By Grace Weatherall This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. Introduction Bostock v. Clayton County was marked for a place among landmark Supreme Court jurisprudence as soon as it arrived.. The decision protected LGBTQ+…
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Conduit for Peace in the Middle East: An Analysis of the Red Sea – Dead Sea Water Conveyance Project
By Sarah L. Fine
Sarah Fine is a J.D. candidate at Lewis & Clark Law School and an Online Journal Editor of Environmental Law.
This post is part of the Environmental Law Review Syndicate.
As the old saying goes, whiskey is for drinking—water is for fighting over.
The mythic Dead Sea—the highly salinated, low-altitude lake of international interest and importance—is drying up. Although the Jordan Rift Valley, where the Dead Sea is located, is known for frequent droughts, the decline of the Dead Sea is primarily due to human intervention—namely, the diversion of the Jordan River, the main lake source which feeds the Dead Sea, to provide potable water to increasing populations. A water level drop of one meter per year has led the surface area to decrease from 960 km2 to 620 km2 in the last fifty years. Today, the rate of decline is only increasing, giving rise to “extensive environmental degradation and damage to industry and infrastructure and . . . substantial intangible impacts and costs,” with an estimated direct cost to government and industry to be “some $2.9 billion over the next 60 years.”
Despite the lack of stability between the Dead Sea’s three bordering entities—the State of Israel, the Hashemite Kingdom of Jordan, and the Palestinian Authority—a series of agreements between the groups have sought to address the problem of the disappearing Dead Sea alongside the problem of access to potable water. Facilitated by the World Bank Group, the Red Sea–Dead Sea Water Conveyance Study investigated the feasibility of reversing the environmental degradation of the Dead Sea by transferring seawater from the Red Sea. By introducing desalination into the transfer process, the hope of the three parties is that the Red Sea–Dead Sea Water Conveyance will address the environmental degradation of the Dead Sea and the lack of affordable energy and drinking water in the Jordan Rift Valley, while increasing political goodwill and cooperation between the parties.
II. Issues Sought to Be Addressed
The Dead Sea—neither dead, nor a sea—supports a wide variety of microfauna and macrofauna at the lowest point on the Earth’s surface. As the lowest point on Earth, the Dead Sea acts as “the water seismograph of the region . . . express[ing] the nonsustainable use of fresh water.” Since the 1960s, the surface area of the Dead Sea has declined by one-third, resulting in increased incidence of dust storms, “losses of freshwater springs, river bed erosion, and occurrence of over one thousand sinkholes.” The sinkholes occur because
[t]he retreat of the water (which is almost 10 times saltier than the ocean’s) has allowed fresh groundwater to well up and dissolve the layer of salt within the land’s subsurface. Underground cavities form and eventually trigger collapses. . . . The deepest pit could fit an eight-story building. . . . Today’s sinkholes, located almost exclusively on the sea’s Israeli side, first appeared in the early 1980s. . . . According to Eli Raz, a geology consultant who has tracked the problem almost since it began, more than 4,000 sinkholes now pockmark the land.
There are multiple causes of the Dead Sea water level decline. The Jordan River’s flow into the Dead Sea has been most significantly impacted by diversion to satisfy increasing water consumption in Israel, Jordan, and Syria, driven by rapidly growing populations. In addition, the large evaporation-based chemical industries in Israel and Jordan consume a significant amount of raw Dead Sea water, further contributing to the water level decline. Further, as this is all occurring in desert nations, the problems of water scarcity will be only “exacerbated by the anticipated negative climate change scenarios” over time.
A. Water Resources by Region
1. Hashemite Kingdom of Jordan
The Hashemite Kingdom of Jordan, once a relatively water-rich nation, is now “the third most water insecure country in the world.” Jordan, which has rationed water since the 1980s, found itself in 2013 in a full-blown water crisis—having integrated into their population nearly 1.4 million people seeking refuge from the Syrian Civil War.
In 2008, Jordan implemented a water strategy expected to protect its water needs until at least 2022. This strategy centered on the building of the Disi aquifer, which opened in 2013 and pumps 100 million cubic meters of water per year. However, this strategy also relied upon pre-Syrian crisis population assessments. In a 2014 study, Jordan determined that the new $1.1 billion aquifer could only support the population through 2016. According to Jordan’s Ministry of Water and Irrigation, water needs will exceed resources by more than 26% by 2025.
To address its water crisis, in 2014 Jordan enacted “Water Wise Women” with funding from Germany’s Agency for International Cooperation (GIZ), a program which trains women to be plumbers and community outreach representatives.
Each group of “Water Wise Women” goes through eight different levels of training run by a German expert from GIZ and supervised by program alumni. The levels include: eradicating water leakage, harnessing technology, reducing water usage in the household, and improving hygiene. Each trained woman is expected to disseminate the technology and information within their community, and to reach out to at least 20–25 other women. They are given funding for travel for this outreach, and at the end of the course, each participant receives a box of tools.
The program has trained more than three hundred women plumbers in fifteen locations across the Kingdom. In those areas, Jordan’s Ministry for Water and Irrigation found “there has been a 30–40% reduction in household water consumption.”
In March of 2017, the Kingdom’s first desalination plant opened in Aqaba. This plant doubled Jordan’s potable water supply, providing five million cubic meters of potable water per year. In spite of these efforts, in December of 2017, the Economist reported that Jordan could provide only 15% of the threshold the World Bank defined as “water scarcity.”
In early 2018, the Jordanian government partnered with another community group to promote conservation: college students. In a partnership with students at Princess Sumaya University for Technology, Jordan’s Ministry of Water and Irrigation launched a game application in February of 2018 to raise water conservation awareness among the general public. In the style of Chutes and Ladders, the game entertains players while educating them about water rationing and water waste.
2. State of Israel
In 2008, after a decade-long drought, “its worst in at least 900 years,” Israel was running out of water. But a few years of rain, combined with new, highly efficient preservation and desalination technology, put Israel in a vastly different position: by 2014, rather than experiencing water scarcity, it suddenly had a surplus. Today, Israel leads the world in water reclamation: “87% of its wastewater is purified and reused for agriculture. For reference, Singapore, second on the list, reclaims some 35% of its sewage water, and most countries . . . reclaim less than 10% of their water.”  In support of this innovative water treatment system is a wholistic approach of water conservation, using “low-flow toilets and showerheads . . . installed nationwide” and an agricultural system powered by drip irrigation.
The most significant change has been Israel’s newest source of freshwater: desalinated seawater. Even as the world’s leader in water conservation, “Israel still needed about 1.9 billion cubic meters . . . of freshwater per year and was getting just 1.4 billion cubic meters . . . from natural sources.” Desalination, or desal, was once considered a method of “last resort” due to its expense and inefficiency. But a breakthrough innovation by Israel’s Zuckerburg Institute for Water Research changed that:
Desal works by pushing saltwater into membranes containing microscopic pores. The water gets through, while the larger salt molecules are left behind. Microorganisms in seawater quickly colonize the membranes and block the pores, and controlling them requires periodic costly and chemical-intensive cleaning. But [the Institute] developed a chemical-free system using porous lava stone to capture the microorganisms before they reach the membranes. . . . Israel now gets 55 percent of its domestic water from desalination.
Israel’s Mediterranean coast is now home to five desalination plants, producing “roughly 550 million cubic meters per year” of potable water. By 2025, “the Israel Water Authority plan[s] to establish another [plant] in Western Galilee and another four large facilities along the coast.”
Today, as the nation faces its fifth consecutive drought year, Israel is no longer in a state of water surplus and has resumed water rationing. This demonstrates the continued incentive Israel has for participating in the water conveyance project apart from concerns for the Dead Sea.
3. Palestinian Authority: West Bank & Gaza Strip
The 1995 Oslo II Accords, an interim resolution meant to be revised within five years, granted Palestinian Authority jurisdiction over 40% of the West Bank, with Israel retaining control over Area C. To “deal with all water and sewage related issues in the West Bank,” Oslo II established a Joint Water Committee (JWC).
Oslo II also established the amount of water Israel is required to “make available to the Palestinians during the interim period a total quantity of 28.6 mcm/year,” based on a joint estimate of the “future needs of the Palestinians in the West Bank [as] between 70–80 mcm/year.” B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, reported in 2016 that because the “Palestinian population of the West Bank has nearly doubled . . . the Palestinian Authority (PA) is forced to purchase from Mekorot [the Israeli state-owned water distribution company] an amount two and [a] half times greater than [those] set out in the accords.”
The World Health Organization recommends a minimum water consumption of one hundred liters per capita per day. In 2014, the Palestinian Water Authority reported an average Palestinian water consumption of seventy-nine liters per capita per day. B’Tselem reported that while this figure is reflective of Palestinians who are hooked up to the water grid, the figure for Palestinians who are not is much lower, an estimated twenty to fifty liters per capita per day.
A significant component to the Palestinian Authority’s water scarcity is the extensive damage to the Gaza Strip’s water and wastewater infrastructure during the Second Intifada from 2000–2005. In order to restore access to water and wastewater services to the area, the World Bank engaged in the Gaza Emergency Water Project, which closed in January 2012. This project completed:
Drilling of more than 50 water production wells with small pumping capacity (new wells or replacement of existing polluted wells); Supply of chemicals and dosing pumps and chlorination of 99.7 percent of water supply; Replacement of more than 30,000 meters of old service connections and old asbestos main pipes, and installation of 15,000 domestic meters and 20 public meters; Monitoring program established for wastewater plants; [and] Emergency response plan established following the rupture of the temporary effluent basin at Beit Lahia wastewater treatment plant.
Historically, the water source for the Gaza Strip has been an underlying coastal aquifer. Complicating matters further, in 2012, the United Nations Country Team reported that, due to declining groundwater levels and resultant seawater infiltrates, the aquifer could become unusable as early as 2016, with the damage irreversible by 2020.
Due to the Gaza Strip’s location on the Mediterranean coast, combined with the newly reduced cost of desalination, other sources of water have become possible. In January 2017, with contributions by UNICEF and the European Union, Gaza opened a significant seawater desalination plant in Deir al Balah. This plant initially produced 6,000 cubic meters of desalinated water per day (or 2.19 million cubic meters per year), and has a projected target of approximately 20,000 cubic meters per day by 2020 (or 7.3 million cubic meters per year).
The 1995 water allocation agreement in Oslo II was updated in July 2017 in the bilateral water agreement between Israel and the Palestinian Authority. This agreement increased the amount Israel agreed to allocate to the Palestinian Authority from 28.6 million cubic meters per year to 32 million cubic meters of water per year.
B. Lateral Water Agreements
While the possibility of an inter-basin transfer from the Red Sea to the Dead Sea has been studied in many forms since the mid-1800s, the significant Dead Sea water level decline in the last fifty years and wide-spread potable water scarcity led to an agreement in the 1994 Jordan–Israel Peace Treaty (joined by the Palestinian Authority) to consider a water conveyance to “save” the Dead Sea. This treaty built on the water-sharing agreements in the Oslo I Accord in 1993 and was reinforced by Oslo II Accord. In the 1994 treaty, the water conveyance was described as “The Two Seas Canal or the Peace Conduit.”  From the beginning, it was not only meant to provide 850 million cubic meters of potable water to Jordan, Israel, and Palestine, but was also intended to be “a symbol of peace and cooperation in the Middle East.”
In 2005, the Palestinian Authority, Israel, and Jordan (“the Beneficiary Parties”) signed a joint letter requesting that the World Bank “coordinate donor financing and manage the implementation of the Study Program.” From the beginning, there was a “general consensus on the need to restore the Dead Sea, but opinions on how to achieve this objective var[ied].” The resultant “Red Sea–Dead Sea Water Conveyance Study Program” was therefore multi-faceted, consisting of five main studies: a Feasibility Study, an Environmental and Social Assessment, a Study of Alternatives “examin[ing] other options available to the Beneficiary Parties to address the degradation of the Dead Sea and the production of additional potable water by means other than the identified water conveyance option,” a Red Sea Modelling Study, and a Dead Sea Modeling Study.
As the various studies progressed, the Beneficiary Parties and the World Bank made a series of bilateral and trilateral agreements in negotiations to continue the project. First, in 2011, two Palestinian civil society organizations, Stop the Wall Campaign and the Palestinian Farmers Union, as well as the Global Initiative for Economic, Social and Cultural Rights, representing residents of the West Bank, filed a Request for Inspection of the Study Program. This Request stated that West Bank residents “rely on ground water resources that are put at risk by the decline of the Dead Sea and which do not appear to be effectively addressed by the . . . Program,” and identified flaws in the Study Program Terms of Reference which “would result in inadequate and incomplete Environmental Social Assessments.” Then, in 2013, all three Beneficiary Parties signed a “milestone regional cooperation agreement,” in the form of a Memorandum of Understanding, outlining “three major regional water sharing initiatives” to be pursued by the parties. At this stage, the initiatives included:
the development of a desalination plant in Aqaba at the head of the Red Sea, where the water produced will be shared between Israel and Jordan; increased releases of water by Israel from Lake Tiberias for use in Jordan; and the sale of about 20–30 million m3/year of desalinated water from Mekorot (the Israeli water utility) to the Palestinian Water Authority for use in the West Bank. In addition, a pipeline from the desalination plant at Aqaba would convey brine to the Dead Sea to study the effects of mixing the brine with Dead Sea water.
In 2015, Israel and Jordan signed a bilateral water cooperation agreement to further the project. Pursuant to this agreement, the two parties agreed to “share the potable water produced by a future desalination plant in Aqaba, from which salty brines will be piped to the Dead Sea. In return for its portion . . . Israel will be doubling its sales of Lake Kinneret (Sea of Galilee) water to Jordan.” As the proposed pipeline would “lie entirely in Jordanian territory,” in 2016, Jordan and the World Bank entered into a “Country Partnership Framework” to fund the pipeline.
In 2017, Israel and the Palestinian Authority signed a bilateral agreement allocating thirty-two million cubic meters of water to the Palestinian Authority to be split, twenty-two million cubic meters to the West Bank, and ten million cubic meters to the Gaza Strip. Recall that the 2013 trilateral Memorandum of Understanding included an agreement for Israel to sell “about 20–30 million m3/year of desalinated water . . . to the Palestinian Water Authority for use in the West Bank.”
III. The Water Conveyance
The proposed water conveyance seeks to address the environmental degradation of the Dead Sea and the lack of affordable energy and drinking water in the Jordan Rift Valley, while increasing political goodwill and cooperation between the parties. As a “three birds with one stone” approach, “[o]n paper, Red–Dead looks as elegant as it is ambitious—a simple solution for a huge environmental crisis that includes jobs, infrastructure, and profits.” It is planned that with one conveyance, all three issues would be addressed:
A hydroelectric plant would be built, generating energy; desalination plants would pump out drinking water; and the reject brine, the by-product of the desalination process, would replenish the Dead Sea like a hose filling a swimming pool. The Israelis and Jordanians would share responsibility for building, maintaining, and operating the system. Thus, water, a historic cause of anxiety, contention, and even war in the region, becomes a conduit for economic and social cooperation.
Taking into account the technological, political, and financial complexity of the water conveyance, the Study Program examined the numerous impacts and effectiveness of the proposal over many years.
The objective of the Red Sea–Dead Sea Water Conveyance Project Study Program was to “investigate the feasibility of the concept as a solution to the decline of the Dead Sea water level” and was originally intended to be completed by 2010. In order to get the full picture, the environmental impacts—both earthly and social—were studied. A study of alternatives was also made, informed by a chemical industry analysis study. Once these were completed, the Feasibility Study was finalized and published.
The Feasibility Study, completed in 2014, evaluated “six potential project configurations . . . based on three alternative conveyance systems.” It considered estimated capital costs, whole lifecycle net present costs, environmental impacts during construction and operation, and the effect on the microbiome of mixing Red Sea and Dead Sea waters. Based on a “weighted multi-criteria assessment process,” the Feasibility Study concluded that a “pipeline conveyance combined with a high level desalination plant is the recommended optimum solution.” In reaching this conclusion, the Study Program explored multiple limitations and potential adverse effects of the conveyance plan, and in so doing introduced a number of safeguards and mitigation factors to address the myriad needs of the three Beneficiary Parties.
There is one factor not addressed in the 2014 Study Program findings: the impact of large-scale use of desalination plants—something only beginning to be studied in Israel, where desalinated water has recently become the majority source of potable water. While the quality of the water produced in desalination is high, it is also “devoid of some key minerals found in normal water, like magnesium,” as the mineral is removed in the reverse-osmosis process alongside other salts. Use of desalinated water in agriculture has therefore been shown to require an increased need for fertilizer. In addition, long-term consumption of desalinated water has also been linked to “an elevated mortality risk of myocardial infarction”—i.e., heart attacks. It is theorized that this can be alleviated by the addition of magnesium to the treated water, which must be considered when implementing wide-spread use.
Having adequately addressed the multi-faceted concerns of all three Beneficiary Parties, by all accounts the Red Sea–Dead Sea Water Conveyance Project will break ground in the coming year. In the two decades since the 1994 Jordan-Israel Peace Treaty and the 1993 and 1995 Oslo Accords, the political dynamics between the Dead Sea’s three bordering entities has remained complex, if not outright violent. And yet, the inevitability of the Dead Sea’s decline, the inevitability of climate change, and the continued water scarcity in the entire Jordan River Basin has inexorably tied these parties together just as strongly as any treaty.
 The surface area of the Dead Sea has shrunk by at least one-third since 1960; the water level falls at “an alarming pace of 0.8 to 1.2 meters per year.” World Bank Grp., Red Sea – Dead Sea Water Conveyance Study Program: Overview – Updated January 2013, at 1 (2013), http://siteresources.worldbank.org/EXTREDSEADEADSEA/Resources/Overview_RDS_Jan_2013.pdf?resourceurlname=Overview_RDS_Jan_2013.pdf%26.
 Stephen C. McCaffrey, The Shrinking Dead Sea and the Red–Dead Canal: A Sisyphean Tale?, 19 Pac. McGeorge Global Bus. & Dev. L.J. 259, 260 (2006).
 Envtl. Res. Mgmt. et al., Red Sea-Dead Sea Water Conveyance Study Environmental and Social Assessment: Preliminary Scoping Report 13, 16 (2008).
 Coyne et Bellier et al., Red Sea – Dead Sea Water Conveyance Study Program Feasibility Study: Final Feasibility Study Report Summary 1 (2014).
 The Dead Sea is “roughly bisected from the north to the south by the border between Jordan on the eastern side, and Palestine (the West Bank) and Israel on the western side, placing it in the middle of some of the most hotly-contested land on earth.” See McCaffrey, supra note 2, at 259, 260 n.4. Likely as a result, many of the document and agreements which comprise the Red Sea–Dead Sea Water Conveyance are confidential.
 See World Bank Grp., supra note 1, at 2.
 Regarding microfauna: “In 2009, a marine biologist from Germany’s Max Planck Institute for Marine Microbiology discovered new species of green sulfur bacteria, cyanobacteria, and diatoms [in the Dead Sea]. Found within sediments nourished by underwater springs, these microorganisms have metabolisms allowing them to adapt to extreme changes in salinity.” Todd Pitock, Could Water from the Red Sea Help Revive the Dead Sea?, Nat. Resources Def. Council (Jan. 23, 2017), https://www.nrdc.org/onearth/could-water-red-sea-help-revive-dead-sea. Regarding macrofauna:
Located off the Dead Sea’s northwestern shore, the nature reserve is the world’s lowest in altitude, and its wetlands are the only place on the planet where rare blue and Dead Sea killifish coexist. The landscape’s altered hydrology is putting them at risk as well as causing the springs on the Dead Sea floor to migrate eastward.
 Michael Beyth, Water Crisis in Israel, in Water: Histories, Cultures, Ecologies 171, 174 (Marnie Leybourne & Andrea Gaynor eds., 2006).
 See World Bank Grp., supra note 1, at 1.
 World Bank Grp., Red Sea – Dead Sea Water Conveyance Study Program: Background Note – October 2010, at 1 (2010), http://siteresources.worldbank.org/INTREDSEADEADSEA/Resources/Background_Note_October_2010.pdf; see Envlt. Res. Mgmt. et al., supra note 3, at 4.
 Pitock, supra note 8.
 Natan Odenheimer, Israel – A Regional Water Superpower, Jerusalem Post (May 13, 2017), http://www.jpost.com/printarticle.aspx?id=484996.
 Stephen C. McCaffrey, Water Scarcity and Security Issues in the Middle East, 108 Am. Soc’y Int’l L. Proc. 297, 299.
 John Anthony Allan et al., Study of Alternatives: Final Report, Executive Summary and Main Report (2014).
 Id. at 35.
 MercyCorps, Tapped Out: Water Scarcity and the Refugee Pressures in Jordan 12 (2014).
 Id. at 4–5.
 Id. at 14.
 Jordan’s Water Wise Women, Al Jazeera (May 17, 2017), http://www.aljazeera.com/programmes/earthrise/2017/05/jordan-water-wise-women-170516110004513.html.
 Odette Chalaby, Jordan Is Solving Its Water Crisis by Training Women as Plumbers, Apolitical (Nov. 3, 2017), https://apolitical.co/solution_article/jordan-solving-water-crisis-training-women-plumbers/.
 Jordan’s First Water Desalination Plant Opens in Aqaba, Jordan Times (Mar. 18, 2017), http://www.jordantimes.com/news/local/jordan%E2%80%99s-first-water-desalination-plant-opens-aqaba.
 Diplomatic Drought: Jordan’s Water Crisis Is Made Worse by a Feud with Israel, Economist (Dec. 2, 2017), https://www.economist.com/news/middle-east-and-africa/21731844-thirsty-kingdom-can-ill-afford-fall-out-its-neighbour-jordans-water.
 Ministry Launches Water Conservation Awareness Game, Jordan Times (Feb. 19, 2018), http://www.jordantimes.com/news/local/ministry-launches-water-conservation-awareness-game.
 “Israel’s largest source of freshwater, the Sea of Galilee, had dropped to within inches of the ‘black line’ at which irreversible salt infiltration would flood the lake and ruin it forever.” Rowan Jacobsen, How a New Source of Water Is Helping Reduce Conflict in the Middle East, Ensia (July 19, 2016), https://ensia.com/features/water-desalination-middle-east/.
 Id.; Julia Pyper, Israel Is Creating a Water Surplus Using Desalination, E&E News: Climatewire (Feb. 7, 2014), https://www.eenews.net/stories/1059994202.
 See Odenheimer, supra note 13.
 See Jacobsen, supra note 31.
 Brett Walton, Israel’s Mediterranean Desalination Plants Shift Regional Water Balance, Circle Blue (July 25, 2016), http://www.circleofblue.org/2016/middle-east/israels-mediterranean-desalination-plants-shift-regional-water-balance/.
 Zafrir Rinat, Desalination Problems Begin to Rise to the Surface in Israel, Haaretz (Feb. 6, 2017), https://www.haaretz.com/israel-news/.premium-desalination-problems-begin-to-rise-to-the-surface-in-israel-1.5494726.
 Hagai Amit, Dry, Dry Again: After Several Wet Years, the Big Drought Is Back Again in Israel, Haaretz (Jan. 19, 2018), https://www.haaretz.com/israel-news/.premium-after-several-wet-years-the-big-drought-is-back-in-israel-1.5746445.
 World Bank, West Bank and Gaza: Assessment of Restrictions on Palestinian Water Sector Development 5–6 (2009).
 Id. at 5. In their 2009 report, the World Bank criticized the JWC as an “[in]effective mechanism for facilitating sector investment.” Id. at 47 & n.77.
 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Isr.-Palestine, Sept. 28, 1995, U.N. Doc. A/51/889.
 Summer 2016 – Israel Cut Back on the Already Inadequate Water Supply to Palestinians, B’TSELEM (Sept. 27, 2016), https://www.btselem.org/video/201609_water_salem#full.
 Gaza Emergency Water Project, World Bank (Apr. 29, 2013), http://www.worldbank.org/en/results/2013/04/29/gaza-emergency-water-project.
 United Nations Country Team, Gaza in 2020: A Liveable Place? 11 (2012).
 Largest Seawater Desalination Plant Opened in Gaza, U.N. Off. Coordination Humanitarian Aff. (Mar. 11, 2017), https://www.ochaopt.org/content/largest-seawater-desalination-plant-opened-gaza.
 Press Release, White House, Donald J. Trump Administration Welcomes Israeli-Palestinian Deal to Implement the Red–Dead Water Agreement (July 1, 2017), https://www.whitehouse.gov/briefings-statements/donald-j-trump-administration-welcomes-israeli-palestinian-deal-implement-red-dead-water-agreement/.
 Id.; see also Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 44.
 See World Bank Grp., supra note 11, at 1–2.
 Declaration of Principles on Interim Self-Government Arrangements, Isr.-Palestine, Sept. 13, 1993, U.N. Doc. A/48/486.
 See Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 44, at Annex III art. 40.
 Saad Merayyan & Salwa Mrayyan, Jordan’s Water Resources: Increased Demand with Unreliable Supply, 3 Computational Water Energy & Envtl. Engineering 48, 49 (2014).
 World Bank Grp., Red Sea – Dead Sea Water Conveyance Concept Feasibility Study and Environmental and Social Assessment: Information Note – July 2007, at 3 (2007), http://siteresources.worldbank.org/MENAEXT/Resources/RDS_Background_Note_V050707.pdf?resourceurlname=RDS_Background_Note_V050707.pdf.
 Id. at 5.
 World Bank Grp., supra note 63, at 2.
 World Bank Grp., Red Sea-Dead Sea Water Conveyance Study Program: Questions and Answer Sheet 1 (2011), http://siteresources.worldbank.org/INTREDSEADEADSEA/Resources/RDSQ&A13Dec2011_final.pdf.
 Memorandum from Roberto Lenton, Chairperson, Inspection Panel, World Bank, to President of the International Bank for Reconstruction and Development and the International Development Association (Oct. 20, 2011), http://documents.worldbank.org/curated/en/510341468184139751/pdf/651110IPNR0Box000INSP0SECM201100008.pdf.
 Press Release, World Bank, Senior Israeli, Jordanian and Palestinian Representatives Sign Milestone Water Sharing Agreement (Dec. 9, 2013), http://www.worldbank.org/en/news/press-release/2013/12/09/senior-israel-jordanian-palestinian-representatives-water-sharing-agreement.
 Sharon Udasin, Israeli, Jordanian Officials Signing Historic Agreement on Water Trade, Jerusalem Post (Feb. 26, 2015), http://www.jpost.com/Israel-News/New-Tech/Israeli-Jordanian-officials-signing-historic-agreement-on-water-trade-392312.
 See World Bank Grp., supra note 11, at 2.
 See generally Int’l Bank for Reconstruction & Dev. et al., Country Partnership Framework for Hashemite Kingdom of Jordan for the Period FY17–FY22 (2016).
 See Press Release, White House, supra note 56; Dalia Hatuqa, Water Deal Tightens Israel’s Control Over Palestinians, Al Jazeera (Aug. 1, 2017), http://www.aljazeera.com/indepth/features/2017/07/water-deal-tightens-israel-control-palestinians-170730144424989.html.
 See Press Release, World Bank, supra note 69 (emphasis added).
 In November of 2017, Israeli media reported that Israel was refusing to further participate in the project until it was allowed to reopen its embassy in Amman. In February of 2018, Israeli and Jordanian media reported that “Jordan is committed to implementing the . . . Project despite repeated Israeli signals that it was withdrawing from the regional scheme.” Hana Namrouqa, Jordan to Go Ahead with Red-Dead Water Project Despite Israel Withdrawal, Jerusalem Post (Feb. 12, 2018), http://www.jpost.com/Arab-Israeli-Conflict/Jordan-to-go-ahead-with-Red-Sea-Dead-Sea-project-542417. In late January, after six months of shut down and diplomatic dispute, the Israeli embassy began the process of gradually reopening; in early February, a Jordan government official reported they had not yet been notified of the naming of a new ambassador. Mohammad Ghazal, Jordan Says ‘Not Officially Notified’ of New Israeli Ambassador, Jordan Times (Feb. 8, 2018), http://www.jordantimes.com/news/local/jordan-says-not-officially-notified%E2%80%99-new-israeli-ambassador.
 See Beyth, supra note 9.
 See Pitock, supra note 8.
 See World Bank Grp., supra note 63, at 4.
 See generally Envtl. Res. Mgmt. et al., Red Sea-Dead Sea Water Conveyance Study Environmental and Social Assessment: Final Environmental and Social Assessment (ESA) Report – Executive Summary (2014); Tahal Grp. & Geological Survey of Isr. & Assocs., Dead Sea Study: Final Report (2011); Thetis SpA et al., Red Sea Study: Draft Final Report (2013).
 See generally Vladimir Zbranek, Chemical Industry Analysis Study: Final Report (2013); Allan et al., supra, note 15.
 See Coyne et Bellier et al., supra note 4, at 82.
 Id. at 82–83.
 Id. at 83.
 See Envtl. Res. Mgmt. et al., supra note 81, at 4, 9, 34.
 Rinat, supra note 40.
 See supra note 76 and accompanying text.
 See supra note 49 and accompanying text.
Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation Sector: A Cap-and-Invest Approach
By James D. Flynn James Flynn is an LL.M. candidate at New York University School of Law and the graduate editor of the NYU Environmental Law Journal. This post is part of the Environmental Law Review Syndicate. I. Introduction In recent years, states in New…
Sara Dewey, Liz Hanson, & Claire Horan This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. Introduction The Farm Bill affects nearly every aspect of agriculture and forestry in the United States. Therefore, its next reauthorization…
Danika Desai. Managing Editor, UCLA Journal of Environmental Law & Policy.
This post is part of the Environmental Law Review Syndicate.
I. Introduction to California’s Soils
California is called the golden state, named for the gold trapped in the Sierra Nevada mountains that drew desperate men like flies. Later, when the dream of easy wealth dried up, those same men moved to California’s Central Valley and planted wheat—acres and acres of it; a different kind of gold. It turned out that California’s true wealth was in its soils, not in its precious metals.
How do those soils fare today? Agricultural production has long served as a proxy for soil health, but it is an inaccurate proxy. Because top soil takes hundreds of years to form, and erodes faster than the lifespan of civilizations but slower than the human lifespan, it is not the most immediate limiting factor upon agriculture nor the most visible. This is especially true in California, where a fluctuating water supply dictates what and how much farmers can grow.
Moreover, California’s agriculture still flourishes, at least superficially. California remains the leading agricultural production state in the nation in terms of both value and crop diversity. The counties within the San Joaquin Valley produce more food than any other comparably sized region in the world. No other state, or combination of states, matches California’s productivity per hectare. Stunning achievements all, but the continuing productivity of California’s agricultural sector has more to do with the Green Revolution’s miraculous technological trifecta: chemical fertilizers, pesticides, and controlled water supply than with the health of the State’s soils.
Indeed, California’s soils face many challenges. Soil erosion detrimentally affects some 8.8 million acres in California. Nitrogen fertilizer, the tech-fix to boost crop productivity and grow food in unhealthy soils, creates excess nitrogen in the soil, which leaches into the State’s waters, polluting them. About 419,000 tons of nitrogen leach into California’s groundwater each year, 88% of it from agricultural sources. Most of that nitrogen accumulates there, and will remain there for millennia. The nitrogen problem, like most problems, affects poor people first. Groundwater in Tulare Lake Basin and Salinas Valley regularly exceeds state and federal standards for nitrate levels in drinking water. The roughly 200,000 people who depend on that water are therefore highly susceptible to nitrate exposure from their drinking water.
The most serious challenge that California’s soils face, at least from an agricultural perspective, is salinization. More than half of California’s irrigated cropland is affected by salinization; the Imperial Valley and the Western San Joaquin Valley are the most impacted regions.  A study from the University of California, Davis found that if salinization continues at its current rate until 2030, it could cost the State between 1 and 1.5 billion dollars. In the San Joaquin Valley, more than 80,000 hectares of irrigated lands have been retired from agriculture, partly to reduce the load of selenium reaching the San Joaquin River and other waterways.
Farmers, the California government, academics, even the informed citizenry are not unaware of these challenges. But most of the proffered solutions revolve around water. In fact, almost all state-based attempts to address soil degradation rely on water quality standards, rather than soil protective measures.  While there is a close nexus between water and soil, not all soil degradation can be solved through water standards. Recently, however, there has been a renewed interest in soil health, as demonstrated by the California Healthy Soils Initiative, passed by the California Legislature in 2016. This paper examines the Healthy Soils Initiative within the larger context of soil conservation programs on the state and federal level. Although the Healthy Soils Initiative is an exciting step forward within the realm of soil conservation, soil, as the long-neglected environmental resource, deserves more; a comprehensive soil management program is necessary to truly realize the potential of healthy soils in California.
The National Resources Conservation Service (NRCS) defines soil health as “the continued capacity of soil to function as a vital living ecosystem that sustains plants, animals, and humans.” Attributes of healthy soils include a diverse population of beneficial organisms, high levels of decomposed organic matter, low levels of toxic compounds, adequate (rather than excessive) levels of nutrients, a sufficiently porous surface, and good tilth.
The benefits of healthy soils are manifold; proper soil management has the potential not only to mitigate all the challenges described in the previous section, but also to mitigate seemingly unrelated environmental problems. Healthy soils reduce nutrient leaching; more nutrients are recycled and can be used by crops again. This means that less nitrogen makes its way into groundwater and other waterways, preventing water pollution. Healthy soil holds more water and releases less water to evaporation. Thus, fields would not have to be over-irrigated, a major cause of salinization, and would also be more resilient to drought conditions, an important quality in drought-prone California. Healthy soils also improve plant health and yields, have the potential to sequester and reduce greenhouse gases, reduces sediment erosion and dust, improve water and air quality, and can promote biodiversity and provide wildlife benefits.
Most of the soil management programs in the United States were born out of the Dust Bowl, which was set in the context of the Great Depression. Even today, vestiges from that era mark the way the US thinks about soil. For one, unlike air and water, soil does not have its own sweeping protective statute. There are several reasons for this including the fact that soil’s crisis moment occurred in the 1930s rather than the 1960s, at a time when federal power was not yet fully centralized. In addition, soil erosion is mostly invisible to the public, soil is often privately owned unlike air and water; soil degradation is incremental and therefore invisible, and it can be compensated in the short term with increasing applications of commercial fertilizer. Furthermore, soil management techniques are considered land-use decisions, which are normally regulated at the local level, rather than at the state or federal level. All of these factors are challenges for implementing soil management practices today, and posed bigger obstacles in the 1930s, when large-scale soil management programs were just beginning.
Even though the Dust Bowl was perhaps the largest environmental catastrophe the US had experienced, it was partially overshadowed by the concurrent catastrophe of the Great Depression. Then President Franklin Delano Roosevelt saw soil conservation programs as a politically acceptable way to provide much needed economic relief to farmers.  Thus soil conservation programs have always had a dual and sometimes contradictory purpose: to conserve soil and to subsidize farmers, with the stronger emphasis on increasing farm income and improving crop productivity. The early soil conservation programs were not designed to decrease soil erosion as much as possible per dollar, and until the 1980s, subsidies were not linked at all to conservation practices.
Still, though imperfect, the soil management infrastructure that was instituted then, is the framework for the soil management programs that exists today. The Soil Conservation Act of 1935 established the Soil Conservation Service (SCS), which made funding available to farmers who implemented conservation practices on their land. These conservation practices included crop rotation, cultivation on contours, seeding grass waterways, creating windbreaks, and the use of pastures. Farmers were also paid to retire old farmland. The new SCS also encouraged soil conservation districts to organize landowners to tackle soil conservation democratically on the local level, and established demonstration projects to exemplify and encourage conservation practices. This led to the formation of Soil Conservation Districts—now called conservation districts—3,000 of which still exist today.
In 1994, the SCS became the Natural Resources Conservation Service (NRCS) of the United States Department of Agriculture, and it still provides funding to farmers who implement conservation practices on their land. In fact, many of the conservation measures eligible for funding also remain the same. Currently, the NRCS administers two main programs to combat soil degradation: the swampbuster and sodbuster programs, which condition farm bill subsidies on the implementation of certain conservation practices on land if that land is either highly erodible or wetlands.
All of the methodologies used for soil conservation at the federal level exist in California on the state level as well. In 1938, California adopted a modified version of the federal Standard Soil Conservation Act, which organized land into soil districts by founding the Resource Conservation Commission (RCC) and the Division of Resource Conservation (DRC). The DRC’s authority was codified in the California Resource Code §§ 9400 et. seq. The DRC was responsible for creating a comprehensive statewide Soil Conservation Plan. However, the last statewide Soil Conservation Plan seems to have been completed in 1987. The chief of the DRC was also supposed to “advise with organized resource conservation districts as to plans and proposals relating to resource conservation activities, and, when such plans or proposals are presented to him, approve, disapprove, or suggest modifications of such plans or proposals.”
While the Division of Resource Conservation was an incredibly active governmental organization, at one time having more than 40 employees, it was eliminated in the 1970s because legislators believed that its purpose was redundant and already performed at the federal level by the SCS or at the local level. Between the 1970s and today, there has been a long line of agency deaths and rebirths. The closest living relative to the Division of Resource Conservation today is the Division of Land Resource Protection (DLRP), housed in the California Department of Conservation. 
Although the DRC has been eliminated, the Soil Conservation Districts within California (now called Resource Conservation Districts or “RCDs”) are still active. The RCDs have four main goals: to control runoff, to prevent erosion, to build developments for the redistribution of water, and to improve land capabilities.  Originally RCDs were supposed to be guided by the DRC. Now that the DRC no longer exists, RCDs have no official governmental overseer. Rather, they have formed the California Association of Resource Conservation Districts. The power of RCDs was greatly curtailed with the passage of Prop 13, which placed restrictions on property taxation.
Today, the DLRP, the hereditary organization of the DRC, is responsible for administering the Agricultural Land Mitigation Program, the Sustainable Agricultural Lands Conservation Program, the California Farmland Conservancy Program, the Williamson Act, and the Farmland Mapping and Monitoring Program. The DLRP also provides technical assistance and grants to the RCDs. Aside from the RCDs most of these programs do not address soil directly, but rather provide easements, either agricultural or conservation easements, so that land is not converted into a more intensive use such as urban and residential use, or used for resource extraction.
The California Department of Food and Agriculture (CDFA) also provides some soil management programs. In 1995, the California Legislature passed the Cannella Environmental Farming Act. The Act, codified in The California Food and Agriculture Code §§ 560-568, required the CDFA to “shall establish and oversee an environmental farming program. The program shall provide incentives to farmers whose practices promote the well-being of ecosystems, air quality, and wildlife and their habitat.” The Act also created the Scientific Advisory Panel on Environmental Farming to “advice and assist, federal, state, and local government on issues relating to air, water, and wildlife habitat” in the context of agriculture.
Today the CFDA’s Office of Environmental Planning and Innovation, coordination with the Scientific Advisory Panel, oversees five programs: The Dairy Digester Research and Development Program, the State Water Efficiency Enhancement Program, the Office of Pesticide Consultation and Analysis, the Alternative Manure Management Practices, and most recently, the Healthy Soils Initiative Program.
The Healthy Soils Initiative (hereinafter “Initiative”) is a “is a collaboration of state agencies and departments, led by the California Department of Food and Agriculture, to promote the development of healthy soils.” The program has five main goals: to protect and restore soil organic matter in California’s soils; to identify sustainable and integrated financing opportunities to facilitate healthy soils; to provide for research, education and technical support to facilitate healthy soils; to increase governmental efficiencies to enhance soil health on public and private lands; and to promote interagency coordination and collaboration to support soils and related state goals.
In some ways, the Initiative is heavily modeled off of existing federal soil conservation programs like those administered by the NCRS. Like the NRCS’ sodbuster program, the Initiative provides funding to farmers who adopt an array of good soil management practices.  In fact, many of these practices are the same practices that the NRCS already subsidizes. In this way, the Initiative is merely a state supplement to an existing federal soil management scheme. However, the Initiative has added the practice of compost applications to the list of subsidized practices, something the NRCS does not yet cover. 
Also, like early soil conservation programs, the Initiative is dedicating 40% of its overall funding, 3 million dollars, to demonstration projects. Unlike the subsidies for general good soil management practices, the demonstration projects are more closely aimed at carbon sequestration. The demonstration project must “incorporate farm management practices that result in greenhouse gas benefits across all farming types with the intent to establish or promote healthy soils.” The objective of the demonstration projects is to “demonstrate to the farmers and ranchers in California Agriculture that specific management practices sequester carbon, improve soil health and reduce atmospheric greenhouse gases.” Although the soil health requirement is still incorporated into the demonstration project, the main goal seems to be successful carbon sequestration. Like the early soil conservation programs, then, the Initiative also has a dual purpose: mitigating climate change and promoting soil health.
However, the Initiative also departs from previous soil conservation programs in one respect: the Initiative recognizes soil as an ecosystem and attempts to manage it that way. The Healthy Soils Action Plan states “[h]ealth of agricultural soil relates to its ability to build and retain adequate soil organic matter via the activity of plants and soil organisms. Adequate soil organic matter ensures the soil’s continued capacity to function as a vital living ecosystem with multiple benefits that sustains and produces food for plants, animals, and humans.” This is an exciting step forward. One of the major critiques of previous soil conservation programs is that they “address soil quality in an after-the-fact manner, much as the first generation of air and water pollution laws focused on end-of-the-pipe pollution…Today, soil programs in the United States address erosion and contamination, but not nutrient loss and other fundamentals essential to sustainable soils. A new law inspired by an awareness of the ecological dimensions of soil policy would recognize the major role that healthy soils play.” The Initiative does recognize this ecological dimension of soils, stating that soils can improve plant health and yields, increase water infiltration and retention, sequester and reduce greenhouse gases, reduce sediment erosion and dust, improve water and air quality, and improve biological diversity and wildlife habitat. Consequently, the Initiative is a holistic approach to soil management, and has the potential to actually promote the production of healthy soils rather than solving just one isolated consequence (such as nutrient leaching) of unhealthy soils.
Moreover, unlike the soil conservation programs arising out of the Dust Bowl, the Initiative is not a welfare program in disguise. Instead, the primary goals of the Initiative are environmental, not economic: “The objective of this new Healthy Soils Program is to build soil carbon and reduce agricultural greenhouse gas (GHG) emissions.” Governor Brown emphasized this goal again in his 2015-2016 proposed budget, stating, “as the leading agricultural state in the nation, it is important for California’s soils to be sustainable and resilient to climate change.” While sustainability has long been recognized as a need in US soil conservation programs (that is the whole point of reducing erosion), resilience implies an added dimension—it is not just ensuring that top soil exists for future generations, but that the quality of that soil is healthy and thriving in all its component parts.
The Initiative faces a few obstacles in reaching its goal of achieving healthy soil in California. First, although the Initiative is not a welfare program in disguise, like the early soil conservation programs, it too has a dual purpose: climate change mitigation and the promotion of healthy soils. While the Initiative itself makes much of the fact that these two goals align, this is not always the case. Second, and relatedly, the Initiative has limited funding—and that funding comes from the climate change fund, meaning it is in jeopardy if the program fails to help farmers and ranchers actually sequester carbon. Third, the Initiative’s success relies on the implementation at the local level, something that requires coordination with local agencies and existing organizations that provide technical assistance to California’s agricultural producers. This coordination, especially with the RCDs, could be strengthened.
As stated above, the Initiative has a dual purpose: to mitigate climate change and to promote healthy soils. Indeed, one of the main flaws of the federal soil conservation programs was the confusion of its purpose: soil erosion control or farmer welfare, which allowed the goal of increasing farm productivity and sustaining the financial stability of farmers to overtake the soil conservation goals.  Here, there is the possibility of the same.
While healthy soils have a range of positive benefits, carbon sequestration is not always one of them. For example, one indicator of healthy soils is the amount of organic matter the soil contains (i.e. the carbon content of the soil), and this has been touted as a climate change mitigation measure. However, while the addition of manure or crop residues to the soil is “an excellent means of improving soil physical, chemical, and biological conditions…it does not represent a transfer of [carbon] from atmosphere to soil.” Instead, it can serve to move carbon from one soil to another, with no effect on atmospheric carbon. Thus increasing the carbon content of soils has a climate change mitigation effect when that carbon would have otherwise been burned, but not if that carbon was going to return to the soil anyway. In particular, carbon additions to grasslands (such as the application of compost to grasslands) will have almost no climate mitigation effect because there is very little contact between the manure and the grassland soils, so most of the carbon just returns to the atmosphere.
Other practices, like no-till agriculture, which reduces the disturbance of surface soils and therefore more permanently stores carbon in the soil, may also not mitigate climate change in the long run because no-till sometimes increase nitrous oxide emissions from the soil, which is also a greenhouse gas. Despite the questionable nature of these practices as climate change mitigation measures, the Initiative includes both (compost application to grasslands and no-till agriculture) as subsidized soil management practices.
Conversely, sometimes a practice might actually be good for mitigating climate change but bad for soil health. For example, burning straw rather than using it as mulch could mitigate climate change if it is used to replace fossil fuels as an energy source. However, this would also decrease soil quality, as it removes carbon that would otherwise return to the soil, and releases it into the atmosphere.
The actual sequestration of carbon in soils “would require major changes in cropping systems or significant research.” These practices include the use of agroforestry and intercropping, which increases the rate of input of organic matter to soils, using perennials in place of annual crops because perennials store more carbon than annuals, and breeding crops to have longer and deeper roots so that they can exude carbon into subsoils for more permanent storage. However, currently these practices are not among those that the Initiative will subsidize.
Thus it is clear that some soil management practices improve both soil health and mitigate climate change (agroforestry, intercropping, the use of perennials, the use of plants with deep roots), some soil management practices improve soils but do not mitigate climate change (no-till), some practices mitigate climate change but are detrimental to soil health (burning straw), and some soil management practices do neither (compost application to grasslands). The Initiative will have to resolve these sometimes contradictory practices, and prioritize certain goals over others.
Moreover, although the point of the Initiative may not be economic relief to farmers, crop productivity still features as a goal for the demonstration projects funded by the Initiative. If carbon sequestration and soil health sometimes require different practices, it will be even more challenging to discover practices that not only sequester carbon and build healthy soils, but also improve crop yields. Indeed, the application of Nitrogen fertilizer, which is perhaps the single biggest contributor to the increase in yields following the Green Revolution, has a documented negative effect on carbon sequestration in soils because it decreases the soil microbial community and prevents plants from growing longer and deeper roots—both of which increase the soil’s potential to store carbon.
Another challenge the Initiative must grapple with is the available funding. Successful incentive and educational programs are highly dependent on funding. The CDFA has appropriated 7.5 million dollars for the Healthy Soils Program. Given the scope of the challenges facing California’s soils, this amount of money is not that much. For example, the USDA-NRCS has a fund of 19 million dollars to combat criteria air pollution from agricultural sources in the San Joaquin Valley alone, a problem that could also be mitigated through the development of healthy soils.
In addition, the Initiative is funded through the Greenhouse Gas Reduction Fund. As discussed above, not all the practices embraced by the Initiative actually reduce greenhouse gasses. Moreover, the demonstration projects, which are supposed to “increase on-farm carbon sequestration, greenhouse gas reductions, increase water holding capacity and increase crop yields” are funded for three years. The last of the three years funded partially by the demonstration project itself and partially by the Initiative. Since changes in the carbon content of soil occur slowly, it is unclear that a three-year demonstration project will actually yield relevant results. If, for example, the Initiative succeeds in improving soil quality but fails at mitigating climate change, will the program be deemed a success or a failure? Healthy soils have huge environmental benefits regardless of whether they also mitigate climate change or increase crop yields. Mixing multiple goals dilutes the Initiative’s effectiveness at protecting soil.
American soil management is internationally recognized as successful, in large part because of farmer participation at the local level. One key player in the local implementation of soil conservation practices in California are the RCDs. However, the Initiative is not using the RCDs to their fullest potential. In a comment letter on the Healthy Soils Program, the California Association of Resource Conservation Districts encouraged the Initiative to work with the RCDs, noting that “[c]ollaboration with existing NRCS and RCD programs and funding will be vital in order to ensure the practical applicability and longevity of [the Initiative],” and emphasizing that the RCDs’ rapport with landowners and communities are necessary to successfully implement new management practices. Likewise in another comment letter to the CDFA about the Initiative, the Center of Carbon Removal noted that the role of non-profits and NGOs to assist and coordinate with agricultural producers was not well-established in the Initiative: “avenues for non-profit and non-governmental actors to assist and coordinate with agriculturalists are not well established…Clarification on the avenues for nonprofit or academic partnership… offer an opportunity to increase the involvement of non-agriculturalists and ensure long term success of pilot projects.” In addition, certain parts of the state have poor access to RCDs. The San Joaquin Valley, one of the regions most impacted by agricultural pollution and a region where very few farmers use conservation practices, has only one RCD for the entire Fresno County.  Since RCDs are key in providing technical assistance to agricultural producers, certain areas of the state (and perhaps the portions most in need of assistance) may not have the same kind of access to the resources that the Initiative provides.
This lack of coordination with local organizations is a symptom of a decentralized, bottom-up approach to tackling an environmental problem. With no single oversight organization addressing soil pollution, it is difficult to locate the organizations that have expertise, identify the areas in California most in need of help, and coordinate between different government-funded programs. This will make it difficult for the Initiative to fully deploy all the resources at its disposal in the most efficient way possible. This challenge is not new to soil regulation—soil conservation programs, largely because of the lack of a protective statute—has led to a “fragmented…program formed by laws enacted in a piecemeal fashion without forethought as to how activities interacted.” The Initiative, in a certain sense, is another piecemeal attempt to address a systematic and pervasive problem—but one that diverges from previous efforts by recognizing soil as an ecosystem rather than an inert resource.
Currently, the way that states regulated soil, in the absence of a comprehensive statute, is through water laws. The Clean Water Act can be used to reduce nutrient run-off into waterways. If a waterbody is impaired, states can set Water Quality Standards that limit the amount of nutrients allowed in the water. The EPA even encourages states to use trading programs to encourage sources to leach fewer nutrients into waterways. California currently has one of the most aggressive programs to curb erosion and sedimentation into rivers by strongly regulating forestry practices. However, these controls only limit certain problems associated with soil degradation, like nutrient leaching or erosion into waterways. They cannot address the multifaceted challenges affecting soil health.
In addition, water regulatory bodies do not always feel that soil regulation is within their statutory mandate. For example, in 2016, the California Department of Water Resources and the State Water Resources Control Board received comments when implementing Executive Order B-37-16 to increase water conservation in the State. The Order required certain agricultural producers to develop An Agricultural Water Management Plan and use Efficient Water Management Practices. Several organizations suggested that one Efficient Water Management Practice should be to develop healthy soils, as healthy soils retain more water content and require less irrigation. However, this recommendation was not adopted. Evidently, soil health was outside the purview of the water regulatory agencies.
Scholars also have suggested using water quality as a means of protecting soil. In Achieving Sustainable Irrigation Requires Effective Management of Salts, Soil Salinity, and Shallow Groundwater, Wichelns and Qadir suggest that requiring farmers to pay a deposit related to the salt in their irrigation water would encourage farmers to utilize salt management programs on their farms.  A farmer would have to pay the government an amount of money based on the load of salt he/she applied to the land. The amount would be determined by a governmental agency and would vary depending on how much salt was present in the water during a certain season.
Trading programs or pricing nutrient leakage are both good ideas, but both treat isolated consequences of unhealthy soils rather than attempting to promote healthy soils. In other words, these kinds of trading systems are still fragmented—they can be used to mitigate nutrient leaching and salinization, two effects of unhealthy soils, but they cannot solve other aspects of soil degradation such as lackluster microbial communities, compaction, or decreased carbon content. For that, a comprehensive soil management program is necessary.
Although the Healthy Soils Initiative is an exciting step toward realizing the potential benefits of soil in California, it is not enough to realize healthy soils in by itself. Additional solutions are necessary, and ultimately, a comprehensive soil conservation program is necessary to manage soil in a way that promotes and sustains the integrity of soil quality in the state. Currently, soil is managed through a collection of programs and fragmented environmental laws. But soil deserves to be treated like the invaluable resource that it is. A comprehensive soil management program would have what other resources like air and water have, namely: an agency dedicated to soil management and a statute protecting a baseline of soil quality. Like the other major resources, soil should not have to depend only upon voluntary and incentive-based measures. Rather, like both water and air, there should be a mix of incentive and regulatory mechanisms to protect soil as a resource. Moreover, soil should be protected for its own sake—not as a means to increase crop productivity or as a means to sequester carbon, even though both those goals are important.
In California, air has the Air Resource Board and water has the State Water Resources Control Board, both administered by the California Environmental Protection Agency. Soil deserves a similar agency. This could be accomplished simply by resurrecting the Division of Resource Conservation, formerly in charge of the RCDs, and “administratively abolished” in the 1970s. The defunct DRC already had a mandate to “consider the whole problem of soil conservation within the state, and…formulate, in cooperation with other state agencies, interested organizations, and citizens, a comprehensive resource conservation policy for the state.” This mandate could be updated to incorporate some of the ecosystem approaches described in the Healthy Soils Initiative. Currently, however, no organization or person is carrying out that mandate, even though a comprehensive soil plan is exactly what is needed to actually realize healthy soils in California. This should be all the easier given the statutory framework already exists under California law.
If reinstating the DRC is too complicated, the Association of Resource Conservation Districts could be charged with creating the state-wide plan for soil conservation and management instead. However, the Association would have to be funded appropriately and have a head appointed by the California Department of Conservation, in order to have unified leadership. Whatever the implementing body, an integrated vision for the fate of California soils is necessary to avoid the piecemealed, gap-filled, inadequate soil protections that exist today.
Some scholars have suggested that in order to adequately protect soil as a natural resource, a statute designed to protect soil is necessary. In Farms, Their Environmental Harms, and Law, J.B. Ruhl suggests that while direct regulation may not be the best method for controlling most farm-related pollution (including soil erosion and nutrient leaching), regulatory approaches would be appropriate for the largest farms, that operate more like factories than traditional farms. A soil protection statute could directly regulate these largest agricultural polluters without creating an impossible administrative burden by attempting to capture every farm in the state.
Likewise, in Our Sedimentation Boxes Runneth Over: Public Lands Soil Law as the Missing Link in Holistic Natural Resources Protection, Peter Lacy describes how a protective federal statute for soil on federal public lands could serve to protect soil and fill statutory gaps in other environmental regulation. Based on soil conservation goals about the soil’s ability to regulate water flow, sustain plant and animal diversity, filter, buffer, immobilize, and detoxify pollutants, and cycle and store nutrients, Lacy suggest that the law could classify soil management areas needing differing levels of protection. These designations would rely on local soil surveys. Like the designated use provisions in the federal Clean Water Act, the designated use of a soil management area would determine the level of protection needed to achieve the use of the soil in that area. Achievement of a certain level of soil protection could be monitored and enforced using objective metrics such as the levels of organic matter and nutrients in the soil, level of O-horizon disturbance, slope characteristics, and physical, chemical, and biological properties within soil (like ph, microbial life, compaction, etc.). Lacy argued that this would be possible because there is an extensive database of information available about soil properties from around the country; the federal government has been collecting this kind of information since 1895. Indeed, the United States is a world leader in soil research and monitoring. This extensive information database would provide the perfect springboard to create science-based legislation that could “be used to designate different levels of protection and management, set standards, assess proposed agency actions, and implement mitigation requirements.”
Although both these suggestions were targeted at federal level rather than a state level, the current political reality makes new federal environmental legislation impossible. Meanwhile, California remains a leader in environmental issues not only in the United States, but around the world. California could be the first state to introduce comprehensive soil legislation, simultaneously bringing large farms into the environmental regulatory fold and achieving a holistic environmental regulatory program that protects more facets of the natural world.
We breathe air. We drink water. And we eat food, grown in soil. Yet soil regulation has fallen far behind other environmental protections in the United States. This is all the more surprising given that soil degradation may well be the oldest and most enduring environmental problem, plaguing ancient civilizations in the Middle East, Greece, Rome, and beyond. One can, after all, measure the lifespan of a civilization by how fast that civilization erodes its topsoil. While the Healthy Soils Initiative is an exciting step forward, recognizing that soils are an ecosystem within themselves, and must be managed as such, a comprehensive soil management scheme is necessary to ensure true soil health in the state. In order to accomplish this, California should give soil its due: provide it with a statute of its own and an agency to administer that statute.
 Alan L. Olmstead and Paul W. Rhode, Evolution of California Agriculture 1850-2000, UNIVERSITY OF CALIFORNIA GIANNINI FOUNDATION OF AGRICULTURAL ECONOMICS DIVISION OF AGRICULTURE AND NATURAL RESOURCES 1, 2 (2003), https://s.giannini.ucop.edu/uploads/giannini_public/4e/a8/4ea8b9cc-df88-4146-b1ae-e5467736e104/escholarship_uc_item_9145n8m1.pdf.
 For an example of how perfect California soils were for agriculture see George West, San Joaquin County Biographies, in A HISTORY OF THE SAN JOAQUINE VALLEY 526 (J.S. Slater ed., 1890) (stating “…the deep stratum of heavy, marly, sub-soil, overlaid by rich, black loam, with surface water enough to maintain a moist condition of the sub-soil without saturation—the vegetation being influenced by the warm summers of the San Joaquin Valley, tempered at that point by the inward flow of moist air which follows tide water to Stockton….Perfect maturity of large crops is attained…under these conditions, and the composition of the soil insures the qualities sought by connoisseurs”).
 David Montgomery, Soil erosion and Agricultural Sustainability, PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCES OF THE UNITED STATES OF AMERICA 13268, 13270 (2008).
 D.S. Powlson et al., Soil Management in Relation to Sustainable Agriculture and Ecosystem Services, 36 FOOD POLICY S72, S74 (2010).
 Environmental Farming Act Science Advisory Panel: Biannual Report, CDFA 1, 28 (2013) https://www.cdfa.ca.gov/oefi/efasap/docs/Science_Panel_Report.pdf.
 W.E. Rees, North American Soils and World Food, in INTERNATIONAL YEARBOOK OF SOIL LAW 2016 1, 26 (Herald Ginzky et al eds., 2016).
 See B.H. Farmer, Perspectives on the ‘Green Revolution’ in South Asia, 20 MODERN ASIAN STUDIES 175, https://doi.org/10.1017/S0026749X00013627 (1986) (describing technologies of the Green Revolution).
Ralph Grossi et al., California’s Shrinking Farmland, CALIFORNIA DEPARTMENT OF WATER RESOURCES, Bulletin 22, http://ucce.ucdavis.edu/files/repositoryfiles/ca4107p22-63026.pdf.
 The California Nitrogen Assessment: Challenges and Solutions for People, Agriculture, and the Environment, UNIVERSITY OF CALIFORNIA AGRICULTURE AND NATURAL RESOURCES 1, 7. (Thomas P. Tomich, ed.) http://asi.ucdavis.edu/programs/sarep/research-initiatives/are/nutrient-mgmt/california-nitrogen-assessment/ExecutiveSummaryLayout_FINAL_reduced.pdf.
 Id. at 10.
 Soil Salinization, CDFA, https://www.cdfa.ca.gov/agvision/docs/Soil_Salinization.pdf.
 Salinity in the Central Valley: A Critical Problem, WATER EDUCATION FOUNDATION, http://www.watereducation.org/post/salinity-central-valley-critical-problem, (last visited May 9, 2017).
 Dennis Wilchelns and Manzoor Qadir, Achieving Sustainable Irrigation Requires Effective Management of Salts, Soil Salinity, and Shallow Groundwater, 157 AGRICULTURE WATER MANAGEMENT 31, 35 (2015).
 J. William Futrell, The IUCN Sustainable Soil Project and Enforcement Failures, 24 PACE ENV. L. R. 99, 110 (2007).
 NATURAL RESOURCES CONSERVATION SERVICE: SOILS, https://www.nrcs.usda.gov/wps/portal/nrcs/main/soils/health/, (last visited May 9, 2017).
 SUSTAINABLE AGRICULTURE RESEARCH & EDUCATION, Qualities of a Healthy Soil, http://www.sare.org/Learning-Center/Books/Manage-Insects-on-Your-Farm/Text-Version/Managing-Soils-to-Minimize-Crop-Pests/Qualities-of-a-Healthy-Soil, (last visited May 9, 2017).
 Bobby Bell and Brenda Platt, Building Healthy Soils with Compost to Protect Watersheds, THE INSTITUTE FOR LOCAL SELF-RELIANCE 1, 7 (2013) http://ilsr.org/wp-content/uploads/2013/05/Compost-Builds-Healthy-Soils-ILSR-5-08-13-2.pdf.
 NATIONAL RESOURCES CONSERVATION SERVICE, Soil Health: Key Points, (2013) https://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1082147.pdf.
 NATIONAL RESOURCES CONSERVATION SERVICE, Soil Quality Resource Concerns: Salinization (1998) https://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs142p2_053151.pdf.
 CALIFORNIA DEPARTMENT OF AGRICULTURE, Healthy Soils Initiative, https://www.cdfa.ca.gov/oefi/healthysoils/HSInitiative.html (last visited May 9, 2017).
 John H. Davidson, Factory Fields: Agricultural Practices, Polluted Water and Hypoxic Oceans, 9 GREAT PLAINS NAT. RESOURCES J. 1, 17 (2004).
 Sandra S. Batie, Soil Conservation in the 1980s: A Historical Perspective, 59 AGRICULTURAL HISTORY 107, 110 (1985).
 Zachary Cain and Stephen Lovejoy, History and Outlook for Farm Bill Conservation Programs, CHOICES (May 9, 2017), http://www.choicesmagazine.org/2004-4/policy/2004-4-09.htm.
 Davidson, supra, note 24.
 NATURAL RESOURCES CONSERVATION SERVICES, More Than 80 Years of Helping People Help the Land: A Brief History of NRCS, https://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/about/history/?cid=nrcs143_021392 (last visited May 9, 2017).
 NATIONAL RESOURCES CONSERVATION SERVICE, supra note 31.
 NATIONAL ASSOCIATION OF CONSERVATION DISTRICTS, http://www.nacdnet.org/about-nacd/what-we-do/federal-policy/, (last visited May 9, 2017).
 Davidson, supra note 24, at 18.
 NATURAL RESOURCES CONSERVATION SERVICE, Core4 Conservation Practices Training Guide: The Common Sense Approach to Natural Resource Conservation, i, iv (1999) https://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs143_025540.pdf.
 NATIONAL RESOURCE CONSERVATION SERVICE, Highly Erodible Land Conservation Compliance Provisions, https://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/programs/alphabetical/camr/?cid=nrcs143_008440 (last visited May 10, 2017).
 CALIFORNIA DEPARTMENT OF CONSERVATION, DLRP Helps California Balance Growth with Agricultural Production, http://www.conservation.ca.gov/index/AboutUs/Pages/aboutUs_DLRP.aspx (last visited May 9, 2017).
 Cal. Pub. Res. Code § 9108.
 California Agricultural Evaluation and Site Assessment Model: Instruction Manual, 1, 3 (1997), http://www.conservation.ca.gov/dlrp/lesa/Documents/lesamodl.pdf.
 Cal. Pub. Res. Code § 9063.
 CALIFORNIA DEPARTMENT OF CONSERVATION, supra note 37; Although weirdly, the existence of the DRC is still statutorily mandated. See Cal. Pub. Res. Code § 9051“There is in the Department of Conservation the Division of Resource Conservation.”
 CALIFORNIA DEPARTMENT OF CONSERVATION, supra note 37.
 Cal. Pub. Res. Code § 9151; The Resource Conservation District Guidebook: A Guide to District Operations and Management, CDC 1, 5 (1999), http://www.conservation.ca.gov/dlrp/RCD/pubs/RCD_guidebook/Documents/RCD_Guide_vol3.pdf.
 SAN MATEO RESOURCE CONSERVATION DISTRICT, Authorizing Statute for California Resource Conservation Districts, http://www.sanmateorcd.org/wp-content/uploads/2015/09/AUTHORIZING-STATUTE-FOR-CALIFORNIA-RESOURCE-CONSERVATION-DISTRICTS.pdf, (last visited May 9, 2017).
 Id; The Resource Conservation Guidebook, supra note 43.
 California Food and Agriculture Code § 560.
 California Food and Agriculture Code § 566(a).
 CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, Healthy Soils Initiative Fact Sheet, https://www.cdfa.ca.gov/oefi/healthysoils/docs/HealthySoilsFactSheet.pdf (last visited May 9, 2017).
 See Environmental Farming Act Science Advisory Panel California Department of Food and Agriculture Meeting Agenda PowerPoint (March 16, 2017), https://www.cdfa.ca.gov/oefi/efasap/docs/Binder-EFSAP-Meeting-03162017.pdf [hereinafter EFASA PowerPoint] (including No-till and Reduced-till, Cover crops, Cropland and Grassland Compost Application (Not a separate NRCS Practice), Improved Nutrient Management, Herbaceous Cover and Riparian Herbaceous Cover, Herbaceous Wind Barriers and Vegetative Barriers, Contour Buffer Strips and Riparian Forest Buffers, Field Borders, Filter Strips, Woody Cover, Windbreak/ shelterbelt establishment/renovation, Hedgerow Planting, and Silvopasture as subsidized practices).
 Id. at green p. 3.
 Id at green 6.
 CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, Healthy Soils Action Plan, https://www.cdfa.ca.gov/oefi/healthysoils/docs/CA-HealthySoilsActionPlan.pdf (last visited May 9, 2017).
 J. William Futrell, New Action for Soil Protection A Solid Understanding of the Vital Role of Sustainable Soils Is an Environmental Imperative, 39 ENVTL. L. REP. NEWS & ANALYSIS 10077, 10078–79 (2009).
 CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, Healthy Soils Initiative, https://www.cdfa.ca.gov/oefi/healthysoils/HSInitiative.html (last visited May 9, 2017).
 CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, Healthy Soils Incentives Program, https://www.cdfa.ca.gov/oefi/healthysoils/HSInitiative.html (last visited May 9, 2017).
 Batie, Agricultural History, supra note 26 at 109.
 D.S. Powlson et al. Soil Carbon Sequestration for Mitigating Climate Change, in HANDBOOK OF CLIMATE CHANGE AND AGROECOSYSTEMS: IMPACTS, ADAPTATION, AND MITIGATION, 400 (Daniel Hillel and Cynthia Rosenzweig, eds., 2011).
 Powlson, supra note 4.
 D.S. Powlson et al, supra note 64.
 Andy Whitmore et al., Sub-Project A of Delfra Project SP1603: Studies to Support Future Soil Policy, DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS RESEARCH PROJECT FINAL REPORT 1, 5 (2010).
 CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, supra note 52.
 See CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, supra note 59 (stating that demonstration projects should “increase on-farm carbon sequestration, greenhouse gas reductions, increase water holding capacity and increase crop yields.”) (emphasis added).
 S.A. Kahn et al, The Myth of Nitrogen Fertilization for Soil Carbon Sequestration, 36 J. ENVIRON. QUAL. 1821, https://dl.sciencesocieties.org/publications/jeq/abstracts/36/6/1821; Daniel Kane, Carbon Sequestration Potential in Agricultural Lands: A Review of Current Science and Available Practices, NATIONAL SUSTAINABLE AGRICULTURE COALITION BREAKTHROUGH STRATEGIES AND SOLUTIONS 1, 10 (2015) http://sustainableagriculture.net/wp-content/uploads/2015/12/Soil_C_review_Kane_Dec_4-final-v4.pdf.
 NATIONAL RESOURCES CONSERVATION SERVICE, $19 Million Available to California’s Farmers to Improve Air Quality, https://www.nrcs.usda.gov/wps/portal/nrcs/detail/ca/newsroom/releases/?cid=nrcseprd1322668 (last visited May 10, 2017).
 CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, supra note 59.
 EFASA PowerPoint, supra note 54.
 Powlson et. al, supra note 4.
 Futrell, supra note 17 at 102 (“The U.S. is a world leader in citizen participation in soils programs and other environmental programs could learn from their experience.”).
 Letter from Karen Buhr of the California Association of Resource Conservation Districts to the Environmental Farming Advisory Panel (February 2017) (on file with the California Department of Food and Agriculture at https://www.cdfa.ca.gov/oefi/healthysoils/docs/HealthySoilsComments-Jan19-Mar1_2017.pdf).
 Letter from Noah Diech of the Center for Carbon Removal to Amrith Gunasekara of the Environmental Farming Advisory Panel (26 February 2017) (on file with the California Department of Food and Agriculture at https://www.cdfa.ca.gov/oefi/healthysoils/docs/HealthySoilsComments-Jan19-Mar1_2017.pdf).
 Letter from Janaki Jagannath of the Community Alliance for Agroecology, Kevin D. Hamilton of the Central California Asthma Collaborative and Sarah Aird of the Californians for Pesticide Reform to the Environmental Science Advisory Panel (March 1, 2017) (on file with the California Department of Food and Agriculture at
 J. William Futrell, The IUCN Sustainable Soil Project and Enforcement Failures, 24 PACE ENV. L. R. 99, 110 (2007).
 Testimony from Michael H. Shapiro to the Congressional Subcommittee on Environment and Public Works (May 22, 2013) (on file with the EPA at https://www.epa.gov/sites/production/files/2013-09/documents/nutrient_trading_and_water_quality.pdf).
 Futrell, supra note 86.
 CALIFORNIA DEPARTMENT OF WATER RESOURCES, Making Water Conservation a California Way of Life, http://www.water.ca.gov/wateruseefficiency/conservation/docs/Water%20Conservation%20Trailer%20Bill%20Fact%20Sheet%20FINAL.pdf (last visited May 10, 2017).
 Letter from Ben Chou of the NRDC et al to the California Department of Water Resources and the State Water Resources Control Board (October 14, 2016) (on file with author).
 Wichelns and Qadir, supra note 16.
 NATIONAL ASSOCIATION OF CONSERVATION DISTRICTS, supra note 37.
 Cal. Pub. Res. Code § 9018.
 Cal. Pub. Res. Code § 9063.
 J.B. Ruhl, Farms, Their Environmental Harm, and Environmental Law, 27 ECOLOGY L. Q. 263, 335 (2000).
 Peter M. Lacy, Our Sedimentation Boxes Runneth Over: Public Lands Soil Law as The Missing Link in Holistic Natural Resources Protection, 31 ENVTL. L. 433, 467 (2001).
 Futrell, supra note 17 at 102.
 Lacy supra note 97 at 467.
 Montgomery, supra note 3 at 13268.
 Id. at 13271.
Theodore McDowell* This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. The California Cap-and-Trade program has been a beacon of success for market-based environmentalism. The program masterfully incorporated the lessons learned from previous cap-and-trade initiatives by…
Reinstating CERCLA as the “Polluter Pays” Statute With the Circuit Court’s Mutually Exclusive Approach
Brianna E. Tibett, Vermont Law School. This post is part of the Environmental Law Review Syndicate. INTRODUCTION The purpose of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is to facilitate the “timely cleanup of hazardous waste sites and to ensure that the [cleanup costs…
Skylar Sumner, Lewis & Clark Law School.
This post is part of the Environmental Law Review Syndicate.
The history of the American west is inextricably intertwined with damming rivers. Whether for navigation, irrigation, or hydroelectric power, nearly every American river has been dammed. In fact, stretching back to the day the Founding Fathers signed the Declaration of Independence, determined Americans have finished an average of one large-scale dam every day. Currently, there are at least 76,000 dams in this country.
While these dams have vastly contributed to America’s efforts to settle the west, they have come with significant costs. Although these dams’ harms are varied, one of the primary concerns among advocates in the Pacific Northwest is the dramatic impacts dams have on species of anadromous fish, particularly salmonids. In the Columbia River basin, dams block salmon and steelhead migration to more than 55% of historically available spawning grounds. Since many anadromous fish species in the Pacific Northwest are listed as either threatened or endangered, the Endangered Species Act (ESA) can be a valuable tool to induce voluntary dam removals by requiring the Federal Energy Regulatory Commission (FERC) to include costly fish passage upgrades in any relicensing proceeding.
Northwest salmon advocates rejoiced in 2014 when, following a lengthy campaign from a coalition of tribal and environmental activist groups, construction crews completed the largest dam-removal project in American history by removing both the Elwha and the Glines Canyon Dams. Removing these dams started the process of restoring seventy miles of the Elwha River to natural flows that had not existed since construction of the dams first began in 1911. Since the dams came down, the river’s ecological quality has improved at an astonishing rate. In fact, salmon and steelhead populations in the Elwha River have already reached thirty-year highs.
The tremendous success of freeing the Elwha cannot be overstated, but the dams required decades of activist toil to remove. In contrast, removing the Little Sandy and Marmot dams from the Sandy River in Oregon was accomplished in only eight years. There are certainly many core differences between these campaigns that help explain this discrepancy, but chief among these is the fact that Federal Power Act (FPA) amendments incentivized the owner of the Little Sandy and Marmot dams to privately fund the removal, while the Elwha removal languished waiting on federal funding for over a decade.
This Essay will discuss the statutory changes to the FERC relicensing process that have worked to improve fish passage at hydropower facilities in recent decades and will continue to fuel upgrades and dam removals in the future. Part II lays out an overview of the environmental requirements of FERC relicensing and analyzes the Bull Run Hydropower Project as an example of a successful dam removal that was prompted as a result of its owner pursuing relicensing. Part III then reviews the relicensing schedule for several dams in Oregon and Washington to discuss how these fish passage improvements will continue occurring for the foreseeable future.
The current regulatory process will—at least marginally—improve fish passage at many hydropower facilities in the near future as older dams apply for relicensing through FERC. Privately operated hydroelectric dams can only operate under a license from FERC. For older dams, the cost of installing fish passage during the FERC relicensing process can exceed the cost of removal, thereby incentivizing the dam owner to opt for removal. For dams that successfully obtain a license to continue operation, the current statutory relicensing framework requires FERC to include any recommended fish passage upgrades as mandatory conditions in the license. Due to new environmental statutes and regulations passed during the lifetime of the preceding license, many hydroelectric dams in the Columbia River basin are likely to require passage upgrades.
FERC is in the midst of a massive relicensing period. The FERC relicensing process has had a tremendous impact on fish passage in the Columbia River basin in recent history, as both Oregon and Washington were included in FERC’s list of states requiring the most dam relicenses between 2005 and 2015. As discussed below, absent a congressional amendment of the FPA, the FERC relicensing process will mandate fish passage upgrades at Northwest hydroelectric facilities for decades to come.
In 1920, Congress passed the FPA, authorizing the federal government to regulate private hydroelectric dams. While older dams may have been constructed without a FERC license, all dams must eventually obtain a license to continue operation.
Initially, FERC only considered a dam’s power-generation potential when reviewing a license application, while ignoring the environmental impacts. Then in 1986, Congress amended the FPA to require FERC to include permit conditions protecting fish and wildlife. Now, FERC licenses “require the construction, maintenance, and operation by a licensee at its own expense of such . . . fishways as may be prescribed by” the United States Fish & Wildlife Service or the National Oceanic and Atmospheric Administration (NOAA) Fisheries. FERC cannot “modify, reject, or reclassify any prescriptions submitted by” those agencies. If FERC disagrees with the fish passage conditions, FERC must either withhold the license or dispute the conditions before the relevant court of appeals.
New FERC permits may last for a duration of up to fifty years. Due to this timeframe, FERC will spend the foreseeable future considering relicensing applications for dams whose original permits were approved with minimal environmental consideration. For instance, FERC will review relicensing applications for dams that were approved without an Environmental Impact Statement (EIS) through 2020, dams that were approved without wildlife permit conditions through 2036, and dams that were approved prior to Endangered Species Act protections for anadromous fish through the 2040s.
When owners of these dams apply for relicensing, modern environmental and endangered species protections will likely require project owners to significantly upgrade the dams’ fish passage facilities. FERC has proven willing to attach extremely costly fish passage conditions to its relicensing decisions, which can make removal the most cost-effective next step for hydroelectric dam operators. For those dams that remain standing, new FERC licenses will still likely improve fish passage because relicensing will be conditioned upon upgrading fish passage to meet modern environmental and ESA requirements.
B. Bull Run Hyrdropower System: An Example of How FERC Relicensing Provides Strong Incentive for Voluntary Dam Removal Settlement
The FERC relicensing process has proven to be an effective tool in persuading operators of large hydroelectric dams to negotiate effective and efficient dam removals that are entirely funded by the dam operators. Few cases highlight how well this process can facilitate dam removals better than the Marmot and Little Sandy dams of the Bull Run Hydropower Project. The Bull Run project is the gold-standard in dam removal for many reasons, including 1) it was entirely funded by the operator without predetermined cost caps; and 2) the dams came out quickly, with minimal confrontation between the affected parties.
Twenty-six miles east of Portland, Oregon the Bull Run River flows through the Mt. Hood National Forest. The Bull Run River drains a 102 square-mile watershed and is almost entirely fed by rain and snowmelt from Mt. Hood. As the main source of water for Portland, the Bull Run watershed provides tap water for nearly one-fifth of all Oregonians. Development on the Bull Run began in the 19th century, and the river became an important source of both water and electricity for the surrounding area.
In 1912, Pacific Gas & Electric (PGE) completed the primary stage of one of the largest developments in the watershed: the Bull Run Hydropower Project. To increase the powerhouse’s capacity, PGE constructed the Little Sandy Dam to divert water from the Little Sandy River to Roslyn Lake, the reservoir behind the project’s powerhouse. The dam completely diverted the Little Sandy River 1.7 miles upriver from its confluence with the Bull Run River. The dam blocked salmon migration upstream and decreased flows to the remaining salmon habitat downstream.
The following year, PGE completed the Marmot Dam on the Sandy River. This dam diverted water from the mainstem Sandy River to the Little Sandy upstream from the Little Sandy Dam, thereby increasing the capacity at Roslyn Lake. The original Marmot Dam was a wood and sediment structure. Unlike the Little Sandy Dam, the Marmot Dam did not block all salmon migration because the original structure included a fish ladder. In 1989, PGE replaced the original Marmot Dam with a forty-seven foot concrete dam.
The Bull Run Hydropower Project’s dams and diversions decreased fish runs in the Sandy River and Bull Run watersheds to 10%–25% of their historic runs. PGE, the operator of the Marmot and Little Sandy Dams, operated four hydroelectric systems that would all require FERC relicensing in the early 2000s. Due to the increasing burden of maintaining century-old dams, relatively low summer flows, and modern environmental regulations, PGE determined that the Bull Run Hydropower System’s costs were simply insurmountable. PGE chose to voluntarily surrender its FERC license. After negotiating a settlement agreement with all affected parties, FERC granted PGE’s petition to surrender its license in 2004. Because of the inclusive settlement process, public support for the final project was high, and PGE obtained all necessary environmental permits to move forward with the dam removal in only eighteen months.
On July 24, 2007, engineers began the process of removing the Marmot Dam by setting off explosives to crack the concrete face. The process ended that October with the breach of a temporary diversion dam built just upstream. At the time, this was the largest dam removed in the Pacific Northwest, both in terms of height and trapped sediment. The Sandy River recovered much more rapidly than expected, with migrating coho salmon reported swimming past the old dam site just one day after engineers completed the removal process. The Little Sandy Dam was removed the following summer.
An important takeaway from the Bull Run Hydropower Project’s removal is that, under the right circumstances, environmental conditions placed on FERC relicensing approvals can act as a tremendous hammer to force dam removals. In fact, PGE decided to pursue settlement negotiations before it even received the final fish passage requirements. Preliminary estimates were enough for PGE to determine that the Bull Run system would not be economical. The Bull Run removal process shows just how effectively the FERC regulatory process can trigger rapid dam removals with minimal delays and no public funding.
III. The Glut of Pending and Upcoming License Expirations Will Require FERC to Revisit Fish Passage in the Pacific Northwest for Several Decades
Because of the fifty-year lifetime of its licenses, FERC is currently in the process of relicensing the final pre–National Environmental Policy Act (NEPA) hydroelectric dams. Several dams in both Washington and Oregon are still operating under such licenses. Although the relicensing process has proceeded slowly, one certainty is that fish passage upgrades will be a mandatory condition for almost any new FERC license. This Part discusses a few dams in both Northwest states that are scheduled for relicensing in the coming decades and provides contemporary examples of the fish passage upgrades that FERC has already required at Northwest dams in recent years.
FERC currently licenses fifty-five privately operated hydroelectric dams in Washington. Two of these dams—Sullivan Lake and Packwood Lake—were licensed prior to the mandatory environmental review process codified in NEPA. The Packwood Lake dam, for example, was last licensed in July 1960.
Packwood’s initial license was set to expire in 2010, but the dam has been operating under annual interim permits while working to determine what mandatory conditions will attach to the final new license. As part of this relicensing process, Energy Northwest—the operator of Packwood Dam—has had to cooperate with NOAA Fisheries to determine the impact that the dam’s continued operation will have on listed species. NOAA Fisheries found that three listed species were likely to be affected by the dam’s operation: Lower Columbia River Chinook, coho, and steelhead. To mitigate these harms, Energy Northwest has built an exclusionary screen to keep migrating salmonids out of the channel leading to the powerhouse, but more expansive requirements may be included before FERC can issue the final license.
Along with the pre-NEPA dams, FERC also oversees seventeen dams that are operating under licenses issued prior to the Electric Consumers Protection Act and, as such, did not require any wildlife considerations. These dams will be pursuing relicensing through the 2030s, which will inevitably mandate new fish passage conditions, thereby improving salmonid accessibility to spawning grounds.
Of the twenty-five actively licensed dams in Oregon, there are three dams operating under pre-NEPA licenses: the Klamath, Hell’s Canyon, and Carmen-Smith dams. The greatest fish-passage improvements will occur in the Klamath River, where PacifiCorp—the dams’ owner—has agreed to remove four huge dams by 2020, opening up 570 miles of riparian habitat for returning salmon. Under the agreement, PacifiCorp will provide $200 million for the removal, and the state of California will fund up to an additional $250 million by selling general obligation bonds.
On top of this monumental dam removal, the Carmen-Smith dam near Eugene, Oregon also agreed to significant improvements for salmon in order to relicense. The Carmen-Smith license was issued in 1959 and expired in 2008. As part of its relicensing effort, the Eugene Water and Electricity Board (EWEB) entered into a settlement agreement with sixteen other parties consisting mainly of government agencies, Native American Tribes, and environmental organizations. This agreement included extensive salmonid habitat enhancements and a fish passage–system upgrade. However, a precipitous decline in utility prices triggered a renegotiated agreement, and the fish passage upgrade was replaced with a trap-and-haul system to transport the fish around the dam’s powerhouses. The parties submitted this amended agreement to FERC in 2016. However, should NOAA Fisheries find this trap-and-haul system insufficient to protect the listed species, then EWEB could still be required to install the original fish passage upgrades.
Dam removals have become much more common in recent decades, and FERC relicensing has played a large role by requiring expensive fish-passage upgrades as a mandatory condition of an extended operating license. This uptick in FERC-triggered removals was caused by the fact that many of the last dams to be licensed without any environmental oversight have sought relicensing in the past decade. While almost all the pre-NEPA dams have been relicensed at this point, FERC relicensing will continue to trigger fish passage upgrades at facilities that were originally licensed before FERC started attaching mandatory wildlife considerations in 1986. Organizations operating dams in the Pacific Northwest that were licensed prior to these wildlife conditions will be pursuing relicensing through 2039.
In some cases—like the Little Sandy and Marmot Dams in Oregon—the economic cost of the Electronic Consumers Protection Act’s fish passage requirements will exceed the benefit of continued operation and make removal the more cost-effective option. In most other cases, the new FERC license will still mandate fish passage upgrades like installing a fish-ladder or implementing a trap-and-haul system. Through either dam-removal or upgrades, these FERC conditions will improve fish-passage at hydroelectric dams throughout the Pacific Northwest.
 U.S. Army Corps of Eng’rs, Water in the U.S. American West 6 (2012).
 Id. at 14.
 Address, Bruce Babbitt, Sec’y of the Interior, Remarks at the Ecological Society of America Annual Meeting (Aug. 4, 1998), http://www.sci.sdsu.edu/salton/DamsAreNotForever.html.
 Heinz Center, Dam Removal: Science and Decision Making 3 (2002) (the list referenced here has not been updated since 2001 due to post-9/11 security concerns).
 See Christopher Scoones, Let the River Run: Strategies to Remove Obsolete Dams and Defeat Resulting Fifth Amendment Taking Claims, 2 Seattle J. Envtl. L. 1, 2 (2012).
 See Laurie A. Weitkamp, A Review of the Effects of Dams on the Columbia River Estuarine Environment, With Special Reference to Salmonids 6 (1994).
 John Harrison, Dams: Impacts on Salmon and Steelhead, N.W. Power and Conservation Council (2008), https://www.nwcouncil.org/history/DamsImpacts.
 See, e.g., Wash. State Recreation and Conservation Office, Salmon Species Listed Under the Federal Endangered Species Act (2009), http://www.rco.wa.gov/salmon_recovery/listed_species.shtml.
 Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
 Margaret B. Bowman, Legal Perspectives on Dam Removal, 52 BioScience 739, 741 (2002).
 Julia Guarino, Tribal Advocacy and the Art of Dam Removal: The Lower Elwha Klallam and the Elwha Dams, 2 Am. Indian L. J. 114, 130–31 (2013).
 Elwha River Restoration: Freeing a River, Nat’l Park Serv., https://www.nps.gov/olym/learn/nature/elwha-ecosystem-restoration.htm (last visited Sept. 30, 2017).
 Lower Elwha Klallam Tribe, Timeline of the Elwha River Dams & Removal Efforts, http://www.elwha.org/damtimeline.html) (last visited Sept. 30, 2017).
 Lynda V. Mapes, Elwha: Roaring Back to Life, Seattle Times (Feb. 13, 2016), http://projects.seattletimes.com/2016/elwha/ (Scientists have been “amazed at the speed of change under way in the Elwha.”).
Lower Elwha Klallam Tribe, supra note 13.
 Michael C. Blumm & Andrew B. Erickson, Dam Removal in the Pacific Northwest: Lessons for the Nation, 42 Envtl. L. 1043, 1069–71.
 16 U.S.C. §§ 791–825.
 Philip M. Bender, Restoring the Elwha, White Salmon, and Rogue Rivers: A Comparison of Dam Removal Proposals in the Pacific Northwest, 17 J. Land Res. & Envtl. L. 189, 228 (1997).
 16 U.S.C. § 797(e) (2012).
 See, e.g., Blumm, supra note 17, at 1053–54 (discussing the relicensing process for the Elwha and Glines Canyon dams).
 16 U.S.C. § 811.
 See infra notes 36–38 and accompanying text.
 2007 was the peak year for hydroelectric relicensing. Applications for New Licenses (Relicenses), Fed. Energy Reg. Commission (Aug. 15, 2017), https://www.ferc.gov/industries/hydropower/gen-info/licensing/app-new.asp.
 16 U.S.C. § 797(e).
 Congress did not authorize the federal government to license private dams built before June 10, 1920. Id.
 Federal Power Act, Hydropower Reform Coalition (2017), http://www.hydroreform.org/policy/fpa.
 Electric Consumers Protection Act of 1986, Pub. L. No. 99-495, 100 Stat. 1243 (codified at 16 U.S.C. § 791a).
 16 U.S.C. § 803(j).
 Id. § 811.
 Am. Rivers v. Fed. Energy Regulatory Comm’n, 201 F.3d 1186, 1210 (9th Cir. 1999).
 16 U.S.C. § 799.
 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4347. NEPA was signed into law in 1970. What is the National Environmental Policy Act?, Envtl. Protection Agency, https://www.epa.gov/nepa/what-national-environmental-policy-act (last visited Sept. 30, 2017).
 Wildlife considerations were required in the Electricity Consumers Protection Act, enacted in 1986. 16 U.S.C. § 803(j).
 For example, Oregon coastal coho salmon were not listed until 1998. See, e.g., ESA Chronology for Oregon Coast Coho, Nat’l. Oceanic & Atmospheric Admin. Fisheries http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/salmon_and_steelhead_listings/coho/esa_chronology_for_oregon_coast_coho.html (last visited Sept. 30, 2017).
 For example, FERC would have required PacifiCorp to spend over $30 million on fish passage upgrades to relicense the Condit Dam, so PacifiCorp chose to remove the dam at a cost of approximately $17 million. David H. Becker, The Challenges of Dam Removal: The History and Lessons of the Condit Dam and Potential Threats from the 2005 Federal Power Act Amendments, 36 Envtl. L. 812, 826–27 (2006).
 16 U.S.C. § 811.
 Blumm, supra note 17, at 1070.
 Becker, supra note 39, at 832 n.135.
Bull Run Watershed, City Portland, https://www.portlandoregon.gov/water/29784 (last visited Sept. 30, 2017).
 Janie Har, Bull Run Watershed: Journey to the Source of Portland’s Copious, Constant Water, Oregonian (Aug. 13, 2010), http://www.oregonlive.com/portland/index.ssf/2010/08/bull_run_watershed_journey_to.html.
 The City of Portland first diverted water from the Bull Run in 1894. Andrew Theen, From Bull Run to Mount Tabor: The History of Portland’s Open Reservoirs (Timeline), Oregonian (Dec. 17, 2014), http://www.oregonlive.com/portland/index.ssf/2014/12/from_bull_run_to_mount_tabor_t.html.
 Bull Run: The Town That Time Forgot, PDX Hist. (Oct. 28, 2016), http://www.pdxhistory.com/html/bull_run.html.
 The main powerhouse was completed in 1912. The Century-Old Bull Run Powerhouse Finds New Life, Thanks to 3 Portland Preservationists, Oregonian (Dec. 6, 2012), http://www.oregonlive.com/gresham/index.ssf/2012/12/the_century-old_bull_run_power.html.
 Blumm, supra note 17, at 1067.
 Blumm, supra note 17, at 1067.
 Id. at 1067–68.
 Id. at 1068.
 Of PGE’s four hydroelectric systems, the Bull Run project was the smallest. Julie A. Keil, Bull Run Decommissioning: Paving the Way for Hydro’s Future, Hydro Rev. (Mar. 1, 2009), http://www.hydroworld.com/articles/hr/print/volume-28/issue-2/feature-articles/dam-removal/bull-run-decommissioning-paving-the-way-for-hydrorsquos-future.html.
 The Bull Run system affected fish passage, temperature pollution, and river flows; several threatened fish species also migrated to the rivers. Id.
 This is understandable when you consider the fact that PGE would have had to upgrade two century-old dams just to continue electricity production at a single powerhouse. Id.
 Fed. Energy Regulatory Comm’n, Draft Environmental Impact Statement: Bull Run Project (2003).
 There were a total of twenty-two parties in the settlement. Id. PGE also agreed to pay all costs for the removal in the settlement, thereby circumventing the arduous process of securing federal funding. Blumm, supra note 17, at 1070.
 Portland Gen. Elec., Turbidity Management Plan: Bull Run Hydropower Project 1 (2005).
 Most notably, the nearest city—Sandy, Oregon—was a party to the settlement. Becker, supra note 39, at 832 n.135 (2006).
 Marmot Dam, Oregon’s Largest Dam, Is Being Removed: Salmon and Wildlife Habitat and Public Recreation to Benefit, Horizon Int’l Sols. Site, http://www.solutions-site.org/node/271 (last visited Sept. 30, 2017).
 Jon Major et al., Initial Fluvial Response to the Removal of Oregon’s Marmot Dam, 89 Eos 241, 241 (2008).
 Id.; Charles Podolak & Jon Major, An Example of One River’s Response to a Large Dam Removal (2016), http://serc.carleton.edu/vignettes/collection/37741.html.
 Elizabeth Brink, Feeding a Hungry River, 23 World Rivers Rev. 6, 6 (2008).
 Blumm, supra note 17, at 1069.
 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
 See supra notes 35–36 and accompanying text.
 Fed. Energy Regulatory Comm’n, Active Licenses (2017), https://www.ferc.gov/industries/hydropower/gen-info/licensing/active-licenses.asp (available for download) [hereinafter Active Licenses].
 Fed. Energy Regulatory Comm’n, Pending Licenses, Relicenses and Exemptions (2017), https://www.ferc.gov/industries/hydropower/gen-info/licensing.asp (available for download).
 See, e.g., Nat’l Oceanic & Atmospheric Admin., Endangered Species Act Section 7 Formal Consultation, and Manguson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for the License for Construction, Post-Construction Monitoring and Evaluation of a Tailrace Barrier at Packwood Lake Hydroelectric Project (FERC Project No. 2244) (2007), https://elibrary.ferc.gov/idmws/file_list.asp?document_id=13541611. Since the last license was issued before Congress passed NEPA in 1970, these environmental reviews were never conducted before. Fed. Energy Regulatory Comm’n, Hydropower Primer: A Handbook of Hydropower Basics 20 (2017), https://www.ferc.gov/legal/staff-reports/2017/hydropower-primer.pdf.
 Nat’l Oceanic & Atmospheric Admin., Packwood Lake Hydroelectric Project, http://www.westcoast.fisheries.noaa.gov/fish_passage/ferc_licensing/columbia_river/packwood_lake.html (last visited Sept. 30, 2017).
 See 16 U.S.C. § 811 (2012); see also supra notes 32–34.
 See Active Licenses, supra note 74, see also supra notes 30–31 and accompanying text.
 Active Licenses, supra note 74.
 See David N. Allen, The Klamath Hydroelectric Settlement Agreement: Federal Law, Local Compromise, and the Largest Dam Removal Project in History, 16 Hastings W.-N.W. J. Envtl. L. & Pol’y 428, 431–33 (2010).
 Id. at 459.
 Carmen-Smith Hydroelectric Project, Eugene Water & Electricity Bd., http://www.eweb.org/about-us/power-supply/carmen-smith (last visited Sept. 30, 2017).
 Active Licenses, supra note 74.
 Christian Hill, EWEB Backs Deal to Save $80 Million on Dam Relicensing, Reg.-Guard, Nov. 2, 2016, at A1.
 Carmen-Smith Hydroelectric Project, supra note 89.
 Hill, supra note 91. For an illustration of the system, see Carmen-Smith Project: Upstream Fish Passage, Eugene Water & Electricity Bd., http://www.eweb.org/about-us/power-supply/carmen-smith (last visited Sept. 30, 2017).
 Carmen-Smith Hydroelectric Project, supra note 89.
 Hill, supra note 91.
 Active Licenses, supra note 74.
Matt Carlisle, Vermont Law School, JD Candidate 2017 This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. 1. Introduction Storm water is a major polluter. As one judge put it, “Storm water runoff is one of…