Water and Human Rights – Water Policy Consulting LLC

House Democrats Deliver an Ambitious Climate Action Plan

In mid-June, U.S. House Democrats released a comprehensive 538-page climate crisis action plan. The goal of the plan is to bring U.S. greenhouse gas emissions to zero by 2050. The plan is built on the following 12 pillars:

Invest in Infrastructure to Build a Just, Equitable, and Resilient Clean Energy Economy
Drive Innovation and Deployment of Clean Energy and Deep Decarbonization Technologies
Transform U.S. Industry and Expand Domestic Manufacturing of Clean Energy and Zero-Emission Technologies
Break Down Barriers for Clean Energy Technologies
Invest in America’s Workers and Build a Fairer Economy
Invest in Disproportionately Exposed Communities to Cut Pollution and Advance Environmental Justice
Improve Public Health and Manage Climate Risks to Health Infrastructure
Invest in American Agriculture for Climate Solutions
Make U.S. Communities More Resilient to the Impacts of Climate Change
Protect and Restore America’s Lands, Waters, Ocean, and Wildlife
Confront Climate Risks to America’s National Security and Restore America’s Leadership on the International Stage
Strengthen America’s Core Institutions to Facilitate Climate Action

More specifically, from the perspective of water policy, the plan calls for “Water infrastructure resilience” standards to provide clean water and mitigate flooding, droughts and erosion. The plan also calls for the reduction of water pollution through the safe disposal of hazardous wastes from the oil and gas industry, and a recommendation to protect “at least 30% of all U.S. lands and ocean areas by 2030.”

To view the plan in its entirety, click here. To read more about the development and implementation of the plan click here and here.

Is Federal Disaster & Hazard Mitigation Aid Getting to Those Communities Most in Need?

In August 2020, National Public Radio’s Ted Talk broadcast an episode entitled “Our Relationship with Water” in which Colette Pichon Battle who is an attorney turned climate activist who grew up in Bayou Liberty just north of New Orleans.[1] She says she was thrown into her new role because rising sea levels, flooding and other climate factors are threatening the land that has been in her family for generations. Pichon-Battle says “’I work at the community level to make sure that black folks, poor folks and native folks are part of thia climate conversation’” including to communicate the policy and science of climate change to her neighbors and that the scientific community and policy makers listen to the traditional knowledge that the community can provide about the area.[2]

After Hurrican Katrina caused a tidal surge from the Gulf that swept her entire community into Lake Pontchartrain, she found that the surge was caused by sea level rise and the absence of barrier islands, now gone because of oil and gas drilling, which use to block such surges. Once she realized that hurricans like Katrina and likely worse are her to stay and in looking at flood maps of Lousiana she realized that her community along with other African American, Native American and impoverished communities would likely simply disappear before the end of the century. Quechon-Battle, notes that she was invited to the Whitehouse during the Obama administration to talk with the Federal Emergency Management Service, the agency primarily responsible for assisting communities with disaster and hazard mitigation preparedness in relation to flooding and other natural events, about how her community could obtain assistance to prepare for future flooding events. She says that during this conversation “the FEMA administrator said ‘I understand what your saying, but the FEMA regulations are’nt ment for the most vulnerable communities.’ The disaster assistance process for this country are ment for the middle class.” Despite the double take she made when she heard this statement she firmly believes that “This was an honest comment from FEMA. This is what you realize when you recognize that you recognize that the structures that are in place right now are absolutely not meant for me.”[3]

Arctic Native communities which have been experiencing increased permafrost melt, loss of sea ice, extreme weather events, flooding and erosion that may make current residences and settlements uninhabitable in the near future, no all to well about competition for limited federal disaster and hazard mitigation funding to defend against the inevitable march of climate change. In addition to what communities like Quechon-Battle’s experienced when approaching FEMA for help, in many cases, agencies require cost-benefit analysis, plans, environmental analysis, or other measures above and beyond analysis or strategies contained in Hazard Mitigation Plans (HMPs) or other plans before such communities qualify to apply for funds. Similarly, because standard arctic community HMPs do not contain a detailed cost-benefit analysis of natural hazards affecting water resources, such communities cannot obtain high rankings that larger cities can to qualify for competitive funding or other federal or state assistance needed to address such impacts. Finally, the villages cannot afford to hire consultants or even staff to conduct climate adaption planning on behalf of such communities to include more meaningful consideration of economic impacts and risks associated with coastal water resource management resiliency strategies, in order to move beyond the planning phase and into on the ground project implementation.

There is a need, therefore, to conduct economic risk-benefit and environmental analysis and otherwise close the gap between Federal Emergency Management Agency (FEMA) and other governmental funding and technical assistance programs such so that North Bering Sea communities can implement on-the-ground projects that will address the Villages’ climate-related coastal water resources management challenges.

[1] https://www.npr.org/2020/08/06/899845219/our-relationship-with-water.

[2] Ibid.

[3] Ibid.

EPA Should Veto Pebble Permit

In 2017, the US Army Corps of Engineers released the Draft Environmental Impact Statement (DEIS) to develop the world’s largest copper mine in the Bristol Bay watershed, located in the sensitive headwaters of Bristol Bay in Southwestern Alaska. The Mine which is proposed by the foreign-based Pebble Limited Partnership would destroy several miles of streams which are critical the largest sockeye salmon fishery in the world and upon which twenty-five federally recognized tribal governments depend for subsistence. In compliance with the National Environmental Policy Act, the Corp was chartered with drafting the EIS to analyze in detail, the environmental impacts of proposed projects.

Next to the Project Chariot when, in the 1950s, the United States Atomic Energy Commission proposed to detonate an atomic bomb off the coast of the Chukchi Sea in order to create harbor there, the Pebble Mine could be the most contentious industrial development activity ever proposed in Alaska. Due to its potential impact on water and salmon resources, it risks the economic and cultural lifeblood of the region. As a result, the mine is opposed not only by 80 percent of Bristol Bay’s residents but also by a broad spectrum of entities that include commercial fishermen, businesses, sportsmen, and conservation groups.

Yet, despite the fact that public citizens, commercial interests, tribes, conservation organizations, and even an international mining corporation oppose this environmentally and economically disastrous Mine, the Corps under the Trump Administration, established a flawed NEPA analysis in its rush to permit it. As a result, the Pebble Mine has been referred to by the conservation community as “quite simply one of the most reckless Projects anywhere in the world today.” Last year, when opening the Oversight Committee hearings regarding the mine, Congressman Peter DeFazio, Chairman of the House Transportation and Infrastructure Committee, called it “an abomination” and stated that “the Pebble Mine proposal is a bad idea made even worse by the sham review process currently underway.”

Under the current proposal and future development plans, the mine would be so destructive to the environment and the Alaska economy that there has been a consistent pattern of major investors walking away from the project once they understand the overwhelming opposition and unavoidable environmental and economic risks. The fourth major firm to abandon the project since 2011, First Quantum Minerals Ltd., which had provided $37.5 million upfront and pledged $150 million over the following three years to fund the permitting process in exchange for a 50 percent share, pulled out in late May of 2018.

When the Final EIS for the project was released last month, a string of politicians, and other public figures came out in opposition to Pebble. For the first time cracks in the Trump Administration’s relentless anti-environmental regulatory strategy arose when Donald Trump, Jr. tweeted “As a sportsman who has spent plenty of time in the area I agree [that] the headwaters of Bristol Bay and surrounding fishery are too unique and fragile to take any chances with…Pebble Mine.” Similarly, long time extraction industry supporter, Alaska Senator Dan Sullivan, who after reviewing the Final EIS stated:

“… I am increasingly concerned that the final EIS may not adequately address the issues identified in the draft EIS regarding the full risks of the project as proposed to the Bristol Bay watershed and fishery… These processes should also not be rushed or fast-tracked, especially given the size and complexity of this particular project.”

While Sen. Sullivan, however, has expressed concern for the obviously flawed EIS process, so far, he is not off the fence yet as indicated by his statement that “While it is a major step in the permitting process, it must be emphasized that the Final EIS is not a decision document. The final EIS for the Pebble Mine is the first step in a long, demanding permitting process….”

In 30 years of working in the area of environmental law and policy, however, unless stopped by a lawsuit or legislation, I can’t remember a single project that was not given the go-ahead after it was recommended in a Final EIS.

When the FEIS was released on July 24, there are now, less than a couple of weeks remaining before the final decision on the permit and for the Environmental Protection Agency to veto the project. Dan Sullivan and other politicians need to take a firm stand and pressure the agency to do just that.

Bringing Water Justice to the Arctic

Responding to the current focus on anti-discrimination and the need to provide clean water to communities as a means of preventing infection and spread of the Pandemic, the decades old environmental justice and human right to water movements have combined to create new terminologies such as “Water Ethics” and “Water Justice.” House Democrats responded to the call by proposing a $1.5 trillion infrastructure bill that would include everything from tax incentives for clean energy businesses, funding for drinking water programs and for climate resiliency upgrades to public housing. They hope to submit the bill to Congress by the 4^th of July holiday.

The need to shore up water infrastructure is even getting attention in the Arctic these days where, as part of the America’s Water Infrastructure Act of 2020, the plan to expand and deepen the city of Nome’s port was recently approved by the Army Corp of part of Engineers. Because the purpose of the expansion is primarily to extend the harbor into Norton Sound and dredge the outer area so that it is deep enough to accommodate big vessels like fuel tankers and large cargo and cruise ships, it’s main effect will be to further open the Arctic to commerce and development. In their present form , therefore, both infrastructure bills are missing an opportunity to effectively respond to the Pandemic and increase climate resiliency by incorporating adequate water infrastructure for indigenous communities, including many Arctic Native communities who have never had running water.

It’s easy to imagine , for example, many of the Alaska Native communities who have never had access to running water, shaking their heads in response to recent federal and state health agency cries to “Wash Your Hands!.” According to water justice advocates, “more than 2 million Americans who lack indoor plumbing or wastewater services live in remote areas, or come from high-risk groups like the elderly, disabled, homebound and homeless.” Closing the access gap, therefore, should include the use of “existing disaster response protocols to close this access gap and prioritize communities where local capacity is limited. It should partner with state and local municipalities for both immediate and long-term solutions.”

Water ethics is also getting media attention these days in the form of the disproportionate impact of oil and gas development on Arctic Native communities as it relates to climate change. Last month, for example in the worst environmental disaster in Russian history, tons of water spilled into the Ambarnaya River in Siberia, due in part to rapidly melting permafrost at the Nornickel plant. As with so many industrial crises, the damage from the spill landed heaviest on the nearby indigenous peoples of the Taimyr Krasnoyarsk Territory.

In a bizarre twist on the water injustice of oil and gas drilling, however, the Alaska Delegation has managed to turn recent attention on the problem of discrimination on it’s head, by requesting that the federal government investigate recent global banking policies to forego loans and investments with companies that produce oil and other fossil fuels. Their argument? Such policies harm local Alaska Native communities who rely on drilling in the Arctic for jobs. Noticeably absent from the letter that Lisa Murkowski, Dan Sullivan and Don Young sent to the comptroller of the currency and the chair of the Federal Deposit Insurance Corp , however, is the discriminatory effects of carbon producing drilling activity on these same communities who rely on the unraveling fresh water and marine ecosystems in the rapidly heating Arctic for subsistence.

Still, our response to COVID-19 may provide an opportunity to address climate change in the Arctic. At least for now, airlines and other businesses are in slowdown around the globe and in some countries, CO2 emissions and air pollution are at their lowest in many years. To some extent, house democrats are using the opportunity provided by the Pandemic to address the need to convert to clean energy and focus on environmental justice by introducing climate change legislations which calls for net-zero CO2 emissions over the next 30 years and reducing pollution in communities that are disproportionately affected.

Why not go a step further and take the hint when Mother Nature is trying to send us a message? Could we, for example, use the opportunity from reduced travel and other CO2 emitting activities to switch to flying less, making a quicker switch to electric cars and focusing less on infrastructure that supports carbon producing industrial development, and more on providing water accessibility and applying nature-based solutions related to water issues?

Clean Water Act Dries Up Under Trump Administration Rule

Hot Springs Creek Below the Proposed Graphite One Mine Site

A coalition of Democratic attorneys general attempted, without success, to delay the implementation of a new definition of streams and wetlands put forth by the Trump administration. The new “Waters of the U.S.” Rule or WOTUS removes environmental protections for streams, wetlands and groundwater, and is seen as a major win for farmers and land developers. Under the new ruling, pesticides and fertilizers can now be dumped directly into waterways, and wetlands can be destroyed or filled in to accommodate construction projects. Contamination of drinking water from unregulated pollutants puts millions of Americans at risk. The ruling went into effect on June 29^th. Read more here.

In another effort to stop implementation of the Rule, the Navajo Nation and several environmental groups filed suite in U.S. District Court in New Mexico against the Trump Administration. The law suit which also includes Amigos Bravos, the New Mexico Acequia Association, the Gila Resources Information Project and the Environmental Integrity Project and other environmental groups also claims that the Administration failed to consider the impacts of Climate Change on western watersheds that are already affected by over a decade of drought. As a result, smaller systems which are affected more by low flows and higher temperatures from drought conditions will be impacted more significantly by reduced protection from polluters. Agricultural and other livelihoods will that rely on Acequia and other non-industrial irrigation systems dependent upon adequate and timely snow, rain and runoff for crops will be put at risk.

According to Navajo Nation President Jonathan Nez, “At this point in time, with climate change occurring around the world, it’s more prudent than ever to protect our land, water and air. We, as Diné People, have a duty to preserve and conserve our natural resources to ensure that our future generations have access to clean water, air and land.”

WPC Developing Panel on Impacts of Rising Stream Temperatures and Development at American Water Resources Association Annual Meeting

Salmon Die-Off Tubutulik River in Western Region, Alaska

WPC is convening a session topic entitled “The Impacts of Mining and Climate Change on Rising Stream Temperatures in Alaska” for the American Water Resources Association’s Annual Meeting taking place in Orlando, Florida from November 3-6.

In the summer of 2019, due to dramatic temperatures increases, thousands of salmon died throughout Alaska as they migrated to spawning grounds, because the water exceeded lethal temperature limits. These climate related stressors are further exacerbated by state and federal lands that are being opened to mining and related development on fish and wildlife populations.

The Session will address the impacts of increasing water temperatures in watersheds affected by land releases and therefore, the combined impacts of climate change and mining development on subsistence resources in Alaska including: 1) Application of models starting with global emission scenarios that will ultimately detect instream flows for specific subbasins and collection of instream flow, temperature and dissolved oxygen data; 2) Identify lands that include critical fish habitat and potential locate able minerals that have been opened for mining; and 3) A process for applying the modeling and data collected to assist policy makers and land managers to mitigate land uses that potentially exacerbate climate related impacts to watersheds.

Please contact us if you are interested in being a presenter on this topic and traveling to Orlando in the fall!

Tentative Presentation Topics include : 1) Forcasting drought and temperature increases and modeling stream flows in Alaska; 2) Use of Traditional Knowledge in Protecting Rivers in the Arctic; 3) Bureau of Land Management FLPMA Land Withdrawal Revocations; Overview of 2019 Water Year in Alaska; 4) Pacific Northwest Drought Early Warning System.

Emergency Recovery Plan for Global Freshwater Biodiversity Loss

Covering approximately 1% of the Earth’s surface, the world’s freshwater rivers, lakes and wetlands are home to 10% of all species and more fish species than in all the oceans combined. Posing a threat to global communities who rely on rivers, lakes, and tributaries for food, water, and economic well-being, however, 83% of freshwater species and 30% of freshwater ecosystems have been lost since 1970. In response to the alarming rate of loss of freshwater ecosystems, a recently released study developed by scientists from across a spectrum of environmental and academic institutions outlines a framework for protecting such ecosystems.

Calling it an “Emergency Recovery Plan”, the study proposes six scientifically based strategies to preserve freshwater biodiversity, that have proved successful in certain locations. These solutions include: Returning rivers and streams back to their natural flows; Protecting freshwater from toxic effluents, overfishing, invasive species and mining activity; Protecting critical habitat; and Restoring river connectivity through regulation of land uses and water infrastructure. James Dalton, Director of the International Union for Conservation of Nature Global Water Program says, “all the solutions in the Emergency Recovery Plan have been tried and tested somewhere in the world: they are realistic, pragmatic and they work. We are calling on governments, investors, companies and communities to prioritize freshwater biodiversity – often neglected by the conservation and water management worlds. Now is the time to implement these solutions, before it is too late.”

For more information see press releases for Conservation International and WWF.

Indigenous Communities are Essential Part of Climate Discussion

Native Village of Elim Staff Collecting Flow Data – Tubutulik River, Western Region, Alaska

A new report released by the People’s Climate Network (PCN)— an alliance of activists, scholars and citizens from around the world, suggests that the role indigenous communities can play in mitigating the climate crisis is being overlooked. While global climate change movements make headlines and ”highly-educated people in far-off cities make policy” the People’s Climate Report, attempts to “amplifying voices from the grassroots.”

The report also highlights coexistence of forests, wildlife and local communities is highlighted to provide the perspective of local communities of the impacts of climate change and extraction industries especially mining. Such development leads to loss of forest cover, depletion of groundwater, increase in net-carbon emissions, changes in local weather patterns, loss of traditional tribal livelihoods and a collapse of various plant and animal species—all in the name of ‘development’.

The report show cases the case of Devi, India in which twenty year earlier, locals took the lead in returning health back to forest ecosystem after mining activity devastated the area. This included groups of mostly women who get up early in the morning to patrol forests in groups and digging pools and making mud dams to conserve water. Now a fully recovered forest with abundant resources including a steady supply of food and water, which has resulted in the return of the animals.

According to the report, “[t]hese natural resource dependent communities are among the poorest of the poor.” “They have not had a single day of formal education. And yet they have been the ones protecting this 200-hectare forest for the past twenty years or so.”

Similarly, Last month Hannah Panci from the Great Lakes Indian Fish and Wildlife Commission spoke at Lawrence University as part of the Spoerl Lecture Series, about climate impact and preparedness. Specifically, Panci discussed working with almost a dozen local Native American tribes, to develop a climate vulnerability assessment which combines both scientific research and traditional ecological knowledge (TEK) in order to create a vulnerability score for different species on tribal lands.

The organization gathers TEK by visiting the various communities, which include members that still make their living off hunting, gathering and fishing, and interviewing community these members about changes they are noticing about fish and wildlife they use for subsistence. Through this process, important information about traditions that have been passed down for generations and which species are the most important to the tribes. According to Panci, two of the main ones are wild rice and walleye, but there are 11 primary species that tribal members are concerned about.

The Great Lakes Indian Fish and Wildlife Commission then applies this information to determine what impacts climate change is having on these species and apply current scientific data to create maps of the region where such impacts are occurring and apply protection measures. By combining conventional science and local knowledge of locals is the best possible means for assisting tribal communities in the Great Lakes to prepare for climate change.

Finally, during a recent event at UC Davis in March 12, professor Beth Rose Middleton who is chair of the Native American Studies Department and Fellow at the John Muir Institute of the Environment, discussed “Tribal Leadership in Climate Change Adaptation.” Professor Middleton discussed the leadership in environmental policy and planning provided by California Indian nations in traditional including land stewardship and interventions in state, national and international policy. Middleton’s research includes Native land trusts, Native-led conservation land acquisitions, tribal participation in the carbon credit market and the importance of re-introducing traditional fire management.

Trump Administration Adopts Navigable Waters Protection Rule

Last month the Environmental Protection Agency and Army Corps of Engineers announced the signing of a new water rule which finalizes the Trump administrations process for revising the definition for the Waters of the U.S. According to the EPA, the final “Navigable Waters Protection Rule…protects the nation’s navigable waters from pollution and result in economic growth across the country.” The new rule, however, limits the number and types of waters that are protected by the Clean Water Act to just four categories: territorial seas and traditional navigable waters, perennial and intermittent tributaries, certain lakes, ponds, and water impoundments, and wetlands adjacent to these categories.

The new rule, therefore, eliminates existing protections for water coming from rainfall, groundwater, farm, roadside and other ditches, prior converted cropland, farm and stock watering ponds, and waste treatment systems which are hydrologically connected to navigable waters and could therefore spread pollutants on to such waters. The NWPR, leaves intact, state and tribal laws in managing water resources within their own jurisdictions some of which have broader definitions than the federal government for waters that come under such regulatory jurisdiction.

To Learn more see the EPA’s Navigable Waters Protection Rule website or News Release.

The Native Village of Elim’s Seward Peninsula Temperature, Dissolved Oxygen and Stream Flow Monitoring Plan

Alaska Native village communities located on the Seward Peninsula region (Villages) rely on healthy watersheds, fish and wildlife for their subsistence needs. At the same time rising temperatures and low snow pack in the region are reeking havoc on the delivery of water when it is most needed. For example, air temperatures in the region, which are rising twice as fast as other places in the country, broke records during the month of July 2019.

These temperature increases are impacting the subsistence livelihoods of the Villages through decreased dissolved oxygen combined with other weather related changes, including low river flows, altered ice flows, and stream bank erosion. In addition, because rivers and streams located within the Western Alaska region are largely fed by snow melt, rising temperatures in the region means rain (instead of snow) is becoming more prominent in the fall and winter. This is resulting in increased seasonal flood events which threaten community infrastructure and scour stream beds used by fish and wildlife.

These sudden changes are impacting fresh water ecosystems during the summer months as well. In 2019 about 22 rivers and streams throughout Alaska reported record water temperatures, as compared to just 7 in 2018. As a result, in June and July 2019, thousands of salmon died as they migrated to spawning grounds in Western Alaska, because the water temperatures exceeded lethal limits for the fish. For example, the Tubulik near Elim and Koyuk had record temperatures as high as 16 degrees centigrad at the Vulcan Creek gage site, 30 miles from the mouth.

These climate related stressors are further exacerbated by non-climate stressors including mining and related development on fish and wildlife populations. Specifically, during 2020, the U.S. Bureau of Land Management will be opening over 46 million acres in 1-3 million acres increments, to mining and other development throughout Alaska. As part of this process, the agency plans to open about 3 million acres covered by the Kobuk-Seward Resource Management Plan (Plan) of BLM Alaska land mineral entry and remove community-supported Areas of Critical Environmental Concern. The Plan, however, does not address the impacts of increasing water temperatures in watersheds affected by land releases and therefore, the combined impacts of climate change and mining development on subsistence resources.

The Native Village of Elim is applying for funding for it’s Tubutulik River Temperature, Dissolved Oxygen (DO) and Stream Flow Monitoring Plan Project is working to develop a climate change risk assessment for the Tubutulik River Watershed (Watershed) that will include: 1) Application of drought and temperature forecasting for the Seward Penninsula to predict instream flows and temperature; 2) Protocols for collection of instream flow, temperature and dissolved oxygen data during the summer season when temperatures are at their highest; 3) Identify lands within the Watershed that include critical fish habitat and potential locateable minerals that have been opened for mining under the Kobuk-Seward Peninsula Resource Management Plan (RMP); 4) Identify a process for applying the modeling and data collected to assist policy makers and land managers to mitigate land uses that potentially exacerbate climate related impacts in the Watershed and 5) Apply for instream flow water rights under Alaska state law on stream reaches in sensitive watersheds that have been open to mining activity.

Once the Assessment is completed, it will serve as an ecosystem-wide vulnerability assessment for natural resource(s) that can be used by multiple tribes as a template for conducting their own modeling, data collection and outreach to federal and state agency land managers. There are multiple sensitive salmon streams and rivers within the RMP planning area that other tribes rely on for subsistence practices that will be impacted by the opening of lands to mining under the RMP. The Assessment will, therefore, specifically benefit the other Village communities located on the Seward Peninsula by assisting in the prediction of instream flows and temperature impacts to salmon and other fisheries, and measures that will result in quantifiable, locally based watershed protection from the potential impacts of climate change and land development.