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.
Fresh water is essential for life and commerce. However, its scarcity is resulting in increased regulation of water resources and their corollary, wastewater. This blog will discuss developments in such regulation. It will be my clepsydra measured by the flow of water law.
Wednesday, April 17, 2013
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.
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.
Labels:
General,
Importance of Water,
Storm Water,
Water Conservation
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.
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.
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