It has been like a 1950s science fiction thriller: "THE ATTACK OF THE GIANT POLAR VORTEX!"....Coming to all the theaters near you, for an extended stay. It sends chills up your spine!
As I huddle before my furnace enjoying record high heating bills this endless winter, I squint at three foot plus drifts of snow in the yard and icicles clinging from the roof. News reports echo record snowfalls and record frigid temperatures, and even weather reporters seem to tire of the weather. Both water service lines and the entire Great Lakes are frozen.
Yet, many politicians continue to assert that warming climate change is upon us, and they call for embrace of their proposed regulatory agendas. However, I remain a climate change skeptic--not only because the polar vortex has turned me into a human snowman. As one report has it, the polar vortex has wiped out 95% of the stink bugs in the Washington, DC general area. I am happy that I survive to pay the heating bills.
But, wait there is more. As recently reported in the Wall Street Journal by two professors of atmospheric science: *
" The warming numbers most commonly advanced are created by climate computer models built almost entirely by scientists who believe in catastrophic global warming. The rate of warming forecast by these models depends on many assumptions and engineering to replicate a complex world in tractable terms, such as how water vapor and clouds will react to the direct heat added by carbon dioxide or the rate of heat uptake, or absorption, by the oceans.
"We might forgive these modelers if their forecasts had not been so consistently and spectacularly wrong. From the beginning of climate modeling in the 1980s, these forecasts, have, on average, always overstated the degree to which the Earth is warming compared with what we see in the real climate."...
"The models mostly miss warming in the deep atmosphere--from the Earth's surface to 75,000 feet--which is supposed to be one of the real signals of warming caused by carbon dioxide. Here, the consensus ignores the reality of temperature observations of the deep atmosphere collected by satellites and balloons, which have continually shown less than half of the warming shown in the average model forecasts."
Again, this reminds me of the Chicago television weatherman who invented the "Vice President In Charge Of Looking Out The Window" to confirm that reality matched his forecast models.
So, how should water utilities respond to allegations of climate change? The importance of respecting and conserving ground water and surface water sources of supply cannot be overstated and exists today separate and apart from climate change concerns. Accordingly, it really is not a matter of being bullied by panic over climate change assertions. Instead, for water utilities, it should be a matter of continued protection of freshwater resources, through such measures as encouraging use of more efficient water appliances by users, implementation of rate structures that give proper signals, implementation of expanded desalination facilities and recycling, installation of meters where they are not installed, etc. These, and many other, steps are needed, not because of climate change fears but because fresh water is such an essential but limited resource.
I am putting on another sweater and welcoming the return of the polar vortex this week with numb arms and hot chocolate. Then I will look out the window and watch for any melting of snow which has buried the outdoor Christmas lights and decorations, including the smiling Santa face, probably until April or May...if the climate ever changes by then.
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* McNider and Christy, "Why Kerry Is Flat Wrong on Climate CHange", February 20, 2014, P. A15
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.
Monday, February 24, 2014
Monday, February 17, 2014
AS THE EPA WORLD TURNS
US EPA these days seems to be a lightning rod for controversy, and at times, a soap opera for legal drama.
For example, in January, Arizona state legislators introduced a bill proposing to nullify EPA regulations on the ground that EPA's rule making authority violates the 10th Amendment to the US Constitution. That Amendment, of course, provides that powers not delegated to the federal government are reserved to the states, or to the people.
Along similar lines, several Senators introduced a bill in the US Senate proposing the "Restoring the 10th Amendment Act" (S 1632). The bill would give state officials standing to challenge proposed regulations during any public comment period, based on assertion that a proposed rule would violate the 10th Amendment. The bill would require a federal agency to post a challenge online. The agency would have to certify that the rule would not violate the 10th Amendment, giving a supporting legal basis for such a conclusion.
It has been reported that EPA currently is working on a proposed controversial rule that would expand the definition of US waters, which is the basis for much of its scope of regulation. In other words, EPA may be defining its own jurisdiction. According to some reports, the rule could include most natural and artificial tributaries and wetlands adjacent to or near large downstream water bodies. Also, the rule could allow EPA to assess the aggregate effect of isolated wetlands and water bodies on downstream waters and regulate them, too. Indeed, the rule could include intermittent ditches, which are dry except for when it rains. Perhaps EPA regulation of birdbaths would not be a fantasy under such an expansive rule.
Farmers are challenging efforts by EPA to eliminate an exemption from Clean Water Act discharge permitting for farmyard storm water runoff. In one situation, EPA has appealed an adverse court ruling (Alt v. EPA, 4th Cir. No. 13-2534).
Meanwhile, EPA has proposed stringent carbon emission limits for power plants that many assert will preclude new coal burning plants because of high compliance costs. Such action has stimulated a proposal in the US Senate for a vote under the Congressional Review Act, which empowers Congress to overrule federal regulations by a simple majority of both houses. A presidential veto of a Congressional disapproval vote would be possible, but would confirm administration efforts to bypass Congress through agency regulation.
Finally, decades of EPA regulation have imposed billions of dollars of cost on water and wastewater utilities, and their customers, for installation of compliance treatment infrastructure. Despite this, in West Virginia, an industrial spill into a river source of water supply contaminates a water utility's system with a chemical no one seems to know about, causing a shutdown of the distribution of drinking water to the users.
And so, the EPA world turns and turns and...
For example, in January, Arizona state legislators introduced a bill proposing to nullify EPA regulations on the ground that EPA's rule making authority violates the 10th Amendment to the US Constitution. That Amendment, of course, provides that powers not delegated to the federal government are reserved to the states, or to the people.
Along similar lines, several Senators introduced a bill in the US Senate proposing the "Restoring the 10th Amendment Act" (S 1632). The bill would give state officials standing to challenge proposed regulations during any public comment period, based on assertion that a proposed rule would violate the 10th Amendment. The bill would require a federal agency to post a challenge online. The agency would have to certify that the rule would not violate the 10th Amendment, giving a supporting legal basis for such a conclusion.
It has been reported that EPA currently is working on a proposed controversial rule that would expand the definition of US waters, which is the basis for much of its scope of regulation. In other words, EPA may be defining its own jurisdiction. According to some reports, the rule could include most natural and artificial tributaries and wetlands adjacent to or near large downstream water bodies. Also, the rule could allow EPA to assess the aggregate effect of isolated wetlands and water bodies on downstream waters and regulate them, too. Indeed, the rule could include intermittent ditches, which are dry except for when it rains. Perhaps EPA regulation of birdbaths would not be a fantasy under such an expansive rule.
Farmers are challenging efforts by EPA to eliminate an exemption from Clean Water Act discharge permitting for farmyard storm water runoff. In one situation, EPA has appealed an adverse court ruling (Alt v. EPA, 4th Cir. No. 13-2534).
Meanwhile, EPA has proposed stringent carbon emission limits for power plants that many assert will preclude new coal burning plants because of high compliance costs. Such action has stimulated a proposal in the US Senate for a vote under the Congressional Review Act, which empowers Congress to overrule federal regulations by a simple majority of both houses. A presidential veto of a Congressional disapproval vote would be possible, but would confirm administration efforts to bypass Congress through agency regulation.
Finally, decades of EPA regulation have imposed billions of dollars of cost on water and wastewater utilities, and their customers, for installation of compliance treatment infrastructure. Despite this, in West Virginia, an industrial spill into a river source of water supply contaminates a water utility's system with a chemical no one seems to know about, causing a shutdown of the distribution of drinking water to the users.
And so, the EPA world turns and turns and...
Sunday, February 9, 2014
SOURCE WATER CONTAMINATION--THE ELEPHANTS IN THE ROOM
Suppose that a water utility is in compliance with all applicable safe drinking water standards and regulations. Then, one day, an unregulated chemical contaminate migrates in the ground to its wells or spills into a river just above its intake. Suppose further that this contaminant is not removed by conventional treatment processes and enters into the utility's finished water and is distributed system-wide to its customers. Will the utility face possible liability for unsafe water at customers' taps? Or is compliance with standards and regulations a defense to such claims?
It will be interesting to see how the current West Virginia chemical spill situation fully plays out. In 2002, the California Supreme Court held that claims for damages from contaminated drinking water against regulated water utilities who met all standards were preempted by the jurisdiction of the state public utilities commission. However, claims against unregulated water utilities were allowed to proceed, even though the utilities met the applicable standards *
One of the more immediate effects of the West Virginia chemical spill situation is the introduction in the US Senate of the Chemical Safety and Drinking Water Protection Act, proposing tighter regulation of chemical facilities with the objective of enhancing protection against chemical spills which could threaten water sources of supply. The proposed statute would require regular state inspections of above ground chemical storage facilities; require industries to develop state approved emergency response plans ; allow states to recover their response costs; and aid utilities in having tools and information to respond to emergencies. On February 4, a Senate hearing was held on the West Virginia spill issues.
The Wall Street Journal reported that, after the chemical spill in West Virginia contaminated its water system, the affected utility's officials said they were unfamiliar with the contaminant and did not know it was being stored.about one mile upstream from its river intake. ** In 1996, a federal program required states to conduct source water assessments regarding their respective water utility systems. However, the program did not require development of source water protection plans. After 9/11, water utilities were required to conduct vulnerability assessments, but these were intended to identify threats from terrorism, not pollutants.
It would seem that a proactive water utility could consider some possible measures to mitigate against risk of contamination of its sources of supply, including:
1. A utility could seek to establish more effective channels of communication with state agencies involved in monitoring industrial activity in proximity to the utility's sources of supply, including any state source water protection plan.
2. Years ago, a Chicago television weather man invented a "vice president in charge of looking out the window" to make sure his forecast were consistent with what actually was happening outside. A utility could conduct its own survey of nearby chemical storage and process facilities--in other words, actually look for itself and ask questions. And, based on such investigation, it could develop an assessment of risks to its system.
3. A utility should have an emergency response plan in place which anticipates the possibility of contamination from an unknown or unregulated contaminate introduced into its source water by chemical spill, chemical migration, or other toxic spill.
4. A utility should have adequate insurance coverage for possible contamination outbreaks.
Surprises may be welcome for milestone birthday parties, but not for water utility operations!
________________________________________________________
* Hartwell Corporation v. Superior COurt of Ventura County, 38 P.3rd 1098 (CA 2002)
** February 4, 2014, P. A3
It will be interesting to see how the current West Virginia chemical spill situation fully plays out. In 2002, the California Supreme Court held that claims for damages from contaminated drinking water against regulated water utilities who met all standards were preempted by the jurisdiction of the state public utilities commission. However, claims against unregulated water utilities were allowed to proceed, even though the utilities met the applicable standards *
One of the more immediate effects of the West Virginia chemical spill situation is the introduction in the US Senate of the Chemical Safety and Drinking Water Protection Act, proposing tighter regulation of chemical facilities with the objective of enhancing protection against chemical spills which could threaten water sources of supply. The proposed statute would require regular state inspections of above ground chemical storage facilities; require industries to develop state approved emergency response plans ; allow states to recover their response costs; and aid utilities in having tools and information to respond to emergencies. On February 4, a Senate hearing was held on the West Virginia spill issues.
The Wall Street Journal reported that, after the chemical spill in West Virginia contaminated its water system, the affected utility's officials said they were unfamiliar with the contaminant and did not know it was being stored.about one mile upstream from its river intake. ** In 1996, a federal program required states to conduct source water assessments regarding their respective water utility systems. However, the program did not require development of source water protection plans. After 9/11, water utilities were required to conduct vulnerability assessments, but these were intended to identify threats from terrorism, not pollutants.
It would seem that a proactive water utility could consider some possible measures to mitigate against risk of contamination of its sources of supply, including:
1. A utility could seek to establish more effective channels of communication with state agencies involved in monitoring industrial activity in proximity to the utility's sources of supply, including any state source water protection plan.
2. Years ago, a Chicago television weather man invented a "vice president in charge of looking out the window" to make sure his forecast were consistent with what actually was happening outside. A utility could conduct its own survey of nearby chemical storage and process facilities--in other words, actually look for itself and ask questions. And, based on such investigation, it could develop an assessment of risks to its system.
3. A utility should have an emergency response plan in place which anticipates the possibility of contamination from an unknown or unregulated contaminate introduced into its source water by chemical spill, chemical migration, or other toxic spill.
4. A utility should have adequate insurance coverage for possible contamination outbreaks.
Surprises may be welcome for milestone birthday parties, but not for water utility operations!
________________________________________________________
* Hartwell Corporation v. Superior COurt of Ventura County, 38 P.3rd 1098 (CA 2002)
** February 4, 2014, P. A3
Labels:
Regulation,
Safe Drinking Water,
Sources of Supply
Sunday, February 2, 2014
A GROUNDHOG'S DAY
Today, February 2, is Groundhog Day. If a groundhog sees its shadow today, there will be six more weeks of winter. If it does not see its shadow, Spring will be near. Therefore, the Day is of both great personal as well as public interest. You see, I am a groundhog, as today is my birthday.
Exactly what is a groundhog? Frankly, it is a rodent, and a member of the marmot group. It also has been known over time as a woodchuck, whistle-pig and land beaver. It lives in burrows. An average groundhog excavates about 700 pounds of earth per burrow and may have several burrows. It hibernates in winter, and breeds in February--perhaps in "tunnels of love". It is a vegetarian, and may well visit your vegetable garden.
Of all the native animals in North America, the groundhog is the only one to have its own day. In 1841, a Pennsylvania storekeeper wrote in his diary "Last Tuesday, the 2nd, was Candlemas day, the day on which, according to the Germans, the Groundhog peeps out of his winter quarters and if he sees his shadow he pops back in for another six weeks nap, but if the day be cloudy he remains out, as the weather will be moderate." An 1871 commentary on February 2 similarly stated: "On that day the groundhog comes annually out of his hole, after a long winter nap, to look for his shadow. If he perceives it, he retires again to his burrow, which he does not leave for six weeks--weeks necessarily of stormy weather. But if he does not see his shadow, he stays out of his hole till he can, and the weather is sure to become mild and pleasant."
Perhaps the most famous groundhog is Punxsutawney Phil, who has attained rock star status as forecaster to the nation on February 2 every year. However, the truth of the matter is that many towns in the Unites States have their own groundhogs making their own forecasts based on whether shadows are seen there. So, there may well be a variety of predictions. Overall, it seems that groundhog forecasts are correct only about 40% of the time.
In a town in Spain, annually in January, there is a day when townspeople celebrate by throwing dead rats at each other. No doubt tomatoes are out of season. At any rate, we should be happy that we don't have to throw groundhogs at each other every February 2.
Groundhog Day is a de facto holiday in the United States. I urge the President to bypass Congress and issue an executive order establishing Groundhog Day as a national holiday. Of course, that would mean that schools and banks would close and there would be no mail delivery, so that full appreciation could be given to the honored rodent. Because different groundhogs in different locations could give different forecasts, perhaps there should be federal regulation of groundhogs to facilitate uniform forecasting.
What does all of this have to do with water. Well, six more weeks of winter will mean six more weeks of snow, ice and freezing rain--along with frigid cold!
I just stepped outside. I saw my shadow, which means six more weeks of winter. Happy Holiday!
Exactly what is a groundhog? Frankly, it is a rodent, and a member of the marmot group. It also has been known over time as a woodchuck, whistle-pig and land beaver. It lives in burrows. An average groundhog excavates about 700 pounds of earth per burrow and may have several burrows. It hibernates in winter, and breeds in February--perhaps in "tunnels of love". It is a vegetarian, and may well visit your vegetable garden.
Of all the native animals in North America, the groundhog is the only one to have its own day. In 1841, a Pennsylvania storekeeper wrote in his diary "Last Tuesday, the 2nd, was Candlemas day, the day on which, according to the Germans, the Groundhog peeps out of his winter quarters and if he sees his shadow he pops back in for another six weeks nap, but if the day be cloudy he remains out, as the weather will be moderate." An 1871 commentary on February 2 similarly stated: "On that day the groundhog comes annually out of his hole, after a long winter nap, to look for his shadow. If he perceives it, he retires again to his burrow, which he does not leave for six weeks--weeks necessarily of stormy weather. But if he does not see his shadow, he stays out of his hole till he can, and the weather is sure to become mild and pleasant."
Perhaps the most famous groundhog is Punxsutawney Phil, who has attained rock star status as forecaster to the nation on February 2 every year. However, the truth of the matter is that many towns in the Unites States have their own groundhogs making their own forecasts based on whether shadows are seen there. So, there may well be a variety of predictions. Overall, it seems that groundhog forecasts are correct only about 40% of the time.
In a town in Spain, annually in January, there is a day when townspeople celebrate by throwing dead rats at each other. No doubt tomatoes are out of season. At any rate, we should be happy that we don't have to throw groundhogs at each other every February 2.
Groundhog Day is a de facto holiday in the United States. I urge the President to bypass Congress and issue an executive order establishing Groundhog Day as a national holiday. Of course, that would mean that schools and banks would close and there would be no mail delivery, so that full appreciation could be given to the honored rodent. Because different groundhogs in different locations could give different forecasts, perhaps there should be federal regulation of groundhogs to facilitate uniform forecasting.
What does all of this have to do with water. Well, six more weeks of winter will mean six more weeks of snow, ice and freezing rain--along with frigid cold!
I just stepped outside. I saw my shadow, which means six more weeks of winter. Happy Holiday!
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