Environmental Law Ch 4-6

EPA Rating Definitions: EO

Environmental Objective: EPA identifies significant environmental impacts to avoid in order to adequately protect the environment. -corrective measures may require substantial changes to preferred alternative or consideration of another project alternative (including no action alternative)

EPA Rating Definitions: EU

Environmentally Unsatisfactory: EPA identifies adverse environmental impacts that are of sufficient magnitude that the proposed action must not proceed as proposed.

Federal Planning (Air Pollution)

Essentially linked to the federal laws -Congressional legislature -Judicial decisions -Executive orders & agency regulation

Federal Powers and Development

Feds usually defer regulation, use, development to state but: -feds have significant role due to: --major $$ support of development --role in Navigation --role in international treaties --national regulation of quality --water associated with public land --supreme court most often rules in interstate disputes/issues/projects ---commerce clause ---navigation ---property and treaty power ---national defense reasons

Air Quality Act 1967

First comprehensive federal attempt at air quality control (more teeth) -Organized US into 10 "atmospheric regions" --Based on meteorology, topography --Some boundaries modified for special circumstances of pollutant concentrations -Organized 247 "air quality regions" based on --Jurisdictional boundaries created for disputes/enforcement --Urban-industrial concentrations --Purpose: to provide more organized implementation of standards

Clean Air Act 1963

First national air quality act that went beyond research/investigation:

Protecting Surface Water Quality: History: Mid 1900s:

Greater population, more issues, more concern. Prompted more complex legislation: -1930s/1940s: Feds began funding WWTPs -Federal Water Pollution Control Act (FWPCA) of 1948: --Formalized federal obligations re: quality control ---But no definition of pollution or standards provided --States had primary responsibility to enforce act --Feds: financial and technical assistance to states --Amended in 1956 & 1965: strengthened role of feds but still left states in charge ---Increased funding at the federal level

Supply & Use: Groundwater Storage

Groundwater issues -Downstream & "tributary" "connections" & impacts -Subsidence -Quality problems (salinity, toxins, fracking, etc.) -Aquifer "mining" (i.e., the Ogallala aquifer) -Competition for supply & well interference -Well permitting variations (lack of data in many areas)

Motor Vehicle Air-Pollution Control Act of 1965

HEW: -Secretary of HEW authorized to prescribe a "standards application" to any class of new motor vehicle/engine -Stressed need for uniformity of standards

Water Issues: Global Climate Change

-100-150 years of recorded data --Forensic records ---Tree rings (400 years), ice cores, coral ---Paleo-hydrology (ancient floods/geologic record) --Are we in a warming period or in for long term change? --How will GC impact western US society and the management of its resources? --Issues of supply, allocation, etc

Early legislation: Air Quality

-1800s: Communities attempted to regulate smoke from steam boilers --1880s: Ordinances passed by Chicago/ Cincinnati --1890s: Ordinances passed by New York City, Pittsburgh, State of Ohio -1952: Oregon passed a comprehensive air-pollution law & created a state air pollution agency

US Forest Service (Dept of Agri)

-1905 -Gifford Pinchot --1st chief forester --Yale forestry professor --promoted conservation -Mission: --admin/protect national forests --conduct research --cooperate with state and private owners to promote sound forest management

Colorado Water Conservation Board

-1927 under CO dept of Natural Resource -Goal: protection and development of state's waters --flood control/protection, policy, loans and grants --instream flow and lake level program admin -Structure: -- 15 members 3 yr term --govern appoints from each river basin subject to senate confirmation --one member from city/co of Denver --other members ---director of natural resources ---state engineer ---commissioner of agriculture --director of CWCB

Protecting Surface Water Quality: History: Late 1900s:

-1960s: A watershed decade in water policy: --Awareness: Rachel Carson's Silent Spring --Events: (brought more public awareness) ---1969: Cuyahoga R near Cleveland, OH caught fire as a result of industrial pollution ---1969: Major oil platform leak off Santa Barbara, CA --Result: FWPCA of 1972: ---Mandated a process for water quality control ---Formed a foundation for current practices ---EPA now in existence

Environmental Protection Agency (independent/hybrid)

-1970 -combining DOI, HEW, FDA & DOA -Manages --NEPA --Clean Water Act --Safe Drinking Water Act --Resource Conservation and Recovery Act (RCRA) --Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) --National Pollutant Discharge Elimination Systems (NPDES)

National Ambient Air Quality Standards: Review process:

-5 year cycle -Based on recent data and trend information -Goal: to ensure standard viability over time -Drawbacks of review process: --Usually controversial (agreement of stakeholders difficult) --Instigates lawsuits (e.g., trucking orgs, industry groups) ---Often based on cost-benefit balance - disagreement here...

What is EIS?

-A full disclosure document -Two forms: Draft and Final -FINAL: Reports the sponsoring agencies summary and public/other agency comments.

Water Doctrines: A Comparison: East

-Abundance of supply -Quality -Large private land mass -Simpler administration -Ownership: --Riparian doctrine ---Water tied to land

Public Trust (Water)

-Applies to natural resources --Water is NOW taking a longer look at public trust -concept: public entitlement to the benefit of natural systems --Thus: public agencies consider them selves as holding natural resources in the public trust ---role: overseers water use (on a federal or state/local level) - even though other entities own the right to the water ---result: regulatory and police power over resources

Motor Vehicle Control Act of 1960

-Authorized research into pollution by autos -No enforcement or standards

Bureau of Land Management (Dept of Interior)

-BLM -Owns/Manages most of US range land --Nation's single largest landowner: 261 million acres --Ranchers can graze cattle on BLM lands for low fees --Low fees encourage overgrazing

Protecting Surface Water Quality: History: 1970s:

-Clean Water Act of 1977/Water Quality Act of 1987: --Strengthened FWPCA (coined the Clean Water Act): increased federal role: --Set clear water quality standards/objectives in US --Considered: ---Chemical, physical, biological integrity ---Health of fish, shellfish, and wildlife ---Mandated all waters to be fit for fishing and swimming --Approach strategy was to combine: ---Restrictions on dischargers ---Use of ambient quality standards -Result: National Pollution Discharge Elimination System (NPDES) developed

Drinking Water Quality Protection: Protected system categories: 3 Categories:

-Community systems -Non-transient non community systems -Transient non-community systems

Water Issues: Administration/Management Issues

-Complexity of administration/management laws --ESA, NEPA, CWA -Stakeholders at the federal, state, local levels -Complexity of ownership (several water doctrines)

NPDES Components:1. Categorizes 3 pollutant types: Toxins

-Considers: toxicity, degradability, presence in organisms, persistence, etc. Added in CWA 1978.

NPDES components: Concentrated Animal Feeding Operation (CAFO) restrictions:

-Cooperative approach agreed to by USDA and EPA -Regulation varies on size of operation -Large operations: >1000 cattle, 125000 chickens, etc. -Requires permit -Requires nutrient management plan -Medium operations: 300-999 cattle, 37500-124999 chickens -Requires permit if a ditch carries wastewater or manure to a surface water body or if animals contact a surface water body -Small operations: <300 cattle, <37500 chickens...etc. -Little regulation unless indentified as a problematic pollutant source

Other Federal Agencies Impacting Water

-Council of Environmental Quality (CEQ) -NOAA -National Weather Service -Department of Health - US Coast Guard

Colorado Water Conservation Districts

-Created by General Assembly --4 in CO 1) Colorado R CD 2) Republican R CD 3) Rio Grand R CD 4) Southwestern Water CD -policy making organizations --project and develop waters in its jurisdiction -jurisdiction: Large geographical area of the state --conservancy district are w/in conservation district boundaries -may: --tax --issue bonds --issue user fees -50 in CO -Created to construct, repay, operate water projects

US Geological Survey (Dept of Interior)

-Created in 1879 -Scientific agency responsible for data collection, research, review of data related to: --water resources --geological resources --life sciences --mapping --remediation of groundwater contamination -non-regulatory

Scope/Coverage of EIS

-Definition: "how far beyond the immediate project does the EIS coverage need to look (regarding) environmental impacts?" -Direct and Secondary Impacts? -"Downstream" and "upstream" -"Sufficient manner"

Mobile Source Performance Standards

-Designed to reduce hydrocarbon, CO, and nitrous oxide emissions from motor vehicles -- Considered most successful provision of CAA -Operation: Federal Motor Vehicle Control Program --EPA set emission standards --Car manufacturers required to meet standards ---Controversial: Manufacturers argue limits are too stringent. Often granted deadline extensions -Success story: Lead emissions limitations --Shift to no-lead gasoline --94% reduction of lead from 1980-1999 --Original source: Autos. Today: metal processing plants.

No Significant Deterioration (NSD) of Attainment Areas

-Developed in response to non-attainment designation being based on "narrow vision" -Clean/prestine areas: may already meet NAAQS --therefore we can pollute to the legal limit -NO! NSD Policy implemented a No degradation policy --limits bringing in new industry that may still allow for meeting NAAQ Standards -Some entities believed NSD meant that they would be punished for livinging a clean area

Surface Pollutant Discharge Controls (NPDES)

-Discharge permits (NPDES) required for: -All point sources -All municipal and industrial stormwater systems -Concentrated animal feeding operations (CAFOs) -Permits: >400,000 sources regulated in US -Process is specific to: -Type of pollutant -Type of discharger -Characteristics of the local watershed (newer process)

SIPs:

-EPA must approve plan -EPA may develop plan for a state with unapproved SIP -SIP must provide attainment in 3 years (2-year extension)

NPDES Stormwater Control: Two phases of process: Phase II: Regulation

-Elements of regulation: -Public education and outreach -Public participation/involvement -Illegal discharge control -Detection and elimination programs -Construction/Post construction site runoff control -Pollution prevention/good housekeeping

Drinking Water Protection: SDWA:

-Established National Interim Primary Drinking Water -Regulations to protect human health -Established Secondary Standards to protect the aesthetic quality of drinking water -Slow in development (original goal for final standards: 1975; final establishment: 1992) -Standard components: -Maximum Contaminant Level Goals (MCLG): non-enforceable health goals -Maximum Contaminant Levels (MCL): enforceable -Drinking Water Priority List (DWPL): 77 substances requiring assessment; replaced by contaminant candidate list which eventually became the final list

Plaintiff

-Has burden of proof and must prove 1. Procedural inadequacies 2. Documentation inadequacies 3. Bias/methodology, etc. inadequacies 4. May introduce info as fitting to case 5. Torpedoing is not legal (one cannot hold back and then sink the EIS after the fact)

Colorado Water Courts

-Have jurisdiction over all water right decree --surface --tributary GW --non-tributary GW --Denver basin water --Geothermal water -Functions: --review cases of reasonable diligence for conditional water rights --award decrees of rights/set priority dates --review and decide on: --changes of water rights ---augmentation plans ---appeals based on state actions

Water Issues: "Culture" & Change

-Heavy use in the desert (ground & surface) --Growing cities --State compacts and their future application -Conservation --Technology --Cost incentives -Legal "waste"... perfection of rights -Better collaboration among stakeholders -Leadership

Mobile Source Performance Standards: Other components:

-Individual Vehicle Tailpipe emission standards (Title II) -CAFE Standards (Corporate Average Fuel Efficiency) --Fuel efficiency --Vehicles under 8,500 lbs sold in US --2004: Cars = 27.5 mpg, light trucks=20.7 mpg --2011: 2025 car standards set to 54.5 mpg --Fines for non compliance -Cleaner fuel development --MTBE additives and ethanol (oxygenated fuel) ---Often used in winter (where inversions prevalent) ----More expensive per gallon, lower mileage ----MTBE (methyl tertiary butyl ether) found in drinking water ----Corrosion issues -Vehicle certification for emissions

Indoor Air Pollution

-Indoor air contains higher concentrations of pollutants than outdoor air --6k ppl/day die from IAP -Average US citizen spends 90% of time indoors --exposed to synthetic materials not comprehensively tested --winter: can be worse as to improve energy efficiency, building ventilation systems often sealed off, trapping pollutants inside

Drawbacks: Clean Air Act 1963

-Ineffective, few teeth for enforcement --limited enforcement activity --Did not define air pollution (standards)

Criteria Pollutants

-Initially perceived as major problem pollutants -Criteria pollutants --Carbon monoxide (CO) --Lead (Pb) - not in original list --Nitrogen oxides (Nox) --Ozone (O3) --Particulates --Sulfur Dioxide (SO2)

Water Issues: Land Use Issues

-Land use & water ownership --Point / non-point source pollution ---Leaching from agricultural lands/pesticides/herbicides ---Urban runoff --Sedimentation/erosion -Riparian corridor impacts --Bank stabilization issues --Shade/temperature control

NPDES Stormwater Control: Two phases of process: Phase I: Permits

-Large population (>250,000): -Medium population (100,000 to 250,000) -Small population (<100,000): no permit required -Note: EPA has latitude in dealing w/individual communities

Drawbacks of Motor Vehicle Air-Pollution 1965

-Limited effectiveness: considered economics & technology development w/regard to feasibility --Thus: Gave industry an "out"

Groundwater Quality Control

-Mainly managed at state and local level. -Specific to local areas and situations -Apparent lower priority than surface water (changing)

State Administration/Monitoring/Enforcement

-May add monitoring systems to supplement EPA monitoring -Issue emissions permits/EPA can veto -Operate vehicle emission programs -Monitor/identify major polluters -Quantify emissions reductions from better land use planning -Implement special programs to reduce pollution (no burn days)

SIP Must Include

-Modeling of quality and pollution emissions -Determination of the level of emissions that will allow meeting federal standards -Amount of emissions from mobile sources -Amount of emissions from stationary sources -Timetables for emission reduction/attainment -Allowable annual emission budgets

National Marine Fishery Services (Dept of Commerce)

-NMFS -1871 as US Commission of Fish and Fisheries --subunit of NOAA -Responsibilities: --protection of marine mammals in the us waters --anadromous fish protection --manages >3M sq miles of ocean/coastal zone

National Park Services (Dept of Interior)

-NPS -Created in 1916 to administer parks and monuments --388 sites totaling 32 million ha --includes national historic sites, national recreation areas, national wild and scenic rivers ---273 million visitors in 2006

National Resource Conservation Service (Dept of Agri)

-NRCS -Formerly Soil Conversion Service (SCS) (prior 1994) -1935 -Works with farmers to develop conservation plans for farms --asses the land and land use practices --prepare an integrated soil conservation plan --research/outreach --implement conservation measures -Conservation districts: 3k districts operate with fed direction, authorization and funding but are organized by the states -

NSD Solution

-NSD/PSD policy (to allow some degradation) -3 class attainment "areas" (adopted: 1977) --Class I: most pristine. Minimal increase in degradation permitted --Class II: allowed a moderate amount of degradation in accordance with moderate, well-controlled growth --Class III: Most degradation allowed from new sources...at times allowed to reach secondary standards.

New Source Review (NSR)

-New pollutant source review (adopted: 1977): --Considers "major" (non-routine) modifications to industry that may add pollutants to existing levels (a new source) ---Added pollutants would fall under more stringent standards (of new sources) ---Example: adding electrical generating plants (i.e., coal) -NSR Problems/history: --Early years: little enforcement/abuse ---Expectation/hindsight: Old pants will be retired (did not happen)

Alternatives

-No Action (Required) -Preferred action -Other Alternatives (deviations)

National Ambient Air Quality Standards: States: Standard Implementation

-Once approved, responsibility of maintaining standards is passed to the states -States required to develop implementation plans (SIPs) --Free to use any type of restriction desired to meet standard --Free to set standards for individual plants, locations --May go beyond federal standard

National Ambient Air Quality (NAAQ) Standards

-Outgrowth of 1970 amendments -Ambient air quality: quality of air that is representatively sampled for an area --247 air quality regions arranged based on: ---Common pollution sources ---Common weather characteristics

The EA (Environmental Assessment)

-Precursor to the EIS: Contains: -Brief description of the proposed action -Reasonable alternatives, -Probable environmental impacts. Considers: -Cumulative impacts when determining that a proposed action significantly affects the environment. Requires: -Public notice of availability of EA documents. (Each agency has own regulations concerning the public notice (scoping) requirements). -A "scoping period" is not required to prepare an EA. -Often, agencies use scoping to define alternatives or determine significant environmental impacts. Result: -FONSI (Finding of No Significant Impact) -Determination that an EIS is required

Implications of Winter's Rights

-Provided Native Americans with definitive rights and recognition of the vitality/viability of their rights. -Precedent: --Winters rights have a seniority date that coincides with the date of the establishment of the reservation ---eventually was applied to other federal reservations --rights are under federal, not state law --Native Americans could now be senior power brokers - a threat to other users

legal arguments related to how we "own" & apply water to beneficial use: Issues

-Purpose of use -Suitability of use to the watercourse -Economic value of use -Social value of use -Harm associated with use --Practicality of avoiding harm -Practicality of adjusting quantity of use -Protection of existing values of water and associated land -Equity between water user and injured parties

Bureau of Reclamation (Dept of Interior)

-Reclaiming the arid west -provide water for irrigation -promote growth -promote well being for small farms in the west -provide water for recreation, fish & wildlife, flood control, navigation

Sole Source Aquifer Protection Program

-Recognized GW drinking water source. Additional protection warranted -(50% plus of a community using an aquifer). -Established as part of SDWA/amended in 1986, 1996. -1996 amendments: -Communities, individuals, organizations can petition -EPA to protect their GW drinking supply -EPA may approve projects (permit authority /financing) -EPA may work with with special problems such as certification of gasoline storage facilities, etc. -1986 Amendments: -Wellhead protection program established. To prevent contamination by infiltration into drinking water wells

MAQC/RAQC

-Recommended/initiated use of oxygenated fuels (MTBE - groundwater contamination problem) -Denver Brown Cloud Study - 1980s --Indicated major components ---street sanding particulates ---wood burning particulates ---auto traffic emissions --Recommendations/initiations of ---New street sanding techniques ---Wood burning regulations/banning of wood fireplaces ---traffic regulations addressing: smoking vehicles, idetime

Freshwater Systems

-Relatively pure -few dissolved salts -rare on earth compared to salt water --only 2.5% of earth's water is fresh --most freshwater is tired up in glaciers and ice caps -unequally distributed (specially) across earth's surface --different regions posses different amounts of groundwater, surface water and precipitation --many areas with high population density are water poor and face serious shortages - distributed unevenly in time (annual water balance)

Ambient Water Quality Control

-Represents a 2nd regulatory strategy beyond NPDES process (new) -Tends to focus on nonpoint sources -Covers: Interstate water bodies -Recreation/Water supply/Aquatic life/Agriculture -Standards are subject to federal review -Compliance level (current non-impaired waters): -61% of stream miles -54% of lake acreage -49% of estuarine square miles -22 % of Great Lakes shorelines

Winters Water Rights

-Require --No diversion --No beneficial use --No permit ---to divert under state law --Cannot be lost due to non use or perfection -May be classified as aboriginal --if the reservation is on aboriginal lands the seniority of the rights is time immemorial -Winters Rights is one of 3 species of Indian water rights --Aboriginal --Pueblo --Winters

NPDES Components:1. Categorizes 3 pollutant types: Nonconventional:

-Requires Best Available Technology (BAT): (economically/technologically achievable) -More rigorous than BCT, but still considers cost. -Specific to type of pollutant. Pollutant types: - Anything not in list above (thermal pollution)

NPDES Components:1. Categorizes 3 pollutant types: Conventional

-Requires Best Conventional Technology (BCT) - considers costs v. benefits of control. -Considers age of equipment, process, engineering, etc. -Types of pollutants: -BOD/Total suspended solids/pH -Fecal coliform -Oil and grease

National Ambient Air Quality Standards: Standard development process:

-Research culminates into an EPA criteria document for each pollutant. Research must document: --Harm to humans/environment --Methods of control -Two standards developed: --Primary: necessary to protect human health ---Based on most sensitive individuals: children, elders --Secondary: designed to protect public welfare ---Visibility, animal life, buildings/material, plant life -Note: Primary and secondary standards often set for long term (annual average) and short term (24 hours or less) effects.

Water Utilities (Private)

-Rights to divert, store, distribute to customers -Facilities usually owned -Corporation, Partnership, Sole Proprietorship -Water sold as a commodity/possession -- conflict with some states regarding public trust -subject to regulation as a monopoly or exclusive franchise --Defined service areas --non-discrimination --rate regulation (state) --reasonable profit --owns water rights

Water Doctrines: A Comparison: West

-Scarcity of supply -Quantity and quality -Large public land mass -Complex Administration -Ownership: --Appropriation doctrine ---Water separate from land

Mutual Water Companies (Private)

-Set up w/shareholders/stock owners --goal to serve shareholders thus shareholders are customers -some are regulated as public utilities -profit/non-profit

Minimal content requirements of EIS

-Statement of environmental impacts (positive/negative) of the proposed action -Any unavoidable adverse environmental impacts -Alternatives (including no action) -Relationship between short term uses of the environment and enhancement of long term productivity -Irreversible commitments of resources

Air Quality Act 1967 Requirements:

-States required to adopt ambient air standards -HEW could set/impose standards (for stationary sources) on states -State adjustments to standards required HEW approval -States required to develop implementation plans (SIPs) - Subject to HEW approval

Water Issues: Infrastructure Development/Maintenance - O&M/Removal

-Storage, treatment (desal), conveyance: --Lifespan of facilities...replacement cost? --Operation and maintenance costs ---Funding, who pays? ---Facility ownership ---Liability -Building storage vs. removal of dams

National Ambient Air Quality Standards: Standards: Maintenance Areas

-The Clean Air Act defines a "maintenance area" as the geographic region previously designated nonattainment, and subsequently redesignated to attainment. -EPA takes this action only after monitoring data demonstrate the air quality standards are being met, and a maintenance plan has been developed under section 175A of the Clean Air Act.

National Ambient Air Quality Standards: Standards: (Non) Attainment Areas

-The Clean Air Act defines a "nonattainment area" as a locality where air pollution levels persistently violate National Ambient Air Quality Standards. --Designating "nonattainment" is a formal rule-making process -EPA normally takes this action only after the air quality standards have been exceeded for several consecutive years.

Federal Reserved Water Rights

-Tied to lands set aside by the federal government for specific purposes (parks, forests, military, tribes, etc.): --Water needed on these lands was reserved (...or supposed to be reserved)

Ambient Water Quality: Mechanism:

-Total Maximum Daily Loads (TMDLs): Calculation of maximum amount of a pollutant that a waterbody can receive and still safely meet water quality standards -Section 303(d) of CWA: states, territories, authorized tribes required to develop lists of impaired waters: waters too polluted/ degraded to meet water quality standards set by states, territories, or tribes -Requires jurisdictions to establish priority rankings for listed waters and develop TMDLs -Considers total daily load of pollutants in drainages -States required to implement controls to meet standards -Models/ assessments are now in vogue regarding this process and its evaluation and are sanctioned by EPA (WARMF)

US Army Corps of Engineers (Dept of Defense)

-US oldest water resource agency (1775) -Flood Control -Navigation -Wetland protection/clean water (404 permits)

US Fish and Wildlife Services (Dept of Interior)

-USFWS -Formed as biological service in 1903 --91 million acres/500+ sites -Administers wildlife refuges --wildlife havens --allows hunting, fishing, wildlife observation, photography, education -Administers: --ESA, USFWS coordination act --national wetland inventory

Air Quality Act 1967: Drawbacks:

-Unable to achieve rapid response to air pollution -Air quality regions crossed state lines (negotiation of state standards cumbersome) -Red Tape: Delays in developing criteria & regional boundaries -Slowed SIP development (no state met the 1970 deadline) -Again: failed to define air pollution (no definition of the problem or levels of standards regarding ambient air quality)

Water Issues: Legal Issues

-Unlawful use (adverse possession) -Pollution abatement/contamination: who pays? -Trespass/flood liability/public safety --Overland flow/Flood trespass/Public safety -Prior Appropriation (Jr vs. Sr users) --Legal availability of water -Paper water vs. wet water (over-appropriation) -Perfecting rights and beneficial use

Water Issues: Environmental

-Water quality - surface and groundwater --Point pollution sources --Non-point pollution --Sedimentation -Development (think...Las Vegas) -Fish and wildlife --ESA --Fish flow issues/temperature issues (Klamath R) --Fish passage issues (Columbia R) --Habitat (Colorado R)

Water Issues: Water Ownership Issues

-Water right doctrines --Riparian Doctrine: dominates in the east --Appropriation Doctrine: dominates in the west --Mixed Appropriation and Riparian doctrines in some states -Legal availability --Transfers of place or point of use --Change of use --Negotiation ---Federal reserved rights/Native American (winters rights)

Water Issues: Ownership: "Legal" Availability

-Water separate from or attached to land (real property)? --Issues (land sale, wet water transfer, paper water transfer) -Over-appropriation of rivers: --Too many claims and not enough water --Adjudication of rivers (dividing the pie) -Winters rights and other basin users --Native American water right negotiations -States rights and river compacts

Considerations

-What are the beneficial and detrimental effects? -Is public safety and health a concern? -Is there a unique character of geographic area? -What is the degree of controversy action will cause? -What is the degree of impact on human environment? -Will potential precedent be set by the action? -What are cumulative impacts of insignificant effects? -Does it impact places of scientific, historic, cultural significance? -What is the degree of impact on endangered species? -What is the impact on existing environmental laws or regulations?

Irrigation Districts (public)

-big in the west (50% of water distribution) -variants: --conservancy districts --conservation districts --reclamation districts --water control districts --fresh water supply districts --flood control/levee districts -functions: --distribution of irrigation water --hydropower generation --drainage control --flood control

The CEQ

-composed of 3 people, one being the Chair -staff of 30-50 depending on budget, politics..ect -

Municipalities (public)

-concept: states recognze right of cities to distribute water to resdients -may: --obtain water for city use (condemnation, annexation) --be considered or operate as a public utility --may serve users beyond city boundaries (non-discriminatory) --market water --deny use (public health and safety considerations

Colorado State Engineer

-enforces water rights -shuts down junior users for senior benefit -involved in the permit process -monitors for flood and drought conditions and contingencies -monitors water resources -participates in rule making and adoption of rules as required subject to water court review

Carrier Ditch Companies (private)

-for profit backed by investors --management may be 3rd party -early failures in western us --competed against free groundwater -many organized as irrigation districts or non-profit mutual ditch companies -rarely seen today

NPDES Components: WWTP restrictions

-publically owned treatment works(POTWs) -industrial power plants -restrictions

Colorado Ground Water Commission

-regulatory and an adjudicatory body -control ground water resources w/in 8 designated ground water basins in eastern Colorado --eastern plains w/very little surface water where primary rely on ground water as source of supply

Drinking Water Quality Protection: Historically

-responsibility of states -Local & state boards governed quality -Some areas had no governance -1974 Safe Drinking Water Act (SDWA) -Brought the feds in to address the concern of deteriorating DW quality -Intended to protect public supplies -Non-public systems not protected - usually safe, but with local growth are in jeopardy.

Regulatory/Planning (public)

-serve the state and public for the public interest --may work in areas beyond water (land use) -may: --enforce water quantity and quality --engage with fed project development/operations --regulates use and rights --operate management district --have taxing powers

Mutual Ditch/Irrigation Companies (private)

-some developed from failed carrier ditch companies -non-profit -operation --financing: users own stock as water rights --share transfers: may be under sec regulations --priority dates: usually do not exist among users ---if some water owned by company is based on different priority dates: different classes of stock may be sold --regulation: usually under state public utility laws

Municipal water districts (public)

-special types of districts set up by states -goals: produce and distribute water for communities -similar in function to irrigation district with regards to function, power, organization and ownership

EPA Review of NEPA Documents

1. EPA ratings 2. Format of document 3. Scope/coverage 4. Minimal contents 5. Adequacy of content

Goals of NEPA

1. Establishment of a watchdog of federal environmental policy: The CEQ 2. Requirement for federal federal agencies to take environmental consequences into account when making decisions. 3. Requirement of documentation: An EA and or EIS must be prepared for every major legislative proposal or other federal agency action having a significant impact. 4. Requirement of collaboration: A multidisciplinary approach.

NEPA: Section 102(2)(C): 3 Triggers

1. Federal action 2. Action must be major in scope 3. Action must significantly affect the quality of the human environment

NEPA: Actions Include

1. Federally funded projects 2. Projects with a federal component 3. Private firms actions contracted to the feds, or of federal interest (licensing, ect.)

Planning Process

1. Gather interested parties (partial list) 2. Organize participating parties 3. Preliminary study (appraisal level of detail) -Preferred project and alternatives defined -Preliminary costs/impacts computed 4.Feasibility study: Very detailed (congressionally authorized) 5. Coordination of agencies/MOA on preferred alternative 6. Modeling 7. Design Work

Goals of the EIS

1. Identify hazards of action and alternatives 2. Evaluate environmental benefits and costs 3. Suggest mitigative measures 4. Notify interested parties 5. Inform public at large 6. Provide useful information to decision makers

General Exemptions from NEPA

1. Permits -Cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act- CERCLA (Superfund) 2. Categorical exclusions -Emergency repairs -Some small projects -Administrative actions -Some construction/demolition -Cultural management -Procurement 3. Congressional exclusions

EIS Preparation Process

1. Scoping meeting 2. Preparation 3. Draft 4. Public review and comments 5. Finalization and release 6. Implementation

Developed World

1. Secondhand smoke from cigarettes -over 4k chemicals 2. Radon -20k deaths a yr in US 4. Volatile Organic Compounds -Release by everything from plastics and oils to perfumes and paints 5. Mold, mites, pesticides, etc.

CEQ functions

1. advise/assist President in development of policy/legislation 2. Advise President on national/international policy related to environment 3. Identify, assess, report on trends in environmental quality and recommend appropriate responses 4. Oversee federal agencies regarding environmental impact assessment process and referee inter-agency disputes 5. Report annually to POTUS: State of the environment (Environmental Quality Report- not mandated since 1995) 6. Provide general support/leadership for coordination of federal departments/agencies regarding environmental issues. 7. Support/participate in reinventing (as needed) environmental regulation. 8. Foster cooperation between federal, state, local government, private sector, and citizenry on environmental issues. 9. Interpret regulations as requested. 10. Approve agency NEPA procedures and issue guidance on procedures.

Protecting Surface Water Quality: History: Early 1900s:

1st federal legislation: harbors and navigation related: -River and Harbors Act of 1899: Provided limited protection by restricting discharges impacting navigation. -Public Health Service Act of 1912: Provided limited protection of water quality issues related to health -Oil Pollution Control Act of 1924: Prohibited discharge of oil into coastal waters

Air Pollution Control Act of 1955

1st federal regulation for clean air -funding for research -authorized surgeon general to investigate complaints by state and local govts -no enforcement or standards set

Reason for Lawsuits

a. No EA or EIS done b. EA was done to avoid EIS -Inadequate document -Inadequate scoping -False premise of FONSI c. Inadequate EIS documentation -lack of required information -inadequate technical analysis

Required SIP Elements

a. Review of proposed major, new stationary sources (factories) b. Review process for large, new indirect sources that would attract mobile source (Sports centers) c. Designation of maintenance and improvement areas d. Air quality maintenance plants (to prevent significant deterioration in clear air areas) e. Plans to improve non-attainment areas f. Rules for 6 criteria pollutants g. Rules for standards of hazardous pollutants h. Land use and transportation correlations to air quality i. Motor vehicle emission/fuel standards j. How state policy conforms with CAA

Clean Air Act 1970

More comprehensive/addressed issues of: -Dissatisfaction with progress in air quality control --Continued rise in emission levels/decline in ambient air quality conditions -Weak control of state activities (1970) --Industry blackmail prevalent ($ or law) --Non-uniformity of state regulations: competitive disadvantages developed (industry leverage) -HEW air quality division lacked "zeal" --Sympathetic t auto manufacturers/pro industry Forged a stronger alliance between feds/ states -States given more authority for: --monitoring --prevention --control EPA -Responsible for establishing national standards -Could provide technical and financial assistance to states -Could assist states with implementation/enforcement

Winters v. United States Post 1908

Most tribes did not have capacity/ability to utilize newly recognized rights. -Rights were not quantified by the court decision. -Other users stepped in and appropriated water -Other lawsuits occurred (opinions differed regarding venue in state/federal court).

NEPA

National Environmental Policy Act of 1969

NPDES Components: New Vs Old Sources

New sources subject to more rigorous limits -assume better process and plant design technology

Groundwater

Occurrence/Source: -percolating water stored in the pores of rock formations (aquifers) --rainfall --seepage -underground streams (karst)

Protecting Quantity: Water Rights: Surface Water

Protection of ownership and supply -State issue, unless interstate conflict is non-resolvable -Two doctrines (Riparian and Appropriative) --Each have their place and reasoning --Can conflict with each other in some states or across borders -Premised on beneficial/reasonable use

Emission Permits

Provided in 1990 amendments (modeled from CWA of 1972) -Regulates small firms (sources) - original legislation focused on large industry -5 year permit that detail limits on pollutants --Combines all constituents into 1 permit --Issued by state or local authorities --Can be amended

Protected system categories: Transient non-community systems

Provides water for areas where people do not stay for long periods (example: campgrounds)

Clean Air Act 1976

Provisions: -Addressed urban violations (nonattainment areas) --Pushed for further emission reductions on industry --Addressed significant air quality degradation in "attainment regions" (i.e., keeping pristine areas pristine) -New Source Reviews (adopted 1977): Considers review of modifications to plants that may result in increased pollution

Winters v. United States 1908

Supreme Court decision: -US created a reservation for the tribe, thus should have attached water to allow the reservation for it to be self-sufficient -Tied a priority date to the reservation's date of establishment (1888)

Supply & Use: Surface Storage

Surface storage/reservoir operations: -Use type: --Single or multiple use? ---Water supply (irrigation, municipal, industrial) ---Flood control/Hydropower ---Temperature/habitat operations ---Recreation/Fish and wildlife -Efficiency of operation: Evaporation/seepage -Operational impacts: waste, environmental harm -Sedimentation issues with reservoir lifespan, wildlife, fisheries -Dam safety Snowpack vs. The late summer supply -Lack of data > 10,000 feet --Flood/water supply forecasting -Storage to capture spring melt -Good and bad forecasting of supply -Weather modification

Federal Approach

Traditional Approach: -Large water supply, flood control, hydropower projects -planning is often at the federal level with some input from states, localities -federal control: usually derived from the commerce clause - interstate water and compacts usually involved -two primary agencies: USBR, USCOE --other smaller projects on federal lands by: USFWS, USFS, BLM, BIA, DOD

Air Pollution Planning Variables

Vary specially and temporally -Volume/rates of atmospheric input vary with local sources -Forms of pollution vary (gases, particulates, etc) -Prevailing winds/speeds vary -Climate -Topography -Vegetation -Human infrastructure (heat island effect)

Winters v. United States 1981

Walton rights ruled upon (rights specific to non-Indians on former allotments of land) -Tribes have jurisdiction over the state

Appropriation Doctrine

Water rights separate from land

Riparian Doctrine

Water rights tied to land

Smog Types

a. Industrial (gray air) smog -cooler, hilly areas, with conditions of less sunlight b. Photochemical (brown air) smog -hot, sunny cities -light driven reactions of primary pollutants (ozone) and normal atmospheric components

Early Federal Legislation: Air Quality

a.Air Pollution Control Act of 1955 b.Motor Vehicle Control Act of 1960

Groundwater Quality Control: CWA (Section 102)/SDWA

addresses gwater quality -EPA programs that cooperate with states -Comprehensive State Groundwater Protection Programs (CSGWPP) -Provides a federal-state mechanism for control -Coordinates and works with states, tribes, local governments -1999: Only 11 states had approved programs -Today: 30 states have some programs in process... -Underground Injection Control Program (UIP - EPA) -Addresses intentional injection of fluids to the ground

Protected system categories: Community systems

Supplies water to the same population year round

Auto Inspection Programs

Enforced on Urban areas >200k ppl -Classified as moderate, serious, severe, extreme re: air pollution --Required to have inspection program (CO Air Program) --Annual inspections enforced via registration

EPA Rating Definitions: EC

Environmental Concerns: EPA identifies environmental impacts that should be avoided to fully protect the environment. -corrective measures may require substantial changes to preferred alternative or mitigation measures that can reduce the environmental impact.

Water Quality Act of 1965

-(amended FWPCA): -Moved federal responsibility from from the Public Health Service to the Federal Water Pollution Control Administration (later EPA) -Recognized deteriorating water quality on a national level -Permitted feds to set quality standards (if states did not) -Opposition by industry and states: -Results: Standards set were ineffective and not enforced

Clean Air Act 1990

-Expanded constituent list and deadlines for compliance (188 toxic pollutants from industry) -Expanded regulations regarding airborne toxins -Addressed technology --Consider technology in setting standards (best performance, new tech) --Adressed mercury as an airborn toxin (Clinton), relaxed under Bush -Addressed Risk Assessment & Management --Hazard assessments --Prevention/emergency response guidelines -Addressed acid rain --Goal: cut sulfur dioxine emissions by 50% by 2000 --Issued allowances/permits/trading in blocks of 1 ton of SO2 per year ---many sell allowances if not achieved or bank allowances if achieved -Provided specific operating emission permits for individual sources --Once set in stone, plant cannot be in violation of the CAA -Initiated Auto Inspection/Maintenance programs --Areas >200k in population classified as moderate, serious/sever or extreme in terms of air pollution -Allowed for citizen lawsuits against state/fed officials for failing to take action against polluters

Federal Emergency Management Agency (independent/hybrid)

-FEMA -Roots back to Congressional Act of 1803 -1979 -Responsible for Assistance after national disasters -Manages national flood insurance program and act

Federal Energy Regulatory Commission (Dept of Energy)

-FERC -1920 -Formerly Federal Power Commission (prior 1977) -5 member board appointed by POTUS -Regulates non-federal hydroelectric projects (56% of US Hydro Capacity) --licensed by states, individuals, municipalities, etc. --on navigable rivers --some non-navigable waters that impact interstate/foreign commerce --use surplus water from other federal projects

NPDES Permit categories

-Facilities with effluent limitations -Manufacturing -Mineral, metal, oil and gas -Hazardous waste, treatment, or disposal facilities -Landfills -Recycling facilities -Steam electric plants -Transportation facilities -Treatment works -Construction activity -Light industrial activity

The Santa Margarita Conjunctive

-Fallbrook, CA and Camp Pendleton: -Battle over water since the 1920's -Primary water owner: USBR -Storage water right obtained to build a dam in 1950's -Dam authorized, but never built -Pendleton/Fallbrook grow, as does need for water -Proposal: Convert USBR storage right to a flow right for developing a conjunctive use project

Winters v. United States Pre 1907

-Ft Belknap reservation created (1888) without water rights --Indians ceded land to US (obtained in an earlier treaty) and moved to the more compact reservation. -Blackfeet Indians (Ft Belknap Reservation) found flow of the Milk River diminished due to upstream non--Indian appropriators --A US Indian agent/US Marshall concurred tribal finding and filed a lawsuit on Ft Belknap's behalf: ---Convinced a judge to invoke an injunction in the 9th -Circuit court to stop a pending decision favoring "non-Indian" water rights -(this decision was thus, pro-Indian).

Reclamation Law Reform Act of 1983

Abuse of land ownership and acreage cause ongoing controversy hence the reform -increased acreage to 960 -increased cost charges of water -limited overall ownership acreage and leasing to 2080 acres -excess land subject to full cost of water -repealed residency requirement -early 1990s: whistle blower from reclamation attempted to expose RRA abuses and behind the scene deals

Adequacy of content

An EIS must: -Have full coverage of all required subjects -Have full procedural compliance. -Presented information is adequate for a non-technical reader. -Presented information is adequate for a technical reader -Shows good faith/objectivity/accuracy. -Provide full disclosure. -Not be too vague or general. -Must explain action fully.

Drinking Water Quality Protection: Protected system categories: Basic rule:

At least 15 service connections or serves >25 people to be a public system for at least 60 days annually

Reclamation Law Act of 1902

Attempted to limit/avoid land and water speculation -limits beneficiary us to 160 aces of land under single ownership -beneficiaries expected to pay back some costs of projects -provided for fed compliance with state law --however did not allow for state law to override fed authorizations for development -fed distributions of water from a project are meant to abide by state law/permit systems

Water Issues: Supply & Use: Complexity

Complexity & Competition: -Competing uses (increasing needs while supplies dwindle) --Human stakeholders: Cities, industry, ranchers, irrigators, etc. --Environmental "stakeholders" (wildlife, fish, phreatophytes) -Competing management agencies/organizations -Complexity of laws/acts: CWA, river compacts, ESA, -NEPA, Winters Rights, etc. -Politics! --Federal, state, local --Administration changes --Lobby groups

State/Regional/Local Planning (Air Pollution)

Challenges: Complying with federal law with complications of: -Population growth -Increasing numbers of motor vehicles -Sprawl & increased road time -Greater congestion -Tighter federal regulations and consequences -Cost and time constraint -Politics

Violations/Penalties

Civil and Administrative penalties of FWPCA/CWA and amendments: -Knowing endangerment: --Up to 15 years imprisonment --Up to $250,000 fine (organizations: up to $1M) -Negligent violations: --Fine: up to $27,500/day -Citizen suits allowed for harm --Fines, scheduled remediation, payment of attorney fees

Colorado Technical Entities

Colorado Dept of Health & Environment -Air pollution control division/technical services program --responsible for the collection/analysis of air quality data throughout state ---particulates and gaseous air monitors distributed in most communities to track air quality trends and compliance --Responsible for providing modeling analyses to determine impacts various sources will have on air quality ---models also used to create/evaluate control plan strategies and to provide a basis for health risk assessments State Services -provide daily air quality advisories during summer ozone season and winter high pollution season -perform modeling analysis to determine impacts of pollution sources on air quality -provide forecasting and meteorology info related to air pollution -maintain emission inventory data to track quantity and sources of various pollutants -regulates use of controlled burns/prescribed fire through a smoke management program -conducts visibility research and analysis

Centerpiece of CAA 1970: NAAQs (National Ambient Air Quality standards):

Criteria pollutants named. Two standards each: -Primary standards: designed to protect human health --Addressed those most vulnerable (children, elderly) --Short term standards (<24 hours) --Long term standards (annual average) -Secondary standards: designed to protect human (society) welfare. Includes protection of" --Visibility, wildlife, buildings -Both standards require review by EPA every 5 years

Winters v. United States 1907

District Court decision appealed to the US Supreme Court -Plaintiff: Winters, a non-Indian

Protecting Quantity: Water Rights: Groundwater:

Historically based on land ownership -Riparian style or "English Rule" owners could pump unlimited amounts of water beneath their land (heaven and hell "doctrine") --Acceptable until harm comes to nearby landowners (harm to ground and surface supplies)...recent times: -American Rule -Catalyst: Invention of the centrifugal pump --Pumping could be greater, deeper

Indoor Air

Indoor pollution finally addressed -1986 Radon Gas and Indoor Air Quality Act --Public info, technical assistance provided --Risk identification for indoor hazards --sick building diagnosis and correction --Strategies still under development

EPA Rating Definitions: LO

Lack of objections: EPA has not identified potential environmental impacts requiring substantive changes to preferred alternative. -Review may have disclosed opportunities for mitigation measures that could be accomplished with only minor changes to the proposed action

Winters v. United States 1980s

Litigation exposure to use a concern - negotiations begin

Protecting Surface Water Quality: History: 1800s/before:

Little concern for quality protection by the feds (Primarily a local concern)

Winters v. United States 1952

McCarran Amendment (43 USC 666, 1988) -Forced winters conflicts to be tried in federal court -McCarran has been repeatedly tested and upheld

State Air Quality (Implementation) Management Plans (SIPs)

Meant to link to the state-EPA partnership -Designed by state/reviewed by EPA -Grants offered to states for SIP development/monitoring -Authorizes states to meet, maintain, enforce federal (and state) regulations/laws -Allows for input from local planners/citizens -Blends land use and transportation controls tailored to the state/local region -Consequences of bad plans or enforcement: Federal highway fund support

Criteria and Proceedings (Winters)

Policy of George H.W. Bush -Resolve disputes of Indian Water Claims through negotiations -Reasoning: --Cheaper than litigation --Framework: ---US (DOI) can participate as trustee to Indians ---Indians receive equivalent benefits for rights ---Indians realize value from confirmed settlements ---Settlement contains appropriate cost-sharing by all parties benefiting from a settlement

Denver Air Quality History

Pre-1970 -Ranked 2nd behind LA for dirtiest air 1970 - Late 1980s -CAA arrives -Designated nonattainment area -1981 Emission testing begins -1985 Creation of Metropolitan Air Quality Council (MAQC) --Now Regional Air Quality Council (RAQC) --set policy, process and recommendations 1988 - Ozone standard met 1995 - Particulate mater standard met 1997 - CO standard met 2002 - Denver designated as a maintenance area Current: -wood burning program in effect -emissions testing continues to evolve --higher standards and technology installed in recent years --Older and newer vehicle standards set --E10 in Denver's station tanks (some problems with ethanol)

Water issues: Ocean/Coastal Pollution

Sources: -Sewage -Industrial and municipal effluent -Trash (plastic, paper, etc.) -Sediment from land use -Air to sea pollution (carried by rain and runoff) -Ship maintenance and waste issues -Oil spills and offshore drilling accidents/leaks

CAA 1970: State Implementation Plans (SIPs) clarified:

States: can impose restrictions and penalties with more latitude (as they see fit): -Can impose emission controls that are more strict than Fed standard w/in 3 years of implementation -Can play hardball with certain industries as desired (can discriminate).

Protected system categories: Non-transient non community systems

Supplies water to at least 25 of the same people at least six months per year

Four main components: Clean Air Act 1963

a. Authorized Surgeon General to conduct investigations regarding local problems or at request of state/local governments b. Expanded research & technical assistance (under the Motor Vehicle Act) to assist states with control programs c. Provided for development of air quality criteria by HEW (Health, Education & Welfare Advisory) d. Provided for federal "abatement" in cases of health/welfare -HEW could convene conferences for interstate problems. Allowed enforcement & ability of states to sue other states. -Reports/recommendations/enforcement used on case by case basis (cease and desist orders, law suits by AG)

EIS Required Formatting

a. Cover sheet b. Summary c. Table of contents d. Purpose of and need for action e. Alternatives including proposed action f. Affected environment g. Environmental consequences h. List of prepares i. List of agencies, organizations, persons that get a copy j. Index k. Appendieces (if any)