Amoral Water Markets?

Georgetown University | June 15th, 2023

Severe water scarcity in the western United States is prompting legitimate questions about the best way to decide which places, people, industries, and species need it mo

Severe water scarcity in the western United States is prompting legitimate questions about the best way to decide which places, people, industries, and species need it most. Water markets, which allow for trading water like a commodity, are perennial proposals during times of scarcity. Water markets have an innate allure: promising to efficiently reallocate water to the highest value uses, minimize risk, and preserve the environment, while relying on the invisible hand to brush aside politically painful values-based questions. This view portrays markets as an amoral arbiter of the best use of water. But water markets are not amoral; they express the historic value judgments baked into the existing western water law system, and layering market approaches over the existing system will both exacerbate the negative impacts of those values and further entrench existing law. In this Article, we show that the West is not ready for water markets.

Amphibian responses in the aftermath of extreme climate events

Nature Portfolio (Springer Nature) | February 25th, 2020

Climate change-induced extinctions are estimated to eliminate one in six known species by the end of the century. One major factor that will contribute to thes

Climate change-induced extinctions are estimated to eliminate one in six known species by the end of the century. One major factor that will contribute to these extinctions is extreme climatic events. Here, we show the ecological impacts of recent record warm air temperatures and simultaneous peak drought conditions in California. From 2008–2016, the southern populations of a wide-ranging endemic amphibian (the California newt, Taricha torosa) showed a 20% reduction to mean body condition and significant losses to variation in body condition linked with extreme climate deviations. However, body condition in northern populations remained relatively unaffected during this period. Range-wide population estimates of change to body condition under future climate change scenarios within the next 50 years suggest that northern populations will mirror the loss of body condition recently observed in southern populations. This change is predicated on latter 21st century climate deviations that resemble recent conditions in Southern California. Thus, the ecological consequences of climate change have already occurred across the warmer, drier regions of Southern California, and our results suggest that predicted climate vulnerable regions in the more mesic northern range likely will not provide climate refuge for numerous amphibian communities.

An Alternative Technique to Quantify the Incidental Take of Listed Anadromous Fishes at the Federal and State Water Export Facilities in the San Francisco Bay-Delta Estuary

National Marine Fisheries Service (NMFS) | July 1st, 2011

An assessment of future tidal marsh resilience in the San Francisco Estuary through modeling and quantifiable metrics of sustainability

Frontiers in Environmental Science (Frontiers) | November 25th, 2022

Quantitative, broadly applicable metrics of resilience are needed to effectively manage tidal marshes into the future. Here we quantified three metrics of temporal marsh

Quantitative, broadly applicable metrics of resilience are needed to effectively manage tidal marshes into the future. Here we quantified three metrics of temporal marsh resilience: time to marsh drowning, time to marsh tipping point, and the probability of a regime shift, defined as the conditional probability of a transition to an alternative super-optimal, suboptimal, or drowned state. We used organic matter content (loss on ignition, LOI) and peat age combined with the Coastal Wetland Equilibrium Model (CWEM) to track wetland development and resilience under different sea-level rise scenarios in the Sacramento-San Joaquin Delta (Delta) of California. A 100-year hindcast of the model showed excellent agreement (R2 = 0.96) between observed (2.86 mm/year) and predicted vertical accretion rates (2.98 mm/year) and correctly predicted a recovery in LOI (R2 = 0.76) after the California Gold Rush. Vertical accretion in the tidal freshwater marshes of the Delta is dominated by organic production. The large elevation range of the vegetation combined with high relative marsh elevation provides Delta marshes with resilience and elevation capital sufficiently great to tolerate centenary sea-level rise (CLSR) as high as 200 cm. The initial relative elevation of a marsh was a strong determinant of marsh survival time and tipping point. For a Delta marsh of average elevation, the tipping point at which vertical accretion no longer keeps up with the rate of sea-level rise is 50 years or more. Simulated, triennial additions of 6 mm of sediment via episodic atmospheric rivers increased the proportion of marshes surviving from 51% to 72% and decreased the proportion drowning from 49% to 28%. Our temporal metrics provide critical time frames for adaptively managing marshes, restoring marshes with the best chance of survival, and seizing opportunities for establishing migration corridors, which are all essential for safeguarding future habitats for sensitive species.

An Evaluation of Juvenile Salmonid Routing and Barrier Effectiveness, Predation, and Predatory Fishes at the Head of Old River, 2009–2012

California Department of Water Resources (DWR) | February 2nd, 2015

The California Department of Water Resources (DWR) and the U.S. Bureau of Reclamation (Reclamation) manage the State Water Project (SWP) and Central Valley Project (CVP),

The California Department of Water Resources (DWR) and the U.S. Bureau of Reclamation (Reclamation) manage the State Water Project (SWP) and Central Valley Project (CVP), respectively, and are charged to do so in a manner that maintains the survival of anadromous salmonids subject to the terms of the National Marine Fisheries Service’s (NMFS) 2009 Biological Opinion (BO) and 2011 amendments regarding the Long-Term Central Valley Project and State Water Project Operations Criteria and Plan (OCAP). Action IV.1.3 of the NMFS’s 2009 BO instructs these agencies to “consider engineering solutions to further reduce diversion of emigrating juvenile salmonids to the interior and southern Delta, and reduce exposure to CVP and SWP export facilities.” Specifically, one objective of Action IV.1.3 is to “prevent emigrating salmonids from entering channels in the south Delta (e.g., Old River, Turner Cut) that increase entrainment risk to Central Valley steelhead migrating from the San Joaquin River through the Delta.”

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 Introduction to EcoAtlas: Applied Aquatic Science

San Francisco Estuary Institute (SFEI) | September 14th, 2016

The term “EcoAtlas” has been in use for over 20 years in association with the study, assessment, and reporting of aquatic resources in California. What began as “W

The term “EcoAtlas” has been in use for over 20 years in association with the study, assessment, and reporting of aquatic resources in California. What began as “Wetland Tracker” in 2000, with its goal of recording essential information about wetland restoration projects in the greater Bay Area, later blossomed into a broad technological ecosystem of interrelated tools, each focused on delivering specialized, program-focused features, as defined by key stakeholder groups. Having evolved over time, EcoAtlas comprises a diverse toolset, but the collection shares common libraries, common approaches, and common development methodologies. Though each emerged from different funding opportunities and requirement drivers, the toolset collectively addresses a synthesized “whole watershed approach.” Whether estimating the ideal riparian buffer width for a given stream or assessing the health of a wetland at the edge of the estuary, the EcoAtlas tools allow practitioners to deploy the right tool for the job across the entire watershed, thereby producing a complete picture through composite outputs.

An unprecedented coastwide toxic algal bloom linked to anomalous ocean conditions

American Geophysical Union (AGU) | October 9th, 2016

A coastwide bloom of the toxigenic diatom Pseudo-nitzschiain spring 2015 resulted in the largest recorded outbreak of the neurotoxin, domoic acid, along the North Ameri

A coastwide bloom of the toxigenic diatom Pseudo-nitzschiain spring 2015 resulted in the largest recorded outbreak of the neurotoxin, domoic acid, along the North American west coast. Elevated toxins were measured in numerous stranded marine mammals and resulted in geographically extensive and prolonged closures of razor clam, rock crab, and Dungeness crab fisheries. We demonstrate that this outbreak was initiated by anomalously warm ocean conditions. Pseudo-nitzschia australis thrived north of its typical range in the warm, nutrient-poor water that spanned the northeast Pacific in early 2015. The seasonal transition to upwelling provided the nutrients necessary for a large-scale bloom; a series of spring storms delivered the bloom to the coast. Laboratory and field experiments confirming maximum growth rates with elevated temperatures and enhanced toxin production with nutrient enrichment, together with a retrospective analysis of toxic events, demonstrate the potential for similarly devastating ecological and economic disruptions in the future.

Anadromous Salmonid Fish Passage Facility Design

National Marine Fisheries Service (NMFS) | July 26th, 2011

The primary effect of barriers (e.g., hydroelectric dams, water storage projects, irrigation diversions, impassable culverts, etc.) on Pacific salmonids is the reduction

The primary effect of barriers (e.g., hydroelectric dams, water storage projects, irrigation diversions, impassable culverts, etc.) on Pacific salmonids is the reduction in population abundance and productivity through excessive mortality and reduction in habitat quantity and quality. Individuals are lost to the population due to death from passing through turbines, disproportionate predation in reservoirs, entrainment at unscreened or improperly screened diversions, etc. Spatial structure and diversity have also been reduced by the loss of nearly 40% of salmon habitat from dams (NRC 1996), either through complete blockage or inundation. This document is intended to assist with improving conditions for salmonids that must migrate past barriers to complete their life cycle. The task involved in successfully passing fish upstream or downstream of an in-river impediment is a dynamic integration of fish behavior, physiology, and bio-mechanics with hydraulic analysis, hydrologic study, and engineering. Installing a fish passage structure does not constitute providing satisfactory fish passage unless all of the above components are adequately factored into the design. The following document provides criteria, rationale, guidelines, and definitions for the purpose of designing proper fish passage facilities for the safe, timely, and efficient upstream and downstream passage of anadromous salmonids at impediments created by artificial structures, natural barriers (where provision of fish passage is consistent with management objectives), or altered instream hydraulic conditions. This document provides fishway facility design standards for the National Marine Fisheries Service, and is to be used for actions pertaining to the various authorities and jurisdictions of NMFS, including Section 18 of the Federal Power Act (FPA), the Endangered Species Act (ESA), and the Magnuson-Stevens Fishery Conservation and Management Act (MSA) in the Northwest Region (NWR). This document intends to provide generic guidance as an alternative to active participation by NMFS engineers in a design process, for the purpose of providing designs that will be acceptable for fishways that fall within NMFS jurisdictions. If passage facilities are designed and constructed in a manner consistent with these criteria, adverse impacts to anadromous fish migration will be minimized. Instances will occur where a fish passage facility may not be a viable solution for correcting a passage impediment, due to biological, sociological, or economic constraints. In these situations, removal of the impediment or altering operations may be a suitable surrogate for a constructed fish passage facility. In other situations, accomplishing fish passage may not be an objective of NMFS because of factors such as limited habitat or lack of naturally occurring runs of anadromous fish upstream of the site. To determine whether NMFS will use its various authorities to promote or to prescribe fish passage, NMFS will rely on a collaborative approach, considering the views of other fisheries resource agencies, Native American Tribes, non-government organizations, and citizen groups, and will strive to accomplish the objectives in watershed plans for fisheries restoration and enhancement. This document does not address aspects of design other than those that provide for safe and timely fish passage, and to some extent, preservation of aquatic habitat. Structural integrity, public safety, and other aspects of facility design are the responsibility of the principal design engineer, who should ensure that the final facility design meets all other requirements in addition to the fish passage criteria and guidelines contained in this document.

Anadromous Salmonids in the Delta: New Science 2006-2016

University of California, Davis (UC Davis) | July 1st, 2016

As juvenile salmon enter the Delta, they disperse among its complex channel network where they are subject to channel-specific processes that affect their rate of migrati

As juvenile salmon enter the Delta, they disperse among its complex channel network where they are subject to channel-specific processes that affect their rate of migration, vulnerability to predation, feeding success, growth rates, and ultimately, survival. In the decades before 2006, tools available to quantify growth, dispersal, and survival of juvenile salmon in this channel network were limited. Fortunately, thanks to technological advances, much has been learned over the past decade about the role of the Delta in the life cycle of juvenile salmon. One of the most important advances during the past decade has been the widespread adoption of acoustic telemetry techniques. Use of telemetry has shed light on how survival varies among alternative migration routes and the proportion of fish that use each migration route. Chemical and structural analysis have provided insights about when juveniles left their natal river and provided evidence of extended rearing in the brackish or saltwater regions of the Delta. New advancements in genetics now allow individuals captured by trawls to be assigned to specific runs. Detailed information about movement and survival in the Delta has spurred development of agent-based models of juvenile salmon that are coupled to hydrodynamic models. Although much has been learned, knowledge gaps remain about how very small juvenile salmon (fry and parr) use the Delta. Understanding how all life stages of juvenile salmon grow, rear, and survive in the Delta is critical for devising management strategies that support a diversity of life history strategies.