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.

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.

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.

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.

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."

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!

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.