WaterWired

Jesse J. Richardson, Jr. Opines: The Special Master's Report on Florida v. Georgia

Jesse James Richardson, Jr., Professor of Law at West Virginia University's College of Law, is one of the smartest water lawyers I know. He is also a delightful speaker so if you get a chance to hear him speak, do so.

Here's a piece he wrote after reading the Report of the Special Master in Florida v. Georgia water dispute. He gave me permission to post it. I just added the report itself, the ACF basin graphic, Jesse' picture, and the aphorism at the bottom.

Download Report_SpecialMaster_FL_v_GA_11Dec2019

As a Christmas present to myself, I read the report of the Special Master in Florida v. Georgia yesterday. In summary, the Special Master recommends denying Florida's request for a decree because it has not proved the elements necessary to obtain relief. Florida points to the oyster fishery collapse as the harm, but the Special Master found that Florida failed to prove that Georgia caused the collapse. The collapse was likely caused, according to the Special Master, by frequent droughts, over-harvesting, and climate change.

 

In addition, the Special Master found that Georgia's use was not unreasonable or inequitable. Finally, the Special Master determined that the benefits of the apportionment would not substantially outweigh the harms. This is a good recommendation for agriculture, since the Special Master recognizes agricultural as a reasonable use generating "substantial benefits". However, the recommendation could prove to be ominous for rural states since the Special Master considered proportional population and economic production, even while decrying how relying on these measures too much would mean that the "larger state always win".

 

The recommendation is likely bad for environmental groups. Environmental benefits and costs appeared to be given minimal weight, especially when compared with tangible economic benefits and costs.

 

I think SCOTUS will accept these recommendations. The recommendations and very methodical and well supported. Since the Special Master has seen the witnesses and has developed the facts, it would be difficult to reject such well supported findings.

 

Overall, Several interesting points in the report.

 

(1) The Special Master thought it was important that Florida only presented evidence of harm during drought years. It was important to the findings that no harm was alleged during normal to above normal rainfall years. That seems odd to mean. Wouldn't one expect the harm to occur during drought years? I think the point was that the drought caused the damages, not Georgia's pumping. However, but for the the pumping of Georgia, would damages have occurred?

 

(2) The Special Master was very critical of the experts for Florida. Their testimony, in his opinion, failed to specially address harm to individual fish species. Florida's experts relied on a model, many of the assumptions of which the special master viewed skeptically, at best. Georgia's experts, on the other hand, used actual data from on-site meters and the like, which the Special Master viewed favorably. Note that on some issues, experts for both sides used models. The Special Master viewed the Georgia experts as more persuasive on those issues as well.

 

Note that the Special Master seemed to dismiss the testimony of one of Florida's experts because the expert failed to mention the weaknesses of the model until questioned on cross-examination. That expert also failed to disclose several results that did not support his conclusions.

 

In addition, Georgia's experts attacked Florida's data with specificity while Florida's experts offered only generalized attacks. For example, one expert challenged the irrigated acreage totals presented by Georgia, but never estimated how much acreage was omitted.

 

(3) The Special Master also found that Georgia's consumptive use was reasonable. As to the amount of consumptive use, this is the area where Florida used rainfall runoff models while Georgia's experts used number of irrigated acres and metering results. The Special Master found the Georgia method more reliable.

 

Although emphasizing that relying on this fact as dispositive would make reduce equitable apportionment analysis to a "rigid rule whereby the larger state always wins", the Special Master nonetheless seemed to place great weight on the comparison between the proportion of population (92%), employment (96%) and gross regional product (99%) attributable to Georgia and the consumption of state line flows (up to 17.4%, depending on how calculated). This seems odd to me as well. Percentage of population, etc. is all well and good, but the percentage of state line flows consumed may well need to be limited to a very small proportion of the water. 

 

(4) This Special Master also disagreed with the prior Special Master with respect to Georgia's conservation of water. The Special Master noted that, despite a substantial increase in population, Georgia uses much less water than it did 30 years ago, but failed to mention that that fact is true across the country due to increased efficiencies (low-flow toilets, more efficient irrigation, etc.).

 

"Drinking and other domestic purposes are the highest uses of water".  Agricultural uses of water in Georgia provide "substantial benefits". The special master also found the consumption "reasonable". However, agricultural use of water during drought was called out as "only increasing" and "not effectively curbed", making the question "to what extent the two states should share the burden of drought". The Special Master answered that question by, in a very perfunctory manner, applying the doctrine of reasonable use, and finding Georgia's use reasonable.

 

(5) The Special Master also found that even if the Corps of Engineers would increase flows into Florida, the impact would be minimal. Therefore, Florida would see "no appreciable benefit from a decree".

 

(6) Finally, the Special Master found that the potential harms to Georgia of apportionment would substantially outweigh the benefits to Florida. The Special Master specifically limited his analysis to marginal costs and marginal benefits, drawing approval from economists everywhere. The cost of generating increasing the flow by 801 cfs during summers during dry years would cost $100 million. The Apalachicola fishing industry generates "only" $11.7 million per year and the oyster industry "only" $6.6 million per year before the collapse. This difference appeared to be dispositive.

 

Enjoy!

"August in Florida is God's way of reminding us who's in charge." - Blaize Clement

CRS Insight Report: 'Hurricane Dorian - FEMA and Additional Storm-Related Resources' Updated: 6 September 2019

Shawn Reese, Eva Lipiec, Diane P. Horn authored this timely (updated 6 September 2019) CRS Insight 4-page report, Hurricane Dorian: FEMA and Additional Storm-Related Resources.

Here are some sites to follow Hurricane Dorian:

NOAA NHC: click here (the graphic is from this site)

Weather Channel: click here

Below is the introduction to the report. Click here to see the online report, which has hot links to a number of resources.

Introduction
On September 6, Hurricane Dorian made landfall as a category 1 storm at Cape Hatteras, North Carolina. This Insight provides a brief overview of emergency and major declarations and federal assistance programs potentially available to those affected by Hurricane Dorian. It also lists resources for forecast information, hurricane and flooding information, and selected CRS reports on federal emergency management policy.

The National Oceanic and Atmospheric Administration (NOAA) has issued watches and warnings for Hurricane Dorian, a storm slightly northeast of Cape Hatteras, North Carolina, on September 6. The storm reached hurricane strength as it passed east of Puerto Rico on August 28. The forecast on September 6 anticipates Dorian continuing to move northeast and further away from the U.S. east coast. NOAA expects southeastern coastal areas to continue to experience tropical storm and hurricane conditions, including life-threatening storm surge, destructive waves, and possible flash floods and isolated tornadoes.

President Donald J. Trump signed emergency declarations for Puerto Rico (August 27), the U.S. Virgin Islands (August 28), Florida (August 30), Georgia (September 2), and South Carolina (September 2). Other emergency declarations may be forthcoming. As authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (P.L. 93-288, as amended; 42 U.S.C. §§5121 et seq.), the President may issue an emergency declaration in anticipation of an incident to support state and local efforts to save lives, protect property, and lessen or avert the incident from becoming a major disaster. As Hurricane Dorian makes landfall, and the storm warrants further federal assistance, the President may issue a major disaster declaration. This allows for a broad range of federal assistance programs to be made available to state, local, and territorial governments, private nonprofit organizations, and individuals through the Federal Emergency Management Agency (FEMA) and other federal agencies.

Declaration Statues:

• The Governor of Florida requested emergency protective measures (Category B) under the Public Assistance program for 24 counties under FEMA-3419-EM for federal reimbursement to local and state government. This request is under review.

•   The Governor of South Carolina requested a major disaster declaration for the State of South Carolina as a result of Hurricane Dorian beginning on August 31, 2019, and continuing. This request is under review.

•   President Trump approved Emergency Declarations for the Commonwealth of Puerto Rico, U.S. Virgin Islands, Florida, Georgia, South Carolina, including the Catawba Indian Nation, the Seminole Tribe of Florida, and North Carolina, to include the Eastern Band of Cherokee Indians. The emergency declarations allow for direct federal assistance for emergency and life-safety actions taken.

Be sure to read the rest of the report: click here. 

Enjoy the resources and please stay safe and sound!

"We ignore slow environmental changes unless they are crisis-driven, such as hurricanes in Florida." -  Natalie Jeremijenko

AWRA Publication: 'State Water Plans - Monographs from 17 States'

I have to a give a big shout-out to AWRA President Dr. Brenda O. Bateman (Technical Services Division Administrator for the Oregon Water Resources Department) and BoD member Scott Kudlas (Director of the Office of Water Supply at the Virginia Department of Environmental Quality) for being the driving forces behind this landmark publication. Kudos to all those who contributed their time to this effort. And, lest I forget, the AWRA Policy Technical Committee

The states represented are: Arkansas, California, Colorado, Connecticut, Georgia, Minnesota, Missouri, Montana, Nebraska, New Jersey, North Dakota, Oklahoma, Oregon, Texas, Utah, Virginia, and Washington.  

Delayed shill alert: I am the AWRA Technical Director.

Download the report (PDF): click here 

From the report:

Introduction

The American Water Resources Association (AWRA) is pleased to present this publication resulting from its third National Leadership Institute (NLI) Workshop for State Officials. State leaders gathered during a three-day period in 2017 (November 8-10), in a workshop designed specifically for state officials who have responsibility for developing their state water plans. Their professions were diverse and included engineers, planners, scientists, economists, and other disciplines. 

The workshop covered a wide variety of topics, including the latest updates on groundwater policy, water governance models, open source data tools, the fundamentals of integrated water resources planning, and how to build support for water planning. Discussions quickly turned to the desire to develop original materials and analysis for the American Water Resources Association, drawing upon the expertise of current and previous workshop participants. 

We asked the authors to follow a common format, providing an “elevator speech” that succinctly describes the purpose of each water plan. From there, we asked them to point the reader to the statutory underpinnings, to help set the formal context. Authors then described the planning horizons, scheduled deadlines, and current status of their plans. They have provided a summary of the process used and the resulting components contained in each plan. Authors took the time to make some observations about the challenges overcome and the challenges that yet remain with these efforts. Finally, they provided a sense of scope and scale, both geographically and financially. 

In the concluding chapter, we highlight some of the common themes and threads we observed along the way. 

Enjoy!

"We know accurately only when we know little; with knowledge doubt increases. "
- Goethe

CRS Report: 'Chesapeake Bay Restoration: Background and Issues for Congress' (3 August 2018)

A few weeks ago I posted GAO reports about the Puget Sound and Long Island Sound restorations. Both were more along the lines of how the work could be improved.

Today I am posting a CRS report by Eva Lipiec published on 3 August 2018: Chesapeake Bay Restoration: Background and Issues for Congress. This report is more a description of the Bay and project and the issues facing Congress rather than a suite of recommendations. It's a great overview for someone like me who's not a WaterWonk on the Bay. 

Before continuing let me put in a shameless plug or two for AWRA..

1) The AWRA Annual Conference will be in Baltimore, 4-8 November 2018.
Click here to see the Program-at-a-Glance and here to see a more detailed program. There will be much on the Chesapeake and Delaware River watersheds.

2) Our September 2018 issue of Water Resources IMPACT (now in press) will feature Great American Megabasin: Chesapeake and Delaware. I have reproduced the cover here. It's a great issue highlighting two of the USA's most important basins - far more important than their sizes would indicate. Guest Editors Martha Narvaez, Joe Berg, Asia Dowtin and Carol Collier and their authors have done an amazing job.

So here goes......click on the graphics to enlarge them.

Download CRS_Chesapeake_Restoration_3August2018

Summary

The Chesapeake Bay (the Bay) is the largest estuary in the United States. It is recognized as a “Wetlands of International Importance” by the Ramsar Convention, a 1971 treaty about the increasing loss and degradation of wetland habitat for migratory waterbirds. The Chesapeake Bay estuary resides in a more than 64,000-square-mile watershed that extends across parts of Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia. The Bay’s watershed is home to more than 18 million people and thousands of species of plants and animals.

A combination of factors has caused the ecosystem functions and natural habitat of the Chesapeake Bay and its watershed to deteriorate over time. These factors include centuries of land-use changes, increased sediment loads and nutrient pollution, overfishing and overharvesting, the introduction of invasive species, and the spread of toxic contaminants. In response, the Bay has experienced reductions in economically important fisheries, such as oysters and crabs; the loss of habitat, such as underwater vegetation and sea grass; annual dead zones, as nutrient- driven algal blooms die and decompose; and potential impacts to tourism, recreation, and real estate values.

Congress began to address ecosystem degradation in the Chesapeake Bay in 1965, when it authorized the first wide-scale study of water resources of the Bay. Since then, federal restoration activities, conducted by multiple agencies, have focused on reducing pollution entering the Chesapeake Bay, restoring habitat, managing fisheries, protecting sub-watersheds within the larger Bay watershed, and fostering public access and stewardship of the Bay. Congress has authorized various programs and activities to restore the Chesapeake Bay, including the Chesapeake Bay Program (CBP), created in 1983. The CBP implements the Chesapeake Bay Agreement, a periodically renewed agreement between executives in the watershed states, a joint Bay state legislative body, and select federal agencies that aims to coordinate Bay restoration efforts. The most recent agreement was signed in 2014 (known as the 2014 Chesapeake Bay Watershed Agreement) and set a series of restoration goals and actions to be completed by 2025. The 2014 Chesapeake Bay Watershed Agreement, like others in the past, is not binding. Other restoration plans—including the 2010 Chesapeake Bay Strategy for Protecting and Restoring the Chesapeake Bay Watershed (pursuant to President Obama’s 2009 Executive Order 13508), the U.S. Environmental Protection Agency’s 2010 Chesapeake Bay Total Maximum Daily Load, and a draft Comprehensive Plan from the U.S. Army Corps of Engineers—harmonize with the goals of the 2014 Chesapeake Bay Watershed Agreement and contain objectives for federal agencies and states.

As work continues toward the 2025 restoration goals set by state and federal plans, Congress may consider what role the federal government plays in Chesapeake Bay restoration, if any. In considering the federal role in Chesapeake Bay restoration, Congress may weigh issues related to coordination of federal activities and federal agency authority, funding and total cost of activities, and the rate of progress toward restoration.

Introduction
The Chesapeake Bay (the Bay) is the largest estuary in the United States. Congress has described it as a “national treasure” (P.L. 106-457), and it is recognized as a “Wetlands of International Importance” by the Ramsar Convention.1 The Chesapeake Bay estuary resides in a more than 64,000-square-mile watershed that extends across parts of Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia. It is home to more than 18 million people and thousands of species of plants and animals.

Over time, the Bay’s ecological conditions have deteriorated due to land-use changes, increased sediment loads and nutrient pollution, the use and spread of chemical contaminants, overfishing and overharvesting of aquatic species, and the introduction of invasive species. These changes have resulted in reductions to economically important fisheries, such as oysters and crabs; the loss of habitat, such as underwater vegetation and sea grass; annual dead zones, as nutrient-driven algal blooms die and decompose; and potential impacts to tourism, recreation, and real estate values. Joint state and federal restoration attempts did not begin until the early 1980s. Since then, federal agencies have worked together under a watershed-wide agreement and through a restoration program spearheaded by the U.S. Environmental Protection Agency (EPA).

Congress has and may continue to examine Chesapeake Bay restoration efforts. Actions in the Chesapeake watershed have served as examples for other estuary restoration efforts in the United States. This report provides background on the physical and ecological properties of the Bay and watershed, its economic value, the health of the ecosystem over time, and federal governance of Bay restoration efforts. It then discusses issues facing Congress as work continues toward 2025 restoration goals set by several state and federal plans.

 See you in November.

Enjoy!

“Chesapeake Bay is like a beautiful woman. There’s no humiliation from which she cannot recover.”  ― James A. Michener, Chesapeake

Report: 'Flood Mitigation for Pennsylvania’s Rural Communities - Community-Scale Impact of Federal Policies'

Lara Fowler, the senior author, sent me this report via Twitter: Flood Mitigation for Pennsylvania’s Rural Communities: Community-Scale Impacts of Federal Policies. It's worth reading. regardless of where you live. 

Here is the message the accompanied her Tweet:

Pennsylvania is one of the most flood prone states in the country; we're experiencing flooding today. We are also not in a good position to deal with re: flood insurance. See our report:

Download_Report_Flood_Mitigation_2017_Rev_2018

EXECUTIVE SUMMARY

Recent changes to the National Flood Insurance Program (NFIP) are critically impacting Pennsylvania because of its history of flooding, its pattern of development along rivers and streams, the age of its structures, and its system of local government.

In the Biggert-Waters Flood Insurance Reform Act of 2012, Congress mandated that the Federal Emergency Management Agency (FEMA) adopt “full risk” or “actuarial” rates for flood insurance to address what was then a $20 billion budget shortfall caused by damage from recent storms. This resulted in sharp premium increases, especially for those whose rates had been subsidized.

In response, Congress then passed the Homeowner Flood Insurance Affordability Act of 2014, which delayed the rate increases. Despite the 2014 legislation, the move away from subsidized federal flood insurance remains a fundamental shift with profound community-scale impacts across Pennsylvania. At this point, the NFIP officially expired on September 30, 2017; however, it has been extended through a series of continuing resolutions that have also kept the federal government funded.

This research explores the impacts of these changes on Pennsylvania’s rural communities in the following ways: reviews the legal and policy framework at a federal, state, local and individual level; examines the demographic and geospatial information associated with flood-impacted communities in Pennsylvania; examines the economic impacts to the housing market in floodplains; and explores how flooding, flood insurance, and other federal and Commonwealth programs have impacted Pennsylvania’s rural communities by focusing closely on eight communities as case studies. The research offers a number of recommendations.

Oh, yeah - Lara mentioned that the National Flood Insurance Program expires on 31 July.

Enjoy!

Note added on 25 July 2018 (thanks to Elaine J. Hanford): The House just voted to extend the NFIP through 30 November 2018, The Senate has not voted on the extension yet. See WHYY story. The GAO expresses its opinion here and here is another. 
My (MEC) take: the program needs reform. I listen to my friend Gerry Galloway.

"No single raindrop believes it is to blame for the flood." - E. L. Kersten