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People In Your Neighborhood
by Michael Nunziata
In water law, as in much else, definitions matter. A definition is a formal statement of the meaning or significance of a word or phrase. Definitions set cornerstones and boundaries; they reveal order and bring clarity; they banish the vague and ambiguous. Definitions let us know where we are in the world. The law, which is always formal and rarely clear, relies on all sorts of definitions to assign subjects into categories and classes. A judge in chambers, tangled on some point of law or fact, may reach for any reasonable dictionary to aid justice. Sometimes this works out fine.
water n. 1 a: the liquid that descends from the clouds as rain, forms streams, lakes, and seas, and is a major constituent of all living matter and that when pure is an odorless, tasteless, very slightly compressible liquid oxide of hydrogen H20 which appears bluish in thick layers, freezes at 0 degrees Celsius and boils at 100 degrees Celsius, has a maximum density at 4 degrees Celsius and a high specific heat, is feebly ionized to hydrogen and hydroxyl ions, and is a poor conductor of electricity and a good solvent
So says Merriam-Webster’s Collegiate Dictionary (11th Ed.), which I chose at random from a dozen other dictionaries on the reference shelf at the Kingston Library. The full entry extends to 32 sub-headings over nearly half a page—far too much to print here—but this opening phrase is instructive. It’s also inaccurate, disjointed and oddly written, even if you overlook Merriam-Webster’s practice of leaving off periods at the end of sentences. But it’s somehow fitting that water’s definition is as elusive and transient as the substance itself.
Our dictionary defines water as “the liquid that descends from the clouds as rain.” (We learn in elementary school that water flows readily through solid, liquid and gaseous states, and descends from the clouds as anything it pleases, but we’ll let that go.) It mistakenly implies that water falls to earth from some celestial spigot, the source of which, apparently, is heaven. Rather, the water that fills the clouds belongs to the planet. Water is a finite resource; its total volume has been the same since water appeared on earth. It simply goes up and comes down in an endless whirling dance between earth and sky. Any useful definition of water should say so.
For the record, the total amount of water in the atmosphere makes up a ridiculously small percentage of all the water on Earth: the US Geological Survey puts it as a fraction of a fraction of a fraction. (You can search “USGS how much water is there on earth.”) Somehow I had always imagined that the clouds held oceans more water than we’re told they do.
The phrase is disjointed because it begins with a statement of atmospherics, proceeds to a biological feature, romps through the rules of physics, and ends in a heap on a chemical property. A rule of good writing is to arrange like things with like, especially when there are 31 more sub-headings to fill. The phrase is oddly written because of that “feebly ionized.” Feebleness is a diminished condition, a lowering of a standard with the prospect of regaining it. Perhaps the editors meant “weakly” or “loosely” instead.
So why do I criticize a dictionary definition? What’s the point in mincing the word choices of professional editors? Two reasons. First, the full definition (you can look it up) is notable for what it doesn’t say about water: that it is heavy to lift, that it is difficult to contain and usually impossible to measure, that it is always moving, that it is strong-willed, powerful, evasive and cruel. Most important, neither Merriam-Webster’s nor any of the other dictionaries I checked ever get around to mentioning water’s single most important feature: that it is absolutely necessary to all life on earth. (The definition’s second clause says only that living things contain water, not that they all require it.) Without water there would be no life, no dictionaries, no judges, no editors. You’d think a definition would mention a little thing like that.
The second reason concerns our harried judge on the bench who searches for meaning in a dictionary. Trying to divine water by reading a definition is like trying to find heaven by looking up through the bottom of a beer glass. The view is tinted and the subject uncertain. As more water conflicts make their way to the courts, more judges will have to learn about water. All of them will visit their dictionaries. Blurred definitions leave the judge better informed but no wiser. As a lawyer, I’ve got to absorb the definitions, too, especially the blurry ones. The judge might need help filling in the blanks.
Michael Nunziata practices water law in New York State.
by Michael Nunziata
My friend Matthew is a Woodstock farmer who cultivates interesting things, among them flowers, earthworms and fig trees. Mostly he grows food that tastes good. Everything he grows he sells in his market. Because he helps to feed his town, Matthew knows his produce must be as pure and wholesome as he can make it. In practice, he relies mainly on the blessed trinity of soil, sun, and water. Long experience counts for much; so do the best “inputs” (minerals, fertilizers, compounds and seed) applied in their exact amounts. Blending art and science, and barring catastrophe and blight, Matthew generally brings home a fine crop.
In March he warms his greenhouse and surveys his fields. I found him outside in muddy boots, looking thoughtful. He said that he was concerned for the purity of the crops he grows. I knew that Matthew follows the strict federal organic rules, sometimes finding ways to outperform them. No, he said, it wasn’t the rules. The problem is rather a lack of rules for his water source, the water that nourishes his farm and his family. Matthew suspects that his water source contains the usual mix of fluorides and chemicals, but he doesn’t know the ways it might alter the foods he grows, their flavors, nutrients, and essence. He doesn’t know the extent that treated water in crops affects the health of his town. The otherwise rigorous organic guidelines are silent on the question. Matthew routinely measures the quality of soil and seed down to the smallest grain, but water? He simply doesn’t know.
Organic food production in the United States is governed by a framework of rules called the National Organic Policy. First published in 2000, the NOP grew out of the Organic Food Production Act of 1990, which authorized the US Department of Agriculture to implement a national organic standard. The USDA accredits regional organizations in the 50 states to certify that organic farmers are in line with the NOP rules. Like the NOP itself, the certification process is lengthy and demanding. The rules (80-plus pages) cover every aspect of farming, from soil composition to livestock drainage, tractors to toxins, and all else that concerns the cultivation and delivery of organic food. Every aspect, that is, except water quality.
Caitlan Reilly is the Crop and Livestock Certification Coordinator at N
OFA-NY, the New York chapter of the Northeast Organic Farmers Association, the oldest such organization in the country. Caitlan says that NOFA-NY’s certification process does indeed require a test for potable water, but only for operations that use non-municipal sources of water to wash harvested crops intended for human consumption. The rule aims to prevent the spread of waterborne bacteria such as e-coli in crops sent to market. But neither the USDA nor its NOP-accredited organizations like NOFA-NY are tasked to test the water that goes into a plant that a farmer grows for food.
We Americans are an optimistic lot. Along with the Assumption of Plenty (the foundation of water laws in the eastern United States) both halves of the country hold on to an Assumption of Purity. This is the abiding belief that most of our tap water sources are more or less clean and fit to drink. Sure we spend sums at hardware stores on a range of home filters, and sure the horror story of Flint, MI has somewhat dented our long-held faith, but for the most part we give little thought to the quality of our tap water, so long as the taps continue to pour.
But not everyone ascribes to assumptions. My friend Sharif is the head brewer of a microbrewery in Yonkers. Like Matthew, Sharif brings a profound imagination to an ancient craft. The key to brewing success, says Sharif, is the mastery of the ingredients and the knowledge of how they interact with each other. Water is his most important ingredient (it makes up 90 percent of beer and crops) and he takes nothing for granted. Part of his job is to create water “profiles”, precise mixtures of minerals and ions in the water to fit each of his recipes. Last year, Sharif concocted 40 different recipes to brew 85 batches of beer, all of which sold out. In his current favorite water profile, he’s managed to recreate the fabled source waters of Plzeň, a Bohemian city in the Czech lands, the birthplace and shrine of pilsner beer.
For purity’s sake and the planet’s, I intend to take Matthew and visit Sharif’s brewery.
They can talk about water profiles while I study the empirical results. We’ll likely come home in a cab.
Michael Nunziata practices water law in New York State.
by Michael Nunziata
Compared with the extreme weather of last year, this winter in the Mid-Hudson Valley has been a walk in the park so far. Here it is February and we’ve hardly seen snow. Last winter, the ground hid itself under a mattress of snow the day before Thanksgiving and refused to emerge until April. That was trial enough. But the thing I remember most clearly was February’s appalling and relentless cold. It seemed to take on almost a solid quality, like a downpour of iron nails. Freezing blasts of wind roared for weeks on end, and the thermometer fell to -10, -20, -30. I broke two shovels and began to believe that a new Ice Age had dawned. But unless one has, this winter in total will be milder than last year’s, however Arctic it may turn.
An Ice Age is defined as a glacial epoch, an age of glaciers; a long bracket of time when earth’s average temperature drops below freezing and stays there; an entire age when water has turned into ice. The most recent Ice Age kicked off roughly 110,000 years ago and only ended around 12,000 or so years ago—an unbroken run of more than a thousand centuries, or over a hundred millenia! (After last winter, I’m amazed to learn that we humans lived through it from start to finish. But we did.) Glaciers themselves are enormous masses of freshwater ice formed by compressed layers of long-accumulated snows. Icebergs belong to glaciers; they are simply the glaciers’ shivered edges, giant crystal ice cubes of Mother Earth’s purest water plunked down in the swirling, margarita-salt seas.
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| A glacier in Greenland. |
Those same salt seas and oceans hold nearly all the planet’s water: 97.5 percent of it, according to the United States Geological Survey. Freshwater makes up the leftover 2.5 percent. Glaciers and ice-caps are nature’s freshwater reservoirs, locking up about two-thirds of the earth’s freshwater supply. Incidentally, “freshwater” simply means water that is not saltwater. It does not mean that all freshwater is somehow fit to drink: due to poor soils, bad toxins and even worse practices in many parts of the world, much of it isn’t. But the water in glaciers and ice-packs is some of the purest water left on the Earth.
The remaining one-third of freshwater includes all the water in lakes, rivers, swamps, ground ice, permafrost, and groundwater deposits. It also includes the moisture in the atmosphere and in the soil, and even the water sloshing around within the confines of all living things. When you reflect that groundwater alone accounts for nearly the whole of this last portion of freshwater, when you try and work out the tiny, tiny fractions left over for rivers and lakes and raindrops and so on—the sources of biological life—you begin to see the incalculable worth and fragility of this remarkable and dwindling resource.
Glaciers cover one-tenth of earth’s surface, and are found on every continent except Australia. In the US, hundreds of glaciers dot the Pacific Coast ranges and Rocky Mountain States. Alaska alone boasts over 500 glaciers. There’s one in Nevada and still another as far south as California’s Central Valley. But we haven’t any glaciers of our own in New York State, not since the departure of the great Laurentide ice sheet, though its marks are all around us.
An ice sheet is a type of glacier, an enormous continental expanse of snow and ice. Only two ice sheets—in Greenland and Antarctica—still remain. At the height of the last Ice Age, the Laurentide spread from central Canada across the northeastern United States, stretching one long cold finger down the Hudson canyon, a deep gash in the earth left over from a still-earlier convulsion. The finger dug in its nail as it pushed down through New York State, gouging out Niagara Falls and the Finger Lakes and piling ahead of it enough rock and sand to create Manhattan and Long Island. At the end of the Ice Age the Laurentide melted away, leaving a trail across the state of pulverized stone and gravel, a perfect medium for aquifers and a splendid mineral base for our incomparable soils.
Nearly all of the world’s glaciers are shrinking. Sea-level rise projections for sustained glacial meltdown wander all over the chart: some experts say 40 feet; others say 60 or even 100. Less soothing is the news that such a frigid deluge might somehow dilute the warm Gulf Stream currents, bringing on a global cooling trend that would make last winter in New York feel like August in Miami.
Not again.
Michael Nunziata practices water law in New York State.
by Michael Nunziata
If groundwater has a poster boy, he’s surely James Bond. Agent 007 appreciates the importance of our most valuable resource, and he’s already shed some skin to save it. A few films back, Bond parachuted with a woman through a hole in a mountainside, crash-landing safely in an underground cave strewn with boulders. Fortunately Bond can see in the dark, and he realized at once that they’d fallen into a sinkhole, the bed of a subterranean river sucked dry by a villainous pump. Groundwater was the ultimate prize; the game was up and the bad guys doomed.
Groundwater comes from underground water-bearing formations called aquifers, which provide water to roughly half of all U.S. residents. (Surface waters such as lakes, rivers and streams make up the other half.) Most rural households rely on groundwater, but some aquifers also feed major urban centers, such as the great Magothy aquifer that waters nearly three-quarters of Long Island’s residents. Unlike Bond’s sub-surface river, most groundwater collects in the tiny spaces between sand and rock, as if you poured water into a bowlful of gravel. A groundwater well is essentially a straw pushed down into the saturated gravel in the bowl. A well runs dry when the water level in the gravel drops below the bottom of the straw. The remedy is to replenish the water in the bowl, or else push the straw down deeper.
We know a fair bit about groundwater aquifers: they can lie close to the surface or deep below it; they may be trapped, under pressure beneath an iron layer of rock or merely sunk in dirt and sand. An aquifer’s ability to replenish itself of the water we take depends on its location and physical quirks—and always the weather. Some aquifers may fill rather quickly while others need decades or longer.
We know that not all groundwater is safe to drink because poor soils or pollutants might add flavor. We know that aquifers are a living part of the planet’s hydrological cycle, the holy freshwater ocean that pirouettes between earth and sky. And a marvelous NASA satellite named GRACE tells us the change in the level of an aquifer every time she sails over it.
But that’s about all we know for certain, and not even GRACE can say how much water a particular aquifer holds or what its actual shape and size might be. No one can tell us, for the simple reason that we can’t see underground.
Five principal common law doctrines of groundwater allocation guide the fifty states. (Common law means the rules derived from judicial decisions, not those from statutes or regulations.) Each doctrine answers four questions: how much water can an owner take, and for what purpose? Will the water be used on the property or off, and must an owner consider the effect on a neighbor’s well?
Like Bond, the most dramatic of the doctrines is British. The English rule says that owners can take all the water they like and may use it for any purpose, even to waste. Owners can use the water anywhere, and they are not responsible for the well of their neighbor, who is always free to dig a deeper one. Some states still use the English rule. The American rule also allows an owner to draw any amount, but requires that the use be a reasonable one and that the water remains on the property. Most eastern states have adopted the American rule.
The doctrines of Correlative Rights and Restatement both balance the amount of water among all the neighborhood wells. The water must be put to good use, whether on or off the property. The Restatement, which is the most restrictive of all the doctrines, is the least popular among states. The fifth doctrine is called Prior Appropriation; it awards the same annual amount of water to the same persons who stand in front of a long line. The state not the proprietor determines the safe amount of water to take from an aquifer. This is also the surface waters rule of choice in the arid western states.
The laws and regulations for New York groundwater are concerned mainly with limiting pollution in our most important aquifers. Other rules set out programs to rehabilitate stressed aquifers. Aquifers are classed in importance not by their size but by how many New Yorkers depend upon them. Anyone wishing to extract vast amounts of groundwater must apply for a permit. Everyone who digs a well needs a license to drill.
We’re fortunate to live in a region so abundantly blessed with water. Perhaps we’re just as lucky to have so few groundwater laws rather than a tangle of rules and regulations. As our groundwater knowledge and needs increase, we have the rare chance to craft good practices to ensure a fruitful supply.
Michael Nunziata practices water law in New York state. mnunz@nyfwlaw.com.
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