We don’t expect Warren Buffett to keep tabs on the inner workings of all the companies he owns. But he needs to know what is going on right now with one of them: Portland-based PacifiCorp. That’s because Buffett and PacifiCorp have an opportunity to simultaneously do something extraordinary for one of the great rivers of the West while making a very prudent financial decision for ratepayers and shareholders.
After decades of controversy and campaigning by area tribes, fishing and environmental groups, what is likely the largest dam removal project to date worldwide is poised to commence on the Klamath River in far-Northern California and Southern Oregon. Four aging hydropower dams are on the brink of being removed, reconnecting hundreds of miles of habitat for salmon and other species blocked for more than a century by dams built without fish passage. In addition, the improvements to water quality and fisheries that will result from dam removal help reduce regulatory burdens on area farmers and ranchers.
But it isn’t only fish and tribes that will benefit from freeing the river. Removing the antiquated dams is in the financial interest of Buffet and his shareholders. That is because the state of California has written a check for $250 million to underwrite more than half the cost. PacifiCorp pledged $200 million, which has already been collected from its customers through a special surcharge. But the agreement that set the terms for dam removal included the idea that PacifiCorp could make its financial contribution to the project and then walk away with no liability. Two dozen parties — including numerous conservation organizations, tribes, federal agencies and two states — agreed to that demand in a settlement deal with PacifiCorp. Many conservation leaders had to swallow hard at giving a wealthy corporation such a sweet deal, but decided it was worth it just to get the dams down as fast as possible.
But the multiparty pact requires the approval of the Federal Energy Regulatory Commission (FERC), which in July signaled approval for the approach in general, but with a twist — PacifiCorp does not get to walk away completely from the project before the dams are removed. The public interest is not served by allowing a utility to make a fortune off an environmentally damaging project without seeing it through to the end, when these dams are removed.
So now PacifiCorp is balking. They want to study the issue. That is code language for delay, and crashing salmon runs don’t have time for corporate dithering.
What’s to study? The issue is crystal-clear.
The options are: 1) Accept a $250 million gift, enjoy layers of liability insurance paid for by the state of California and ratepayers, and restore salmon runs hovering on the brink of extinction, or 2) Walk away from a quarter billion dollars of public money, build new fish ladders and invest in other environmental fixes with costs likely to exceed $500 million, invite lawsuits and additional agency regulations related to endangered species and water quality violations, and perpetuate an injustice on native peoples whose livelihoods and cultures are being decimated by the dams. Talk about liability. And it would all be on PacifiCorp, their customers and their shareholders.
The clock is ticking. FERC wants an answer. California and Oregon want an answer. Tribes want an answer. The conservation community wants an answer. Every delay further endangers critically important salmon runs. PacifiCorp has to either accept the conditions laid down by FERC, or face the scrutiny of an America that is increasingly interested in justice for indigenous communities and other marginalized groups.
Warren Buffett and PacifiCorp, we need your decisive leadership. Please make the decision now that will get this done. This is the very definition of a win-win.
Bruce Shoemaker is a researcher on hydropower and rivers and lead editor of the 2018 book about the World Bank and hydropower, “Dead in the Water” (University of Wisconsin Press). Since 2019, through an affiliation with International Rivers, he has been focusing on dam removal in the Klamath Basin, where he lives.
KLAMATH COUNTY, Ore.– A Marion County Circuit Court Judge has ruled in favor of Klamath Irrigation District (KID) in a lawsuit about water stored in Upper Klamath Lake for irrigation.
Link River Dam impounds water in Upper Klamath Lake. In its 2013 order in the Klamath Basin water rights adjudication, the Oregon Water Resources Department (OWRD) ruled that only irrigation users have water rights to the stored water. The Bureau of Reclamation releases water from storage to artificially increase Klamath River flows without a water right.
Earlier this year, KID went to court and got an order for OWRD to take exclusive charge of Upper Klamath Falls Lake Reservoir (UKL) and deliver the water to the people, under their water rights.
OWRD continued to allow the Bureau of Reclamation to use stored water in UKL for artificial enhancement of stream flows. For this, KID took OWRD back to court. In its ruling last week, the court found that “OWRD’s failure is a deprivation of a precious resource” and “an infringement of property rights of established users.” Upon such basis, the Court has indicated that it will enter an injunction to compel OWRD to stop the release of stored water from UKL without a water right.
Further legal proceedings must occur before any such injunction is entered.
District leadership says the impact of the ruling on 2020 water availability is currently unknown. Farmers should not change plans or assume they will receive more water this year, because of the ruling.
A dam removal project in the Rogue River watershed this summer is proving that it’s possible to find solutions that benefit both salmon and farms.
The Lower Bridgepoint Dam on Williams Creek, a tributary to the Applegate River, provides water for irrigation, but restricts habitat for Chinook and coho salmon, as well as steelhead and lamprey. Now, thanks to the collaboration of the Applegate Partnership and Watershed Council and with support from the Bureau of Land Management and private landowners, the dam is coming down and the habitat will be restored.
This dam removal adds to the ongoing restoration efforts in the mighty Rogue River watershed, renowned for its world-class sport fishing. These projects help Rogue River salmon sustain recreational and commercial fishing, despite recent droughts that have devastated fish in other rivers in the state.
One of the keys to this success has been creative thinking around water infrastructure solutions. Two farms that currently rely on the dam for their water — Whistling Duck Farms and Blue Fox Farms — will benefit from a more modern, efficient water supply system. A headgate will be installed to divert water into a new irrigation pipeline, while water in Williams Creek flows unimpeded.
These are the types of win-win projects we need right now, as our region faces multiple interconnected challenges. Healthy rivers are the source of all life, yet they’ve been dammed and degraded for decades, and salmon runs are struggling. The economic downturn is creating new strains for individuals and businesses, while climate change is creating growing threats to water supplies, river health and local food security.
We can strengthen our communities and build resilience in the face of these threats by restoring river health and investing in water infrastructure. American Rivers recently released a report, “Rivers as Economic Engines: Investing in clean water, communities and our future” which details the jobs and economic benefits of clean water and river restoration (read the report at AmericanRivers.org/InvestInRivers)
For example, a 2010 study from the University of Oregon found that every $1 million invested in watershed restoration creates 16 new or sustained jobs on average. Healthy rivers also spur tourism and recreation, which many rural communities rely on for their livelihoods. The Outdoor Industry Association’s National Recreation Economy Report found that Americans participating in water sports and fishing spend over $174 billion on gear and trip-related expenses. And, the outdoor water sports and fishing economy supports over 1.5 million jobs nationwide and 1 out of every 20 in Oregon.
The dam removal project on Williams Creek is a great example of the type of project we need to see more of, here in Oregon and across our region. It’s why American Rivers, the Northwest Sportfishing Industry Association and local communities are calling on Congress to invest $500 billion over 10 years in rivers and water infrastructure. This kind of investment will pay off in a stronger economy and healthier communities for generations to come.
U.S. Rep. Peter DeFazio has been a staunch supporter of clean water and smart infrastructure investments, including most recently to support critical wildlife migration as a part of a package of legislation that he sponsored and ushered out of the House Transportation and Infrastructure Committee, which he chairs. We applaud his leadership and urge him to continue support collaborative and creative solutions for healthy rivers and communities.
When Lower Bridgepoint Dam comes down this summer, the story won’t be about what’s being taken away. The story won’t be about losing a dam. It will be about gaining something new — a healthier river, a more efficient water supply and stronger connections between people and nature. It will be about building a better future.
Dave Strahan of Grants Pass is a board member of the Northwest Sportfishing Industry Association. David Moryc is senior director of American Rivers.
(SACRAMENTO, Calif.) — Attorneys general in 20 states and the District of Columbia sued the Trump administration on Tuesday, alleging that new federal rules undermine their ability to protect rivers, lakes and streams within their borders.
They say that new final rules issued last week by the Environmental Protection Agency alter a practice dating back more than 30 years giving state governments the authority to review, block or put conditions on federally permitted water projects.
President Donald Trump in April 2019 issued an executive order directing the change that critics said could make it harder for states to block pipelines and other projects over concerns that they could impair water quality.
“The Trump administration wants to clear the deck for fossil fuel infrastructure,” California Attorney General Xavier Becerra alleged in announcing the legal action, the latest of dozens he has filed against the administration.
Becerra added: “By reducing the scope and time (for review), they make it very difficult for states to fully protect the rights that they have to protect the water that is in their boundaries.”
He said the water regulation changes will limit states’ reviews of natural gas and oil pipelines, hydroelectic projects, housing and commercial land development and wastewater treatment plants.
The EPA declined direct comment on pending legislation, but said in a statement that it acted because its water quality certification regulations were nearly 50 years old.
The revision “reflects the first comprehensive analysis of the text, structure and legislative history” of that portion of the Clean Water Act, the agency’s statement said.
“As a result, the agency’s final rule increases the transparency and efficiency of the … certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation,” the EPA said.
The lawsuit led by California, New York and Washington state claims that the regulation changes violate the federal Clean Water Act and decades of legal decisions and administrative precedent. It was filed in federal court in San Francisco and alleges that the EPA did not follow proper procedures in changing the regulations.
Virginia Attorney General Mark Herring said in a statement that the new final rule “unlawfully restricts the ability of states like Virginia to even review, let alone impose important conditions and environmental protections, on projects that could cause harm.”
The rule applies to all projects requiring federal approval that may result in polluting of waterways. States were required to certify that the projects satisfied state law and water quality standards.
Doug Obegi, senior attorney at the Natural Resources Defense Council, said the rule “eviscerates” states’ ability to influence hundreds of projects each year.
He said that states might still be able to prohibit projects from polluting rivers, for example, but under the changes could no longer require minimum stream flows below federal dams and reservoirs “so we actually have a river.”
The changes are among several steps the Trump administration has taken to roll back the Clean Water Act, including ending federal protection in January for many of the nation’s millions of miles of streams, wetlands and arroyos and wetlands. That change narrowed the types of waterways that qualify for federal protection.
The other participating states in Tuesday’s lawsuit are Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia and Wisconsin.
You may not have heard much about the long fight to remove the Nooksack Dam near Bellingham, Washington, but its detonation this week will prove ecologically and culturally important.
The conclusion to decades of work to remove a dam on the Middle Fork Nooksack River east of Bellingham, Washington began with a bang yesterday as crews breached the dam with a carefully planned detonation. This explosive denouement is also a beginning.
Over the next couple of weeks, crews will fully remove the 125-foot-wide, 25-foot-tall dam, allowing the Middle Fork Nooksack to run free for the first time in 60 years. With the dam’s removal, 16 miles of river and tributary habitat will open up to help boost populations of three threatened Puget Sound fish species: Chinook salmon, steelhead and bull trout.
“This project has always ranked at the top of the list for fish recovery projects in this area because of the sheer number of miles of river habitat that are available upstream in a fairly remote and pristine area,” says Renee LaCroix, assistant public works director for the city of Bellingham, which owns the dam. “There’s no other single project in this area that can match this.”
Two local tribes, the Nooksack and Lummi Nation, have been behind the effort to help restore fish passage and the river’s ecological integrity.
“Our natural resources are our cultural resources,” says Trevor Delgado, the Nooksack tribal historic preservation officer. “With this removal we get a little piece of our home back — a place where our people have visited for hundreds of generations.”
LaCroix says the project has no downsides for the city, and it’s expected to increase the resilience of the municipal water supply, remove a safety hazard for kayakers, help fish recovery and restore culturally significant resources for the tribes.
But even with the dam removal’s many benefits and municipal and tribal support, the path to this moment hasn’t been easy.
The History
The Middle Fork Nooksack drains glacier-fed headwater streams that run off the icy summit of 10,778-foot Mt. Baker. The Middle Fork joins the North Fork and then the mainstem of the Nooksack River, which travels to Bellingham Bay and Puget Sound. The entire Nooksack watershed stretches 830 square miles across Washington and into British Columbia.
Image: American Rivers
For generations the river and its surrounding habitat have physically and spiritually nourished Indigenous peoples — including the Nooksack Indian Tribe and the Lummi Nation.
But all that changed when the dam was built in in 1961 to divert water to the city of Bellingham to supplement its main water supply in Lake Whatcom — the drinking water for the now-85,000 residents in the city and county. As soon as it went up, the dam obstructed fish passage, altered the river’s flow, and disrupted the ability of tribal members to use a culturally significant area.
For the past four decades, Delgado says, the Nooksack have pushed for dam removal. They got close in the early 2000s, when the Nooksack and Lummi Nation entered into an official agreement with the city and state to work on a solution that would allow fish passage, including the possible installation of fish ladders. But despite years of work, a suitable fix wasn’t found, and the effort had completely stalled by 2016.
The following year the nonprofit American Rivers, which works on watershed restoration and has extensive experience in dam-removal efforts, stepped in with financial backing from the Paul G. Allen Family Foundation. American Rivers’ April McEwan assumed a project management role and brought parties back to the table and soon into agreement on a plan to remove the dam and reengineer the city’s water intake from the river.
“What we know about dam removal is that if you can remove the infrastructure and restore the channel to natural conditions, that’s always the best way to get fish passage,” says McEwan.
The final cost of the project came in at around $20 million — way more than the city could afford on its own. About half of the cost eventually came from the state and the city is collaborating with federal agencies on the distribution of another $2 million in Pacific Salmon Treaty funds. But before applying for that money, the city had to complete costly initial design and permitting work. Private foundations — largely the Paul G. Allen Family Foundation, along with Resources Legacy Fund — picked up 70% of those initial costs.
LaCroix says help from American Rivers and the foundations was hugely important in getting the project “shovel ready” so it could apply for the construction funds it needed.
Removing the dam infrastructure was just part of the cost, though. Reworking the city’s water intake also required some tricky engineering.
A Plan Comes Together
The Middle Fork dam is not a pool dam built for water storage. Much of the time, water flows over the top until dam operators drop a floodgate to divert water to new locations. That water travels about 14 miles through tunnel and pipeline to Mirror Lake, then Anderson Creek, and to Lake Whatcom before finally being delivered to residents’ taps.
Before removing the dam, engineers had to move the water intake 700 feet upstream and situate it at an elevation that still enabled city water withdrawals throughout the year, regardless of flow conditions.
They also needed to make sure that the rushing water didn’t sweep up fish and accidentally send them through the water-supply system.
“The solution required a fairly complex design in the intake structure, including a fish exit pipe out of that structure to put fish back into the river in a way that meets current environmental permit standards,” explains LaCroix.
Project layout for the removal of the Middle Fork Nooksack diversion dam and rebuilding of water intake. Credit: City of Bellingham
Despite the cost and the work, she says, being able to continue to meet their municipal water obligations while opening up habitat for threatened species has been a win-win.
“I think there’s a lot of benefits to having a dam removal versus fish passage — the main one being that you get a free-flowing river that can be a dynamic ecosystem and change over time,” she says. “A static fish ladder just can’t provide that same level of ecosystem benefit.”
Restoration Success
Despite local authorities’ championing dam removal on the Middle Fork, the project has largely flown under the radar, overshadowed in the Pacific Northwest by heated discussions about a much larger potential project — removing four federal hydroelectric dams on the lower Snake River, a major tributary of the Columbia River.
Proponents of dam removal there see it as the best chance for recovering threatened salmon populations, including Chinook, which could help starving Southern Resident killer whales. Those dams also provide irrigation water, barge navigation and hydropower, so there’s been more pushback against removal efforts.
Previous dam removals around the country, however, have proved successful at aiding fish recovery and river restoration.
Most notably the 1999 demolition of Edwards Dam on Maine’s Kennebec River restored the annual run of alewives, a type of herring essential to the food web. The fish run has gone from zero to 5 million in the two decades since dam removal. Blueback herring, striped bass, sturgeon and shad have also extended their reach. And the resurgence has brought back osprey, bald eagles and other wildlife, too.
The overwhelming success of river restoration on the Kennebec helped to spur a nationwide dam removal movement that’s now seen 1,200 dams come down since 1999. Last year a record 90 dams were removed in 26 states, including 20 dams in California’s Cleveland National Forest.
The results have been seen in the Pacific Northwest, as well, which boasts the largest dam removal thus far in the country. In 2011 and 2014, the demolition of two dams on Elwha River, which runs through Washington’s Olympic National Park, opened up 70 miles of habitat that had been blocked for a century. Scientists have started seeing all five species of salmon native to the river coming back, particularly Chinook and coho. Bull trout, they’ve observed, have increased in size since the dams were removal.
Benefits on the Middle Fork Nooksack
McEwan hopes to see a similar outcome on the Middle Fork.
Like the Elwha the Middle Fork Nooksack is a relatively pristine river with little development, and dam removal is expected to provide a big boost to fish. The additional miles of spawning habitat are important, but so is the temperature of that water.
The dam removal will open access to cold upstream waters, which are ideal for salmon and getting harder to come by as climate change warms waters and reduces mountain runoff.
“This is really great for the climate change resiliency for these species,” says McEwan.
Steelhead will get back 45% of their historic habitat in the river, and scientists expect Chinook populations to increase in abundance by 31%.
That could help Southern Resident killer whales.
“When you get to the ocean, it’s a little bit of a black box in terms of what you can model and say definitively is going to help, but more fish is better for orcas,” McEwan says.
Upstream habitat will see benefits, too.
Oceangoing fish like salmon enrich their bodies with carbon and nitrogen while at sea. When they return to their natal rivers to spawn and die, the marine-derived nutrients they carry back upriver become important food and fertilizer for both riverine and terrestrial ecosystems — aiding everything from trees to birds to bears.
“Once the fish start making their way back, it will start changing the whole ecological system,” says Delgado.
But any ecological benefit from salmon restoration, either in the ocean or the upper watershed, won’t be immediate.
“The population of salmon on the Middle Fork is so low that we expect it’s going to take quite a while to rebound,” she says. “But the big picture is that what’s good for salmon is good for the region — our history and our destiny are intricately intertwined.”
After decades of work, that process of restoration has finally begun.
LOS ANGELES (AP) — Major California cities say they’ll use their share of a $650 million settlement to clean up the now-banned chemical PCB from bays, lakes and other waterways polluted for decades.
The giant chemical company Monsanto announced a tentative agreement Wednesday with government entities that had filed suit since 2015 over waterways and estuaries they say were polluted.
PCBs or polychlorinated biphenyls, were used in many industrial and commercial applications, including paint, coolants, sealants and hydraulic fluids from the 1930s until 1977, two years before the United States banned them. Monsanto was their manufacturer.
According to the U.S. Environmental Protection Agency, PCBs have been shown to cause a variety of health problems, including cancer in animals as well as effects on the immune, nervous and reproductive systems.
The tentative pact was announced along with a pledge from Monsanto that it would also pay up to $10.9 billion to settle litigation involving its weedkiller Roundup, which has triggered thousands of lawsuits over claims it causes cancer.
“Monsanto has profited handsomely for decades and will finally be held responsible for the damage it knowingly caused by manufacturing a product that put the public’s health at risk,” said Mara Elliott, city attorney for San Diego, one of the municipalities that sued over PCB pollution.
The settlement hinges on approval by U.S. District Judge Fernando M. Olguin. After that it will be determined how the money will be divided.
“The class is structured in a way that those who are facing the most significant problems get the most money by a longshot,” said attorney Scott Summy, whose firm, Baron & Budd, represented the government entities. “We think that will go a long way in helping protect the viability of many American waterways.”
Long Beach Deputy City Attorney Dawn McIntosh said her municipality is looking into using its share to fund stormwater-control projects it has had on hold for some time, as well as helping pay for ongoing monitoring projects.
“There’s a lot of things that can be done to further those causes,” she said. “The city will figure out what makes sense when we actually get the money.”
Other government entities positioned to benefit from the settlement are the Washington cities of Spokane and Tacoma, the city of Portland, Oregon, the Port of Portland, the California cities of Oakland, Berkeley, San Jose, Chula Vista, as well as Los Angeles and Baltimore counties, and the city of Baltimore.
Summy said the settlement is believed to be the first reached between the manufacturer of a chemical and government entities that had waterways polluted when it drained into their lakes, bays, estuaries and other waterways in storm runoff.
“This settlement is a groundbreaking effort to protect and restore the city’s water resources,” said Long Beach City Attorney Charles Parkin. He added it will provide his city and others “with funds for monitoring, mitigation and remediation efforts to manage PCBs in stormwater, stormwater systems, sediments and water bodies.”
Copyright 2020 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
The Supreme Court today declined to consider whether federal regulators violated farmers’ constitutional rights when they cut off irrigation water to save fish in the Pacific Northwest.
Facing drought in 2001, the George W. Bush administration shut off water deliveries from the Bureau of Reclamation’s Klamath River project to farms in south-central Oregon and Northern California. The goal was to provide water to threatened salmon species downriver.
The farmers revolted. They stormed irrigation canals, and one group took a blowtorch to a diversion head gate.
Their efforts were successful. The following year, Reclamation restored irrigation water deliveries to roughly 200,000 acres of cropland. It led to salmon die-off; according to some estimates, up to 70,000 fish washed up on the river’s shores.
Reclamation’s 2001 decision remains controversial nearly 20 years later. A group of farmers contend that the curtailment of water deliveries amounted to a “taking” of their property without just compensation under the U.S. Constitution’s Fifth Amendment.
The farmers’ legal efforts have been less successful than their protests, however.
The U.S. Court of Appeals for the Federal Circuit ruled last November that the decision was not a taking because Native American tribes, including the Karuk, Yurok and Hoopa Valley tribes, hold rights to the water that are higher priority than the irrigation project’s claims.
Farmers’ “water rights are subordinate to the Tribes’ federal reserved water rights,” the court ruled. “We therefore see no error in the court’s holding that the Bureau of Reclamation’s action in temporarily halting deliveries of Klamath Project water in 2001 did not constitute a taking of appellants’ property” (Greenwire, Nov. 14, 2019).
The farmers enlisted a veteran Supreme Court water attorney and asked the Supreme Court to review the lower bench’s ruling (Greenwire, March 17).
Today, the justices declined the petition in a short order without explanation, as is customary. The court accepts only a tiny percentage of the petitions it receives.
PORTLAND, Ore. (KTVZ) — The Oregon Department of Environmental Quality said a new federal rule that took effect Monday “has serious and potentially damaging implications for ensuring clean, safe and healthy water in Oregon and elsewhere.”
Here’s Oregon DEQ’s full statement on the impacts of the new rule:
The rule imposes a new definition of Waters of the United States, or WOTUS, under the federal Clean Water Act that reduces the extent of water bodies protected by federal regulations.
This is a direct assault on the federal Clean Water Act, one of the most successful environmental laws ever passed by Congress. As such, it is also an assault on the public health of Oregonians and people across the U.S. who depend on their states to enforce clean water regulations.
For five decades, states have been working within the Clean Water Act to reduce the amount of pollution flowing into our waters. Rolling back this legislation under the guise of “efficiency” will endanger our drinking water, fish habitat, recreation areas and more.
DEQ has joined other states in taking all available steps to prevent this new rule from taking effect and eroding the health of our people and our environment.
Despite the change, states and tribes still maintain broad authority to protect the natural resources that fall within their jurisdictions.
Even with the federal changes to WOTUS, state laws and rules remain unchanged. For example, under Oregon law, no person may discharge pollutants or wastes to waters of the state in a manner that would result in violations of state water quality standards, regardless of federal authority.
The new WOTUS definition would impact DEQ’s 401 Water Quality Certification process, which is linked to the issuance of federal permits for projects impacting wetlands and waterways.
The 401 certification provides DEQ the opportunity to ensure that a project will comply with all relevant state water quality standards and other relevant state laws.
Without a federal permit, DEQ must look to existing state law and rules to ensure protection of state water quality for these projects.
DEQ works with Oregon Department of State Lands and other state agencies to implement regulations to protect water quality in waters of the state.
The new WOTUS definition will not change implementation of DSL’s Removal-Fill permit program for waters of the state, and DEQ remains committed to working with DSL and Removal-Fill applicants to ensure water quality standards are met.
Under HB 2250 (the Oregon Environmental Protection Act), DEQ is evaluating the scope and impact of federal changes on existing environmental protections for Oregon’s waters. Over the next several months, staff in DEQ’s water quality program will work with the Environmental Quality Commission to identify the best way to ensure continued protection of Oregon’s waters.
Water resources and development opportunities vary greatly from region to region across the state, and DEQ shall consider and respect regional differences in potential impacts. DEQ is committed to playing a part in ensuring long-term availability of clean water for our people, our economy, and our environment.
California federal case features familiar debate over whether fluoridation should continue, including in Oregon.
In a broadcast that rewound the clock to pre-coronavirus times, a live-streamed federal trial in San Francisco revisited the fluoridation debate that gripped the city of Portland in 2013.
Since June 8, Food and Water Watch, the Fluoride Action Network and other groups have engaged in the unprecedented and potentially historic federal trial online, having sued to force the U.S. Environmental Protection Agency to block the addition of fluoride to drinking water to fight cavities.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA – Federal District Judge Edward M. Chen in San Francisco (lower left) is ruling on a case that could affect Oregon communities that fluoridate their water.
Seven years ago in Portland, lawn signs sprouted and arguments broke out as two camps of people debated — up close and with no masks necessary — whether the benefit of putting fluoridation chemicals in drinking water outweighed the risk of harm.
In the end, Portlanders rejected the position of the federal Centers for Disease Control and Prevention, and the American Dental Association, voting fluoridation down by a large margin.
Now Portlanders will see if a federal judge, Edward M. Chen, endorses that decision. Both sides made their closing arguments June 17, broadcast through the court’s webpage.
The trial’s outcome could affect the many communities in Oregon that do fluoridate. It could have an impact on other environmental issues as well. Already, the plaintiffs have enjoyed unprecedented success in forcing consideration of recently published studies under a federal safety law. If they win, it could reshape environmental protection for years to come, according to the publication Bloomberg Law.
Dueling science
The groups suing EPA have called as witnesses the scientists who conducted a recent series of long-term studies of human exposure in Canada and Mexico, some approved and funded by the U.S. National Institutes of Health. The studies connected even the low levels found in fluoridated water to subtle impairment in developing brains, such as attention-deficit hyperactivity disorder and an average loss of several points of IQ.
But supporters of fluoridation, including some scientists, portray the studies as flawed, inconclusive and potentially biased — an argument that’s also been made by the EPA’s lawyers in court in arguing any conclusions would be premature.
The EPA points to still other studies, including a forthcoming study that has not yet been published, that do not find harm from fluoridation.
It’s unclear when the judge will issue his ruling, and whether it will be appealed.
The Fifth Amendment protects the right to life, liberty, and property. This week, the Supreme Court should take a critical step to protect the private property rights of farmers and ranchers in the Western states. Their rights were infringed upon by a lower court ruling that upended the water laws of the region and abandoned over a century of federal deference to state law for adjudicating and administering water rights.
The Supreme Court is considering whether to grant review in Baley v. United States, a case that involves bedrock principles of Western law, federalism, and the Fifth Amendment. In the West, the use of water for irrigation is a property right, earned by diligent work and beneficial use of the water. The conflict in Baley centers on the federal government taking water developed and stored solely for irrigation uses authorized through the 1905 Klamath Project.
In 2001, after a century of providing safe and affordable food, farmers had their water reallocated to protect endangered species. Specifically, based on advice from wildlife agencies, the Bureau of Reclamation redirected the farmers’ water to the Klamath River to boost instream flows and required all the remaining water to be left in Upper Klamath Lake to provide extra water for two species of suckerfish that live there.
Adding insult to injury, the Natural Resources Council of the National Academy of Sciences found that there was no scientific basis for taking the farmers’ water; more water, it noted, would not entail more fish. But that finding was too late, and the only possible redress was through the courts. The farmers’ claim was simple: Society chose to adopt and implement the Endangered Species Act in a way that took their property, and so, under the Fifth Amendment, the government is required to pay for the property that it took.
Unfortunately, justice has been long delayed. The case saw delays, appeals, and remands in the federal court system. It even required a side trip to the Oregon Supreme Court, which corrected the federal trial court’s misunderstanding of Western water law principles.
Eventually, 16 years after the taking, the trial court recognized that many of the involved water rights were compensable property rights of the landowners. But the trial court and the Court of Appeals went on and made findings that have upset many public and private entities throughout the West. In particular, the lower courts found that there were, as of 2001, senior federal reserved water rights for the benefit of tribal fisheries, which, by their existence, meant that the farmers really didn’t have a right to the water to begin with.
However, this post-hoc rationalization is flawed. Even if there was a reserved right, these courts ignored the Supreme Court’s 1978 ruling, which limited the quantity of a reserved right to the “minimum amount” necessary for the primary purposes called out in the act establishing the reservation. Subsequent rulings establish that the date of priority of a reserved right is the date of the establishment of the act.
Water rights law is complex and determined and quantified in state adjudication proceedings. Also, states administer water rights based on relative priorities of all parties in a system. By contrast, here, the water was taken from one group of parties under the ESA based on opinions of federal agency staff. Court decisions limiting reserved rights, state authority over water, and state water law were ignored. Also, the farms and ranches rely on water that is stored in reservoirs during relatively wet periods for use during the dry summer. Water stored for irrigation under state law cannot be subject to a federal right claim, but the lower courts did not bother to sort that out.
The federal circuit court’s decision is disruptive, inconsistent with Supreme Court precedent, and at odds with fundamental principles of Western water law. “Friend of the court” briefs have been filed by scores of parties, including the American Farm Bureau Federation, the Oregon Water Resources Congress, New Mexico’s Middle Rio Grande Conservancy District, the Association of California Water Agencies, the Pacific Legal Foundation, and legal scholars.
The issues in Baley are of broad Western and national importance. The Supreme Court should accept the petition for review of the case to honor the Fifth Amendment and respect the principles of cooperative federalism that guide Western water rights and the economies that depend on those principles.
Rep. Greg Walden represents Oregon’s 2nd District in the U.S. House. Rep. Doug LaMalfa represents California’s 1st District in the U.S. House. Cliff Bentz is an Oregon state senator.
