What amuses me is when environmentalism implodes under the weight of its own moral absolutism.  This story points out that perhaps building large solar thermal plants in the arid southwest might not be such a good idea, since such plants are highly water-consumptive.  Then this op-ed tells us nuclear energy is not an option, even with reprocessing, because it will create too much liquid waste.  Okay, I guess California will keep on burning coal, then.  And all the coal lobby has to do is sit back and watch the enviros try to reach a position of absolute principled consistency!

My $.02:  Nuclear energy is the answer, or at least a large part of it.  I grew up a few miles downstream from the leaky storage tanks and the contaminated groundwater at Hanford, well aware of the billions of dollars in cleanup costs just down the road.  Setting aside the (obvious) question of distinguishing energy-related waste from weapons production-related waste, let’s point out that the problem with Mr. Endreson’s post is that he seems to think we’re stuck with 1950′s era technology.  I guess he has not heard of vitrification?  You know, one of the central features of the DOE’s clean-up project?

Enviros use fear-based propaganda to discourage any discussion of nuclear energy as an option.  Which is odd, since the waste volume of nuclear plants is negligible and the impacts to land and air almost non-existent (pdf).  Nuclear energy generates less waste per unit of energy than any other energy source even without putting reprocessing on the table for discussion.  Some thoughtful evaluations of the anti-nuclear myths that greens love to propound can be found here and here.

Once the vast majority of reasonable citizens agree that we’re not about to go back to living in caves, and that there are limits on the liberties we are willing to sacrifice to our government to limit impacts on the environment, then finding the “answer” is little more than weighing the costs and benefits of the various options available to continue meeting our social and economic needs.  Nuclear energy absolutely belongs on the table for discussion.  And fortunately, even the enviros are beginning to recognize it.

There are a few reasons why the Clean Water Act (CWA) doesn’t always prevent pollution, the main one being that not all pollution is illegal.  It is much more likely to be illegal if it comes out of a pipe than if it doesn’t.  The main tool of the CWA is the NPDES permit, which regulates what concentrations of what chemicals can be discharged from a point source – a “discernable, confined and discrete conveyance.”  End-of-pipe regulations have forced wastewater through treatment plants before releasing it into rivers, streams and oceans.

But a substantial amount of water pollution is from nonpoint sources, including surface runoff.  Because surface runoff is diffuse, it is particularly difficult to regulate.  Surface runoff can include uncaptured storm water, agricultural wastes, mining wastes, sediments, yard chemicals, etc.  Capturing and treating runoff is an expensive proposition.  Regulating runoff at the source raises questions of fairness – eliminating all pollution is not realistic, but limiting some discharges while allowing others is a politically charged decision.  Although the CWA does include mechanisms to regulate nonpoint source pollution (primarily through the “total maximum daily load,” or TMDL, program), governments have been hesitant to strictly implement the programs.

Even though direct citizen enforcement is authorized by the CWA, improving water quality in the courts is a notoriously challenging proposition.  Citizen suits are most likely to succeed where there is either clear precedent or clear standards.  Thus, citizen watchdogs are most successful in monitoring permit compliance and, occasionally, compelling government action (such as requiring states to engage in the TMDL process).  In theory, private citizens who are affected by pollution can sue polluters under nuisance, trespass, or even battery theories.  But where nonpoint source pollution is involved, proving that any particular polluter (or pollutant) actually caused a particular outcome is challenging at best, impossible at worst.  A Civil Action illustrates the difficulty quite well.

That gaps remain in the law nearly forty years after the CWA was enacted is troubling, but not surprising.  Unfortunately, Appalachians with contaminated drinking water have little recourse under the law.  Courts are unlikely to help.  State representatives will not interfere.  H.R. 1310 would restrict mountaintop mining, if it ever gets out of committee, which seems unlikely.

It’s hard to contemplate why a problem that is so superficially understandable should be so difficult to address.  Everybody knows it’s  wrong to leave your trash on  your neighbor’s lawn.  It’s the basic premise of property rights – the right to exclude others from what is yours.  But the principle of ownership cuts both ways – if I own the good stuff on my property, I also own the bad.  Politics and economic incentives make it too easy to shift the negative consequences of ownership away from the owner.  That is why the CWA is failing, and, sadly, it isn’t news.

Heavy precipitation in Seattle? You don’t say …

The only surprising part of this news is that it is so long in coming.  Unlike Seattle, the City of Portland has long been a target of EPA enforcement and citizen lawsuits for CSO events averaging six billion gallons every year.  Unlike Seattle, Portland has invested almost a billion and a half dollars into upgrading its system to minimize overflows.  As a result, the EPA recently dropped all enforcement action against the City.

The City of Seattle is stepping up to the challenge by holding workshops to establish “plan milestones” and priorities. We’ll see if the EPA is impressed.

Public comment information is available here, and the draft report is available here (pdf).  The comment period closes on September 25.

After sitting out the fiasco process of adopting the Walla Walla River TMDL, I’m tempted to get involved in this one.  As a rule, DOE’s studies typically identify nonpoint sources as the cause of impairments for every kind of substance from toxics to bacteria.  And, also as a rule, DOE’s implementation strategy has been to ratchet down on the point sources.  Point sources in this part of the world (and on this particular watershed) consisting of municipal wastewater facilities, what DOE’s strategy accomplishes is to shift the cost of rural activities onto the rate-paying city folk.  Not to mention the strategy raises some legitimate questions as to whether it’s even likely to effectively reduce pollutant loads.

TMDLs are still new, and so far more time has been spent putting them into place than determining whether they are effective.  It would be nice to see some creative thinking about how to fix the problem instead of the usual, politically safe approach of focusing on pipes.

Rep. Jim McDermott introduced a bill to study whether the four lower Snake River dams should be removed to further salmon recovery efforts.  Breaching the dams has been a volatile subject for many years.

On the pro side:

• Thirteen Columbia Basin salmon species are currently listed as “threatened” or “endangered” under the Endangered Species Act.  Dams are generally regarded as being detrimental to salmon (pdf).  And even the National Marine Fisheries Service admits that breaching the dams is the best option. (pdf)
• The government agencies charged with operating the dams in a manner that complies with the ESA can’t seem to come up with a biological opinion that doesn’t strain the limits of credulity, even after four tries.

On the con side:

• Removing the lower Snake River dams will have significant economic impacts.  The dams provide hydropower and irrigation for farmers, and they enable barge traffic to transport crops grown inland.  Of course, the actual economic impact is greatly disputed, with the Army Corps of Engineers (pdf) arguing the costs would greatly outweigh the benefits, while the Rand Corporation (pdf) (hired by environmentalists) concluded that breaching the dams would have a negligent economic impact … and would, perhaps, even save money.  Some other studies are described and linked here.
• Judge Redden of the U.S. District Court seems inclined to order the agencies to study breaching the dams, so a Congressional mandate is somewhat redundant.
• Salmon returns are good this year (for those who like to use short-term evidence to argue against the existence of a long-term trend).

There is a good documentary, River Ways, that explores the question of to breach or not to breach from several different perspectives.

Will dam removal ever be seriously considered?  Ultimately, whether to kill the dams is a question fraught with uncertainty and, consequently, much trepidation.  It seems easier to confront the devil we know than the devil we don’t.

“who would fardels bear,
To grunt and sweat under a weary life,
But that the dread of something after death,
The undiscover’d country from whose bourn
No traveller returns, puzzles the will
And makes us rather bear those ills we have
Than fly to others that we know not of?”

The authors of “Water Markets as a Tragedy of the Anticommons” argue that water transfers have not become commonplace because the inefficiencies of water rights as anticommons create transaction costs that discourage transfers.  Although they make some excellent points, the basic argument is most persuasive in the case of commonly held rights such as irrigation districts.  In those cases, the relationship between the end-user and the water supplier is a matter of contract, which can limit the user’s opportunities to transfer the right out of the district.  If other shareholders can veto a water transfer, then it is reasonable to assume that the cost of the transfer could also include the cost of persuading the other shareholders to permit the transfer.

However, the argument is more tenuous with respect to groundwater irrigators.  Unlike surface water diversion projects, wells are relatively cheap to drill and are a cost-efficient way for a single user to develop a water supply.  Groundwater pumpers, accordingly, have not had to rely on cooperative projects and associations to develop their water, and their desired uses are therefore not limited by contract or by the veto rights of common owners.

The authors suggest that transactional costs are imposed by the “public interest” standard that is present in most water transfer statutes.  Theoretically, that might be true; but as a practical matter, the likelihood that the “public interest” requirement will impede water transfers is small.  Notably, the authors cite to only one incident in which a transfer application was actually denied on public interest grounds, and that denial was overturned on appeal.  And it seems unlikely that transfers, say, from agricultural to municipal use, would be considered contrary to the public interest, particularly if there were a shortage or if development threatened to outstrip existing resources.

For groundwater pumpers, what discourages transfers is simply the “extent and validity” review that generally accompanies a water transfer.  Pumpers know that certificated rights – paper rights – are nearly always reduced due to partial relinquishment.  Return flows are also a big factor.  Irrigation does not consume all of the water applied to the field; instead, some of the water returns to the source through surface runoff or percolation.  Transferring agricultural water to, say, domestic supply, eliminates return flows and increases the amount of water that is consumed.  In Washington, water administrators will correspondingly decrease the transferable right to account for the loss of return flows in order to ensure that the transfer does not impair existing rights. If the theory of the anticommons has any impact on groundwater transfers, it is here – in competing claims to return flows.

The end result is that agricultural to non-agricultural transfers are penalized because the cost of non-agricultural use is driven up.  Consider this example:  A farmer irrigates 100 acres of land to grow a crop that generates an average profit of $10/acre.  Let’s assume that 20% of his water returns to the aquifer.  A developer wants to buy the farmer’s 100-acre right.  Let’s also assume that the fair market price for a water right is twenty years’ farming profits.  In our example, the farmer’s water rights are worth $20,000 (disregarding, for convenience only,  the present value of 20 years’ profits).  After the return flow is subtracted, the farmer loses 100 acres of water right; however, the developer only gains 80 acres of water right.  Although the farmer’s water right is worth $10/acre/year, the price the developer must pay is equivalent to valuing the water at $12.50/acre/year.

What this example illustrates is that while the anticommons may play some role in discouraging water transfers, the true economic disincentive is the simple reality that fully consumptive, non-agricultural uses cost more per unit of water than less consumptive, agricultural uses.  If, as the authors suggest, water rights transfers are not very common, the logical reason is because the demand for reallocation is not high enough to justify the increased unit price.  In other words, the problem with the authors’ analysis is the assumption that sufficient demand exists to make transfers economical.  Yet the fact that transfers are uncommon demonstrates that demand for such transfers is low.

While it is interesting to consider how water as the anticommons affects the price of transfers, I strongly suspect that the real reason water rights are not transferred more frequently is a factor of basic economics – supply and demand.  In reality, if there were an undeniable need for reallocation, no price would be too high.

*Update:  Discussed on Aquanomics here.  Need to follow up on the linked studies.

Drawdown is a serious concern for irrigators.  The cost of groundwater irrigation consists of the cost of electricity required to pump the water (cost per foot times number of feet to be pumped).  Drawdown means more feet to be pumped, which means greater electricity costs.  At some point, the cost of pumping the water exceeds the value of the crop being grown, in which case the rational farmer will simply … stop farming.  The basic economics of groundwater pumping are discussed here.

I suspect that some of these farmers have heard of  the Owens Valley and have a pretty good idea of what sending their water to Vegas will mean to their livelihood.

The Point Loma facility treats its wastewater to primary standards before discharging it 4.5 miles offshore.  Primary treatment essentially means that some solids are strained out and some scum is skimmed off before the water is discharged, leaving anything that is not in solid form – chemicals, biological fluids, bacteria, etc. – in the wastestream.  Kinda gross, and definitely not the kind of stuff you want to be swimming or surfing in.

Still, what took everybody by surprise is that the local environmental community – which is quite active, and has not hesitated to sue the City of San Diego or the U.S. military over Clean Water Act violations – did not oppose the third waiver.  Instead, groups have been focusing on studying alternative options such as increasing wastewater recycling to reduce discharges, or upgrading the Point Loma plant to meet secondary treatment standards.  While everybody acknowledges that changes need to be made, concerns about rate increases have kept the conversations civil, as the stakeholders have properly focused on the realities of the problem to consider the most efficient way to address it.

Without the waiver, the Point Loma treatment facility will have to meet secondary treatment standards when its current permit expires … assuming the Coastal Commission’s decision is not overturned on appeal.  The price tag is estimated at around $1.5 billion.

So, who are these Coastal Commissioners who decided to draw a line in the sand?  Notably, they are not San Diegans; the only Commissioner likely to have a horse in this race, Patrick Kruer, is also the only guy who recommended approving the waiver.  Hmm … I’d hate to think this was a bold political gesture intended to curry favor with north coast environmentalists, rather than a considered decision reflecting the best interests of the citizens of San Diego.

It is hard to imagine this project overcoming the inevitable environmental challenges.  Also, Utah’s economy is heavily dependent on agriculture, and its economy is hurting.  I expect the farm lobby will make short work of this short-sighted proposal.

To put the shut off in perspective:  Magic Valley, the affected area, receives around ten inches of rainfall per year and reaches temperatures in the nineties.  In layman’s terms, it’s a desert.  Milner and Minidoka dams provide some storage for irrigation; but, as in so many other areas throughout the West, Magic Valley farmers, ranchers, municipalities, and industries have resorted to drawing their groundwater to sustain their communities.

This water fight has been going on for years with no end in immediate sight.  Clear Springs took the battle to court and successfully overturned DWR’s ruling that impairment to one of its water rights had not been proven.  Local dairy farmers are paying for research to establish exactly how much groundwater a cow uses in a day.  It is likely that the parties will skirmish in the courts and in administrative hearings for many years to come as more information comes to light.

Of particular interest in the Clear Springs curtailment is DWR’s heavy reliance on groundwater modeling to establish how withdrawals from the aquifer affect spring flows.  Even the court, acknowledging the limitations of modeling and the questionable assumptions upon which the ESPA model relied, seemed unsure how to handle the problem.  On the one hand, the court frankly acknowledged that nobody really knows whether the model is accurate, stating,

The margin of error used by the Director was not established in conjunction with the development of the model nor was it developed pursuant to any scientific methodology or peer review process . . . There was testimony presented that the margin of error was probably much higher than 10% but that it had yet to be quantified by any scientific methodology.

(Order on Petition for Judicial Review, p. 26) (pdf)

Nevertheless, the court approved the Director’s assumption of a 10% margin of error based on the established margin of error for surface gauges, attributing the assumption to “common sense.”

Since when is an agency justified in infringing property rights in the absence of scientific evidence establishing that a junior user actually causes an impairment?  This aspect of the ruling is troubling.  Digging deeper, the data used to create the ESPA model shows that between 1980 and 2002, the Eastern Snake Plain Aquifer was recharged at the same rate that it was depleted … meaning, in other words, that drawing from wells did not draw down the aquifers over two decades of pumping.  How, then, is it shown that the junior users impaired the senior rights?  Drought conditions alone?  Moreover, the same model clearly disclaims that it cannot be used to predict future effects.  But isn’t that exactly how the DWR used the model to justify the curtailment order?

DWR has an obligation to protect senior water rights from impairment, but it should not try to make good law out of bad science.  Hydrologic continuity is complex, and junior irrigators in a desert climate deserve a more conservative and considered analysis before turning off the tap.