Friend and colleague Paul Ruscher, Dean of the Science Division and Director, Lane GLOBE Program at Lane Community College, sent me this brief by his former Florida State University colleague, J.B. Ruhl, now at Vanderbilt University.
The brief deals with with ecosystem services and was filed in support of Florida, the plaintiff in the case. The trial began on 31 October 2016 in Portland, ME, and is being heard before Special Master Ralph I. Lancaster.
As Paul noted, he hadn't heard much about the ecosystem services angle and neither had I. Certainly the popular media seems to have ignored it, instead transfixed on the 'water wars' aspect.
Professor Ruhl makes the case that the distinction between water quality and quantity is 'artificial' and that the Clean Water Act deals with quantity as well. You cannot really separate the two.
Amen!
Download JB_Ruhl_Amicus_Brief_FL_v_GA
Introduction
A river is more than water flowing downhill. It follows that equitable apportionment doctrine is
about more than just how much water must flow downhill across a state line. While that quantum is often the end product of an interstate river equitable apportionment decree, the underlying question the doctrine must answer to designate such a quantum is, "What is being allocated, and on what basis?"The purpose of this amicus brief is to present the case for using principles from the scientific discipline of “ecosystem services” to help answer that question, specifically in this proceeding but also more generally for the doctrine. Ecosystem services are the benefits humans receive from natural resources in the form of goods, such as water, fish, and timber, and of services, such as groundwater recharge, flood mitigation, and salinity regulation, many of which are public or quasi-public goods and thus not easily accounted for in markets.
It should come as no surprise that there are ecosystem services—that natural resources like rivers are not only ecologically important but also economically valuable to human communities. Nevertheless, a discipline centered on the study of ecosystem services did not emerge robustly until the mid-1990s, when ecologists, economists, geographers, and researchers from other traditionally siloed fields began coming together to focus on the identification and quantification of ecosystem services.
The composition, distribution, and human consumption of ecosystem services are among the attributes that make a river more than water flowing downhill. Water extracted from a river in its physical form is not the only ecosystem service humans consume from a river. They also consume flood mitigation services, estuarine salinity regulation services, habitat maintenance services for commercial fisheries, and a suite of other economically valuable benefits made possible in large part by the water flowing in its physical form down the river. The fact that some of these services seem “ecological” and are not easily monetized in commercial markets does not make them any less economically valuable when humans consume them. It follows that equitable apportionment doctrine ought to take into account all of the ecosystem services humans consume from a river and allocate the water flowing downhill so as to provide an equitable division of those services between the states.
Indeed, I argue in this brief that the Court’s equitable apportionment doctrine already incorporates all of the key principles behind the concept of ecosystem services, though not in the language and metrics used in ecosystem services science. The language of equitable apportionment doctrine has lagged behind the science of ecosystem services for the simple reason that the Court has not had a proceeding like this one since the ecosystem services discipline emerged to synthesize and galvanize scientific research. But the spirit of the ecosystem services concept has been embedded in equitable apportionment doctrine for decades. Its spirit has taken material form in other legal domains from federal and state statutes to agency regulations and policies to judicial common law decisions. This original jurisdiction proceeding presents the opportunity for the ecosystem services concept to become explicit and inform decisions in yet another legal domain—the Court’s doctrine of equitable apportionment.
Part I of this brief provides the Court background on the discipline of ecosystem services. Part II traces developments in law and policy integrating ecosystem services principles, including a recent White House directive to federal agencies, to demonstrate that it has gained traction in legal domains related to equitable apportionment. Part III argues that it is fully consistent with the Court’s equitable apportionment doctrine to incorporate ecosystem services principles to help resolve the apportionment decision. Finally, Part IV suggests ways in which doing so will help clarify resolution of the equitable apportionment issues presented in this proceeding regarding the Apalachicola-Chattahoochee-Flint River Basin (“ACF”). Indeed, there has perhaps been no equitable apportionment case in the Court’s history that more starkly and imperatively makes the case for using principles of ecosystem services to guide the apportionment decision.
Cutting to the chase:
Conclusion
Justice O’Connor once observed in the context of the Clean Water Act that the distinction between water quantity and water quality is “artificial.” PUD No. 1 v. Washington Dep’t of Ecology, 511 U.S. 700, 701 (1994) (“Petitioners' assertion that the [Clean Water] Act is only concerned with water quality, not quantity, makes an artificial distinction, since a sufficient lowering of quantity could destroy all of a river's designated uses, and since the Act recognizes that reduced stream flow can constitute water pollution.”). As suggested above, equitable apportionment doctrine has all too often been portrayed as just about water quantity. Yet, as shown, the Court has never accepted that artificiality. The Court has apportioned acre feet of water, but it has also fish and the dilution of pollution. This proceeding presents an opportunity for the Court to acknowledge those apportionment decisions and its doctrine in general for what it is about at heart—the apportionment of ecosystem services.
Excellent!
Enjoy!
"Plans to protect air and water, wilderness and wildlife are in fact plans to protect man." - Stewart Udall
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