Environmental Law

Are Regulatory Delays Exacerbating Drought Conditions?

Author: Kathleen L. Brown

As we enter the fall season, substantial portions of California and the Pacific Northwest are experiencing extreme to exceptional drought conditions. While conditions are better in Texas and other nearby states this year, large sections of this area are still recovering from severe dry periods. Moreover, recent reports on climate change indicate that even currently wetter areas such as the Southeast should expect longer and more severe heat waves, drought and increased stress on regional water supplies.

Many states have focused on conservation efforts to address drought constraints on water supply. For example, in his April 2015 State of Emergency declaration, Governor Jerry Brown of California ordered mandatory water-use reductions for the first time in California's history, imposing a 25 percent mandatory cutback as compared to 2013 usage. In the Pacific Northwest, many cities have activated water shortage plans, which forbid certain types of outdoor watering and, in many cases, involve fines for noncompliance. While conservation is necessary and important, it is unlikely to be sufficient to address the larger, long-term impact of drought, such as minimal snowpack, overpumped aquifers and dried-up water basins. At a certain point, developing "new" sources of water supply is imperative.

For example, water recycling, while not a wholly "new" supply, allows wastewater to be reused after a certain level of treatment. The uses of recycled water are varied, including landscape irrigation, recharging groundwater aquifers, meeting commercial and industrial water needs, and, increasingly, drinking water. Recycling water allows communities to stretch the existing water supply further. Similarly, storage projects, such as reservoirs and aquifer storage and recovery facilities, create a "new" source of water in that they allow communities to store water that would not normally be captured for future use.

Desalination, which involves removing salts and minerals from brackish water or seawater, comes closer to developing a truly "new" source of water. Although there are economic and environmental challenges associated with desalination, it is becoming a more attractive option as the technology improves and more regions are facing water supply constraints. It is widely accepted globally in countries like Israel where drought conditions are a way of life.

Even with a demonstrated need for new water supplies, however, getting projects approved and built can be a true challenge. Projects creating "new" sources of water, such as water recycling, storage or desalination projects, often face a dizzying array of local, state and federal permits and review requirements. The lead time for these projects is often measured in decades, not years.

Colorado's Windy Gap Firming Project provides an example of the time needed to obtain approval. The original Windy Gap Project, built in the 1980s, is composed of a diversion dam on the Colorado River, a pump plant and a mile-long pipeline to Lake Granby. During wet periods when the lake is full, the Windy Gap Project cannot operate because there is no reservoir storage for the water. The proposed Windy Gap Firming Project would provide for construction of a reservoir to provide storage, increasing the reliable annual yield from zero acre feet of water to estimated 30,000 acre feet. The Windy Gap Firming Project was originally submitted to the U.S. Bureau of Reclamation for National Environmental Policy Act (NEPA) review in 2003. The Bureau, however, did not issue the Final Environmental Impact Statement (an important milestone under NEPA) until late 2011. The Bureau finally approved the Windy Gap Firming Project in December 2014. Assuming no other delays, construction is expected to begin in 2018, 15 years after the project was first submitted.

Water projects face additional challenges in California, where project approval involves the California Environmental Quality Act (CEQA), which was enacted in 1970 as a system of checks and balances for land use development and management decisions in the state. An Environmental Impact Report (EIR) characterizes environmental review. The EIR records the scope of the applicant's proposal and analyzes all its known environmental effects. Project information is then used by state and local permitting agencies in their evaluation of the proposed project. There are currently 58 counties and more than 470 incorporated cities in California, each with the same authority for land use regulation. Cities and counties have legislative power to adopt local ordinances and rules consistent with state law. In most cases it extends beyond federal statutes established under NEPA. Cities and counties regulate land use by way of planning, zoning and subdivision controls. California's environmental review is rigorous by anyone's standards, but when combined with the additional state, regional and local permit requirements, it is a labyrinth of sometimes confusing laws and regulations to those who endeavor to build infrastructure projects.

A current example is the Carlsbad desalination plant in San Diego, which will deliver over 50 million gallons a day of high-quality drinking water to residents of San Diego County. Feasibility work on the project began in 1998, while actual permitting of the Carlsbad facility began in 2003. The "last" permit was received in 2009, but amendments were needed prior to beginning construction. In addition to permitting, any California project, small or large, is subject to legal challenges in the form of both "litigation" and administrative permit appeals. After nine lawsuits and an additional five administrative permit appeals, and a myriad of federal, state, regional and local permitting, the Carlsbad plant will finally start producing fresh water this year—17 years after the first feasibility work was initiated.

Unfortunately, the close of financing and start of construction doesn't end the permitting saga. In the case of Carlsbad, it is possible that certain permits will need to be refiled due to planning changes. While this should not be as difficult as the initial process, it will continue to cost time and money, all of which translates into higher cost of water for consumers.

In order to truly address current and future drought conditions, communities should be challenged to develop new sources of water supply, in addition to meeting conservation goals. To succeed, however, some sort of balance must be achieved between the need to protect the environment, allow for public input and avoid unnecessarily delaying much-needed water supply projects. As part of the April 2015 State of Emergency declaration, California's Governor Brown prioritized state review of water infrastructure projects and required state agencies to report to the Governor's office on any application pending for more than 90 days. Hopefully, this first step will lead to streamlining government processes in California and beyond so that much-needed water infrastructure projects can be expedited to the benefit of all communities.

This article was originally published in Environmental Leader, October 21, 2015.



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