WaterWired

CRS InFocus Report: 'Recent Developments in Everglades Restoration'

From Pervaze A. Sheikh and Anna E. Normand comes this CRS 2-pager:'Recent Developments in Everglades Restoration'

Download CRS_InFocus_Recent_Dev_Everglades_Restor_6January2021

Click on a graphic (or the ? in a blue box) to enlarge it or display it. The map is not from this report.

Overview
What Is the Everglades? The Everglades is a unique network of subtropical wetlands in South Florida. Due in part to federal water supply and flood control projects (as well as agricultural and urban runoff), the ecosystem was degraded and was approximately half its historical size by the end of the 20th century. The ecosystem is home to a number of unique species, including 67 species listed under the Endangered Species Act (16 U.S.C. §§1531 et. seq.). 

What Is CERP? The Comprehensive Everglades Restoration Plan (CERP) was approved by Congress in the Water Resources Development Act of 2000 (WRDA 2000; P.L. 106-541). It is a framework under which the federal government, with the State of Florida, is attempting to restore the Everglades and improve the timing, distribution, and quality of the water flowing south from Lake Okeechobee to the Everglades. Under CERP, the federal government, through the U.S. Army Corps of Engineers (USACE) and the Department of the Interior (DOI), is required to fund half the costs of restoration, with the State of Florida contributing the other half. Several tribal and local agencies also are involved in restoration. Originally, CERP was to include 60 projects that would be completed over 30 years at a cost of $8.2 billion (in 2000 dollars). Subsequent reports to Congress projected that CERP would take approximately 50 years since its authorization to implement at a total cost of $23.2 billion (in FY2020 dollars). As of FY2020, the federal government has spent more than $1.7 billion, and the State of Florida has spent an estimated $4.5 billion on CERP in nominal dollars (although much of this state funding is not yet officially credited for Florida’s share of the cost).CERP is expected to cost $23.2 billion (FY2020 dollars) and take 50 years to complete.

Outside of CERP, complementary efforts to restore the Everglades (most of which predate CERP) are ongoing. The federal government has spent more than $3.5 billion on these efforts, collectively referred to as non-CERP projects.

Congressional Interest
Congress has focused on (1) authorizing and funding Everglades restoration projects and (2) oversight of project implementation and impacts on water flows.

Appropriations. According to the 2018 Seventh Biennial Review of Everglades Restoration, funding is a key constraint on the rate of restoration progress. The federal appropriations process dictates the timing and level of funding, which affect project implementation and completion. FY2021 request for USACE CERP and non-CERP projects was greater than FY2020 enacted levels and for DOI was lower than FY2020 enacted levels (see Table 2). DOI conducts science to support restoration, as well as manages and restores wildlife habitat in the ecosystem. Congress provided the request of $260.1 million for USACE Everglades restoration projects in FY2021. USACE also may direct additional funding provided by Congress to these activities when the agency develops its work plan. Specific totals and the breakdown for CERP and non-CERP projects will be available upon release of the FY2021 work plan.

More to come!

Enjoy!

“For if one link in nature’s chain might be lost, another might be lost, until the whole of things will vanish be piecemeal.” – Thomas Jefferson

Mississippi v. Tennessee Groundwater Kerfuffle: Is More Trouble Brewing?

Nothing like a little click-bait for a title.

It's true that the decision reached by Special Master Eugene E. Siler, Jr., last month supported Tennessee and the other defendants, the City of Memphis and Memphis Light, Gas and Water (MLGW). You can read about Judge Siler's decision in the Memphis Flyer and DeSoto Times-Tribune (BTW: Siler did not say 'Water is infinite' - the paper misquoted him) and my take and that of water lawyer Jesse J. Richardson by clicking here. And note that Siler's decision is really a recommendation that will be presented to the Supreme Court, which has the final say.

With all the above as preface, we now know why Mississippi insisted upon investing almost 15 years to get Tennessee to quit taking all that groundwater from the Memphis Sand aquifer. They wanted to save that water to make beer! Instead we now have Memphis Sands beer! I kid you not (much). From the Wiseacre Brewing Company:

From deep within the Earth’s crust, the finest drinking water on the planet springs forth to Memphis. This unique aquifer supplies WISEACRE with the most necessary of ingredients for the production of crisp, light-colored lager. The rains that fell to earth 3000 years ago are filtered very slowly through hundreds of feet of fine grain sand, culminating in a huge underground lake filled with 57 trillion gallons [Note: ~175 MAF) of virtually mineral-free water. From this prestigious water reserve, we supply Memphis with Sands, our one-of-a-kind Lager. Beauteous in its simplicity, it is very low in bitterness and full of delicious flavors of bread and crackery malt.

Of course that underground lake is fed by an underground river.

I have heard and read that the water quality in the Memphis Sand aquifer is very good - low TDS (total dissolved solids) - although there are concerns about pollution. At least one company was interested in bottling water from the MSA which I think they wanted to call 'Graceland', but that proposal went nowhere.  

I cannot take much credit for all this. My former Master's student, Courtney van
Stolk, works in Seattle but is from the Memphis area. While there buying food and drink for the holidays, she discovered Memphis Sands beer and posted about it on her wonderful blog, Blue Marble Earth. Read the rest of the story there, including ratings of the descriptive material, can art, and most all, the taste. I won't give anything away.

Wonder if there is a low-carb brew?

Enjoy!

“Beer’s intellectual. What a shame so many idiots drink it.” - Ray Bradbury

Mississippi v. Tennessee Groundwater Case: Jesse J. Richardson Opines and My Ten Cents

Jesse J. Richardson of the West Virginia University College of Law and Lead Land Use Attorney for Land Use and Sustainable Development Law Clinic is one of the smartest WaterWonks I know. He's graced these pages before, often with an item that is somewhat off the beaten track.

Today's post is an exception; it involves a lawsuit in which two states, Mississippi and Tennessee, are disputing groundwater that Mississippi claims Tennessee is stealing its groundwater. It is the first case of its kind to reach the Supreme Court - a journey that began in 2006.

Several years ago the Supreme Court appointed a Special Master, Eugene E. Siler, Jr., a retired Federal judge, to hear the case and make a recommendation. Last week, Judge Siler made his recommendation. You can access it here or download the PDF:

Download MS v. TN 5Nov2020

Here is an article from the Memphis Flyer.

Remember - Siler's recommendation must be acted upon by the Supreme Court, and the parties will be able to make final presentations before the Court.

I asked Jesse if he would mind writing something up for WaterWired and he graciously agreed to do so and sent it to me within two days.

Download Mississippi_v_Tennessee_JJR_8Nov2020 

I added the graphics. Click on them to enlarge them.

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                                        Mississippi v. Tennessee
                                           Jesse J. Richardson
                            West Virginia University College of Law
                                           8 November 2020

On November 5, 2020, the Special Master released a report in Mississippi v. Tennessee, a case presently pending before the United States Supreme Court involving the right to the groundwater in the Claiborne Aquifer. This case represents the first water war focusing on groundwater. The litigation began in 2006, when Mississippi filed suit against the City of Memphis and Memphis Light, Gas and Water Division (MLGW). Essentially, Mississippi alleged that MLGW, by pumping groundwater near the state boundary, was stealing groundwater from the state. Absent the pumping by MLGW, according to Mississippi, the water would remain in the aquifer beneath Mississippi. However, the pumping causes the water to artificially migrate to Tennessee, resulting in a theft.

The initial litigation failed, as the federal courts dismissed the lawsuit, finding that Tennessee must be a party and lawsuits between states must be filed with the Supreme Court of the United States (SCOTUS). SCOTUS initially refused to hear the amended lawsuit. However, Mississippi tried again in 2014, and against the recommendations of the Obama Administration, SCOTUS agreed to take the case. Since then, the Special Master, an attorney appointed by SCOTUS to gather evidence, hold hearings and make recommendations to the Court, has been guiding the parties.

The main issue has been whether the Claiborne Aquifer is an interstate or intrastate aquifer. Mississippi claims that, due to the complex hydrology and various rock formations, the water lying beneath that state should be distinguished from other water in the aquifer and be reserved for Mississippi. Mississippi asks the Court to enjoin further pumping and compensate the state for the water already pumped. Mississippi has never requested an equitable apportionment. Equitable apportionment is the method that SCOTUS has used for decades to divide surface water between competing states.

Proceedings focusing on whether the aquifer is intrastate or interstate culminated in this report. Mississippi objected to testimony from experts as to the characteristics of the aquifer as interstate or intrastate. The Special Master overruled the objection and considered the evidence in his report. After reviewing the expert testimony and hearing the arguments of the parties, the Special Master recommended that SCOTUS find that the aquifer is interstate and that the lawsuit be dismissed, with a right to amend to add an equitable apportionment request.

First, the Middle Claiborne Aquifer and the groundwater inside it is a single hydrogeological unit beneath several states. Mississippi did not challenge expert testimony, but alleged that the aquifer should not be viewed as a whole. Instead, differences such as thickness and permeability justify segmenting the aquifer into parts, one of which lies solely beneath Mississippi. The Special Master rejected this argument.

Second, Tennessee’s water pumping affected the groundwater beneath Mississippi, showing that the aquifer is an interconnected resource. Tennessee did not used slanted drilling, nor did Tennessee physically enter Mississippi to pump water. The fact that the pumping in Tennessee draws groundwater from Mississippi shows that the resource is interstate.

Third, natural flow patterns indicate that the water inside the aquifer would ultimately, if slowly, flow across state boundaries. The expert testimony showed that groundwater naturally migrates very slowly, perhaps inches per day, from Mississippi to Tennessee. Even gradual migration indicates that the resource is interstate.

Fourth, the water inside the aquifer interacts with, and discharges into, interstate water resources. The groundwater in the Middle Claiborne Aquifer outcrop zone meets the surface water in the Wolf River, which flows from Mississippi, eventually discharging into the Mississippi.

Therefore, reasoned the Special Master, the Middle Claiborne Aquifer is part of a single interconnected hydrogeological unit beneath multiple states, and thus an interstate resource. Equitable apportionment is the appropriate and exclusive remedy. The Special Master recommends that the complaint be dismissed with lave to amend to include a claim for equitable apportionment.

Equitable apportionment has never been applied to groundwater. The report acknowledges that application to groundwater may be more difficult than application to surface water. However, the Special Master concludes that equitable apportionment applies to groundwater.

Mississippi and Tennessee will now each be given an opportunity to file objections to the report. Outside parties wishing to weigh in will be able to file amicus (or friend-of-court) briefs. SCOTUS will then either rule upon the recommendations of the report without oral argument or, more likely, hold arguments and then rule on the recommendations.

The report notably and meticulously relies on expert testimony for the conclusions. Although the holding that equitable apportionment applies to groundwater disputes between states would be a first, the case law precedents clearly point in that direction. In my opinion, SCOTUS will accept the recommendations of the Special Master in this case. Should Mississippi “decline the favor” of leave to amend to request equitable apportionment, the case will likely be dismissed.

Significant takeaways from the Special Master’s report include the importance of expert testimony in water disputes, particularly in complex groundwater cases. If the case moves forward as an equitable apportionment case, many different stakeholders will be watching, as the rulings will set precedents that will govern future groundwater wars, wars that will inevitably occur.

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My Ten Cents

Some items.

1) Judge Siler got it right: the groundwater in dispute is an interstate resource and Mississippi's case should be dismissed. Like Jesse, I believe SCOTUS will accept his recommendation.

2) The irony of this groundwater dispute is that it has unfolded in a region of the US that averages over 50 inches of precipitation per year and is located on the banks of one of the world’s largest streams – the Mississippi River. Strikes me as more of a Western US issue - water quantity. Shape of things to come? I think so. States are looking at transboundary aquifers; Indiana, Michigan, Ohio and Kentucky are four that I know of. As climate change desiccates surface waters we will see more interest in groundwater use.

3) This case may have international implications. As friend Gabriel Eckstein of the Texas A&M School of Law pointed out, other countries often look to SCOTUS for guidance. This could be one of those cases. He also noted that when it comes to written agreements involving groundwater use between countries there are only four of them in the world: two between France and Switzerland, one between Jordan and Saudi Arabia, and another in North Africa. There are over 1,200 such agreements for surface water.

4) I would love to see Mississippi, Tennessee and Arkansas (it pumps from the Memphis Sand/Middle Claiborne aquifer but was not involved in the dispute) sit down and devise a governance and management plan from the bottom up. Maybe even sign a compact? My MS student Holly Mondo wrote a thesis on this a few years ago (the graphic is from her work).

5) I probably have down fifteen different PPTs and countless presentations/blog posts on this topic. One more, I suppose. My ride is about to end.

6) Had a nice phone conversation with a Mississippi newspaper reporter yesterday. He had come across one of my 15 PPTs. 

7) Many thanks to Tom Charlier of the Memphis Commercial Appeal who phoned me out of the blue in 2006 or 2007 to get my take on the case. It's all his fault. 

8) I once heard that this suit was about money more than anything else. The first time around Mississippi wanted damages of over $1B; the second time around it dropped to a little over $600M.

9) This must be the only SCOTUS case in which two states, each with three pairs of consecutive identical letters, are litigants in a groundwater case. I probably didn't state this correctly: MiSSiSSiPPi v. TeNNeSSEE. And each has four letters with the 'e' sound. Get it?

10) Thanks, Jesse!

Here's an article from the DeSoto Times-Tribune and my latest PPT (as a PDF):

Download MS_TN_GW_Nov2020

11) And no, Judge Siler did not say 'Water is infinite." The newspaper got it wrong. See below.

Enjoy!

"The history of [groundwater law] is as thrilling as ignorance, inertia, and timidity could have made it." - Mark N. Goodman

Drought? In New Hampshire? It's Wicked Dry! Nejem Raheem's Op-Ed: Droughts Are Real, Leadership Is Needed

My friend Nejem Raheem (whom I met at the University of New Mexico, where I encouraged him to get a PhD in Economics) wrote this Op-Ed in the New Hampshire Union Leader.

Here goes:

AS THE Union Leader and many other papers have reported, all of New Hampshire is experiencing some level of drought and nearly one quarter of the state is experiencing severe drought (despite our recent batch of rain), according to the U.S. Drought Monitor.

This is our fourth hottest and ninth driest summer on record. Farmers in southern New Hampshire in particular are struggling. While coronavirus is a more immediately pressing issue, drought is not going away. And it’s most likely going to get worse.

I’m an environmental economist who has worked on drought and water issues for nearly 20 years. I work with scientists at the National Drought Mitigation Center in Lincoln, Neb., who developed the drought monitor and with farmers in New Mexico. While New Hampshire doesn’t have a history of crushing drought like California, New England is on its way to having hotter and longer droughts. Much of that is due to climate change.

New England has been pretty wet for most of written history. That’s still true compared to the west, but we’re seeing climate change-driven shifts in precipitation patterns and temperatures that match predictions for more intense droughts. You might have noticed that rainstorms have become more intense and less frequent, for instance, or that winters are milder and less snowy. That itself isn’t likely a predictor of drought, but almost all of the climate models predict hotter and drier conditions.

People often fight over water; cities want it for their residents, ranchers want it for cattle, and forest ecologists worry about trees dying, bears coming into town, and fires. My work as an environmental economist is about getting people to work together and plan better for when a drought comes. Because, where drought is concerned, we are all part of the landscape. And while it’s clear that climate change is making droughts worse, it’s also clear that cooperation is part of the way to deal with it.

Having a climate change denier as president is incredibly dangerous. Not just for liberal environmentalists, but for farmers and ranchers, city people, and anyone who lives near the woods. (In New Hampshire, that’s all of us, by the way.)

As I watched the Democratic and Republican conventions, I was struck not just by the anti-science style of Donald Trump and his surrogates but also by their divisive rhetoric. I’ve worked on water issues in New Mexico, Montana, California, and Labrador, Canada. One crucial part of any solution to addressing future water problems, even here in small-town government New Hampshire, is cooperation and communication. This means getting past “I’ll only fight for those on my side.” Everyone needs water.

I was born and raised on the East Coast, but I lived out west for many years. We have no real experience with drought here in New England and we don’t really know what it’s like to have conflicts over water. But we will, and sooner than most think. And unless we get past the climate science denial and brawling combativeness of our current president’s approach, we’ll never solve the problem when it gets here. We need better leadership. We have to vote for a president who not only supports and endorses science, but also who will strive for collaboration and cooperation.

If we re-elect Donald Trump, New Hampshire will lose out on opportunities to plan for a water-scarce future.

New Englanders are good at working together, but we might be getting worse. I’ve been talking with people about politics all summer, mostly against my will. I’ve talked with environmentalists who don’t want to talk with loggers, and the reverse. Gun-owning rural folks who don’t want to talk to summer people from Boston. The divisive rhetoric is very compelling. We’ve seen it for years. We need to get past that and recognize that our neighbors are our allies, even if they’re not necessarily our friends. We need to realize that we’re all in this together.

Having a president who tells us otherwise is going to make things worse. We need a president who listens to scientists. And for the sake of all of us here in New Hampshire and all across New England, we need to start working together.

So is New England experiencing a drought? Take a look here (about 72% of NH is in a severe drought) and see below:

The text said there are about 13M people in the drought area. 

Why is this a big deal? Perception. Some of us, especially those of us who have spent a lot of time in the arid West, often forget that droughts occur in the East as well. 
I actually recall some droughts in Long Island, New York when I was growing up. TV weathermen would talk about how low upstate reservoirs were (never mind that we got our water from underground). Then we'd get a hurricane coming up from south to fill the reservoirs up. No such luck out here...

So what's with 'Wicked' in the title? Look here.

And Nejem is an Associate Professor of Economics at Emerson College in Boston. Wicked good!

Enjoy!

"Live Free Or Die; Death Is Not The Worst of Evils." - General John Stark, in a letter to his NH Revolutionary War comrades at their 32nd reunion 

CRS InFocus Report: 'Recent Developments in Everglades Restoration'

This CRS InFocus 2-pager by Pervaze A. Sheikh and Anna E. Normand, 'Recent Developments in Everglades Restoration' (17 September 2020) should be of interest to many readers, not just those in South Florida. 

Download CRS_InFocus_Rec_Devel_Everglades_Rest_17Sepe2020

Overview
What Is the Everglades? The Everglades is a unique network of subtropical wetlands in South Florida. Due in part to federal water supply and flood control projects (as well as agricultural and urban runoff), the ecosystem was degraded and was approximately half its historical size by the end of the 20th century. The ecosystem is home to a number of unique species, including 67 species listed under the Endangered Species Act (16 U.S.C. §§1531 et. seq.). [The map is from Wikipedia.]

What Is CERP? The Comprehensive Everglades Restoration Plan (CERP) was approved by Congress in the Water Resources Development Act of 2000 (WRDA 2000; P.L. 106-541). It is a framework under which the federal government, with the State of Florida, is attempting to restore the Everglades and improve the timing, distribution, and quality of the water flowing south from Lake Okeechobee to the Everglades. Under CERP, the federal government, through the U.S. Army Corps of Engineers (USACE) and the Department of the Interior (DOI), is required to fund half the costs of restoration, with the State of Florida contributing the other half. Several tribal and local agencies also are involved in restoration. Originally, CERP was to include 60 projects that would be completed over 30 years at a cost of $8.2 billion (in 2000 dollars). A 2015 report to Congress increased this estimate; the report projected that CERP will take approximately 50 years to implement at a total cost of $16.4 billion (in FY2015 dollars). As of FY2020, the federal government has spent more than $1.7 billion and the State of Florida has spent an estimated $4.5 billion on CERP in nominal dollars (although much of this state funding is not yet officially credited for Florida’s share of the cost).

Everglades restoration under CERP was authorized in 2000 and is expected to take 50 years to complete.

Outside of CERP, complementary efforts to restore the Everglades (most of which predate CERP) are ongoing. The federal government has spent more than $3.5 billion on these efforts, collectively referred to as non-CERP projects.

Everglades Restoration Projects Must Be Authorized by Congress
WRDA 2000 approved CERP and the process for its implementation. The law also authorized several pilot projects. Subsequent projects require study by USACE and congressional authorization before they can receive federal appropriations, including credit or reimbursement for nonfederal work undertaken in advance. Several laws subsequent to WRDA 2000 authorized projects contemplated under CERP. Some projects received appropriations and are under construction. Studies for other CERP projects are in progress (see Table 1). Projects with completed studies and signed reports from the Chief of Engineers (e.g., Loxahatchee River Watershed Project) are awaiting potential authorization in legislation in the 116th Congress (see S. 3591 and H.R. 7575).

Read on - more information on Congressional interest in CERP and other initiatives.

When this restoration is finished in 2050, I'll be 102. But I suspect I will have to live even longer to see this work done.

I am not sure I would use the word 'restoration'. I prefer 'renaturalization'. My friend and colleague Bill Woessner explained that to me years ago.

Enjoy!

"There is nobody more dangerous than one who has been humiliated." - Nelson Mandela