree singing "I'm dreaming of a white holiday"?

"Happy Holidays", Seasons Greetings", "Xmas"...bah, humbug. Three huzzahs for...MERRY CHRISTMAS!


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* Lynch v. Donnelly, 465 U.S. 668,686 (1984)

Sunday, December 15, 2013

SHOULD EPA REGULATE DOGS?

Water utilities are upset because USEPA recently declared that fire hydrants installed beginning January 4, 2014 must be essentially lead free. The federal Reduction of Lead in Drinking Water Act, which is effective on that date, requires compliance with strict new limits on lead in pipes, fittings and fixtures used for drinking water. In a guidance document issued in October, 2013, EPA asserted that "fire hydrants can be, and are, used in emergency situations to provide drinking water when there are disruptions to the normal operations of the drinking water distribution system." Therefore, EPA concluded "hydrants would not qualify for the exclusion for pipes, fittings and fixtures for nonpotable services."

According to media reports, many water utilities across the country have challenged EPA's application of the "lead-free" Act to fire hydrants, on several grounds. The Act, which was adopted in 2011, gave utilities and manufacturers three years to adjust to the new standard. However, EPA's hydrant rule was a surprise, being that it was announced only a little over two months before the compliance date. This surprise, it has been reported, does not give hydrant manufacturers sufficient time to retool for the changes, possibly creating delays in needed installation of new hydrants in 2014.

The primary purposes of hydrants, of course, are to provide fire protection and to enable flushing of distribution mains. Utilities have stated that use of hydrants for drinking water is uncommon and, at best, temporary. Therefore, any alleged lead risk to the public from hydrants is said to be minimal.

Several utilities have argued that EPA's interpretation will cause a hardship to the utilities and their ratepayers because inventories hydrants not manufactured under the new rule will have to be scrapped and new ones purchased.

Accordingly, utilities have asserted that hydrants should be exempted from the "lead-free" Act or that application of the Act to hydrants be delayed. Earlier this month, the House of Representatives voted to exempt hydrants from the Act, and the matter is pending before the Senate.

Perhaps EPA should be concerned over the traditional role of a fire hydrant as a urination magnet for male dogs. Over time, there may be quite an accumulation on a hydrant--a situation perhaps more risky for drinking water sourced from hydrants than rare lead exposure. If EPA were to regulate dog use of hydrants, the agency could achieve a leg up on assuring safe drinking water from hydrants.



Friday, December 6, 2013

BRAINY WASTEWATER

According to a recent report, sleep facilitates cleaning of the brain.* Based on studies of mice, researchers have learned sleeping opens a "faucet" to bath the brain in fluids that carry away garbage proteins and other nasties from the brain that accumulate during waking hours.

During sleep periods, this drainage service, called the glymphatic system, uploads brain and spinal cord fluids into spaces between brain cells to flush out waste products. The fluids and waste then are carried to the liver for eventual removal.

In waking periods, the drainage system essentially shuts down. The brain cells swell to reduce the channels between the cells, thus blocking the flow of fluids. When sleep occurs, the opposite process occurs.

So, it seems, when brain waste exits a body, it ultimately enters the wastewater stream to the local treatment plant. One can speculate whether the brain cleansing system can remove more than tiny particles. Next time you have a brain storm, or are perplexed by an issue, remember the old adage..."Sleep On It." By morning, the brain storm or the issue may have passed to the liver and beyond.

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*Tina Hessman Saey, Sleep Allows Brain To Wash Out Junk, Science News, November 16, 2013, p. 7

Wednesday, November 20, 2013

WHO WILL GIVE THANKS FOR WATER?

On the last day of November, Americans celebrate Thanksgiving Day. By tradition, the first Thanksgiving is said to have occurred in November, 1621 when Pilgrim colonists at Plymouth, Massachusetts held a harvest feast, a festival lasting three days. It is said that the meal included lobster, seals and swans. Governor Bradford invited friendly Wampanoag Indians, including Chief Massasoit who added five deer to the menu. Pumpkin pie was not baked, as there were no ovens.

The Pilgrims certainly had much to be thankful for--not the least of which was survival. Only about one-half of those arriving on the Mayflower in 1620 had survived the winter. In addition, they were thankful for the Indians who had taught them how to grow corn, harvest maple sap, catch fish and avoid poisonous plants.

In 1863, President Lincoln proclaimed an annual Thanksgiving Day as a national holiday in November. More recently, the U.S. Supreme Court acknowledged that Thanksgiving Day is constitutional. It said: "Our history is replete with official references to the value and invocation of Devine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders. Beginning in the early colonial period long before Independence, a day of Thanksgiving was celebrated as a religious holiday to give thanks for the bounties of Nature as gifts from God. President Washington and his successors proclaimed Thanksgiving, with all its religious overtones, as day of national celebration and Congress made it a National Holiday more than a century ago. Ch.167, 16 STAT. 168 (1870). That holiday has not lost its theme of expressing thanks for Devine aid any more than has Christmas lost its religious significance."*

Now, in 2013, almost 300 years after the Pilgrims launched their first Thanksgiving feast, the Day means sacrificial turkey, potatoes of some sort, squash, cranberries, pumpkin pie and other treats. It also means falling asleep before a television set blaring boring football games as an escape from listening to boring relatives. It also means running to all the stores that open even before all the football games are over to buy things on sale that no one needs or wants. In effect, the so-called Black Friday becomes a Black Thursday all-nighter.

But,there's more! Even though thanks may be uttered for the turkey, the trimmings, the football, the sleep, the open stores and their sales--oh yes, even the boring relatives--it is likely that no one will give thanks for the most important thing that day. Who will give thanks for water?

Without water, there would be no turkey, no trimmings, no football, no television, no stores, and no boring relatives. Indeed, for example, it has been reported that, according to a U.S. Geological Survey, it takes an average of 39,000 gallons of water to make a car to get to stores, and it takes 1,440 gallons of water to produce a dozen of eggs that might be used for the meal. And, of course, without water, there would be no one to give thanks for anything.

So, this Thanksgiving Day, maybe we should start giving thanks for water and acknowledging our responsibility to conserve and protect it.

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* Lynch v. Donnelly, 465 U.S. 668 (1984), p. 675

Tuesday, November 12, 2013

UTILITY CONSTRUCTION SURETY BONDS, PART 2--PAYMENT BONDS

A performance bond is intended to assure a utility that a contractor will complete a contract according to its terms. A payment bond is intended to assure a utility that the contractor's labor subcontractors, and material and equipment suppliers, will be paid what is owed them by the contractor.

A payment bond can offer subcontractors an alternative to enforcement of mechanics liens. In some jurisdictions, a subcontractor on a public works project for a municipal-owned utility can assert a mechanics lien only against unspent funds held by the owner for that project. Thus, under some circumstances, subcontractor claims may exceed available funds held by a utility for the project.

Things may not be that much better in the case of an investor-owned utility. Several years ago, a contractor unpaid for work done on a component of a wastewater treatment plant foreclosed on a mechanics lien on the plant and acquired a partial ownership interest in the plant. The state utilities commission then cited the contractor for alleged violation of utility law requiring a certificate of public convenience and necessity as a regulated public utility.

When a contractor fails to pay subcontractors, claims for payment can be made against the surety on a payment bond. However, there are notice requirements in such a bond that must be followed. If a surety does not pay subcontractor claims, generally both the utility owner and affected subcontractors may sue the surety. However, a surety, as in the case of performance bonds, may assert defenses to liability. Thus, again, the bond can simply become a ticket to admission to a courthouse trial. The amount of a bond, of course, is the limit of a surety's financial obligation in any case.

A recent court decision addressed a situation where a contract between a municipality and a contractor for a public works project required the contractor to produce both a performance bond and a payment bond. However, the contractor failed to provide the required payment bond. The court held that an unpaid subcontractor was a third party beneficiary of the municipality's agreement with the contractor requiring the contractor to supply a payment bond. Accordingly, the court held that the subcontractor could sue the municipality for breach of contract and recover from the municipality payment for its work. (Lake County Grading Company, LLC v. Village of Antioch, 2013 IL.App.(2d)120474 (2nd Dist.)).

In short, it would seem prudent, and in some cases a legal requirement, for a utility to require its contractors to produce both performance and payment bonds, in adequate dollar amounts and issued by approved sureties.

Monday, November 4, 2013

UTILITY CONSTRUCTION SURETY BONDS, PART 1--PERFORMANCE BONDS

It is common for water and wastewater utilities to require contractors engaged in construction of infrastructure projects to provide performance and payment surety bonds. Indeed, some states mandate that municipal-owned utilities obtain such bonds from their contractors. One example of such a mandate is the Illinois Public Construction Bond Act (30 ILCS 550/1, et seq). That statute states that performance and payment bonds must be obtained for all "public works" projects costing more than $5,000.

This posting will focus on performance bonds. The following post will discuss payment bonds.

Performance bonds involve a three party arrangement. In the utility situation, the contractor is the "principal"; the utility is the "beneficiary"; and the third party, of course, is the surety.

The purpose of a performance bond is to assure the completion of the project in accordance with the contract terms. Typically, in the event that a utility declares a contractor default, the surety becomes obligated to cause the contract to be performed and completed. If the surety fails to undertake its obligations with reasonable promptness, the utility is free to enforce available legal remedies. If the surety does comply with its obligations, it becomes subrogated to the utility's claims against the contractor.

So, what does a performance bond really do? In reality, for the utility as beneficiary the bond is not a guarantee that the contract will be completed. It often becomes simply a ticket of admission to the court house for the principal. That is, the beneficiary winds up suing the surety. A surety may decline to perform by raising defenses to its obligations such as a failure by the beneficiary to give proper notice or a breach of the construction contract by the beneficiary itself.

In accepting a performance bond provided by a contractor, a utility should be satisfied as to the financial standing of the surety and as to the various terms and conditions of the bond. A bond may be well written but of no value if the surety is insolvent.

Completion of a construction contract does not necessarily end the matter, although it may end the bond. The problem is that after completion defects in construction may develop or are discovered necessitating repairs and correction by the contractor. In turn, such repairs can be expected to cause extensions of the applicable warranty period. A utility should be aware of the need to extend bond protection either by terms set forth in the original performance bond or by a requirement for a new maintenance or performance bond covering such repair obligations and warranty extensions.

Sunday, October 27, 2013

WHICH STORM IS NEXT?

Last week, I visited the Black Hills of South Dakota. It was a few days after the great Blizzard of 2013, which buried the area with up to 55 inches of heavy, wet snow. THe snow, of course, was water in the form of partial liquid and partial solid.

The blizzard had a huge impact on human activity throughout the Hills. Residents and tourists became homebound or snowbound. Due to the amount and weight of the snow, clearing went slowly. Thousands of cattle died in the storm, to ranchers economic dismay.

Of course, we have witnessed before the serious impacts water can have due to hurricanes, floods and the like. But what particularly was revealing to me was the blizzard's impact on the natural environment. Throughout the Hills, the countless tons of wet snow snapped tall pine trees, leaving long severed trunks with jagged tops pointing to the sky like arrows defending the earth. In addition, the snow burden bent aspen and birch, still dressed in autumnal golden leaves, as well as young pines, bent 180 degrees to the ground creating arches, never to spring erect again.

What a paradox, I mused! These trees all need water to grow and live, but water destroyed them.

I had just finished reading a book on the impacts on life in Central and Eastern Europe under the nazi and later communist eras.* Looking at the landscape, I saw history in those broken trees. During those over 60 totalitarian years, people--like the aspen, birch and young pines-- were bent to the ground in subjugation by their authoritarian regimes. And, many people, like the tall pines, were snapped in the entirety.

But, there is a big difference in the two situations. The bent and broken trees were caused by Nature creating benefits to thin the forests, create meadows and provide much needed water for new growth. Bent and broken people were caused by man's inhumanity to mankind.

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*"Border Crossings", by Charles Novacek, Ten21 Press (2012)

Wednesday, October 16, 2013

HALLOWEEN LEGALITIES

I brake from water topics for holidays. So, I was wondering what the case law may have said about some of the traditions surrounding Halloween.

VLAD, THE IMPALED

A drama club at a Texas university decided to produce the play "Dracula". In one of the final scenes of the play, Harker is to impale Vlad Dracula with a knife. Because a real knife was being used, the actor portraying Dracula wore a stab pad with a visible target strapped to his chest. In the performance, the actor portraying Harker missed the stab pad and stabbed the actor portraying Dracula in his chest. Dracula did not realize he had been stabbed. He entered into a coffin, which then was closed. In the darkness of the coffin, he discovered he was bleeding. The play continued, and Dracula emerged from the coffin with the bloody knife. However, he began to feel weak. The script called for Dracula to die in the arms of his love, Mina the Maiden. Instead of saying goodbye to Mina, he whispered to her to go call an ambulance. Mina ran off to call paramedics. Dracula "cut the final act short by giving a short ad-libbed soliloquy and quickly exiting the stage", according to a lower court. The actor portraying Dracula sued several parties, including the university. The Texas Supreme Court reversed a judgment against the university. (1)

WHICH WITCH?

The maker of a craft witch design sued the maker of a witch figure for alleged copyright infringement. Plaintiff sold a design to consumers who then were to make a witch figure which looked like it had just crashed into a tree. The design called for consumers to use plywood for the figure's body/clothing, hat, socks and boots; a mop for the hair; and a black plastic trash bag for the cape. The design further suggested how consumers should paint the plywood..." Defendant produced a witch figure on a broom that appeared to crash into a tree. "The figures are finished products made from refined materials, with detailed features such as molded plastic hands, socks and boots; silk-like hair; molded-foam arms, legs and body; and fabric hat, clothing, and cape." The court held that there was no infringement. (2)

HOLDING THE BAG

Plaintiff sued, alleging infringement of its patent for a pumpkin leaf bag. "The products in dispute are oversize orange plastic bags which are tucked at the bottom and imprinted with black graphics; when stuffed with dry leaves or crumpled newspapers, the products simulate giant jack-o-lanterns suitable for decorating a lawn during the Halloween season." According to the court, plaintiff's bag had a scary face on one side and a happy face on the other, whereas defendant's bag had a face on only one side, had a different bottom closure and lacked vertical black lines. The court held for plaintiff. (3)

SPIDERS, BATS, GHOSTS AND BLACK CATS

An importer of women's sweaters challenged federal Custom's classification of the sweaters as "sweaters" rather than as "festive articles." The spider sweater depicted webs around the collar and sleeves with a spider dangling from the collar. The court held that it was a festive article because it "is sold exclusively during the festive occasion for Halloween and that it is used principally during Halloween." The court made similar rulings as to sweaters depicting bats and ghosts. However, the court held that sweaters showing black cats were not festive articles, because black cats are not so intrinsically linked to Halloween. (4)

HE'S ALIVE!

A Ohio court recently held that a man who appeared in court is legally dead and cannot become legally alive again. Allegedly, the man became legally dead eight years after he disappeared and the time limit for reversing that death ruling had expired. The man sought to reverse his death ruling to reinstate social security and driver's license benefits. The judge is quoted as saying "I don't know where this leaves you, but you're still deceased as far as the law is concerned." Unclear is whether the man must pay income taxes and comply with the Obamacare mandate. At any rate, he appears to be one of the living dead! (5)

Have a Happy and Legal Halloween!

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(1) Texas A & M University v. Bishop, 156 S.W.2d 580 (Tex.2005)

(2) Winfield Collection v. Gemmy Industries, US Ct. App. 6th Cir. (2005)

(3) Sun Hill v Easter Unlimited, 831 F.Supp.1024 (E.D.N.Y.1993)

(4) Michael Simon Design v. United States, 452 F.Supp.2d 1316 (Ct.Int.Trade 2006)

(5) Dunn, Courier.com, Findlay, Ohio, October 8, 2013

Wednesday, October 9, 2013

MANAGEMENT BY COMMON SENSE

According to Thomas Jefferson, "the art of governing consists simply of being honest, exercising common sense, following principle, and doing what is right and just." It is good advice for all levels of management, from the office of U.S. President to the president of the smallest water utility.

Emphasis can be on the element of "common sense." As Jefferson also said, +common sense is the foundation of all authorities, of the laws themselves, and of their construction." So, exactly what is "common sense?" Can it be defined? How does it play in management of a water utility, for example?

Recently, I attended a lecture by Yale Professor John Gaddis on the decision-making strategy of "common sense". In particular, he discussed the importance of using common sense to achieve ultimate goals by explaining the classic comparison of foxes and hedgehogs. A fox tends to run in several different directions, without ever reaching a specific goal or objective. On the other hand, a hedgehog tends to stubbornly pursue a goal but cannot change direction when confronted with an obstacle to that goal.

Professor Gaddis cited Lincoln as using common sense to achieve the end to slavery in the United States. Like a hedgehog, Lincoln's single-minded goal, often disguised, was to end slavery. But he was as a fox in pursing that goal by employing smaller steps and necessary modifications of direction.

Professor Gaddis also pointed out that common sense in management, whether on the Presidential level or otherwise, is to have a goal or objective, and to have a plan which anticipates likely obstacles to that goal and provides proposed actions to circumvent those obstacles. Part of such a strategy will include the employment of compromise.

Clearly, common sense is relevant to water utility management. I will give an example. Years ago, a water utility initiated a rate case with the regulatory agency. The utility had not sought a rate increase for many years. In the meantime, inflation had caused a substantial increase in operating expenses and the utility had made a large addition to its infrastructure. As a result, the utility sought a 100% increase in its rates. Customers and agency staff objected to such an increase and attacked the quality of service. Even though the 100% rate increase could be justified by the numbers, a negative perception of the utility resulted in the regulatory agency denying any increase in rates. Common sense should have dictated that the delay in seeking rate relief was a mistake; that a much lower increase should have been requested; and the utility should have offered to compromise by proposing steps such as a phase-in of higher rates or a lesser increase.

In contrast, another water utility annually performed a review of its revenue requirements and filed a rate case with the regulatory agency every two years. As a result, despite the effects of inflation and increased plant, rate relief requested generally was in the 5% to 10% levels. The utility's goal was to recover revenue requirements and its plan was to avoid rate shock and customer objections. The utility also met with media, public officials and customer groups in advance of a rate filing to explain the reasons for a rate increase. Consequently, the perception of that utility by both the regulatory agency and the customers was positive.

So, what is common sense in management? It seems to be: to have a goal; to have a plan that anticipates obstacles to that goal and provides steps to overcome those obstacles to the goal; to employ compromise as part of that plan; and to be aware of how others perceive management as a potential obstacle or aid to reaching the goal.




Monday, September 30, 2013

RETAINING CUSTOMERS CONSIDERING DISCONNECTION AND SELF-SUFFICIENCY

Last month, the Wall Street Journal reported that more commercial and manufacturing customers are generating their own electricity supplies instead of purchasing power from electric public utilities. (September 18, 2013, page A1). This trend, which has quadrupled since 2006, in turn is threatening the revenues and growth of the utilities losing such loads on their systems.

Regulators as well as electric utilities are concerned. As large electric users leave a utility system, the remaining customers, including residential users, likely will pay higher rates to produce sufficient revenue to pay costs associated with infrastructure such as power generation facilities and transmission and distribution lines.

The movement to self-generation appears to be driven by advances in solar panels, fuel cells, wind turbines, and natural gas turbines and reciprocating engines, which make energy independence economically feasible. In addition, for some, self-generation may seem to be more reliable.

Water utilities also can experience a similar trend toward customer water self-suffiency. For example, a large commercial or industrial water user may decide to install its own wells and to disconnect from its local water utility. Or, the customer may retain connection only for standby purposes. The effect upon remaining customers of the utility can be quite dramatic. They will likely experience rate increases necessary to bear the full revenue requirements for the infrastructure such as wells, treatment facilities, pumping and storage facilities and mains.

Can a water utility protect its customers and itself when faced with a significant revenue shortfall resulting from a large volume customer leaving the system? I think there are some possible measures.

For example, a large user institutional customer of one of my water utility clients threatened to leave the system to become self-sufficient by drilling its owns wells and constructing its own treatment facilities. The utility and the customer negotiated a long term contract under which the customer agreed to purchase all its water requirements from the utility at a discounted rate which covered variable costs plus a contribution to fixed costs. The arrangement provided an attractive alternative to the customer building its own system. Retention of the customer benefited the other customers because the special rate produced revenue to cover a portion of fixed costs. The regulatory agency approved the contract.

Where a large water user installs its own water supply but seeks to retain a connection to the water utility for standby purposes, it would seem appropriate for the utility to develop a standby service rate or readiness to serve rate that would produce revenue sufficient to recover the customer's allocable share of revenue requirements associated with infrastructure needed to provide service if called upon.

Some municipalities require that all residents take water service from the municipal-owned water utility. Some court decisions have upheld such requirements. Accordingly, a large water user in such a municipality may not have the option to become water self-sufficent. When a potential large water user requests service from a utility, and infrastructure expansion or upgrade is necessary to provide the requested service, contracts can be structured to obtain from such a customer advances for the cost of such construction and commitments for a term of service.

Saturday, September 14, 2013

IT'S RAINING ACORNS! FEELIN' SQUIRRELLY

We have had a serious shortfall of rain in these parts since July. So, you can imagine my excitement when recently I heard drops on the roof of our house. The noise became increasingly intense, like the din of a hundred hammers on the shingles or the pounding of a thousand woodpeckers in unison. I began to fear damaging hail along with rain.

I nervously glanced out the window, and was shocked to see that the walk and lawn were as dry as ever. No water! What is going on?

So, I even more nervously exited outdoors to ascertain what was perpetrating such a clatter. To my amazement, it was raining acorns, non-stop, from the 200 year old oak tree over reaching the house. The roof, walks, driveway and lawn were smothered in acorns. Many of them hit the roof and bounced off like some medieval rock thrower weapon. Others gracefully rolled into the rain gutters to be removed eventually by grumbling, bruised hands after clogging everything. Still others fall directly onto the walks and driveway to be crushed under foot or tire with an aggravating pop.


On and on the acorns have rained for the past two weeks, with no cease fire in sight. The squirrels should have a field day. But, where are they? I do not see any gathering acorns or diligently digging up the lawn to bury them in storage for a winter day forage. They must be hiding in fear of the noise or being hit by these missiles. Yes, squirrels should be eating these acorns. Interestingly, some people eat squirrels. So, eating squirrels could be said to be equivalent to eating acorns.

As a matter of fact, on a trip to northern Italy, we learned from a partisan fighter in World War 2 that the partisans survived a winter in the mountains by eating acorns for their diet.

In our western pine forests, usually there are no oak trees dropping acorns, but there are squirrels who eat pine cones. Thankfully, pine cones are not falling on our roof. On one of my visits to a pine forest, I discovered that a pack rat had eaten most of the wiring under the hood of my car. I hope it got a charge out of that. Thankfully, pack rats are not falling on our roof.

It has now occurred to me that the EPA should regulate acorns to assure my safety and well being. They regulate things that fall from the sky, so why not acorns? Indeed, when I think about it, EPA regulates air, earth, fire and water--what else is there? (Or was that merely a rock group?) If government can regulate rock fracking, surely it can regulate acorn cracking.

My late aunt used to say: "Half the world is nuts, and the other half are squirrels chasing them". With age, I think I now know what she meant. I'm feelin' squirrelly. Pass the acorns, and welcome EPA...

Saturday, September 7, 2013

WHO SHOULD OWN WATER SERVICE PUBLIC UTILITIES?

Recently, a newspaper reported that several small towns in the United States are seeking to take over "privately owned water systems" providing water service in the towns because residents allegedly are upset with rate increases. (Wall Street Journal, August 20, 2013, p.A3)

Any discussion as to who should own a water public utility should consider some often overlooked facts:

First, references to "public control" or "public ownership" of a municipal water system compared with "privately owned water system" are a misnomer. Water systems can be government owned and/or controlled or investor owned and/or controlled. Several investor owned water utilities are national or regional in scope of operations and can be more "public" than local government owned systems because they have thousands of shareholder-owners.

Second, water utility service is not an inherently governmental function. Historically, water service in many U.S. towns and cities began with investor owned companies. For example, in the mid-1800s, a company began water service in Chicago by constructing an intake into Lake Michigan and distributing water with wooden mains. Today, investor owned public utilities provide water service in many towns and cities in the United States or manage government owned utilities through so-called "privatization" or "public/private partnership" arrangements. Moreover, in many European countries, such as England, France, Germany and the Czech Republic, investor owned utilities either own or manage water service systems in major cities and towns.

Third, several courts have held that a municipality providing water service does so in its proprietary capacity, not in its governmental capacity. Along the same lines, a municipal owned utility is required to employ an enterprise accounting system for its water utility.

In comparing government ownership of water systems with investor ownership, consideration also should be given to the following:

Rates. Investor owned water utilities are regulated by state utility regulatory agencies, including their rates. Local government utilities in most states are not regulated. Their rates are set by the local city council. For customers of water service, regulation of investor owned utility rates provides a distinct advantage. Not only are the rates approved by a state agency, but customers can appear and participate in rate hearings and appeal to courts from rate orders. Customers of government owned utilities generally do not have such advantages. Further, investor owned utilities are more likely to seek rates that cover full costs of service. Government owned utilities frequently defer rate increases, or fix rates below full cost of service, for political reasons, which can result in deferred maintenance or use of reserves to fund operating expenses instead of infrastructure replacement. When rates are increased, their magnitude can result in rate shock to the customers. It should be noted that in many states, government owned utilities are entitled to rates that recover a return on rate base ( assets) just as investor owned utilities. If their rates recover full costs of service they could be comparable to rates of investor owned utilities.

Service. Larger investor owned water utilities can have advantages due to their regional or consolidated mature. Generally, they may have technical staff and expertise, which local government owned utilities generally would not have due to their size. Size also results in economies of scale for certain operating expenses and purchases. Further, because such investor owned utilities are regulated, management must be responsive to the state agencies, which also regulate quality of service and, of course, to shareholders and customers. These factors provide incentives to maintain and upgrade service and facilities, the costs of which necessarily are reflected in rates.

Financing. Local government owned water utilities have access to municipal bond funding, which generally carries lower interest rates than are available to investor owned utilities. In addition, they also frequently are able to receive federal or state grants and often can collect substantial connection charges from new customers. However, investor owned utilities often are able to use internally generated funds for infrastructure projects or utilize private activity bond programs.

Comparison of the two types of utility ownership probably is more complicated that a typical customer or the media think. One thing is certain, however: every one wants good water service at a reasonable price, and to satisfy that goal, every utility should have rates that recover all reasonable costs of service.



Thursday, August 22, 2013

ADMINISTRATIVE AGENCIES, PART 5--CONCERNS

Originally, I intended a four part review of regulatory administrative agencies. However, as I developed my discussion, I saw some current trends in agency operations that appeared to create particular concerns over constitutional issues. Therefore, I have decided to elaborate on these problematic concerns:

Separation of Powers

The design of the U.S. Constitution is premised on the separation of powers. A prominent trend currently appears to be the setting of administrative agency policies and regulations as mandated by the executive branch of government. Such policy making, expressed in executive orders and by executive appointments tend to reflect agendas of the executive branch and to dilute independent thinking within agencies. At times, such influences have pushed agencies to the margins of their statutory authority, as when they have engaged in social engineering. Examples could include the recent presidential direction to federal agencies to take actions regarding potential chemical hazards and chemical facilities, and the president's "climate action plan" proposed to be implemented through agency action.

Secrecy and Due Process

Another apparent trend is secret operations by certain agencies, with resulting lack of accountability and due process. An example of this development could be the Independent Payment Advisory Board, created under the so-called ObamaCare law. THe Board is empowered to control spending and to make rules related to Medicare. It is reported that there is no administrative review or judicial review allowed of the Agency's decisions, and no public participation allowed in its rule making. (Wall Street Journal, June 20,2013, p. A21)
Another example could include the secret communication interceptions by the National Security Agency, including the secret supervisory court. Also, it has been reported that USEPA allegedly has withheld scientific research data upon which it has relied to impose air
quality rules affecting power plants (Wall Street Journal, July 30, 2013, p. A15)

What's Next?

A bill has been introduced in Congress called the Regulatory Improvement Act of 2013. It would create the regulatory Improvement Commission. The purpose of this agency would be to identify administrative agency regulations which are duplicative, obsolete or excessive. Congress would have to vote on the Commission's recommendations. Ok--another administrative agency in effect to create regulations to regulate the regulations of other administrative agencies? Dream on!

Friday, August 16, 2013

ADMINISTRATIVE AGENCIES, PART 4--REGULATING THE REGULATORS

Except for limits imposed by legislatures, most constraints on the power of administrative agencies are judicial, arising in court cases. These include:

1. Administrative action beyond the scope of statutory power and authority. Since agencies are creatures of statutes, they have only the powers delegated to them by legislatures, as those statutes are interpreted by courts. If a court concludes that an agency action exceeds its authority, the action will be void.

2. Denial of procedural due process. The constitutional guarantee of due process extends to agency adjudicatory proceedings. Examples of denials of due process could include the denial of a hearing or appeal to a court from adverse agency decisions.

3, Confiscation. An agency decision which takes property without just compensation would also be contrary to a constitutional protection. An example could be an agency setting rates for utility service below the costs of service.

4. Arbitrary or prejudicial action. Obviously, if an agency rejects uncontroverted, relevant evidence, a court may find its decision to be arbitrary and capricious.

5. Decisions contrary to the manifest weight of the evidence. While courts generally do not make new evidentiary decisions per se on appeal from agency decisions, they do review the agency's record to determine whether the decision may be contrary to the manifest weight of the evidence.

6. Failure to make findings of fact. Agency adjudicatory decisions generally are required to include the agency's findings of fact based upon the evidentiary record before the agency. The primary purpose of the findings requirement is to enable courts on appeal to determine whether the agency decisions are supported by the evidence. Courts have differed as to what makes findings sufficient and sufficiently specific.

7. Failure to follow agency rules. Courts have reversed agency decision in situations where an agency has failed to follow its own procedural or substantive rules in reaching a decision.

8. Misconstruing a statute or prior court decisions. In the event that an agency incorrectly interprets a relevant statute or court precedent, a reviewing court may reverse an agency decision as a matter of law.

How effective are such constraints in regulating the action by administrative agencies? As a practical matter, the recourse for a party adversely affected by an agency decision is to appeal to the courts or to accept the decision. Requests for rehearing generally not granted. Appeals can be costly, take time, and may not suspend the effectiveness of the adverse agency action. Appellants also may find that some reviewing courts tend to slant toward the agency, particularly where the subject matter may be technical or scientific. Thus, some courts simply defer to the alleged "expertise" of the agency.

Thursday, August 8, 2013

ADMINISTRATIVE AGENCIES, PART 3--REGULATION GONE WILD?

Is the American regulated state today what the signers of the U.S. Constitution had in mind for the country in 1787? Obviously, interpretations of its provisions have evolved with political and societal changes over the past 225 years. However, it would seem that the incredible growth of agency regulation, particularly over the past 80 years, could not have been foreseen or even approved back in 1787.

Writing in 1833 in his Democracy in America, Alexis de Tocqueville said he was impressed by the accomplishments of non-governmental associations in America. "Not only do they have commercial and industrial associations...but they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fetes, to fund seminaries, to build inns, to raise churches, to distribute books, to send missionaries to the antipodes; in this manner they create hospitals, prisons and schools."

Today, Tocqueville would find that such associational organizations have declined immensely, to be replaced by governmental programs, agencies and regulations. Indeed, there are so many rules today that it seems that the United States may have switched to the continental cicl code system of law, where specific statutes embody every detail of regulated life.

In his book, Tocqueville warned about regulation usurping associational life and individual initiative:

"Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like the authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided that they think of nothing but rejoicing. For their happiness such a government willingly labors, but it choses to be the sole agent and the only arbiter of that happiness: it provides for their security, foresees and supplies their necessities, facilities their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?

"Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things; it has predisposed men to endure them and often to look on them as benefits.

"After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of men is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd."

Tocqueville also pondered why, in a democracy, an individual obeys society and what are the normal limits of such obedience. He concluded that a person obeys "because he recognizes the usefulness of his association with his fellow men and because he knows that this association cannot exist without a regulating power." For Tocqueville, the general truth is "that the individual is the sole and best placed judge of his own private concerns and society has the right to control his actions only when it feels such actions cause it damage or needs to seek the cooperation of the individual."

Do you agree with Tocqueville?



Thursday, August 1, 2013

ADMINISTRATIVE AGENCIES, PART 2--WHERE DO THEY COME FROM?

The "classic" judicial decision statement is that administrative agencies are a creature of the legislature. So, in the case of federal agencies, such as US EPA, they have been created by Congress. (Federal agencies will be the primary focus of this series, but one may generalize to state and local agencies as well).

What gives Congress the power to create agencies? The modern profusion of federal agencies, with their alphabet soup acronyms, goes back to the F.D. Roosevelt administration in the 1930s. Roosevelt proposed various agencies in reaction to Depression issues. Initially, the Supreme Court reacted by finding such efforts unconstitutional. In turn, Roosevelt reacted with his "court packing" plan to expand the number of justices. However, attrition on the Court enabled Roosevelt to appoint new justices with less unconstitutional inclinations. Since then, it has been a rare event for the Court to find a federal agency to be unconstitutional.

When is the last time you have read the US Constitution? If you read it, you will not find any language stating that Congress has the power to create administrative agencies. The enumerated powers of Congress, Article 1, Section 8, says nothing about agencies.

However, Section 8 does give Congress the power to provide for the "general welfare of the United States" and the power "to regulate commerce...among the several states". Then, the key provision becomes the "necessary and proper clause", which states that Congress has the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

So, how does Congress create administrative agencies, such as US EPA? The concept simply is that Congress delegates to an agency a portion of its power so as to implement and administer regulatory policies and laws enacted by Congress. Thus, for example, EPA is charged with establishing specific maximum contaminant levels for drinking water in accordance with delegations of responsibility under the Safe Drinking Water Act. The extent of an agency's power is determined by the scope of authority delegated to it by Congress in a statute. For example, see my posting of February 26, 2013 discussing a court ruling that EPA had exceeded its statutory authority when it sought to regulate non-pollutants as a surrogate for regulation of pollutants. Whether an agency may have exceeded its statutory authority is to be determined by the courts.

Bear in mind that agencies are charged with implementing policies stablished by Congress, as we explore additional issues in this ongoing discussion.

Thursday, July 25, 2013

ADMINISTRATIVE AGENCIES, PART 1--THE REGULATED STATE

Administrative agencies, and their dictates, permeate all aspects of our lives in the United States today. In reality, their regulations govern our activities more extensively than statutes and court decisions, including the water we drink, the waste we create, the air we breathe, the food we eat, the medications we take, the houses we live in, the cars we drive, the energy we use, etc.

Looking at one small area--drinking water, for example--consider how broad federal and state EPA and similar agency regulatory jurisdiction is. These agencies regulate and allocate sources of water, composition of water, treatment of water, distribution of water and usage of water, and their rules affect the availability and cost of water service.

These agencies exist at all levels of government. They not only promulgate regulations, but they also enforce them by granting or withholding permits, by filing and adjudication claims for violation of regulations in trial-type hearings, and by assessing fines and other penalties for violations. Some have asserted that agencies can be both prosecutor and judge at the same time.

Administrative agency rules and rulings tend to reflect the policies and politics of the executive branch of government, such as the president or governor who appoints agency commissioners. A current example can be found in the President's June 25, 2013 speech on his plans to control alleged climate change by changing the way the United States produces and uses electric energy. His plans include issuance of regulations to curb emissions from coal-fired power plants, which could result in a substantial reduction in such generation in favor of other types such as natural gas. According to the President, his plan did not need Congressional approval. Apparently, the President intends to put his policy into effect by directing USEPA to do so. He said he would direct USEPA to "put an end to the bottomless dumpling of carbon pollution from power plants." (Wall Street Journal, June 26, 2013, p. A2)

So what branch of government are administrative agencies? They seem to have some attributes of the executive, the legislative and the judicial branches but they do not belong to any of them. Are they a fourth branch of government? Are they accountable to anyone?

In the next three postings, I will explore the basis for administrative agencies, how they have changed the United States, and how the regulators can be regulated.

Wednesday, July 17, 2013

GOVERNMENT MUST GIVE IN ORDER TO TAKE

The Fifth Amendment to the U.S. Constitution states, in part, "nor shall private property be taken for public use without just compensation."

In June, the U.S. Supreme COurt issued a decision that has received little media attention but has importance for land use and environmental regulation.*

An owner of some Florida land sought a permit from a local water management district to develop a portion of the owner's land. State law requires permit applicants seeking to build on wetlands to offset any resulting environmental damage. The developer proposed to mitigate the effects of his project by giving the district a conservation easement over the rest of his land. The district rejected the developer's offer and said it would grant a permit only if he substantially reduced the size of his project and granted a conservation easement over the much larger balance of his land or if he paid for improvements to wetlands owned by the district elsewhere.

The landowner rejected the district's demands, and the district denied the permit. The landowner sued in state court for damages on the ground that the district's action was a taking of property without just compensation. The Florida Supreme Court denied the claim.

The U.S. SUpreme Court reversed the Florida decision. The Court applied the "unconstitutional conditions doctrine", as expressed in its prior Nollan** and Dolan*** decisions. Those cases establish that government may not condition the grant of a land use permit on the landowner's giving up a portion of the owner's property unless there is a nexus and rough proportionality between the condition demanded and the effects of the proposed land use.

At issue in the current case was whether the unconstitutional conditions doctrine applied when the requested permit was denied. The Court held that it does apply. The Court stated that the Nollan and Dolan decisions "provide important protection against the misuse of the power of land-use regulation."

Writing for the majority, Justice Alito said: "We have said in a variety of contexts that 'the government may not deny a benefit to a person because he exercises a constitutional right.'". He added that the unconstitutional conditions doctrine "protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits." The Court further stated that under the doctrine, "the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed developments, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts. The Court also held that the doctrine applied regardless whether a permit is granted with conditions or is denied because the applicant rejects the conditions.

While this case involved wetlands mitigation, the key factual issues of "nexus" and "rough proportionality" could become relevant in other development permitting scenarios, such as government demand for contributions of money, road improvements, water and waste water facilities, and the like.

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* Koontz v. St. Johns River Water Management Dist., 570 U,S,___(2013)

** Nollan v. California Coastal Comm'n, 483 U.S. 825 (1087)

*** Dolan v. City of Tigard, 512 U.S. 374 (1994)

Thursday, July 4, 2013

THEY DON'T HUNT FOR MOTHS ANYMORE

A couple of months ago, I wrote about a pond which was a focus of some youth reflections. ("THE POND", April 8). The pond was an ecosystem that seemed to both host an extensive natural community and provide environmental water collection benefits for the surrounding prairie and farmland. I mentioned that stands of trees and shrubs at the pond provided hunting grounds for cecropia moth cocoons. Indeed, the pond was a magnet for all sorts of insects, including wild bees that have disappeared today.

Cecropia are the largest American moth, and are a giant silk moth. They are extremely colorful and have a wingspan of 5 to 6 inches. The moth cannot eat, as it has no mouth or digestive system. The moth, therefore, lives only a week or so, long enough to mate or lay eggs for the next generation. In the Fall, a mature cecropia caterpillar spins a silken cocoon around it attached to a tree or shrub branch and becomes a pupa until it emerges as a moth in the Spring.

For me and my friends, a cecropia cocoon was the grand prize of hunting. But we found few. Most of the cocoons we found produced a similar giant silk moth called polyphemus. Less colorful than cecropia, they live only a week or less, as they also do not eat. The cocoons of both moths look alike to young eyes, so what kind of cocoon one found had to wait until a moth emerged.

Therein lies a story. The best hunting for cocoons was done in late Winter or early Spring, when cocoons could be seen without leaves or snow to interfere. The procedure was to snap off a branch bearing a cocoon and carry it home proudly as a trophy. Because of its value to me, I would find a place for my cocoon somewhere in our living room--without the knowledge of the other occupants. When the moment was right, as they say in the TV commercial, the warmth of the room and sun pouring through the window would stimulate emergence: the pupa would open and a moth would tear through the top of the cocoon. To my mother's horror, the moth would crawl along the carpet and up a drape, where its wet, crumpled wings would stretch and dry to become a BIG moth. Amid requisite screams, the moth then would fly around the room and come to rest on another drape or a lamp shade to await evening. In the evening, I would always release it to frolic for its week of life.

Most of time, our cocoons would give us polyphemus moths. But when a kid found he had a cecropia, he had endless bragging rights. Regardless, we learned a great deal from the life cycle of these moths..from egg to adult moth. Most important, we learned to respect the lives of these creatures of the night that few people ever have have seen. And, perhaps without the ecosystem of the pond, we may never have seen them.

Today, kids appear to collect electric cocoons called smart phones, tablets, computers, games, etc. and look for electronic pictures and words to hatch from them. Back at the pond, we had cecropia, polyphemus and more, and the learning they gave us--without batteries needed.

Saturday, June 22, 2013

WHO OWNS WATER?

An important U.S. Supreme Court decision earlier this month involving water rights has received limited media attention. At issue was whether one state could cross its border and take water from a river in another state. The Court held that it could not.*

The Red River Compact allocates Red River water as between four states, including Texas and Oklahoma. A regional Texas water district sought additional water from a tributary of the River at a point within Oklahoma. The district filed suit seeking to enjoin Oklahoma's enforcement of that state's laws which prevent out of state entities from taking water from within Oklahoma.

The Supreme Court stated that interstate compacts are to be interpreted under contract law principles. It found that the Red River Compact essentially was silent on cross border water rights and that it was necessary to interpret the intent of the parties.

The Court said that a state does not easily cede its sovereign powers, including control of waters within the state. It cited an 1842 ruling that states have an "absolute right to all their navigable waters and the soils under them for their own common use." It added, "we have held that the ownership of submerged lands, and the accompanying power to control navigation, fishing, and other public uses of water 'is an essential attribute of sovereignty'". Accordingly, the Court held that the silence in the Compact on the subject of cross border water rights shows the parties had no intent to permit them.

The Court also rejected the district's argument that Oklahoma's law violates the Commerce Clause of the U.S. Constitution because it allegedly prevents water unallocated under the Compact from being sent to another state. The Court found that there is no unallocated water under the Compact, and it did not address the constitutional issue if there had been some unallocated water. However, given the Court's strong language as to a state's right to control water within its borders, perhaps the Court would be unlikely to find a Commerce Clause issue under any situation. Of course, on the other hand, there is the matter of federal jurisdiction over navigable waters.

As demand for water continues to grow, and outpaces supply in some areas, the pressure to find new sources of supply from out of area likely will increase, along with efforts by more water-rich states to resist such efforts.

For an interesting sidebar, see"Who Owns The Rain? Water Rights For Rainwater Harvesting" in the June, 2013 issue of the WE&T Magazine, p.39 (WEF.org).

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*Tarrant Regional Water Dist v. Herrmann, No. 11-889, 560 U.S.__(2013)

Friday, June 14, 2013

THE INFRASTRUCTURE ISSUE, PART 2--WHO SHOULD PAY?

The long established principle of sound ratemaking is that rates should recover all the costs of service from those receiving service. That is, the cost causers should pay the costs of serving them. For example, one of the costs of service is depreciation expense on physical assets such as treatment facilities and mains used to provide service.

If water or wastewater infrastructure needs to be replaced or upgraded, what alternative sources of funds may be available for such work? In other words, who should pay for the infrastructure improvements? Possible alternatives may include the following:

** Rates. Depending upon the extent and timing of improvements, rates may provide a source of funding, either through rate increases, surcharges or special assessments.

** Reserves. A prudent utility have have established a depreciation reserve or replacement reserve from revenue to provide a source of funding for infrastructure improvements.

** Debt. Issuance of revenue bonds or other borrowings amy be a source of funding. Along these lines, a refinancing of existing debt to lower debt service may be helpful. The costs of debt will be recoverable in rates.

** Equity. In the case of investor owned utilities, additional equity investment may provide funding, with a return allowed on rate base increases.

** Contributions. In communities experiencing growth in residential or commercial customers, developer contributions of actual plant or payment of connection fees may satisfy infrastructure expansion or upgrade requirements.

** Privatization. In the situation of municipal owned utilities privatization may provide a solution. Privatization can be achieved through outright sales or leases, management contracts or public-private partnerships, any of which may include commitments by the private entity to fund capital improvements.

** Consolidation and Regionalization. Where individual utilities may be in proximity to each other, efficiencies and economies may be achieved by combining resources. For example, perhaps one utility may purchase finished water from an adjoining one, thus eliminating the need for a separate treatment plant or source of raw water.

** Regulatory Action. Where upgrade needs arise from possible regulation changes, a utility may choose to respond to more strict requirements by objecting to a proposed regulation, or seeking a variance or exemption, or asking for a phase-in over time or by outright litigation against the requirement.

** Government grants and low interest loans. Various federal agencies, including USEPA, give grants from time to time to utilities and states for infrastructure projects. In addition, with funding from USEPA, states may offer low interest loans to certain utilities. Two issues should be considered in the case of such programs. First, these resources are limited and clearly not every utility needing infrastructure improvements will get a grant or even a loan. Second, in the case of grants or possibly even loans, someone is subsidizing the funding for the benefit of some one else. The person subsidizing is, of course, the taxpayer, not the utility customer receiving service.


Thursday, June 6, 2013

THE INFRASTRUCTURE ISSUE, PART 1--WHY IS THERE A WATER INFRASTRUCTURE PROBLEM?

There has been extensive media discussion about the purported need to replace aging water and wastewater infrastructure in the United States. This week, USEPA released the conclusions of a survey showing the alleged need to spend $384 billion to replace drinking water infrastructure through 2030 to enable safe water to be provided. It stated that this cost reflects the needs of some 73,000 water systems. USEPA asserts that "the nation's water systems have entered a rehabilitation and replacement era in which much of the existing infrastructure has reached or is approaching the end of the useful life."

The survey results raise an interesting question: Why is there such a need to replace water infrastructure? USEPA asserts that the need is due to the aging of water facilities: "In many cases, drinking water infrastructure was reported to be 50-100 years old".

However, it would seem that the age of infrastructure is not the only cause of a need to upgrade facilities, and it may not be the most important. Age alone does not imply inadequacy. For example, ductile iron or plastic water mains may have useful lives of 100 years or more. Older facilities may be functioning well provided that they have been properly maintained over time.

What are some possible other causes of the infrastructure issue?

** Failure To Plan For Replacements. In many cases of then growing municipalities, backbone water and wastewater plant and mains were contributed to utility systems by developers at no cost to the municipalities. If the municipal systems have not charged rates which recover depreciation or accrue reserves, there may be no funds available at the end of the useful lives of the contributed facilities to enable replacement.

** Failure To Properly Maintain. If water and wastewater utilities have not charged rates over time to recover full costs of service, including maintenance expense, it may be maintenance of facilities that is deferred. Without proper maintenance, facilities' useful lives obviously will be compromised.

** Regulation. It is perhaps ironic that much of the need to upgrade infrastructure discussed by USEPA's survey may result from the need to comply with USPEA's increasingly more strict and pervasive regulatory requirements.

** Demand. When a new subdivision or factory is proposed, a local water utility may need to expand treatment capacity or mains to satisfy increased demand for service, including fire protection.

** Security. Since 9-11, utilities have faced a need to upgrade security for water and wastewater facilities. Such measures, including electronic security measures and physical barriers, can impose substantial infrastructure costs, particularly for smaller utilities.

** Technology. Advances in technology, particularly relating to monitoring of treatment processes and flows and data processing, can impose infrastructure requirements.

** Failure of materials. Sometimes, regardless of age, such factors as corrosion and excessive breaks can create the need to replace components of systems.

There is not a sense that the need to replace or upgrade infrastructure in many systems is exaggerated or unrealistic. If the current need were satisfied today, it is likely that the whole discussion will be repeated in 50 years. For a look at resolving the infrastructure issue today, I will discuss funding of new infrastructure in Part 2--Who Should Pay The Bill?



Wednesday, May 29, 2013

NO END IN SITE OR SIGHT

Recently, I stumbled upon this sign in an Illinois antique shop my wife and I were hunting. Made of stainless steel, it is vintage, probably from a 1940s or 1950s passenger train coach. This sort of sign would have been a common bathroom sight on trains of that era (or even later) in the United States and other countries.

I had to have that sign! It kindled flashbacks to my long train ride , with hundreds of other Boy Scouts, from LaGrange, Illinois to the 1953 Jamboree in what is now Irvine , California. Boys will be boys, of course. Long train rides can be boring at times. Accordingly, signs such these became invitations rather than prohibitions. Many a flush occurred in stations along the way, much to great juvenile joy. But wait, as they say on many TV commercials. The really great fun happened when a coach was standing over a highway as the rest of the train was in a station. The sign said nothing about flushing over a road crossing. A flush over a highway produced an effect similar to the sight of a person leaving a bathroom with paper stuck to a shoe--only in this case, it was stuck to tires.

Passenger train toilets at that time essentially had straight pipes directly to the tracks. As a result, tracks tended to become above ground septic systems. In our travels to England in the 1980s and 90s, I recall standing on local station platforms gazing on toilet debris on the tracks--not a welcoming experience. But for people on the platform, the site simply was unpleasant. For railroad workers, who walked, inspected and repaired the rails, it must have been just awful.

Today, presumably, passenger trains in the United states and most countries, collect bathroom waste into tanks below the coaches. So, another tradition gives way to modernity. And, a sign becomes an antique and only flushes a memory. Maybe I will hang it in our bathroom and see what happens.

Wednesday, May 22, 2013

WATER BANKING YIELDS HIGH INTEREST

As demand for fresh water in parts of the United States out paces supply, utilities are exploring creative solutions. During a recent visit to London, I was interested to read an article in the International Herald Tribune discussing "aquifer storage".

What is this? Aquifer storage is essentially the reverse of drilling a well to pump water from an aquifer. Generally, water from the surface in injected through wells into the aquifer for storage . Then, when demand calls for more water, the stored water is pumped back up, treated and distributed to users. The full name for this process is "aquifer storage and recovery" or "ASR". In addition to injection wells, surface spreading and infiltration pits and basins may be used to feed the aquifer. Injection wells are regulated by U.S.EPA under its Underground Injection Control program.

A primary advantage of ASR is water can be stored during wet weather or low demand periods and then recovered in dry or high demand periods. Other advantages include" the additional water in the aquifer can defend against salt water intrusion and land subsidence; there is no evaporation issue with underground storage; crop land is not flooded and taken out of service; and aquifers may have more available storage space than surface reservoirs.

On the other hand, there may be some potential negatives: ASR may result in the injection of pathogens, particularly if treated wastewater is injected; if water is disinfected prior to injection, disinfection by-products may be introduced into the aquifer; and chemical differences between aquifer water and injected water could result in leaching of arsenic, manganese, iron, radionuclides or carbonates from the aquifer geological formation.

There, of course, may be an overriding legal issue: whose water is it, anyway? In other words, who has a right to the water in an aquifer; is a utility legally entitled to recover the injected water? In some jurisdictions, a landowner has a right to recover water under the person's land, even if some had been injected by a utility.

Several countries are utilizing ASR, including Australia, Belgium and The Netherlands. Even Thames Water, the utility serving London, stores water in an aquifer under that city.

In the United States, utilities in several states have developed or are planning to develop ASR facilities. For example, the San Antonio Water System Twin Oaks Aquifer Storage and Recovery facility is said to be the third largest ASR facility in the country, with 29 wells and some 60 mgd well field capacity. The Washington state legislature has adopted rules for review and issuance of permits for ASR projects and several projects are underway.

With dry weather in portions of the United States, and growing water demand in agricultural and population areas, resulting in depleted surface waters and aquifers, prudence may encourage more utilities to consider ASR to take advantage of storm water and treated wastewater when available.


Tuesday, May 14, 2013

WHAT DO YOU DO WITH THEM?

A recent magazine article sparked my attention. Its title read: "7 Things To Make With Toilet Paper Rolls." What a crafter's challenge! Just what can we do with those empty rolls after the toilet paper is fully used?

It appears that toilet paper wrapped on rolls is a relatively recent invention, tracing roots to the last half of the 19th century. Frankly, the technology has not advanced much since then. Basically, as most of us know, segmented long sheets of thin and often abrasive paper are coiled around a cardboard roll. Thus, after all the paper is removed for use, one is left holding the cardboard roll.

The magazine article offered some creative uses for the empty roll. For example, it could be used to hold wrapping paper together-a roll on roll, if you will. Or, it could be used to contain an electric cord; or seed could be glued to the outside of the roll, and it becomes a bird feeder.

Inspired by these examples, I conjured up some other possible uses:

* Several empty rolls could be strung together to make a garland for a Christmas tree.

* Rolls could become containers to hold candy treats to be given to Halloween trick or treaters.

* Rolls could be used to hide jewelry and other small valuables from would be thieves.

* Horizontally, rolls could be used as napkin rings at more formal dinners, when cost is an issue.

* Vertically, they could be used for place names at the dinner table, when guests are deemed unimportant.

* Rolls could be made into home made English Christmas crackers, when the real things are too expensive.

* Roll could make fine beverage holders on airplane trips, for those who drink their wine or spirits straight from the small bottles.

* Following current trends, rolls could become virtual currency for various transactions.

Because empty toilet paper rolls may have a carbon footprint, and could clog landfills or even sewers if discarded inappropriately, perhaps the best solution is regulation by a federal governmental agency. The Toilet Paper Empty Roll Control Act (TPERCA, for short) could be enacted by Congress to authorize EPA to regulate the size, composition, use and disposal of empty rolls. Rolls and their uses would have to meet strict compliance standards. Users of toilet paper would file monitoring reports with the agency. Any use or disposal of a roll would require a permit.

Accordingly, regulation again would provide a happy solution, for we all certainly would know what to do with our rolls.

Monday, May 6, 2013

THE REGULATOR IS IN...5 CENTS, PLEASE

Last week, I was window shopping down Regent Street in London. Open field running between raging double decker buses, I crossed over to Piccadilly Street toward my ultimate destination, Earl Grey tea haven Fortnum & Mason. However, colliding with all the tourists on the sidewalk gave me a "peckish" feeling, so hunted for a place to sit and catch my compromised breath. Shortly, I stumbled into the small front yard of a church designed by Christopher Wren--suggesting a combination of benches and history to revitalize.

I spotted a bench, one of those iconic English wood benches that one sees in all the travel pictures. Amazingly, one side of the seat was pigeon dropping free, perhaps cleaned by the pants of a prior occupant. I crumpled onto the seat. Overhead, a leaf emerging branch of a tree was making lace work out of the rare sunshine that filtered onto me.

After a few sighs, my eyes noted a curious sight to my left in the church yard. There in a corner was a small green "gypsy " wagon. It had wood sides, a curved metal roof, and steel or iron spoked wheels. There was a Dutch door in the middle of the side facing me, with the upper half open to expose a woman looking outside. I began to sweat with fear. At any moment, I expected Maleva, the gypsy fortune teller played by Maria Ouspenskaya in the Wolf Man, to emerge from her wagon to reveal my fate when the moon was full.

My concern receded, however, when I noted a large sign propped up next to the wagon. It read: "Caravan Drop-In--Emotional Support Counseling."

As I began to crumple again, my thoughts of the scene reminded me of Lucy standing behind her makeshift counter to which was nailed a makeshift sign scrawled with "The Doctor Is In...5 Cents, Please."

The whole experience got me to thinking: what if the EPA and similar regulators toured the country in gypsy wagons, stopping everywhere to offer counseling support to utilities and customers on water and waste water issues. In addition, like Malaeva, they even could offer predictions on the success of their recommendations and compliance initiatives. Of course, if one were bitten by some regulatory or legal non-compliance, the full moon shining on the court house might still be of concern.

I got up from the bench and headed back toward the street, still somewhat unsure after the experience whether I would be better off dropping in at the caravan or continuing to F&M for the comfort of tea and sweets.

Wednesday, April 17, 2013

AS THE RIVER TURNS

In March, USEPA issued its findings from a survey of thousands of miles of rivers and streams through out this country. It concluded that 55% of the miles are in poor condition for aquatic life. The assessment includes the following conclusions:

1. Some 27% of the rivers and streams have excessive levels of nitrogen and 40% have high levels of phosphorus. These constituents form "nutrient pollution" which causes adverse increases in algae and adverse decreases in oxygen in the water.

2. Some 24% of rivers and streams are considered poor due to loss of healthy vegetative cover needed to mitigate erosion, remove pollutants and maintain water temperatures.

3. Some 9% of miles contain high levels of bacteria, which can be unsafe for swimming and other recreation.

4. More than 13,000 of miles contain fish with high levels of mercury, which may be a health issue for humans.

In early April, a report funded by the National Science Foundation describes a record breaking 2011 algae bloom on Lake Erie. Such blooms in freshwater can result from runoff containing nitrogen and phosphorus, with high precipitation, poor lake circulation and warm temperatures. Decomposition of algae and aquatic plants deplete oxygen in the water needed for aquatic life.

The EPA's Office of Water Acting Assistant Administrator is quoted as stating: 'We must continue to invest in protecting and restoring our nation's streams and rivers as they are vital sources of our drinking water , provide many recreational opportunities, and play a critical role in the economy." (EPA Release, March 26, 2013)

So, what have EPA and other governmental agencies have done over the past 40 years to protect rivers and streams from such adverse environmental impacts as described in these reports and to enhance their drinking water and recreational potential uses? Maybe it is time for less reliance on promised action; and instead time for us to actually take ownership of what we own.

Monday, April 8, 2013

THE POND

I grew up in a house on the edge of a large prairie. About a block from the house into the prairie was "the pond" as all the kids called it. To a young boy, it seemed as large as Lake Michigan. But in reality, it was probably 50 feet by 100 feet, and no more than 2 feet deep at its high water time.

The pond was a natural depression in the ground, It captured storm water from surrounding prairie. In the Spring, rains helped to fill it; but by August heat, it became a mud flat. The Fall rains replenished it, and Winter froze it over.

In the middle of the pond was a huge cottonwood tree about 5 feet in diameter. Its limbs reached out to cradle the pond, as if to protect it from the winds rippling across the prairie. Of course, those same winds then blew endless cottonwood seeds to clog our window and door screens like glue. Surrounding the pond was a stand of wild crabapple and wild cherry trees woven together by wild grape vines. These became our source for hunting cocoons of cecropia moths.

As we approached the pond, we had to enter into a dense jungle of ragweed plants, seemingly 6 feet tall by late summer. These were a bonus. The stalks made great spears to toss at those large flying grasshoppers which would unfold black and yellow "wings" as they escaped. Also, when hollowed, the stalks made great peashooters with which to harass kids in class when the teacher was not alert enough to catch us.

But, it was the frogs that made the pond. We all knew when Spring had arrived when we heard the frogs loud evening serenade all the way at our house. Frogs meant tadpoles. All the kids would dip mason jars into the pond and gather tadpoles to take home and watch them become frogs, one leg at a time.

The pond was a haven for birds and butterflies. Even when it became muddy in August, tiny blues and yellow sulphurs gathered on the mud to seek moisture. But, by then, the frogs were silent and I wondered what happened to them. Also, one had to walk carefully around land crab holes that seemed to pop up. In winter, kids would ice skate on the pond, carefully avoiding collision with the cottonwood.

Today, there is no prairie. There is no pond. The prairie became endless houses. The pond became a paved street serving those houses, with a slight dip in the pavement where the pond had been. The cottonwood is gone; and when it rains, the storm water pools in the street to be flushed into a sewer or into basements. There are no frogs, except what kids might view on their smart phones.

When ponds of our innocent youth evaporate, maybe we lose a lot more than just the water.

Monday, April 1, 2013

BEWARE OF THE POLLUTION EXCLUSION

Last year, I discussed a federal court's application in the Scottsdale case of the "pollution exclusion" to deny insurance coverage to a water utility of alleged claims that it furnished water containing a contaminant. ("Insurance Pollution Exclusion Applied To Water Supply Contamination", April 23, 2012)

In February of this year, an Illinois state appeals court reached the same conclusion regarding the same municipal-owned water utility.
The village sought insurance company defense or indemnity of suits alleging that it had knowingly and routinely mixed polluted water into its distributed water. The appeals court affirmed the trial court's decision that all such claims fell within the absolute pollution exclusion provisions of the insurance policies involved and, therefore, the insurance companies had no responsibility for the claims. (Village of Crestwood v. Ironshore Specialty Insurance Company, 2013 IL App (1st) 120112 February 22, 2013)

The village argued that the pollution exclusion was developed in the insurance industry to deal with "traditional environmental pollution" which could have significant impacts on land, water and air, with substantial resulting costs. It asserted that the alleged water contamination by it did not fall within traditional pollution excluded from insurance coverage by prior court decisions.

The Illinois court rejected the village's argument. It stated that the cases "make clear that the Village's knowing contamination of the Crestwood water supply with chemical-laden groundwater and subsequent distribution of that contaminated combination is a textbook example of 'traditional environmental pollution.' It is undisputed that the chemicals in the Crestwood water supply were contaminants or pollutants as those terms were used in the insurance policies at issue. The policies define 'pollutants' as 'any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste material.'" The court stated that the pollution exclusion "is unqualified and absolute and entirely precludes coverage for bodily injuries or property damage."

In passing, the court distinguished two out of state decisions relied on by the village that appear to suggest that coliform bacteria and giardia parasites in water are not "pollutants" within the scope of a pollution exclusion. I would find it difficult to assert that bacteria and substances such as giardia and cryptosporidium are not "pollutants".

Apart from the usual insurable risks, water utilities have two unique risks. First, they furnish a product--water That water must be in compliance with the Safe Drinking water Act provisions. But it also may contain unregulated constituents that could be subject to alleged claims. Further the water may have to meet certain pressure and volume requirements, the failure to attain may also result in claims. Second, water utilities can impact adjoining properties if, for example, there is a chlorine leak.

The resulting conclusion from these cases is that an diligent water utility will assure that any pollution exclusion is deleted from its insurance coverage and that it obtains product liability insurance coverage sufficient to protect against estimated liability risks.

Saturday, March 23, 2013

MAKE NO BONES ABOUT WATER

Recently, the skeleton of England's King Richard III was discovered under a parking lot (car park) in Leicester. He is the king codified, somewhat incorrectly, in Shakespeare's play: "I, that am curtailed of this fair proportion,/Cheated of feature by dissembling nature,/Deformed, unfinished, sent before my time/Into this breathing world, scarce half made up,/And that so lamely and unfashionable/That dogs bark at me as I halt by them."

Richard III was killed in battle in 1485. Presumably, his remains were mellowing ever since. His skeleton shows head injuries as well as his deformed back.

Since discovery of Richard's bones, archeologists have dug into extensive analysis to confirm that the bones, in fact, are perceived royalty. The research has included DNA matches with apparent descendants over the globe, carbon dating of the bones and identification of the man's diet as appropriate for a king in 1485.

The interesting fact, however, is that for centuries people were walking, and more recently driving, on King Richard III. What would the Bard say about that? It seems disrespectful to royalty, and certainly contrary to what my mother admonished me repeatedly: "Don't let people walk all over you."

But, perhaps even more interesting is that Richard's bones are like ground water. We all walk, drive, farm, construct buildings and carry on life's activities on top of water in the earth below--water which serves all of these activities. We know where some of this water exist is, but not necessarily all of its locations. We may not know its age with certainty or how it really got there.

No doubt, Richards bones now will be well preserved for the future. Water is the bones of life. Will humanity preserve it for the future? With no disrespect to the Bard: "I, that I am curtailed of appearance/By earth, rock, blacktop and foundation,/And by wasteful uses and awkward laws,/As without halting, people and dogs walk over me as I slip away under their legs."

Sunday, March 17, 2013

BEWARE OF WATER HOGS

Last week, the press reported that at least 6,000 dead pigs were fished out of the Huangpu River and tributaries. The river runs through the center of Shanghai and is the source of supply of the City's drinking water for some 23 million residents. According to some reports, officials there have expressed concerns that the pigs could become a cause of water contamination.

In the United States, I have heard of Asian carp jumping out of rivers. I also have heard of something called a pig in the poke. But I have never heard of pigs floating in rivers.

Over a ham on rye sandwich, I began to salivate how the United States might deal with 6,000 dead pigs bubbling in a river which provides drinking water for a major city. I could not find a provision in the Safe Drinking Water Act or EPA regulations for water hogs--such as so many pigs per liter (or is it litter) or so many pig parts per million. My guess is that by the time EPA could promulgate a standard, sausage would be be squeezing from faucets. On second thought, perhaps none of this should be a surprise. We are used to seeing a lot of pork coming out of Congress. Why not the same for rivers?

Maybe the whole story is simply some publicity fabrication by a movie studio for a new 1950s style science fiction movie, such as "Earth versus Floating Pigs--They Came From Inner Space."

Or maybe this is much dodo about nothing. According to one report, the Chinese government testing showed no known health concern for humans in the river water-- only a pathogen affecting pigs. So, the days when one would go to a river for fishing may now be replaced by days going to a river for bringing home the bacon.

Oink if you support water hogs!

Friday, March 8, 2013

WHEN WATER WORLDS COLLIDE

The Wall Street Journal has reported on an alleged fight in Nevada over ground water between a city which is seeking to construct a 20 mile long pipeline to tap the aquifer and a ranching community which fears that their wells could dry up if the city's plan is approved. The ground water at issue is fed by mountain runoff. The article also recites similar controversies in other locations. (Wall Street Journal, March 8, 2013, p. A3)

Disputes over water rights are not new, nor are they likely to be confined to western states. For example, Lake Michigan is a magnet for many thirsty water systems who salivate over the possibility of tapping into the Lake and abandoning their declining wells or lesser quality surface water supplies. In theory, taking water from the Lake is limited to water systems within the Lake's watershed. However, as an example, diversion has been permitted in Chicago under a 1930s U.S. Supreme Court ruling.

Water wars are unlikely to go away. More likely, they will increase, as cities grow, climate changes, and surface water supplies prove no longer adequate or are all spoken for. On the other hand, who knows for sure how much ground water is available and where?

Two questions come to mind. First, how should source water be allocated to the competing user groups? Who has priority? What standards are applicable?

Second, Who should do the allocating? State governors? State administrative regulatory agencies? State courts?

An issue lurking in the shadows is the interstate nature of water. For example, aquifers contain water that may have come from other states or Canada, from runoff or as original water. Likewise, surface waters may have sources in upstream states.

The commerce clause of the U.S. Constitution--the clause that authorizes Oongress to regulate interstate commerce--was inserted because states had been enacting tariff barriers to imports from other states so as to protect commerce within a particular state. The Commerce Clause is a touchstone for such federal regulations low water toilets, faucets and shower heads, the Safe Drinking Water Act and USEPA.

Looking into the future, do not be surprised if, and when, Congress comes marching into the water wars with primacy federal regulation of allocations of water sources of supply.

Tuesday, February 26, 2013

WHO REGULATES THE REGULATORS?

Administrative agencies, primarily the federal ones often identified by an alphabet soup of letters, appear to regulate every aspect of our personal and commercial lives. USEPA--the United States Environmental Protection Agency as it more formally is known--is but one small example of an administrative agency.

But exactly what is a federal administrative agency? It is not one of the Constitutional three branches of our federal government. It is like a fourth branch of government, yet most agencies have attributes of all three branches: the legislative branch, by reason of rulemaking authority; the judicial branch, by reason of hearing, cease and desist and penalty authority; and the executive branch, by reason of permitting and authority. Administrative agencies such as USEPA can exercise all three kinds of functions, and do so.

Who regulates administrative agencies to assure that they do not exceed their authority? In theory, these agencies are creatures of the legislature. In effect, Congress has delegated a portion of its authority to federal agencies by means of statutes. Therefore, a primary measure of the propriety of an agency action is whether the agency has exceeded its statutory authority. Whether an agency has failed this test is to be determined by the courts.

A good example occurred in January when a federal District Court held that USEPA exceeded its statutory authority when it attempted to regulate the flow of stormwater into a Virginia watershed. Under the Clean Water Act, USEPA sought to establish the total maximum daily load ("TDML") of sediment "pollution" entering a creek by regulating storm water flow into the creek, not the actual sediment. Sediment was the primary cause of impaired water quality in the creek. However,, USEPA sought to regulate stormwater flow, a non-pollutant, as a surrogate for sediment. As the court put it, "Does the Clean Water Act authorize the EPA to regulate the level of a pollutant in Accotink Creek by establishing a TMDL for the flow of a nonpollutant into the creek?"

The court held that the Clean Water Act did not authorize EPA to regulate nonpollutants or to use nonpollutants as a surrogate for regulation of pollutants, saying that in the in establishment of TDMLs, "EPA may not regulate something over which it has not statutorily granted power..." THe court concluded, "Claiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore reguable, does not bring stormwater within the ambit of EPA's TMDL authority. Whatever the reason EPA has for thinking that a stormwater flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, EPA cannot be allowed to exceed its clearly limited statutory authority." (Virginia Department of Transportation v. United States Environmental Protection Agency, U.S. District Court, Eastern Division of Va., No. 1:12-CV-775, January 3, 2013)

Yeas ago, Justice Cardozo one referred to the tendency of a principle to extend to the limits of its logic. When an administrative agency extends beyond the limits of its statute, its authority falls off the judicial cliff.

Thursday, February 14, 2013

DEFINING MOMENTS IN WATER

Probably nearly everyone has had some kind of defining moment involving water--where water has shaped a life experience or has influenced learning or behavior. Some may have had more than one of such moments.

My first defining moment with water occurred at an age of 18 months. My parents took me with them on a vacation in the Black Hills of South Dakota. They had had a particular affinity for that area, having had a camping honeymoon years before in the Badlands and the Hills--at a time when free ice water at Wall Drug was a necessity.

We stayed in one of those tiny cottages, probably built in the 1920s, in Baken Park, a tourist spot in Rapid City. (Remember, Cary Grant was "hospitalized" in Rapid City in North By Northwest). Today, of course, Baken Park is a strip mall.

One day, we toured the Iron Mountain Highway, a mountain road near Mt.Rushmore. The road curves up and down with countless switchbacks--resembling an unbroken whole orange peeling. At one point along the road, my father spied a unique tourist site--a fresh water spring gushing out of a huge granite rock along the roadside. Several tourists were gathered around the spring, filling thermos and bumper water bags or just cupping the cool water to their eager mouths.

My father parked our 1940 green Buick sedan on the shoulder and hopped over to the spring to join the water excitement, while my mother stayed in the car with me. Suddenly, the car began to roll backwards, toward the edge of the shoulder and the deep valley below--the parking brake did not hold. My mother was not a driver and could not tell a brake pedal from a clutch pedal. But, she had strong lungs and could shout! Several nearby men came running and grabbed the front bumper to slow the car, while another one jumped in to apply the brakes--right before the car would have rolled away.

For me, that was a defining moment in water--defining because it has made possible my writing this 100th posting of this blog.