WaterWired

Brad Udall Speaks: RNRF Round Table - 'The Challenges of Allocating Colorado River Water – Hot 20-year Drought and Soaring Populations'

One could argue that we've heard enough about the Colorado River woes. But here's another one - this one from Brad Udall, one of the smartest kids on the block when it comes to Western water and climate - just check out his page.

I lifted this piece from the the Renewable Natural Resources Foundation:
RNRF Round Table: The Challenges of Allocating Colorado River Water - Hot 20 Year Drought and Soaring Populations.Here is the PDF of his PPT.He spoke in early March 2021.

The graphic is from his PPT.

 

Brad Udall, a Senior Water and Climate Research Scientist at Colorado State University, spoke at a virtual meeting of the RNRF Washington Round Table on Public Policy on March 9, 2021. He discussed the imbalance between water supply and demand in the Colorado River basin, how climate change is exacerbating the issue, and the ongoing renegotiation of the river’s management guidelines.

Introduction and Background
The Colorado River basin extends into seven states (Wyoming, Colorado, Utah, Arizona, New Mexico, Nevada, and California) as well as Mexico, along with the land of 29 Native American tribes. The American portion of the basin represents 8% of the area of the lower 48 states. Altogether, about 40 million people, including the populations of all major cities in the Southwestern U.S., rely on the Colorado for some portion of their water supply. The river is used heavily for municipalities as well as agriculture, with about 4.5 million acres of irrigated land in the basin.

The water supply in the river is often measured by the water levels in its two major reservoirs, Lake Mead and Lake Powell. These are the two biggest reservoirs in the U.S. In order to maintain sustainable levels in these two reservoirs over a long time period, withdrawals from the river must equal the supply being provided by the river’s flow. This was the case in 2000, when the combined contents of the reservoirs were over 90% full. Since then, their water level has dwindled to less than 50% due to a “structural deficit” – demand for the river’s water consistently outpacing supply. This is due in large part to the fact that over the past 20 years, the basin has been experiencing its worst drought on record. The flow of the river has decreased from ~14.75 million acre-feet (maf) to ~12.4 maf. Even before the drought began, water demand was high in the basin; since about 1990, it has not reliably reached the ocean.

While the current situation in the watershed is usually described as a drought, a lack of precipitation is really only half the story. Regional temperature increases, exacerbated by climate change, have also had a significant impact on the reduction of water availability. Udall noted that evaporative losses will only become more severe as climate change worsens. The Southwest is already one of the quickest-warming areas of the country, a trend that is expected to continue. The risk of multidecadal droughts will also continue to drastically increase in coming decades. The 2000-2018 period was the second-driest 19-year period in the basin since 800 AD. While this is partially attributed to natural variation, researchers have said that 50% of the decrease in soil moisture can be attributed to anthropogenic climate change. Climate change has turned what would likely be a moderate drought into an extreme, historic drying event. Aridification and heating, along with reduction in precipitation, are causing drastically drying conditions in a river basin that tens of millions of people rely on for their water.

Historical Management of the River
In 1922, to fully allocate use of the river’s water, the basin states agreed to the Colorado River Compact. This agreement still serves as the basis for the Law of the River, which is the set of rules for the river’s allocation and management. In response to the “hot drought” happening since 2000, new modifications to the Law of the River have been necessary to prevent the reservoirs from becoming depleted. The first of these, called the Colorado River Interim Guidelines, went into effect in 2007. These guidelines set out a series of complicated rules for how Lakes Powell and Mead are operated, allowing different quantities of water to be released from them when they are at certain elevations. They constrain use of water when the reservoirs are low. One innovative structure used to accomplish this is “intentionally created surplus,” which allows parties in the lower basin to store their water in a sort of “bank account” in Lake Mead.

Around 2013, it was becoming clear that persistently dry and hot conditions were rendering the 2007 Interim Guidelines insufficient. A new agreement was necessary. As a result, two new “Drought Contingency Plans” (DCPs) for the Upper and Lower Basins were adopted in 2019. Early in 2021, for the first time, drought conditions in the river reached the point where the DCPs’ provisions were activated. Udall noted that these agreements made some progress toward making the river’s use more sustainable but were not a permanent solution.

Future Management of the River
Udall finished his presentation by discussing future prospects for sustainably managing the river in these drying conditions. In 2026, the 2007 Interim Guidelines and DCPs expire. The seven basin states, 29 tribes, Mexico, and the federal government have already begun the multi-year process of renegotiating a new set of guidelines which will be adopted in 2027. The following are some central considerations for a successful new agreement described by Udall.

The Upper Basin’s “Delivery” Obligation
Among the problems that stakeholders are aiming to resolve is the nature of the Upper Basin’s delivery obligations. There is a clause in the original Colorado River Compact that says that the Upper Basin shall not allow the flow of the river to decline below 75 maf every ten running years. However, it is not clear if this obligation is really a “delivery” obligation or if it is a “non-depletion” obligation. If it is a delivery obligation, that means that the entire reduction of flow coming from the Upper Basin due to climate change falls on the Upper Basin to solve. Clearly, this was not the intent of this clause in the original 1922 compact, and the Upper Basin states are making this argument.

Tribal Issues
Native American tribes are expected to have a much more significant role in the renegotiation of the Interim Guidelines than they have had in previous decision-making processes for management of the river. There are 29 tribes in the basin. Altogether, they have a right to control about 20% of the basin’s water. This right derives from a 1908 Supreme Court decision which issued the “Winters Doctrine.” This doctrine said that when the federal government creates a reservation of land for a tribe, implicit in that reservation is a water right.

However, tribal interests were still left out of the 1922 compact, and many of their rights remain unquantified. Even in the 21^st century, the tribes in the basin were not invited to participate in the 2007 Interim Guidelines negotiations or the 2012 Basin Study. The 2019 DCPs were an important development in the inclusion of tribes in river management discussions after their needs and rights had been historically ignored. For the first time, these 29 distinct tribes were acting collectively and were included in the planning process. The DCPs were also the first time that a tribe agreed to accept a monetary payment in exchange for using less than their full water right. Inclusion of tribal interests in the renegotiation of the Interim Guidelines is expected, and will be essential to the new agreement’s success.

The Structural Deficit
Fundamental to the dilemma faced by basin stakeholders in this renegotiation process is the “structural deficit.” This is, quite simply, an imbalance between the supply of and demand for water in the basin. Since 2000, demand has outpaced supply. Demand reductions are challenging because once a water user has access to a supply of water, it is difficult to get them to relinquish it. The supply-side is more challenging to address. In the absence of cooler temperatures and more precipitation ­– conditions increasingly unlikely as climate changes — it is difficult to create more supply. It is easier to change consumption patterns than it is to change the hydrology of the river. Without demand reductions in the Upper and Lower Basins, there is a high probability that the amount of water in the reservoirs will continue to fall.

Udall referenced a recent study that found that the Upper Basin’s water demand is unsustainably high. Despite this finding, parts of the Upper Basin actually want to increase their demand, which in the face of declining flows is an issue that will need to be addressed in the negotiation process. Demand Management measures, by which water users can voluntarily accept money in exchange for reducing their water consumption, will likely be part of the solution in the Upper Basin but caps on demand may also be necessary to ensure that the delivery obligation is fulfilled.

In the Lower Basin, the Central Arizona Project diverts water from the Colorado River into Arizona, providing water for an area including the cities of Phoenix and Tucson. As a part of the original agreement that permitted this project, it was agreed that if there ever was a shortage of water in the basin, Arizona would bear the brunt of demand reductions. Demand reductions will likely be necessary in the Lower Basin but Udall noted that it would be difficult in practice to mandate that they all come from Arizona. Solving this dilemma will be a part of the new Interim Guidelines negotiations. One method that may be used is to begin charging evaporative losses to state water budgets in proportion to their use. Currently, evaporation is being charged to nobody, which is a part of the overuse problem.

Guidelines for Successful Renegotiation
Udall also identified other steps that can be taken by stakeholders to work toward a successful new set of interim guidelines. First, he emphasized the importance of good science. Realistic climate and hydrological modelling are necessary to inform the negotiations. Udall noted that many of the models being used by watershed states are overly optimistic with regard to future hydrology. Beginning the negotiations with inaccurate presumptions about the future of the watershed are setting the new agreement up for failure. While the renegotiation is a political process, it needs to be informed by most accurate scientific information possible.

Because the structural deficit is a basin-wide issue, Udall advocated for the use of a combined metric that adds the quantity of water in Lakes Mead and Powell. This would be a more accurate way to gauge water shortages because the water in the reservoirs individually is less important than the total quantity between them when informing the management of the entire river basin. He also said that using clear language in negotiations is critical. For instance, one should never inaccurately say that the Colorado River Compact itself is being renegotiated. It is only the Interim Guidelines that are being replaced; the Compact remains the foundation for the river’s allocation.

The renegotiation process is more than just a group of stakeholders sitting around a table, working out a plan for the river. It is a series of large and small meetings, some more formal than others. Since not everything is negotiated in official sessions, there is room for behind-the-scenes discussion while also maintaining transparency. During the round table’s Q&A session, Udall mentioned that river management issues under discussion will be reported by many talented journalists, who will bring transparency to the process for interested parties.

Ultimately, the process of renegotiating the Interim Guidelines requires a balancing of political, economic, environmental, and societal values. Climate change is the defining issue of our time, and it is at the center of these water issues in the American West. While one can easily become disillusioned by political processes, especially in the realm of climate and environmental issues, Udall ended on a note of optimism. While the solutions are not all clear, there are good relationships among stakeholders, which will form a solid foundation for successful negotiations.

– Stephen Yaeger, RNRF Program Manager

The PowerPoint Udall used during his presentation can be found here.

In his presentation, Udall referenced a series of studies about the climate and hydrological conditions of the Colorado River. They can be found at the following links:

Increasing influence of air temperature on upper Colorado River streamflow

The twenty‐first century Colorado River hot drought and implications for the future

On the Causes of Declining Colorado River Streamflows

Unprecedented 21st century drought risk in the American Southwest and Central Plains

Large contribution from anthropogenic warming to an emerging North American megadrought

Colorado River flow dwindles as warming-driven loss of reflective snow energizes evaporation

When is Drought not a Drought? Drought, Aridification, and the “New Normal”

Alternative Management Paradigms for the Future of the Colorado and Green Rivers

Enjoy!

"We made too many wrong mistakes." - Yogi Berra

Paper: 'The Hydropolitics of Upper Karabakh, with Emphasis on the Border Conflicts and Wars between Azerbaijan and Armenia'

Click on the title below to access/read the paper online or download the PDF (has URLs embedded).

The Hydropolitics of Upper Karabakh, with Emphasis on the Border Conflicts and Wars between Azerbaijan and Armenia

• Seyed Abbas Ahmadi,
• Hamed Hekmatara,
• Hassan Noorali (corresponding author - Hassan.noorali@ut.ac.ir
• Michael Campana,
• Ali Sadeghi &
• Farshad Pazhoh 

Abstract

Upper Karabakh region has become a permanent point of conflict between the Republic of Azerbaijan and Armenia with the weakening and collapse of the Russian Empire in the early twentieth century and the formation of new borders, especially during the Soviet era. With the appearance of signs of the collapse of the Soviet Union in the late 1980s, the Armenians of Upper Karabakh expressed their desire to join Armenia and renounce the citizenship of the independent Republic of Azerbaijan. This conflict resulting from the collapse of the Soviet Union has led to two periods of war between the Republic of Azerbaijan and Armenia. In these wars, parts of the mountainous lands of Karabakh, which are the source of parts of the waters of Upper Karabakh, the Republic of Azerbaijan and Armenia, have also been handed over. Karabakh's water resources have always been emphasized by officials on both sides, and this shows the hydropolitical importance of Upper Karabakh and its surrounding districts. In this article in a descriptive-analytical way, by studying the situation of water resources and structures in the region, the hydropolitics of Upper Karabakh is studied with emphasis on the results of the mentioned conflicts and wars.

Introduction

The spread of environmental crises and their consequences have paved the way for patterns of interaction and cooperation, or conflict between groups, political actors and countries, and have drawn attention to political and geopolitical geography in resolving environmental issues. So that this issue has become one of the geopolitical trends and also some consider it synonymous with the geopolitics of resources (Dolby, 2004). Among these, water scarcity, i.e. the most important element and biological resource of nature, is a factor threatening the environment and the background of environmental and social crises; Because this biological resource is the source of all human activities and its deficiency has a direct impact on all aspects of human life (Toset et al., 2000).

Water is currently a political issue and should be defined in the same way (Jankielsohn, 2018: 123). Water policies, commonly known as hydropolitics, are policies that affect access to "water resources" and "water" that play an important role in the management of transboundary waters (Prasad Rai et al., 2016: 353). The term "hydropolitics" was coined in 1979 by Waterbury to mean policies influenced by water resources (Waterbury, 1979). In thinkers' definitions of hydropolitics, Kraak (2012: 36–38) argues that hydropolitics is the study of geopolitics and international relations across transboundary waters. From the point of view of Ezbakhe and Bréthaut (2021), hydropolitics is more than words and ideas. It’s the realm in which massive infrastructure is developed, water is claimed and nations clash. According to Rai (2017: 1), hydropolitics refers to the ability of geopolitical institutions to manage shared water resources in a politically sustainable manner, that is, a process without tension or conflict between political institutions. According to Nagheeby and Warner (2018: 843), hydropolitics, in particular, is one of the thematic geopolitical trends that deals with the role of water as a geographical component and water conflicts and cooperation in politics and power in different geographical spaces on a micro and macro scale. Tayie (2016: 602) believes that in hydropolitics, international conflict or political phenomena of cooperation are examined according to constants and variables and water rights. According to the definitions of hydropolitics, Turton (2002) concludes that hydropolitics is about: conflict and cooperation and involvement of states as the main actors and occurs in the common international river basin.

Hydropolitics (Water Politics) as it is currently presented in most of the relevant literature shows a certain bias. A detailed analysis of the literature reveals that there are four main elements that seem to be present. Each of these impacts on the literature as a form of bias, giving that specific section of the literature a distinctive pattern, context or focus:

• Water and conflict: The first bias inherent in the current literature is that of water and conflict. Water resources are increasingly contested in nearly all parts of the world (Tiboris, 2022). Incidentally, this is more specifically related to our research objectives, and we describe it in more detail than the others. Early scholars of hydropolitics focused on the links between water and conflict (Bréthaut et al., 2021: 3). A glance at the burgeoning literature in this regard is instructive. The literature on water wars and its schools emerged in the 1980s and 1990s during and after the collapse of the bipolar world political system that posed new global security challenges (Baranyai, 2020: 19). The UN Water War Thesis has begun research on the water crisis and shows that thinkers in recent studies have become interested in water and power issues (Dolatyar, 2014: 116–117). In 1995, Ismail Serageldin, the World Bank's Vice President, claimed that "the wars of the next century will be about water" (Ettehad, 2009, 2010: 14). Also, the full-page headline in the New York Times on December 6, 1999 was: "The next war will be over water" (Dinar, 2000: 375). In addition, prominent theorists such as Thomas Homer-Dixon have stated in successive articles that future wars and civil violence are often the result of scarcity of resources such as water, farmland, forests, and fish (Homer-Dixon, 1994, 1996: 7–12, O’Tuathail et al., 1998: 204). Swain also predicted that future wars were water wars over the division of international rivers (Swain, 2001: 770). Similarly, others such as Yaldram (2009: 63), Bulloch and Darwish (1993a, 1993b), and Albrecht (2000: 11) predicted future water wars. In these writings, the state or components of the state are mostly used as the unit of analysis, or they focus on conflict and co-operation within the framework of the state. There are some notable exceptions to this tendency. Swatuk and Vale (2000) challenge the notion of state centrism in a refreshing but not yet mainstream approach. Turton and Meissner (2010) argue that hydropolitics is the study and analysis of structural interactions between states and non-state actors and a wide range of participants, such as individuals at home and abroad, with respect to authoritarian distribution or the use of international and national water resources. Allan (2000) criticizes prevailing International Relations theorists for failing to consider the dampening effect of the trade in water-rich products, what he calls virtual water (Allan, 1998), that has been responsible for preventing the once confidently predicted water wars from occurring (Bulloch & Darwish, 1993a, 1993b; Gruen, 1992; Starr, 1991).

• Water and the environment: The second body of literature is growing rapidly and seeks to place water within a broader environmental setting. As such, water is seen as being a component of the environment, with a variety of inherent conflict drivers. In this context, the scholars concerned see environmental goods as scarce resources, which are, in turn, contested. There is also a strong north/south component to this literature, with elements in it of what may best be described as reflexivity (Giddens, 1990). A glance at this body of work is therefore also equally instructive. Significantly, new drivers and actors are identified within these writings. It should also be noted that some authors have straddled the first and second bodies of literature. Most obvious among these are Allan, Falkenmark, Lonergan and Turton.

• Water and security: The third main focal area of hydropolitical writing aims at drawing attention to the element of crisis within the water sector (or in its broader environmental setting), and as a result seeks to politicize, and possibly even to securitise the management of water (Turton, 2001b). Elements of this can be understood (Turton, 2001a) when the expanded concept of security is used, as suggested by Buzan (1991, 1994) and Buzan et al. (1998). A glance at this literature consequently shows a different pattern of interest.

• Water, society and culture: There is also a fourth category of literature that seeks to explore the social and cultural components of water and water-related issues, and as such tends to examine water in a more abstract and less empirically defined sense. While this literature is probably quite big, a few selected examples serve to represent the tendency (Turton & Henwood, 2002).

The long conflict between Armenia and the Republic of Azerbaijan over Upper Karabakh is perhaps the single most complicated ethnoterritorial conflict in the post-Soviet space. This conflict continues to cause great instability in the South Caucasus. Covering an area of just 4400 square kilometers, Upper Karabakh region is relatively small. According to international law, the Republic of Azerbaijan legally possesses this region, which comprises 5% of its national territory. The formerly autonomous region was home to 190 thousand people at the end of the Soviet era (according to the 1989 census), 77% of whom were Armenian, 22% Azerbaijani, and 1% other ethnicities.

Today, the region has notably fewer people. The population declined by over a quarter because of the war, with ethnic Azerbaijani either fleeing Upper Karabakh or being forcibly expelled. Today, only 1.5% of Azerbaijan’s total population (9.5 million) resides in the conflict area, almost all of them ethnic Armenians. Unlike the regions of Abkhazia and South Ossetia that seceded from Georgia, Upper Karabakh is far from Russia, which has played a decisive yet ambivalent role in all post-Soviet conflicts. Moreover, the region is separated from Armenia by a strip of land that belongs to the Republic of Azerbaijan (Babayev et al., 2020).

Following the collapse of the Czarist autocracy in the wake of the 1917 October Revolution, the newly established republics of Armenia and Azerbaijan contested a number of border regions. Armenians base their claim to Upper Karabakh on the region’s ethnic-Armenian majority, in contrast to the majority Muslims in Nizhny Karabakh (Lower Karabakh). The Republic of Azerbaijan, on the other hand, invokes the inseparability of the Greater Karabakh territory, referring to the summer pastures in Upper Karabakh used by Azerbaijani farmers and other arguments. After bloody skirmishes in 1918 and 1919, a provisional agreement had been signed in August 1919 that granted the Republic of Azerbaijan control over all of Karabakh, provided the Armenian population was permitted to retain its cultural and administrative autonomy (Guliyeva, 1989).

The desire of Upper Karabakh’s Armenian majority to unite with Armenia had recurred every time there was a political change in Moscow. After the end of Brezhnev’s era of stagnation and the ascendancy of the reformist leader Mikhail Gorbachev in 1985, the gradual expansion of political expression provided Armenian nationalists with new opportunities for the reunification of Upper Karabakh with Armenia. Though more sympathetic than his predecessors towards improving the situation of the non-Russian nationalities in the USSR, Gorbachev repeated the mistake of his predecessors by considering that the nationalities question inherited from the past had been successfully solved (Geukjian, 2012).

The available findings indicate that water in the Upper Karabakh region plays an important role in creating conflict and security changes, and has caused profound changes in various economic and social sectors of the people, and the water crisis in this region will intensify in the future. It will create new tensions and conflicts by increasing water consumption and reducing water resources. Therefore, the current study aims to examine the situation of water resources in the Upper Karabakh region and its relationship to the tensions created.

To continue reading onlinr or download a PDF: click here 

PDF: Download Ahmadi2022_Article_Hydropolitics_UpperKarabak

 

I'm glad to be back working on South Caucasus issues I was doing so as part of NATO Science for Peace Programme from the early 2000s to about 2009. Our NATO project report is cited in this paper:

Campana, M. E., Vener, B. B., Kekelidze, N. P., Suleymanov, B., & Saghatelyan, A. (2008). Science for peace: Monitoring water quality and quantity in the Kura—Araks Basin of the South Caucasus. In NATO security through science series C: Environmental security (pp. 153–170).

As much as I enjoy being 'back' in the South Caucasus I am saddened to see Armenia and Azerbaijan engaging in conflict. I have friend and colleagues in both countries. Check out this article from the Washington Post: The Nagorno-Karabakh conflict between Armenia and Azerbaijan, explained

 

I want to thank Hassan Noorali for engaging me in this project and the patience he showed. I trust other collaborations will follow.    

 

"The optimist learns English. The pessimist learns Chinese. The realist learns Kalashnikov." - South Caucasus colleague

Francisco Campos-López and Pao Fernández Garrido: 'A Dam-Busting Tour of Europe' and Film

Here is another gem from the latest issue of AWRA's excellent 
bimonthly magazine Water Resources IMPACT that just hit the streets. Its theme is: 'Dams: Past, Present and Future'. Lisa Beutler served as the editor of this issue and contributed a great article on the failure of St. Francis Dam that doomed the career of the legendary William Mulholland. 

Today we're taking a trip to Europe with Francisco Campos-López and Pao Fernández Garrido on a 'A Dam-Busting Tour of Europe'. Both authors are Spanish engineers. Their main objective was to tell the stories of some European "DamBusters."

Here are the first two paragraphs:

The notion of removing barriers in European rivers started as the distant dream of a handful of environmentalists during the 1980s. Now river restorations are happening all over the continent. Once fragmented essential ecosystems have become thriving like before human intervention.

Given the delicate state of the world, we wanted to find a way to show these  tangible success stories. We wanted to inspire people and find a new generation of European river heroes. So we have made a documentary, DamBusters, in which we looked for the most inspiring individuals working tirelessly to restore rivers across Europe. With Francisco serving as filmmaker and Pao serving as host we went on a journey to five countries from the southern to the northern end of Europe, to see the work of these “dam busters” and share their exciting stories.

Download Dam_Busting_Europe_IMPACT_May_June2022

Here are some videos (URLs from the article): 

Largest dam removal in Finland.  

Removal of he Sindi Dam in Estonia.

See the removal of the Bražuolė Dam in Lithuania.

Dam removal award - Finland.

Here is the trailer for DamBusters (in Spanish with English subtitles). Link: here

Enjoy!

"Yes, we have an ombudsman. Their job is to root out the faculty and staff likely to file complaints and to discourage them from pursuing a more serious course of action by making them think they have “been heard.”- ass_deans

George Jackman Opines: 'The Three Princes of Dam Removal'

Here is another gem from the latest issue of AWRA's excellent (Note: I am Editor-in-Chief) bimonthly magazine Water Resources IMPACT that just hit the streets. Its theme is: 'Dams: Past, Present and Future'. Lisa Beutler served as the editor of this issue and contributed a great article on the failure of
St. Francis Dam that doomed the career of the
legendary William Mulholland. 

Today we're taking a trip to the Eastern USA.

George Jackman is a superb senior habitat restoration manger with Riverkeeper in Ossining, NY, He's even got the literary thing down. (I will cut him lots of slack on that since he is a retired NYPD lieutenant.) He is now a PhD ecologist who's doing great work on the Hudson River system.

Here are the introductory paragraphs of his article:     

The word serendipity is typically as the occurrence of events by chance on a happy or beneficial way. In 1754 the English writer Horace Walpole coined the word based on the Persian fairy tale “The Three Princes of Serendip” Serendip was the classical Persian name for Ceylon, now Sri Lanka. The princes were always making discoveries, either by accident or ingenuity, for things they weren’t seeking. “Serendipity” has since inserted itself into the lexicon of scientists and naturalists who, in their pursuit of knowledge, occasionally incur surprising discoveries.

What does dam removal have to do with the etymology of “serendipity”? This story began a number of years ago with the recognition that the Hudson’s most iconic migratory species were in deep decline. We at Riverkeeper, a non-profit organization designed to protect and restore the Hudson River, realized that we needed a fundamentally new approach to how our rivers are perceived and managed: in particular, we needed people to understand that the Hudson’s tributaries are pathways to critical habitat for our depleted species. Obsolete dams—remnants from bygone days—should be removed in order to restore populations of river herring and American eels. And as we embarked on our incipient dam removal campaign, pleasant surprises awaited.

Here is the entire article, The Three Princes of Dam Removal:

Download Princes_Dam_Removal_IMPACT May_June2022

Enjoy!

"A difference of taste in jokes is a great strain upon the affections." - George Eliot 

CRS Report: 'Redefining Waters of the United States (WOTUS) - Recent Developments'

It's b-a-a-a-c-c-k-k!

Laura Gatz and Kate R. Bowers have updated (8 July 2022) this CRS report: 'Redefining Waters of the United States (WOTUS): Recent Developments'.

Download CRS_Report_Redefining_WOTUS_Recent_Dev_8July2022

Click on the graphic to enlarge it.

Summary

Congress established the Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), to restore and protect the quality of the nation’s surface waters. The CWA protects “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.” The CWA does not further define the term waters of the United States (WOTUS), which determines which waters are federally regulated. Thus, in implementing the CWA, the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA)—the two agencies that administer the statute—have defined the term in regulations. However, Congress’s intent as to the meaning of WOTUS has been debated and litigated for more than four decades.

For much of the past several decades, regulations promulgated by the Corps and EPA in the 1980s have been in effect. The agencies supplemented these regulations with guidance developed in 2003 and 2008 in response to two Supreme Court rulings—Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, in 2001, and Rapanos v. United States, in 2006—which interpreted the CWA’s scope more narrowly than the Corps and EPA had done previously in regulations and guidance, but also created uncertainty about the intended scope of waters protected by the CWA. The Corps and EPA acknowledged that their guidance did not provide the public or agency staff with the information needed to ensure timely, predictable, and consistent jurisdictional determinations. Diverse stakeholders requested a formal rulemaking to revise existing regulations.

In 2015, the Corps and EPA issued the Clean Water Rule, which redefined WOTUS in the agencies’ regulations for the first time since the 1980s. While the Corps and EPA contended that the primary intent of the 2015 Clean Water Rule was to clarify its regulatory jurisdiction, some stakeholders and observers viewed it as an expansion instead. Other stakeholders argued that it excluded too many waters from federal jurisdiction. Industry groups, more than half the states, and several environmental groups filed lawsuits challenging the Clean Water Rule in federal courts across the country.

The Trump Administration described the 2015 Clean Water Rule as an example of federal “overreach” and took steps to rescind and revise it. On October 22, 2019, the Corps and EPA published a final rule to rescind the 2015 Clean Water Rule and recodify the pre-2015 regulations (i.e., the 1980s regulations). On April 21, 2020, the agencies published a second final rule to redefine WOTUS, the Navigable Waters Protection Rule, which went into effect on June 22, 2020. Overall, the Navigable Waters Protection Rule narrowed the scope of waters that fell under federal jurisdiction. The Navigable Waters Protection Rule prompted strong reactions from a variety of stakeholders, and numerous groups filed lawsuits challenging it.

The Biden Administration has taken steps to reconsider the Navigable Waters Protection Rule. President Biden issued an executive order which revoked a Trump Administration executive order related to WOTUS and directed agencies to review certain Trump Administration agency actions, including the Navigable Waters Protection Rule. On June 9, 2021, the Corps and EPA announced their intent to revise the definition of WOTUS through a two-step process—a foundational rule to restore pre-2015 protections and an anticipated second rule to establish a “durable” WOTUS definition. On September 3, 2021, following a court order vacating the Navigable Waters Protection Rule, the agencies announced that they had halted that rule’s implementation and would interpret WOTUS consistent with the pre-2015 regulatory regime. On December 7, 2021, the agencies published a proposed rule to restore the pre-2015 regulations updated to reflect consideration of Supreme Court decisions. The Corps and EPA set August 2022 as their target date for publishing a final rule.

Separately, the Supreme Court has agreed to review a dispute regarding whether certain wetlands constitute WOTUS; oral argument is scheduled for October 3, 2022. The Court’s ruling could ultimately affect the agencies’ regulatory process.

Congress has shown continued interest in the scope of WOTUS. In the 116th and 117th Congresses, committees have held hearings that discussed WOTUS, and some Members have introduced legislation regarding the definition of WOTUS.

Cutting to the last few pages:

Congressional Interest and Options

Considering the numerous court rulings, ongoing legal challenges, and issues that successive administrations have faced in defining the scope of WOTUS, some stakeholders have urged Congress to more specifically define the term through amendments to the CWA. Others argue that the Corps and EPA, with their specific knowledge and expertise, are in the best position to determine the scope of the term. Moving forward, Congress may oversee the Biden Administration’s efforts to review and potentially revise the definition, or may consider introducing legislation that provides a definition of the term or expresses a clearer intent as to how Congress believes the term should be defined. In the 117th and 116th Congresses, some committees have held hearings and some Members have introduced legislation related to the scope of WOTUS.

117th Congress

In the 117th Congress, the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee, Subcommittee on Water Resources and Environment, have held hearings which included discussion of the Biden Administration’s plans to develop a new definition of WOTUS.249 While some Members have criticized the Corps and EPA’s stated intent to rescind the Navigable Waters Protection Rule, others criticized the agencies for allowing the rule to remain in effect. In addition, some Members have introduced free-standing legislation related to the definition of WOTUS. Two of these bills would enact the Navigable Waters Protection Rule’s definition of WOTUS into law. Other proposed legislation would amend the CWA to add a narrower definition of navigable waters. Because WOTUS is a statutory phrase that defines navigable waters, a different definition of the latter term could obviate the need to interpret the former, though it could introduce new interpretive questions.

 H.R. 2660, the “Withstanding Attempts to Encroach on our Resources (WATER) Act,” would amend the CWA to codify the definition of WOTUS as revised under the Navigable Waters Protection Rule.

 H.Res. 318 and S.Res. 17 would express the sense of the House and Senate, respectively, that clean water is a national priority and that the Navigable Waters Protection Rule should not be withdrawn or vacated.

 H.R. 4570 and S. 2168, identical bills titled the “Define WOTUS Act of 2021,” would amend the CWA to change the definition of navigable waters. The language, as introduced, would narrow the scope of waters subject to CWA jurisdiction in comparison to the Navigable Waters Protection Rule. It would also amend the CWA to make changes to the Corps process for making jurisdictional determinations.250

 H.R. 5849 and S. 2517, companion bills titled the “Defense of Environment and Property Act of 2021,” would amend the CWA to change the definition of navigable waters. The language, as introduced, would narrow the scope of waters subject to CWA jurisdiction in comparison to the Navigable Waters Protection Rule. It would also prohibit the use of a significant nexus test; nullify the 1986 Corps Rule, 2008 Guidance, and any subsequent regulation or guidance that defines or interprets the terms navigable waters or WOTUS; and prohibit the Corps and EPA from promulgating any rules or issuing any guidance that expands or interprets the definition of navigable waters unless authorized by Congress. It would also amend the CWA to make changes to the Corps process for making jurisdictional determinations.251

 S. 3456, the “Navigable Waters Protection Act of 2022” and S. 2567, the “Navigable Waters Protection Act of 2021,” would codify the Navigable Waters Protection Rule’s definition of WOTUS.

 S.Con.Res. 5, a concurrent budget resolution passed by the Senate and adopted by the House, included a provision that would allow for adjustments related to preserving the continued implementation of the categories of jurisdictional and excluded waters in the Navigable Waters Protection Rule. The amendment that added the provision (S.Amdt. 655) was agreed to by yea-nay vote (51-49).

116th Congress

Multiple hearings in the 116th Congress also discussed WOTUS.252 During these hearings, some Members expressed support for the Trump Administration’s efforts to more clearly and narrowly define WOTUS, while others opposed its efforts and expressed concern about the loss of protection for many waterways across the nation. In addition, some Members introduced free-standing legislation related to the definition of WOTUS. One of these bills would have prohibited implementation of the Navigable Waters Protection Rule and required the Corps and EPA to promulgate a new regulation. Other proposed legislation would have, among other things, repealed or nullified the 2015 Clean Water Rule and amended the CWA to add a narrower definition of navigable waters.

 H.R. 6745, the “Clean Water for All Act,” would have nullified the Navigable Waters Protection Rule and prohibited the Corps and EPA from implementing or enforcing it. It would have also required the Corps and EPA to promulgate a regulation defining WOTUS within two years, subject to certain requirements laid out in the bill.

 H.R. 667, the “Regulatory Certainty for Navigable Waters Act,” would have repealed the 2015 Clean Water Rule and amended the CWA by changing the definition of navigable waters. The language, as introduced, would have narrowed the scope of waters subject to CWA jurisdiction in comparison to the 2015 Clean Water Rule. It would have also amended the CWA to make changes to the Corps process for making jurisdictional determinations (i.e., determinations as to whether a water body is jurisdictional under the CWA).

 H.R. 2287, the “Federal Regulatory Certainty for Water Act,” would have nullified the 2015 Clean Water Rule and amended the CWA by changing the definition of navigable waters. The language, as proposed, would have narrowed the scope of waters subject to CWA jurisdiction in comparison to the 2015 Clean Water Rule.

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