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 extremeness threshold determines the regional response of floods to changes in rainfall extremes

Nature Portfolio (Springer Nature) | August 26th, 2021

Precipitation extremes will increase in a warming climate, but the response of flood magnitudes to heavier precipitation events is less clear. Historically, there is lit

Precipitation extremes will increase in a warming climate, but the response of flood magnitudes to heavier precipitation events is less clear. Historically, there is little evidence for systematic increases in flood magnitude despite observed increases in precipitation extremes. Here we investigate how flood magnitudes change in response to warming, using a large initial-condition ensemble of simulations with a single climate model, coupled to a hydrological model. The model chain was applied to historical (1961–2000) and warmer future (2060–2099) climate conditions for 78 watersheds in hydrological Bavaria, a region comprising the headwater catchments of the Inn, Danube and Main River, thus representing an area of expressed hydrological heterogeneity. For the majority of the catchments, we identify a ‘return interval threshold’ in the relationship between precipitation and flood increases: at return intervals above this threshold, further increases in extreme precipitation frequency and magnitude clearly yield increased flood magnitudes; below the threshold, flood magnitude is modulated by land surface processes. We suggest that this threshold behaviour can reconcile climatological and hydrological perspectives on changing flood risk in a warming climate.

An Implementation Blueprint for Enhancing Groundwater Recharge in the San Fernando Basin

University of Southern California (USC) | December 31st, 2008

The purpose of this report is to analyze the potential of providing ground water recharge in the San Fernando Basin (SFB) using native water, including the identification

The purpose of this report is to analyze the potential of providing ground water recharge in the San Fernando Basin (SFB) using native water, including the identification of strategic plans for the recharge project.

An Independent Scientific Assessment of Well Stimulation in California Volume II: Potential Environmental Impacts of Hydraulic Fracturing and Acid Stimulations

California Council on Science and Technology (CCST) | July 1st, 2015

In 2013, the California Legislature passed Senate Bill 4 (SB 4), setting the framework for regulation of well stimulation technologies in California, including hydraulic

In 2013, the California Legislature passed Senate Bill 4 (SB 4), setting the framework for regulation of well stimulation technologies in California, including hydraulic fracturing. SB 4 also requires the California Natural Resources Agency to conduct an independent scientific study of well stimulation technologies in California. SB 4 stipulates that the independent study assess current and potential future well stimulation practices, including the likelihood that these technologies could enable extensive new petroleum production in the state; evaluate the impacts of well stimulation technologies and the gaps in data that preclude this understanding; identify potential risks associated with current practices; and identify alternative practices that might limit these risks. (See Box 1.1-1 for a short history of oil and gas production in California.) This scientific assessment addresses well stimulation used in oil and gas production both on land and offshore in California.

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.

An Innovative Scheme to Confront the Trade-Off Between Water Conservation and Heat Alleviation With Environmental Justice for Urban Sustainability: The Case of Phoenix, Arizona

American Geophysical Union (AGU) | February 17th, 2023

An integrated framework for stormwater management and life cycle assessment of rainwater harvesting: A comparative study of two underserved communities

Science of the Total Environment (Elsevier) | November 4th, 2024

An Integrated Surface Water-Groundwater Interaction Model for the Carmel River

California State University, Monterey Bay | April 30th, 2010

The Carmel River supplies fresh water to the residents of the Monterey Peninsula within the water district served by the California American Water company (Cal-Am). The S

The Carmel River supplies fresh water to the residents of the Monterey Peninsula within the water district served by the California American Water company (Cal-Am). The State Water Resources Control Board, in 1995, ordered that Cal-Am reduce their annual diversions from the Carmel River Watershed to within legal right (3,376 acre-feet per year). An alternative water source to the Carmel River has yet to be determined, and as a result, Cal-Am must continue to divert more water than their legal entitlement. The current magnitude of diversions has a negative impact on the spawning and migrating habitat of Steelhead (Oncorhynchus mykiss). Existing software in the Tarsier Environmental Modeling Framework was used to model the spatial distribution of surface water along the Carmel River. The model simulated the flow of water downstream from catchment area to the Pacific Ocean. The river channel was represented by a network data set comprised of links, representing individual reaches of the river, connected by nodes. Prior to my work, systematic error in the model was thought to be partially the result of the model lacking a simulation of the interactions between the surface water and the underlying aquifer. A groundwater sub-model was developed to correct for the systematic error. The groundwater sub-model simulated the movement of water between the river channel and the aquifer. Stock variables representing a shallow and deep aquifer were added to each link of the network data set. Simulated water in the surface water stock of each link percolates to these aquifer stocks until the groundwater reaches aquifer capacity, allowing surface water to continue flowing downstream. The model also allows the lateral flow of groundwater according to Darcy’s Law. Quantitative and qualitative analysis of model output compared to observed data showed an increase in model accuracy. Quantitatively, a Nash- Sutcliff Coefficient was improved from 0.88 to 0.97 with the addition of the groundwater model. Qualitatively, a visualization of the longitudinal profile of the river system showed the simulated aquifer controlling the surface flow. A hypothetical application of this model is presented where reducing the pumping rate from the aquifer allowed the wetted river channel to increase by 2.5 km. Future work on the model should include a reservoir sub-model and accounting for spatial variability in the precipitation throughout the catchment area. With these improvements it will be possible to improve predictions of the spatial distribution of surface water along the Carmel River given hypothetical scenarios such as the rate and spatial distribution of pumping from the Carmel Aquifer. Using these simulations to inform decisions of river management could benefit all stakeholders of the river.

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 Introduction to High-Frequency Nutrient and Biogeochemical Monitoring for the Sacramento– San Joaquin Delta, Northern California

U.S. Geological Survey (USGS) | July 11th, 2017

This report is the first in a series of three reports that provide information about high-frequency (HF) nutrient and biogeochemical monitoring in the Sacramento–San Jo

This report is the first in a series of three reports that provide information about high-frequency (HF) nutrient and biogeochemical monitoring in the Sacramento–San Joaquin Delta of northern California (Delta). This first report provides an introduction to the reasons for and fundamental concepts behind collecting HF measurements, and describes the benefits associated with a real-time, continuous, HF, multi-parameter water quality monitoring station network that is co-located with flow stations. It then provides examples of how HF nutrient measurements have improved our understating of nutrient sources and cycling in aquatic systems worldwide, followed by specific examples from the Delta. These examples describe the ways in which HF instrumentation may be used for both fixed-station and spatial assessments. The overall intent of this document is to describe how HF measurements currently (2017) are being used in the Delta to examine the relationship between nutrient concentrations, nutrient cycling, and aquatic habitat conditions.