(BY HUGO)

The Utah Water Law and Water Rights Blog informs that the Utah Legislature passed a bill permitting the capture and storage of precipitations.

This seems to be part of a trend in water law towards regulating ever closer to the upstream reaches of the hydrologic cycle. Such a trend appears justified in areas traditionally left unregulated in order to avoid a "tragedy of the commons" given the increasing exploitation of and competition for a limited resource.

Salient points of the Utah legal provision are:

- Reliance on the doctrine of beneficial use tied to the parcel on which the water is captured and stored;

- Constraints on the volumes of rainwater that can be stored - 2 500 gallons if stored in an underground container, and 2 x 100 gallons covered containers if stored above ground. Question: if stored above ground in uncovered container, would there be no volume limit? If such is the case, would this be an indirect invitation to alter extensively overland run-offs by changing the morphology of one's parcel?

(BY HUGO)

A new bill, Bill C-26, was introduced by the federal minister for Foreign Affairs to the Canadian House of Commons on 13 May 2010 in order to prohibit bulk removal of transboundary waters.

According to Reuters, the Bill fulfills a 2008 promise by the Conservative government and complements existing provincial legislation that covers several bodies of water, including the Great Lakes. Through the Bill, the minister for Foreign Affairs declared that Canada is strengthening its resolve to make sure that there are no exports of bulk water that take place.

The Bill would principally amend the International Boundary Waters Treaty Act (IBWTA), which confirmed and sanctioned the 1909 Boundary Waters Treaty (Treaty) between Canada and the U.S.A.

Apart from adding inspection powers and increasing penalities under the IBWTA, the Bill alters the prohibition on water removals contained in section 13 IBWTA. Section 13 currently reads as follows:

«...no person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located...»

Boudary waters are defined as follows (preliminaty article of the Treaty):

«...the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.»

The prohibition contained in section 13 IBWTA is charaterised by the International Boundary Waters Regulations (IBWR). Sections 5, 6 and 2 IBWR are particularly relevant:

5. Subsection 13(1) of the IBWTA applies only in respect of the Canadian portion of the following water basins: (a) Great Lakes; (b) Hudson Bay Basin; and (c) Saint John — St. Croix Basin.

6. Subsection 13(1) of the Act does not apply to the removal of boundary waters other than the removal of boundary waters in bulk.

2. (1) "removal of boundary waters in bulk" means the removal of water from boundary waters and taking the water, whether it has been treated or not, outside the water basin in which the boundary waters are located

(a) by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or

(b) by any other means by which more than 50,000 L of boundary waters are taken outside the water basin per day.

(2) The removal of boundary waters in bulk does not include taking a manufactured product that contains water, including water and other beverages in bottles or packages, outside a water basin.

The new section 13 contained in the Bill would read as follows:

«(1) ... the bulk removal of boundary waters is prohibited.

(2) ... the bulk removal of transboundary waters is prohibited.»

Whereas the definitions of boundary waters and bulk transfers remain essentially the same, the definition of transboundary waters expands the prohibition of section 13 to waters that flow accross the international boundary in the water basins of the Atlantic Ocean, Arctic Ocean, Gulf of Mexico, Hudson Bay and Pacific Ocean (see section 3(2) and Schedule 2 of the Bill).

As a result, the Bill slightly expands the protection against transboundary bulk water transfers.

A guest post by Professor Marcia Valiante on the Great Lakes Law Blog, concludes that the Bill fills a gap in the legislation but is not ambitious either constitutionally or environmentally, and is perhaps an easy way for the government to improve its rather dismal environmental image.

The Council of Canadians is of the opinion that the Bill is not a ban on water exports and actually weakens the current regime due to the fact that the Bill narrows the definition of bulk removals to exclude water in manufactured products such as beverages. This opinion appears unfounded given that the current wording of section 2(2) IBWR is virtually identical to the wording of the exclusion from the definition of «bulk removal» under the Bill.

(BY HUGO)

Propublica reports on a peer-reviewed article by Stephen Osborn et al., «Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing», which was recently published in the Proceedings of the National Academy of Sciences. Excerpts from the abstract read as follows:

«In aquifers overlying the Marcellus and Utica shale formations of northeastern Pennsylvania and upstate New York, we document systematic evidence for methane contamination of drinking water associated with shale gas extraction. (...) We conclude that greater stewardship, data, and— possibly—regulation are needed to ensure the sustainable future of shale-gas extraction and to improve public confidence in its use.»

The article mentions hypotheses about the mechanisms causing drinking water contamination from fracking: 1) gas migration; 2) leaky gas-well casings; and, 3) increased connectivity of the rock formation due to extensive fracturing. Only options 2) and 3) appear probable to the authors, with leaky gas-well a likely possibility.

Hopefully, this type of evidence will be considered in the strategic environmental study to be conducted on shale gas exploitation in Québec.

(BY HUGO)

The U.S.A. Supreme Court has denied the motion to reopen the Wisconsin et al. v. Illinois et al. case and decree. According to the Great Lakes Law Blog:

«The Supreme’s Court denial is disappointing but not surprising, given the Obama administration’s opposition to having the case heard. While other legal options (such as a case in state court or a lower federal court) are still open, it is doubtful that any new legal case would be resolved in time to prevent the Asian carp from spreading into the Great Lakes. The Great Lakes Environmental Law Center is investigating other legal strategies, but at this point the pressure should be on federal agencies and Congress to take effective action immediately.»

(BY HUGO)

The College of Law at Willamette University along with the Law and Government, the Sustainable Environmental, Energy & Resources Law certificate programs, the Law Review and the Center for Sustainable Communities seek submission of scholarly papers from all disciplines exploring Implementation of the Human Right to Water in the West, to be presented in connection with a working conference to be held at Willamette University in Salem, Oregon, USA on February 3 -5, 2011.

Abstract Submission Deadline: June 1, 2010
Notice of Acceptance: July 1, 2010
Full Paper Submission Deadline: November 15, 2010
Conference Presentation: February 3-5, 2011

(BY HUGO)

The U.S.A. Supreme Court decides today whether to reopen the original case and decree concerning the Chicago Ship and Sanitary Canal (Wisconsin et al. v. Illinois et al.).

Usually, orders from Friday are released on Monday. The Court's decision will shape further actions in the Asian Carp crisis, and hopefully the Great Lakes Law Blog will provide legal insights into what can be expected in the near future.

An article by Gabriel Nelson in the New York Times informs that more litigation before lower State or Federal Courts will follow if the Supreme Court declines to reopen the case. According to the article, one potential plaintiff could be Canada.

It would be surprising to see Canada enter the fray in this file, as Ontario has been the point authority in charge since the beginning of the Asian Carp crisis on the Canadian side: Ontario is the only Canadian stakeholder to have filed a memorandum before the Supreme Court, and bilateral federal/provincial agreements with the federal government of Canada might indicate that Ontario could take responsibility in Great Lakes management matters.

In any case, these potential developments might answer the question raised by this older post on the potential use of the recourse provided under Section 7.3 of the 2008 Great Lakes Compact by one of the Canadian Provinces.

While a refusal to reopen the original case and decree might induce significant delays potentially disastrous for the Great Lakes ecosystem, it might also rebalance the 13 December 2005 Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement which, from an institutional perspective, is tilted in favour of American interest due to U.S.A. Supreme Court original jurisdiction.

If the Court declines jurisdiction, it could be argued that the potential for federal judicial interference decreases, thereby putting the riparian States and Provinces on a more equal footing and more firmly in charge of their basin.

(BY HUGO)

The U.S.A. House of Representatives Committee on Energy and Commerce, Minority Staff, released yesterday a report on the «Chemicals Used in Hydraulic Fracturing». A part of its executive summary reads as follows:

«The most widely used chemical in hydraulic fracturing during this time period, as measured by the number of compounds containing the chemical, was methanol. Methanol, which was used in 342 hydraulic fracturing products, is a hazardous air pollutant and is on the candidate list for potential regulation under the Safe Drinking Water Act.

Some of the other most widely used chemicals were isopropyl alcohol (used in 274 products), 2-butoxyethanol (used in 126 products), and ethylene glycol (used in 119 products). Between 2005 and 2009, the oil and gas service companies used hydraulic fracturing products containing 29 chemicals that are (1) known or possible human carcinogens, (2) regulated under the Safe Drinking Water Act for their risks to human health, or (3) listed as hazardous air pollutants under the Clean Air Act. These 29 chemicals were components of more than 650 different products used in hydraulic fracturing.»

The U.S. congressional committee notes that common chemical compounds in fracking fluids are known human carcinogens and can damage the central nervous system, liver and kidneys. For example, 2-butoxyethanol, which was used in 126 fracking fluid products from 2005 to 2009 in the U.S.A., is easily absorbed and distributed in the human. It can cause the destruction of red blood cells, as well as damages to the spleen, liver and bone marrow (see p.7 of the U.S. congressional committee report).


This is a very interesting read considering the paucity of information regarding fracking fluids in the recent BAPE report on shale gas exploitation in Québec (see p.57-58 of the BAPE report for public concern on human and environmental contamination as well as p.123-125 for the recommendations).

(BY HUGO)

Disputes related to shale gas exploitation have arrived before the courts in the U.S.A. In RailRoad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water, the issue relates to the re-injection of drilling fluids underground after their use for hydraulic fracturing. The Court thus describes the factual background:

«Fracing a well entails pumping large volumes of water and sand into reservoir rock, which then mixes with saline formation water and must be flowed back out of the well before production can begin. A company fracing a well must dispose of the resulting waste. Most companies do so by injecting the waste into subsurface zones which are naturally saline environments, usually in old wells converted to injection wells. A company seeking to convert a well to an injection well for oil and gas waste must apply to the Commission for a permit.»

The Commission can grant an injection permit when, inter alia, the use or installation of the injection well «is in the public interest». In this instance, the Commission granted a permit to a fracking company notably because the «production of hydrocarbons for use by the people of Texas and industry serves the public interest».

This determination is contested before the Court, and the crux of the matter turns on the degree of discretion that the Commission has in interpreting the notion of public interest.

The Court finds that «the phrase “public interest” is anything but clear and unambiguous». As a result, the Court must defer to the Commission's interpretation of the notion of public interest, and the Commission's decision to grant an injection permit stands. A more substantial study of the courts decision by Stephen Dillard, Barclay Nicholson and Kadian Blanson from Fulbright & Jaworski LLP can be found here.

This case is not relevant in the context of both the regulatory regime for natural resources management and the administrative law applicable in Québec. Nevertheless, this case illustrates the risk related to the interpretation of legal notions like public interest when they are tied to authorisation regimes relying on administrative discretion. As argued in a previous post, the notion of public interest found in the new Québec water withdrawal authorisation regime should be further defined to avoid an excessive degree of discretion.

Meanwhile, an article by Robert Howarth et al., «Methane and greenhouse-gas footprint of natural gas from shale formations», has just been published in Climatic Change Letters. Excerpts from the article's summary read as follows:

«[A n]ew study demonstrates that shale gas is not the planet-friendly gas it is thought to be. Natural gas extracted from shale formations has a greater greenhouse gas footprint - in the form of methane emissions - than conventional gas, oil and coal over a 20 year period. This calls into question the logic of its use as a climate-friendly alternative to fossil fuels[...]

[O]verall, during the life cycle of an average shale-gas well, between four to eight percent of the total production of the well is emitted to the atmosphere as methane, via routine venting and equipment leaks, as well as with flow-back return fluids during drill out following the fracturing of the shale formations. Routine production and downstream methane emissions are also large, but comparable to those of conventional gas.»

In light of the Texan case above, one may wonder whether climate change and its potentially catastrophic consequences that are brought about by fossil fuels such as shale gas are in the public interest.

Finally, another excellent article by Louis-Gilles Francoeur in Le Devoir (here - in French) provides a great perspective on the management of energy resources in Québec.

(BY HUGO)

A cooperation agreement on environmental matters regarding the management of Lake Champlain between New York, Vermont and Québec (the Agreement - French version here), signed in March 2010, was confirmed by governmental decree 918-2010 on 3 November 2010.

The Agreement is the latest in a series of agreements between the parties that date back to 1988. In 1990, the American Congress passed the Lake Champlain Special Designation Act (Public Law 101-596) leading to the creation of the Lake Champlain Basin Program, which is now implemented through the Opportunities for Action: An Evolving Plan for the Future of the Lake Champlain Basin (the French version of the Plan, dated 2003, provides details about related institutional and legal frameworks).

The Agreement confirms the role of the Lake Champlain Steering Committee in the cooperative management of the basin. The Steering Committee is notably mandated to implement the Plan and foster interactions between regulation and management programmes related to the monitoring of Lake Champlain (see section 2.6). The Agreement and the Plan recognise the ecosystem approach to basin management.

(BY HUGO)

The Great Lakes Law Blog reports that the US Supreme Court denied Michigan's renewed motion for preliminary injunction to close the Chicago Canal and prevent a Great Lakes-St. Lawrence River basin invasion by the Asian Carp.

The Supreme Court was as concise as for the denial of the original motion in January, so it remains unclear why the preliminary injunction is rejected.

(BY HUGO)

The recent South Carolina v North Carolina case from the U.S. Supreme Court confirmed the test that non-state interveners must pass to take part in an action based on the Court's original jurisdiction between two or more states.

According to Jeff Kray from Marten Law who provides a detailed analysis of the case, this is a significant decision notably because it can have the following effect:

«The Supreme Court’s procedural decision in South Carolina v. North Carolina opens the door to private water users to intervene in water resource disputes between states and foreshadows more active private party involvement in such cases.»

More involvment from private actors might mean, on one hand, that stakeholder participation could increase and ultimatly reduce the importance of artificial state boundaries superimposed on natural watersheds, but on the other hand, it might also mean increased costs and delays in resolving water disputes as well as comparative disadvantage for poorer water users.

Finally, because the test for non-state actor involvment is not tied in some way to the states' use of their legislative and administrative power to apportion water within their own jurisdiction, increased non-state intervention might ultimatly result in a need for additional jurisprudential developments to clarify the states' role and powers in water apportionment.

(BY HUGO)

An article by Rachel Waldholz from High Coutry News, «Water fallout: Utah's first nuclear plant won't float without water rights», illustrates the growing competition for scarce water resources resulting from growing energy demand.

Contrary to the water quality challenges raised by hydraulic fracturing on the East Coast, the issue in this instance is quantitative apportionment between users.

The developers of a projected nuclear power plant need to secure the water rights for the use of 50,000 acre-feet/year - enough water to supply up to 100,000 homes - to cool the reactors of the proposed 3,000 megawatt plant, which would produce enough electricity to power nearly 3 million households.

As Rachel Waldholz writes, securing these water rights in a prior appropriation jurisdiction for nuclear energy production would result in the following situation:

«If more water is taken from the river, the agencies may not be able to keep stream flow high enough to protect several species of rare and endangered fish, says Wayne Pullan of BuRec's Provo office.

And if the Green River drops, Blue Castle [the project developer] would have early rights to what remains: While San Juan's rights are junior (2001), Kane County has 1964 rights to 29,600 acre-feet. That places it ahead of many rights holders, including the BuRec's Central Utah Project, which supplies water to much of the Wasatch Front. Pullan says that in a drought, calls from such senior rights could short the project's users -- including Salt Lake City.

This is part of a much larger tangle. If Utah develops just 360,000 more acre-feet of Colorado Basin water, it will hit its limit (1.4 million acre-feet) under the Colorado River Compact. But it has handed out paper rights to an additional 1.1 million acre-feet. All those rights holders, like Kane County, still have the right to develop. But Utah will have no excess water to supply them, and so water will be rationed by priority date across the state. In that context, Blue Castle's request is nothing to sniff at -- it's a seventh of the water Utah has left.

At times, the Blue Castle proposal looks like a water right in search of a project. Kane County has five more years to prove it is putting its water rights to "beneficial use," or risk forfeiting them, according to Mike Noel, executive director of the Kane County Water Conservancy District.»

This situation provides an illustration for many prominent legal issues in current water management:

- How to make more flexible legal frameworks for apportionment between users that require stable and secure access to water in the context of growing hydrological variability and uncertainty due to drought or climate change? In this context, the inter-state allocation of fixed quantities of water through Compacts or Supreme Court adjudications appears very rigid and difficult to adapt to a constantly changing environment. Another related question is the chronological hierarchy of water rights under prior appropriation: is it really appropriate to favour energy production over drinking water provision in case of drought simply because the water right used for energy production was created before? Regulated riparianism offers an alternative whereby water rights can be prioritised in statutory provisions according to the type of use regardless of the moment the rights were created;

- How to protect environmental flows and the components of aquatic ecosystems in hydrological systems characterised by scarcity and «full or close to full» water allocation? In this respect, prior appropriation has been abundantly described in legal doctrine as a disincentive to environmental protection due to the beneficial use requirement which can be seen at work here.

(BY HUGO)

A new report authored by Sharlene Leurig and titled «The Ripple Effect: Water Risk in the Municipal Bond Market» was published by Ceres last week.

The report studies water scarcity risks for public water and power utilities in the U.S.A and details the related financial risks. This is a very interesting read. Particularly refreshing is the section on why the model for assessing risks related to power utilities may be wrong (see p.41-42 and Annex C). You don't see such an admission often, but it is entierly consistent with the original intent: obtain the most accurate risk assessment possible rather than portray an abstract model as infallible.

(BY HUGO)

Following denial of an earlier motion in January, The Great Lakes Law Blog reports that Michigan has just filed a renewed motion with the US Supreme Court for a preliminary injuction to close the Chicago Ship and Sanitary Canal to prevent a detrimental invasion of the the Great Lakes by the Asian Carp.

The renewed motion from Michigan focuses mostly on the fact that the balance of equity is in favour of Michigan. The economic analysis of the respective harm suffered by Illinois and Michigan stresses that possible damages to the local economy have been greatly exaggerated. Temporary closure of the Canal locks is even more urgent since Asian Carp DNA has now been found in Lake Michigan.

These are important arguments. However, the Supreme Court did not give any clue on the motives for rejecting the initial preliminary injunction in January, and these arguments could be aimed at the wrong target.

One major argument from Illinois to ask for denial of the initial preliminary injunction was based on lack of jurisdiction. Essentially, reopening the Wisconsin vs Illinois Supreme Court Decree governing the Chicago Canal diversion is not appropriate because the issue is unrelated to the substance of the decree, i.e. the amount of water diverted. Moreover, Illinois argues that it is not the owner and operator of the Canal (the US Army Corp of Engineers appears to be that).

Michigan initially addressed the jurisdiction issue in its Motion to reopen and for a supplemental decree. The renewed motion from Michigan addresses additional issues related to the jurisdiction argument from p.35 to 37.

According to Michigan, there are two avenues for its action to succeed: 1) under the Wisconsin vs Illinois Decree; 2) under the original and exclusive jurisdiction of the Supreme Court on all controversies between two or more state. Michigan argues that Illinois' involvement as a party in this action is essential because only Illinois may provide some aspects of the relief sought by Michigan: according to Illinois state law, only Illinois has the power to block the passage, capture and eradicate Asian Carps.

Despite this, Michigan writes:

«Michigan does not make this request lightly or without recognition of the extraordinary nature of the relief sought in the context of the Court's limited exercise of original jurisdiction. Michigan does so in these unique circumstances, out of its responsibility to protect one of its greatest resources from an imminent threat of extraordinary harm.» (p.9)

The jurisdiction question will possibly be a decisive issue.

Beside the legal battle, significant political developments in Washington DC this week (see Circle of Blue) might provide an alternative solution to the Asian Carp invasion.

(BY HUGO)

In the U.S.A., current public health guidelines call for drinking water fluoride levels between 0.7 milligrams per liter and 1.2 milligrams per liter.

However, the U.S. Department of Health and Human Services (H.H.S) now recommends that fluoridation be pegged at 0.7 milligrams, the bottom level of the current guidelines' range. Moreover, on 7 January 2011, the U.S. E.P.A. and the H.H.S., announced that they would review the guidelines to ensure maximal health protection (see E.P.A.'s website for background sources).

One of the issues appears to be the possible adverse health impact of cumulative fluoride ingestion from other sources than drinking water (toothpaste, processed food with high fluoride content due to traces of pesticides, etc).

In Québec, optimal drinking water fluoride levels are set at 0.7 milligrams per liter under the Regulation prescribing the optimum fluoride concentration to prevent tooth decay. One eye should be kept on developments South of the border in the event that the E.P.A. review detemines that a lower fluoride concentration is more protective of public health.

(BY HUGO)

Just a quick post to highlight the creation of a new info source on water law with a focus on the neighbouring New York State, the New York Water Law Blog by Rachel Treichler.

(BY HUGO)

A recent article by Professors Robert Abrams and Noah Hall to be published in the Natural Resources Journal and available online here, gives an overview of issues related to the Water Energy Nexus in the USA.

Whereas most peer-reviewed articles in law on the water energy nexus up to now seem to examine only particular issues such as desalination or coal bed methane extraction, this article provides a very thorough study of (and an excellent source of references on) most of the issues related to increased competion for water resources in a context where energy demand increase requires more water as a productive input.

Particularly interesting from a legal perspective is the example of oil shale exploitation in the Colorado basin (p.40-45).

It also provides reflections on the emerging concept of water security (see p.16-29) which ties to current research by Professors Patricia Wouters and Sergueï Vinogradov as well as Bjorn-Oliver Magsig to be published in the Yearbook of International Environmental Law.