Tulare Lake

An Evolutionary Theory of Administrative Law

Southern Methodist University | May 25th, 2018

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a jud

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a judiciary hesitant to address policy questions, evolution of statutory law has become much more difficult. This leads to pent up demand for change in legal regimes. If the legislature and the courts cannot provide an outlet for this pressure, where does it go? How does the law continue to change? Although other scholars have looked to agencies as engines of legal change, we lack a theoretical framework to understand how that change happens. I argue that an evolutionary framework provides an informative framework for understanding administrative legal change. I provide three case studies that demonstrate the administrative evolution of the Endangered Species Act. In spite of tremendous advances in conservation, fundamental changes in scientists’ understanding of human impacts on the natural world, and increasingly strident clashes over private property rights and endangered species, the Act has remained largely unchanged for the last 35 years. In a functioning legislative system, the Act would have been amended to accommodate many of these changes. Instead, the case studies show a mechanism of legal change through agency action analogous to the mechanisms underlying biological evolution. Other commentators have argued the administrative state stymies evolution of the law, but this research contradicts that view. Applying an evolutionary framework to administrative actions creates a new theory of administrative evolution of the law, placing administrative analysis within the long tradition of evolutionary approaches to legal change used by commentators from Aristotle to Holmes. In contrast to traditional normative theories of administrative law, an evolutionary approach focuses on how change progresses over time. This theory of administrative evolution of the law also casts new light on a host of normative questions, from the role of judicial review to improvements in agency decision-making. Considering administrative actions within the broader context of the legal evolution promises a fruitful new approach to analyzing administrative law.

An Index of Biotic Integrity (IBI) for Perennial Streams in California’s Central Valley

California State Water Resources Control Board (SWRCB) | December 1st, 2008

Bioassessment is the science of using aquatic organisms as indicators of ecological condition in streams in rivers. Many types of organisms can be used as indicat

Bioassessment is the science of using aquatic organisms as indicators of ecological condition in streams in rivers. Many types of organisms can be used as indicators, for example fish or algae, but bioassessment is most frequently based on benthic macroinvertebrates (BMIs), which are small but visible bottom-dwelling organisms such as insects. BMI data sets typically consist of long lists of species (or taxa) found in a sample and their relative abundances. These data can be simplified into measures of biological condition such as indices of biotic integrity (IBIs) that are designed to be sensitive to human-caused alterations to the landscape, to stream channels and riparian zones, and to water chemistry. IBIs function much like economic indicators: high IBI scores reflect good ecological conditions while low IBI scores reflect poor ecological conditions. Bioassessment is increasingly used throughout California by water quality monitoring programs, but in the Central Valley bioassessment is more challenging than in other regions of the state because the entire landscape and most streams are highly altered by human activities such as urbanization, agriculture and water diversions. This makes it impossible to evaluate how BMIs respond across a complete gradient of human disturbance within the region, that is, from minimally disturbed reference sites where human activity is absent or minimal and which therefore set the benchmark for biological expectations, to the most altered sites with degraded biology. In the Central Valley, minimally disturbed reference sites are no longer available. Even the ‘least-disturbed’ sites, which represent the best-available chemical, physical and biological habitat conditions given the current state of the landscape, are markedly disturbed. Reference sites in other parts of California, such as the Sierra Nevada or the Sierra foothills, may be significantly less disturbed than Central Valley reference sites. In this study, BMI data sets from 11 studies conducted at various intervals over the last 14 years were compiled to build an IBI for Central Valley streams. Data were not collected consistently by the different studies, and many gaps were present in associated physical habitat and water chemistry data sets. This could be corrected for BMI samples by standardizing to a consistent level of taxonomic effort. Gaps in other data could not be addressed. Criteria for defining ‘best-available’ reference sites were established as data allowed and were based on local urban and agricultural intensity, stream channel and riparian condition, and stream substrate composition. Eighty BMI metrics were evaluated for inclusion in the IBI based on 4 criteria: 1) sufficient range for scoring; 2) responsiveness to land use and/or local disturbance variables measured at the 150-meter sampling reach (as data allowed); 3) good discrimination between reference and test sites; 4) lack of correlation with other responsive metrics. Five final metrics were selected and scored for inclusion in the IBI: collector richness (number of taxa that are collector- feeders), predator richness (number of taxa that are predators), percent EPT taxa (percent of taxa that are mayflies, stoneflies, or caddisflies), percent clinger taxa (percent of taxa that cling to vegetation) and Shannon diversity (a composite measure of taxonomic richness and evenness of abundance). The final IBI showed good discrimination between reference and test sites, and was validated with an independent data set. BMI metrics and the final IBI were more strongly related to reach-scale physical habitat variables than to water chemistry or land use variables, but detailed water chemistry was lacking for many sites, and some studies have shown that response to land use diminishes when more than 10% of a watershed is degraded by human activities. Despite data gaps that were less than ideal for indicator development, this study is the first to set expectations for Central Valley BMI assemblages based on best-available reference sites. The Central Valley IBI can be used as a general interpretive framework for benthic samples collected from perennial streams on the valley floor and provides an objective means for rating biological condition in a region with high urban and agricultural intensity. The ability to rank sampling sites relative to explicitly defined biological expectations is essential to any biological monitoring program. Therefore, this index may prove useful in several monitoring applications, including California’s non- point source CMAP program where sampling was stratified to assess and compare stream condition in urban, agricultural and forested watersheds, in stormwater monitoring programs, in point-source pollution investigations, and in stream restoration monitoring. Key recommendations include: 1) that all future bioassessment projects in the Central Valley should collect quantitative physical habitat and water chemistry with consistent protocols at all sites; in situ chemistry and rapid (qualitative) physical habitat are not sufficient for screening reference sites or evaluating BMI responses to stressor gradients; 2) that bioassessment should be added to NPS monitoring where programs are already collecting more intensive stressor data such as pesticides, nutrients and metals. This will provide California’s monitoring programs with better datasets to support future analyses.

Anthropogenic and geologic causes of anomalously high uranium concentrations in groundwater used for drinking water supply in the southeastern San Joaquin Valley, CA

Journal of Hydrology (Elsevier) | October 1st, 2019

Concentrations of uranium (U) >30 µg/L in groundwater are relatively uncommon in drinking water in the United States but can be of concern in those areas where comp

Concentrations of uranium (U) >30 µg/L in groundwater are relatively uncommon in drinking water in the United States but can be of concern in those areas where complex interactions of aquifer materials and anthropogenic alterations of the natural flow regime mobilize U. High concentrations (>30 µg/L) of U in the southeastern San Joaquin Valley, California, USA, have been detected in 24 percent of 257 domestic, irrigation, and public-supply wells sampled across an approximately 110,000 km2 area. In this study we evaluated mechanisms for mobilization of U in the San Joaquin Valley proposed in previous studies, confirming mobilization by HCO3 and refuting mobilization by NO3 and we refined our understanding of the geologic sources of U to the scale of individual alluvial fans. The location of high concentrations depends on the interactions of geological U sources from fluvial fans that originate in the Sierra Nevada to the east and seepage of irrigation water that contains high concentrations of HCO3 that leaches U from the sediments. In addition, interactions with PO4 from fertilized irrigated fields may sequester U in the aquifer. Principal component analysis of the data demonstrates that HCO3 and ions associated with high total dissolved solids in the aquifer and the percentage of agriculture near the well sampled are associated with high U concentrations. Nitrate concentrations do not appear to control release of U to the aquifer. Age dating of the groundwater and generally increasing U concentrations of the past 25  years in resampled wells where irrigation is prevalent suggests that high U concentrations are associated with younger water, indicating that irrigation of fields over the past 100  years has significantly contributed to increasing concentrations and mobilizing U. In some places, the groundwater is supersaturated with uranyl-containing minerals, as would be expected in roll front deposits. In general, the interaction of natural geological sources high in U, the anthropogenically driven addition of HCO3 and possibly phosphate fertilizer, control the location and concentration of U in each individual fluvial fan, but the addition of nitrate in fertilizer does not appear control the location of high U. These geochemical interactions are complex but can be used to determine controls on anomalously high U in alluvial aquifers.

Anthropogenic Warming Impacts on Today's Sierra Nevada Snowpack and Flood Risk

American Geophysical Union (AGU) | June 15th, 2018

This study investigates temperature impacts to snowpack and runoff‐driven flood risk over the Sierra Nevada during the extremely wet year of 2016–2017, which followed

This study investigates temperature impacts to snowpack and runoff‐driven flood risk over the Sierra Nevada during the extremely wet year of 2016–2017, which followed the extraordinary California drought of 2011–2015. By perturbing near‐surface temperatures from a 9‐km dynamically downscaled simulation, a series of offline land surface model experiments explore how Sierra Nevada hydrology has already been impacted by historical anthropogenic warming and how these impacts evolve under future warming scenarios. Results show that historical warming reduced 2016–2017 Sierra Nevada snow water equivalent by 20% while increasing early‐season runoff by 30%. An additional one third to two thirds loss of snowpack is projected by the end of the century, depending on the emission scenario, with middle elevations experiencing the most significant declines. Notably, the number of days in the future with runoff exceeding 20 mm nearly doubles under a mitigation emission scenarios and triples under a business‐as‐usual scenario. A smaller snow‐to‐rain ratio, as opposed to increased snowmelt, is found to be the primary mechanism of temperature impacts to Sierra snowpack and runoff. These findings are consequential to the prevalence of early‐season floods in the Sierra Nevada. In the Feather River Watershed, historical warming increased runoff by over one third during the period of heaviest precipitation in February 2017. This suggests that historical anthropogenic warming may have exacerbated runoff conditions underlying the Oroville Dam spillway overflow that occurred in this month. As warming continues in the future, the potential for runoff‐based flood risk may rise even higher.

Anticipating responses to climate change and planning for resilience in California’s freshwater ecosystems

National Academy of Sciences (NAS) | July 29th, 2024

Applying the Connectivity Approach: Groundwater management in California's Kings Basin

California Roundtable on Water and Food Supply (CRWFS) | March 27th, 2015

The California Roundtable on Water and Food Supply (CRWFS) studied the processes used in the Kings Groundwater Subbasin (Kings Basin) of California’s San Joaquin Valley

The California Roundtable on Water and Food Supply (CRWFS) studied the processes used in the Kings Groundwater Subbasin (Kings Basin) of California’s San Joaquin Valley to reveal strategies for advancing groundwater sustainability within the context of watershed-scale, integrated water management. This inquiry was guided by the principles of the “connectivity approach”: a framework developed by CRWFS for resource managers, land use planners and policymakers to discover the linkages, strengths, successes, potentials, and disconnects related to their particular resource stewardship issues. A key concept is connected benefits, which refers to achieving multiple benefits across resource and development sectors to respond to California’s increasing water management challenges.

Aquatic Life Study Final Report

San Joaquin Valley Drainage Authority | January 6th, 2016

Central Valley Salinity Alternatives for Long Term Sustainability (CV‐SALTS) is developing a comprehensive regulatory and programmatic approach to the management of sa

Central Valley Salinity Alternatives for Long Term Sustainability (CV‐SALTS) is developing a comprehensive regulatory and programmatic approach to the management of salt and nitrate in the Central Valley that is consistent with the State Recycled Water Policy (SRWP). This work is being carried out collaboratively with the Central Valley Regional Water Quality Control Board (Central Valley Water Board), the State Water Resources Control Board (State Water Board), the Central Valley Salinity Coalition and Stakeholders. As stated in the CV‐SALTS Strategy and Framework document, the strategy to fulfill the requirements of the SRWP is to adopt a Central Valley Salt and Nitrate Management Plan (SNMP) and revise the Basin Plans applicable to the Central Valley to facilitate implementation of the SNMP. This effort includes a technical review of the state of science with regards to the establishment of appropriate water quality objectives (WQO) to protect surface water beneficial uses. This Aquatic Life Study was undertaken to evaluate the technical basis for the establishment of salinity‐related WQOs to protect aquatic life in the Central Valley. The findings of this analysis will be considered by CV‐SALTS during development and adoption of the SNMP.

Arctic sea-ice loss drives a strong regional atmospheric response over the North Pacific and North Atlantic on decadal scales

Nature Portfolio (Springer Nature) | March 11th, 2025

Previous studies have suggested that Arctic sea-ice loss can have a profound influence on atmospheric circulation far away from the Arctic. However, there is litt

Previous studies have suggested that Arctic sea-ice loss can have a profound influence on atmospheric circulation far away from the Arctic. However, there is little scientific consensus on the features of these remote responses, with the opposite impacts reported. Here we present a multi-model analysis of the decadal climate response to Arctic sea-ice loss using state-of-the-art energy conserving methodologies to isolate the impacts of sea-ice decline. We observe weakening of the Aleutian Low and development of a geopotential ridge in the North Pacific, associated with drier winter conditions over the southwest United States. Over the Atlantic, a negative NAO-like response drives wetter winter conditions across the western Mediterranean. These decadal-scale impacts substantially differ from reported centennial-scale responses to Arctic sea-ice loss simulated using non-energy conserving methodologies. Factors such as the timescale of the response and methodologies used to isolate the impacts of disappearing sea-ice cover should be carefully considered when consolidating scientific understanding on the future impacts of changing Arctic.

Arsenic in California Drinking Water

Environmental Integrity Project | September 15th, 2016

More than three years after the U.S. Environmental Protection Agency found California in noncompliance with the federal Safe Drinking Water Act, 95 community water system

More than three years after the U.S. Environmental Protection Agency found California in noncompliance with the federal Safe Drinking Water Act, 95 community water systems in the state, serving more than 55,000 people, are still providing water with illegal levels of arsenic, according to an examination of state data for the last two years. Arsenic occurs naturally in the soil and groundwater in parts of California and is a known carcinogen that may also damage the developing brains of children and cause other health problems. Many of the people drinking excessive levels of arsenic are poor and/or Latino or African- American, with a cluster in the San Joaquin Valley. Nearly all have been exposed to excessive arsenic levels for at least five years and probably longer.

Assembly Bill 1337

State of California Office of Legislative Counsel | February 16th, 2023