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 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 Compensatory Mitigation Projects Permitted Under Clean Water Act Section 401 by the California State Water Resources Control Board, 1991-2002

California State Water Resources Control Board (SWRCB) | August 2nd, 2008

The purpose of this project, which was funded by the California State Water Resources Control Board (SWRCB), was to evaluate the compliance and wetland condition of compe

The purpose of this project, which was funded by the California State Water Resources Control Board (SWRCB), was to evaluate the compliance and wetland condition of compensatory wetland mitigation projects associated with Clean Water Act Section 401 Water Quality Certifications throughout California. This was done by selecting, reviewing and performing field evaluations for 143 permit files distributed across the 12 Water Board regions and sub-regions of the State. For each permit file we assessed the extent to which permittees complied with their mitigation conditions, including acreage requirements, whether the corresponding mitigation efforts resulted in optimal wetland condition, and if the habitat acreages gained through compensatory mitigation adequately replaced those lost through the permitted impacts. We found that permittees are largely following their permit conditions (although one-quarter to one-third of the time these are not met), but the resulting compensatory mitigation projects seldom result in wetlands with optimal condition.

An evolutionary parsimonious approach to estimate daily reference evapotranspiration

Nature Portfolio (Springer Nature) | March 20th, 2024

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 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 the San Francisco Estuary

Bay Institute | April 8th, 2012

San Francisco Bay enters most of our lives as an obstacle to pass over as quickly as traffic-choked bridges allow. Although this beats earlier attitudes—when we saw the

San Francisco Bay enters most of our lives as an obstacle to pass over as quickly as traffic-choked bridges allow. Although this beats earlier attitudes—when we saw the Bay mainly as a dumping ground, a dam site, or a pit to fill in and pave over—we remain largely oblivious to one of the most remarkable wild resources in urban North America. Beneath our wheels lies a world of interesting and outlandish life, with much that puzzles even the scientists who regularly plumb its depths.

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.