Background Reading

Good overview of the definitional considerations of WOTUS: https://extension.arizona.edu/sites/extension.arizona.edu/files/attachment/nrulpc-the-water-report-196.pdf

1AC

Plan

The United States Federal Government should resolve that the definition of “waters of the United States” under the Clean Water Act include those with a significant nexus to traditionally navigable waters or their tributaries

Advantage: Clean Water

Recent court ruling creates difficulties for enforcing the Clean Water Act - functional equivalence test in County of Maui resulted in widespread regulatory uncertaintyJohnson 21 (Lavran Johnson, J.D. Candidate at Harvard Law School, “From Tropics to Swamp: How County of Maui Muddies the Clean Water Act,” Harvard Environmental Law Review Online, Vo. 45, 2021)

County of Maui v. Hawaii Wildlife Fund,1 the latest in a string of Supreme Court decisions that set the jurisdictional bounds of federal water protection, appears to be an environmental victory: a 6–3 decision from a conservative Court that refuses to draw artificial limits around protective regulation.2 Despite this positive result, County of Maui is a problem for the Clean Water Act (“CWA”).3 The Court

introduced a new jurisdictional test , which asks whether an indirect discharge of pollutants is

“ functionally equivalent to a direct discharge .”4 This vague test will complicate administration

of the Act and increase the burden on agencies and citizens .

The CWA aims to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”5 To this end, the Act prohibits any discharges of pollutants from point sources6 into navigable waters,7 except when the Environmental Protection Agency (“EPA”) or a state acting under delegated authority8 has granted a National Pollutant Discharge Elimination System (“NPDES”) permit.9 The CWA also prohibits the disturbance of navigable waters via dredge and fill operations, unless the U.S. Army Corps of Engineers (“USACE”) has granted a permit.10 By prohibiting all discharges except those from sources which receive permits, the CWA facilitates enforcement by largely eliminating the need to prove that pollutants came from a particular source.11

However , because of the hydrological interconnection of land, groundwater, wetlands, and

navigable waters, CWA jurisdiction can be unclear . Whether an agency may regulate a particular

activity often hinges on the degree of connection to and effects on a traditionally navigable water. Two

questions are frequent sources of uncertainty for the agencies and private parties alike. First , when is terrain, like wetland or dry riverbed, sufficiently connected to a traditionally navigable water to be protected by the CWA as water of the United States (“WOTUS”)?12 Second , when is an indirect discharge from a point source sufficiently connected to traditionally navigable water to require an NPDES permit?13

In County of Maui, the Supreme Court created a test that decides the latter question: indirect discharges require permits when they are “functionally equivalent to a direct discharge.”14 This test provides little clarity for individuals and agencies. Equally important, this test ignores another test that answers the first jurisdictional question, which looks for a “significant nexus” between terrain and a traditionally navigable water.15 By applying the significant nexus test, the Court could have clarified and simplified CWA doctrine by providing a single, intelligible jurisdictional standard for individuals and agencies which would protect our nation’s waters.

Clear guidelines for enforcing the Clean Water Act are crucial to protect vulnerable wetlands Taylor 18 (Taylor R.W., Wetlands Protection: The Forgotten Agenda,” In: Sosa-Nunez G. (eds) Widening the Scope of Environmental Policies in North America. Governance, Development, and Social Inclusion in Latin America. Palgrave Macmillan, Cham, 2018, https://doi.org/10.1007/978-3-319-56236-0_8)

Section404 of the 1972 Clean Water Act To begin with, Section404 of the 1972 Clean Water Act was not initially designed to protect wetlands specifically. It was instead designed to pro-vide a simple regulatory structure through which fill material could be placed legally and appropriately within “ Waters of the United States,” a definition which has been interpreted by regulators and

courts alike over the past 40 years to include more expansive protections to wetlands (Christie and Hausmann 2003; Devine et al. 2012). Furthermore, Section404 exempts the vast majority of agricultural activities and minor impacts to wetlands that are the results of routine maintenance of properties. Therefore, it is not all-encompassing in terms of its constituency. The result of these restrictions on the regulatory scope of Section404 means it is not a blunt centralized administrative land use control implement. Instead, Section 404 has evolved through the years to become an adaptive

regulatory instrument that only targets a select set of actions that are typically undertaken by

commercial land development interests (Goch 2015).Because of this ambiguity in its legal

grounding , the scope and stringency of the regulation wetlands have received through the

Section 404 program has waxed and waned through the years (Owen 2016). Lacking a clear and

specific statutory mandate , the amount of protection the US Army Corps of Engineers (USACE) (the custodial agency respon-sible for implementing Section404) has been able to provide wetland resources has depended greatly through the years upon the whims of federal court judges and the zeal of regional program administrators (Houck and Rolland 1995; Devine etal. 2012). The result of this has been that since the 1980s, issues from the dredging of material from wetlands, to the placement of fill material in hydrologically isolated wet-lands, to the mechanized clearing of vegetation within wetlands, and to the duration of inundation wetlands receive have all invited judicial scrutiny and revisions to administrative rules (Christie and Hausmann 2003). Furthermore, due to the program’s regionalized implementation scheme, each of the 38 US Army Corps of Engineers district offices has used their ability to draft regional conditions for permitted activities that provide locally relevant protections over wetlands within their jurisdic-tion (Taylor 2013).On the balance, these revisions have expressed a continued

relaxing trend in federal regulatory control over wetland resources , which has led some scholars

to comment on the potential demise this could mean for wetland resources (Christie and Hausmann

2003; Devine etal. 2012). In addition, the regionalization of the 404 program has prompted some to

express concern it will ultimately lead to a regulatory race to the bottom in terms of regulatory stringency (Houck and Rolland 1995). However, when looking at the practical administrative outputs of the Section 404 program, this appears to have not been the case.

Wetlands secure core ecological functions – they are crucial for maintaining ecosystem biodiversityBalwan 21 (Balwan, Wahied Khawar, Assistant Professor, Department of Zoology, Govt. Postgraduate College Bhaderwah, Jammu & Kashmir, India, & Sachdeep Kour, Cypress Fairbanks Independent School District, “Wetland-An Ecological Boon for the Environment,” East African Scholars Journal of Agriculture and Life Sciences, Volume 4, Issue 3, 2021, https://www.easpublisher.com/media/features_articles/EASJALS_43_38-48c_x6bowtm.pdf)

Wetlands are incredible places with a distinct ecosystem that are flooded with water either permanently or seasonally, and where oxygen-free processes prevail [1]. Wetlands are known by many different names, such as swamps, peat lands, sloughs, swamps, marshes, bogs, mires, fens [2]. The primary feature that distinguishes wetlands from other land forms or water bodies is the characteristic vegetation of aquatic plants known as hydrophytes, adapted to the unique hydric soil [3]. Wetlands were once considered useless, disease ridden places (For Example, Malaria and Yellow fever) to be avoided. However, we now have a better understanding about the importance of wetlands in our environment. Wetlands provide many societal benefits such as food and habitat for fish and

wildlife , including threatened and endangered species , water quality improvement, water storage, flood control, shoreline erosion control, and economically beneficial natural products for human use and opportunities for recreation, aesthetic appreciation, education, and research. There is no doubt that protecting wetlands can, in turn, protect our health and safety by reducing flood damage and preserving water quality. Wetlands are among the most productive and biologically diverse

ecosystems in the world , comparable to rain forests and coral reefs. They serve as reservoirs of

substantial biodiversity in supporting numerous species from almost all the major groups of organisms from microbes to mammals [4]. The physical and chemical features such as climate, topography (landscape shape), geology, nutrients, and hydrology (the quantity and movement of water) help to determine the plants and animals that inhabit various wetlands. Wetlands in Texas, North Carolina, and Alaska, for example, differ substantially from one another because of their varying physical and biotic nature. Wetlands occur naturally on every continent except Antarctica [5].

Biodiversity loss threatens ecosystem resilience – risks human extinctionYule 13 (Jeffrey V. Yule, Dixie State University, “Biodiversity, Extinction, and Humanity's Future: The Ecological and Evolutionary Consequences of Human Population and Resource Use,” June 2013 Humanities 2013(2):147-159, DOI:10.3390/h2020147)

Ecologists recognize that the particulars of the relationship between biodiversity and community

resilience in the face of disturbance (a broad range of phenomena including anything from drought, fire, and volcanic eruption to species introductions or removals) depend on context [16,17]. Sometimes disturbed communities return relatively readily to pre-disturbance conditions; sometimes they do not. However, accepting as a general truism that biodiversity is an ecological stabilizer is sensible— roughly equivalent to viewing seatbelt use as a good idea: although seatbelts increase the risk of injury in a small minority of car accidents, their use overwhelmingly reduces risk. As humans continue to

modify natural environments, we may be reducing their ability to return to pre-disturbance

conditions . The concern is not merely academic. Communities provide the ecosystem services on which

both human and nonhuman life depends, including the cycling of carbon dioxide and oxygen by photosynthetic organisms, nitrogen fixation and the filtration of water by microbes, and pollination by insects. If disturbances alter communities to the extent that they can no longer provide these

crucial services , extinctions ( including , possibly, our own ) become more likely . In ecology as in science in general, absolutes are rare. Science deals mainly in probabilities, in large part because it attempts to address the universe’s abundant uncertainties. Species-rich, diverse communities characterized by large numbers of multi-species interactions are not immune to being pushed from one relatively stable state characterized by particular species and interactions to other, quite different states in which formerly abundant species are entirely or nearly entirely absent. Nonetheless, in speciose communities, the removal of any single species is less likely to result in radical change. That said, there are no guarantees that the removal of even a single species from a biodiverse community will not

have significant , completely unforeseen consequences . Indirect interactions can be unexpectedly

important to community structure and, historically, have been difficult to observe until some form of disturbance (especially the introduction or elimination of a species) occurs. Experiments have revealed how the presence of predators can increase the diversity of prey species in communities, as when predators of a superior competitor among prey species will allow inferior competing prey species to persist [18]. Predators can have even more dramatic effects on communities. The presence or absence of sea otters determines whether inshore areas are characterized by diverse kelp forest communities or an alternative stable state of species poor urchin barrens [19]. In the latter case, the absence of otters leaves urchin populations unchecked to overgraze kelp forests, eliminating a habitat feature that supports a wide range of species across a variety of age classes. Aldo Leopold observed that when trying to determine how a device works by tinkering with it, the first rule of doing the job intelligently is to save all the parts [20]. The extinctions that humans have caused certainly represent a significant problem, but there is an additional difficulty with human investigations of and impacts on ecological and evolutionary processes. Often, our tinkering is unintentional and, as a result, recklessly ignores the necessity of caution. Following the logic inherited from Newtonian physics, humans expect single actions to have single effects. Desiring more game species, for instance, humans typically hunt predators (in North America, for instance, extirpating wolves so as to be able to have more deer or elk for themselves). Yet removing or adding predators has far reaching effects. Wolf removal has led to prey overpopulation, plant over browsing, and erosion [21]. After wolves were removed from Yellowstone National Park, the K of elk increased. This allowed for a shift in elk feeding patterns that left fewer trees alongside rivers, thus leaving less food for beaver and, consequently, fewer beaver dams and less wetland [22,23]. Such a situation represents, in microcosm, the inherent risk of allowing for the erosion of species diversity. In addition to providing habitat for a wide variety of species, wetlands serve as natural water purification systems. Although the Yellowstone region might not need that particular ecosystem service as much as other parts of the world, freshwater resources and wetlands are threatened globally, and the same logic of reduced biodiversity equating to reduced ecosystem services applies. Humans take actions without considering that when tugging on single threads , they unavoidably affect adjacent areas of the tapestry. While human population and per capita resource use remain high, so does the probability of ongoing biodiversity loss. At the very least, in the future people will have an even more skewed perspective than we do about what constitutes a diverse community. In that regard, future generations will be even more ignorant than we are. Of course, we also experience that shifting baseline perspective on biodiversity and population sizes, failing to recognize how much is missing from the world because we are unaware of what past generations saw [11]. But the consequences of diminished biodiversity might be more profound for humans than that. If the disturbance of communities and ecosystems results

in species losses that reduce the availability of ecosystem services, human K and, sooner or later, human N will be reduced.

Biodiversity is a crucial defense against emerging infectious disease – loss creates horrific pandemicsYule 13 (Jeffrey V. Yule, Dixie State University, “Biodiversity, Extinction, and Humanity's Future: The Ecological and Evolutionary Consequences of Human Population and Resource Use,” June 2013 Humanities 2013(2):147-159, DOI:10.3390/h2020147)

5. Humans, Biodiversity, and Pathogens: The Future of Infectious Disease Although infectious diseases have been a part of human history from the beginning, the ability to treat them by targeting pathogens via vaccination and antibiotic, antifungal, or antiviral drugs is relatively recent, and increasingly insufficient to keep pace with pathogen evolution. Because pathogens have such short generation times relative to humans, natural selection allows them to rapidly respond to our control efforts. Other human difficulties result from misuse or overuse of antibiotics (e.g., in medical and agricultural contexts) that facilitate the evolution of drug-resistant varieties of established pathogens [24]. In a troubling epidemiological development, our species is also encountering a variety of new pathogens . The manner in which contemporary human-pathogen evolutionary ecological interactions unfold will shape the future of human infectious disease. Once again, human N is the relevant factor. Nomadic humans made poor hosts for most infectious diseases: their populations were too small, insufficiently dense, not commonly in contact with disease reservoirs, and too mobile to remain in close contact with their own wastes for long periods [25]. Most infectious diseases of humans evolved from precursor livestock illnesses as agricultural societies developed; these early human diseases became established as dense, settled human populations became common [26,27]. Yet in the past 60 years, over 300 emerging human pathogens have been identified, including multi-drug resistant strains of established bacterial pathogens and other drug-resistant pathogens that have only recently made the evolutionary jump to human hosts [28]. To become dangerous to humans, emerging pathogens must repeatedly test the cells they target and our immune systems until they find the correct combination of traits necessary to co-opt the cellular machinery they need to reproduce. The evolutionary steps involved in that transition may take many pathogen generations and a number of distinct pathogen mutations (as demonstrated by HIV) or occur rapidly during one or very few pathogen generations and mutations (as with the appearance of SARS in 2002). Although one hypothesis explains the recent upswing in emerging infectious disease as a result of an unusual increase in pathogen mutation rates, an alternative hypothesis suggests that as global

biodiversity decreases , pathogens shift to new hosts . The recent emergence of new infectious

diseases has occurred alongside a decline in species numbers unprecedented since the evolution of modern humans. This concurrence raises the possibility of a causal link between the two events and, with even larger future biodiversity declines expected, raises concerns for the future. Various investigators hypothesize that at the boundaries between areas of human habitation and human

vacancy, animal biodiversity may prevent nonhuman pathogens from making the evolutionary transition to humans [29,30]. Nonetheless, animals in these areas still act as pathogen reservoirs that may contain organisms with the traits necessary to infect humans, a problem that becomes more acute as biodiversity and animal population sizes dwindle and pathogens or their vectors become more likely to encounter humans [31]. Biodiverse communities may reduce the likelihood of diseases

transitioning from nonhuman species to humans through a number of factors relating to the dilution

effect (e.g., reduced encounters between infectious carriers and uninfected hosts, reduced pathogen transmission from host to vector, and fewer susceptible hosts available for infection) [25,32]. For instance, pathogen vectors such as mosquitoes and ticks historically occupied habitats

characterized by diverse species populations that could be targeted for blood meals. Since not all these species were susceptible to the pathogens carried by any given vector, the likelihood of pathogen success was reduced, with the result that even those rare pathogens capable of infecting humans were unlikely to have the opportunity to do so. Recent investigations support the hypothesis that biodiversity protects humans from emerging infectious disease. Allan et al. [33] investigated regions with varying degrees of songbird diversity and found that as avian community diversity increased, the overall rate of West Nile virus infection decreased in both birds and humans. Since mosquito vectors pass West Nile virus between hosts, their findings are consistent with the dilution effect. In a different context, experimental investigation of Batrachochytrium dendrobatidis, a fungal pathogen that has devastated amphibian species globally, provides additional support for the dilution effect hypothesis. Investigators tested a susceptible North American toad species, both in aquaria where it was the sole inhabitant and in aquaria where it was housed with one or two additional amphibian species with varying susceptibilities to the fungus. The prevalence of fungal infection was highest when only one species was present, intermediate in the presence of two species, and lowest when three species were present [34]. Although further research is necessary, the findings are suggestive and, once again, consistent with the notion that biodiversity reduces the likelihood of infectious diseases crossing species lines. Since the 1940s, humans in industrialized nations have been relatively sheltered from the threat that infectious disease once posed. Modern antibiotics and antivirals have controlled pathogens that once devastated human populations, but these drugs often remain effective only briefly. Unprecedentedly large , dense human populations

characteristic of modern societies coupled with rapid global travel create a situation in which

emerging pathogens can move much more efficiently between hosts . Rates of future human

mortality from emerging infectious diseases may depend on the levels of biodiversity that remain in unpopulated regions, which suggests that protection from novel infectious disease may be what has been, until recently, an overlooked benefit of biodiversity.

Disease spread causes extinction – globalization ensures that once a critical point is reached, circuit breakers have no effectDarling 12 (Dirk Schulze-Makuch, professor at the School of Earth and Environmental Sciences at Washington State University and David Darling, PhD, astronomer, quoted in “9 strange ways the world really might end,” by Amy Rolph, @ http://blog.seattlepi.com/thebigblog/2012/03/18/9-strange-ways-the-world-really-might-end/?fb_xd_fragment#3839101=0)

The enemy within (Pandemics) Our body is in constant competition with a dizzying array of viruses, bacteria, and parasites, many of which treat

us simply as a source of food or a vehicle for reproduction. What’s troubling is that these microbes can mutate and evolve at fantastic speed – the more so thanks to the burgeoning human population – confronting our bodies with new dangers every year. HIV,

Ebola, bird flu, and antibiotic-resistant “ super bugs ” are just a few of the pathogenic threats to humanity that have

surfaced over the past few decades. Our soaring numbers, ubiquitous international travel , and the increasing use of chemicals and biological agents without full knowledge of their consequences, have increased the risk of unstoppable pandemics arising from mutant viruses and their ilk. Bubonic plague , the Black Death ,

and the Spanish Flu are vivid examples from history of how microbial agents can decimate

populations . But the consequences aren’t limited to a high body count. When the death toll gets high enough, it can disrupt the

very fabric of society. According to U.S. government studies, if a global pandemic affecting at least half the

world’s population were to strike today, health professionals wouldn’t be able to cope with the vast

numbers of sick and succumbing people. The result of so many deaths would have serious implications for the

infrastructure , food supply , and security of 21st century man. While an untreatable pandemic could strike suddenly and

potentially bring civilization to its knees in weeks or months, degenerative diseases might do so over longer periods. The most common degenerative disease is cancer. Every second men and every third women in the western world will be diagnosed with this disease in their lifetime. Degeneration of our environment through the release of toxins and wastes, air pollution, and intake of unhealthy foods is making this problem worse. If cancer, or some other form of degenerative disease, were to become even more commonplace and strike before reproduction,

or become infectious (as seen in the transmitted facial cancer of the Tasmanian Devil, a carnivorous marsupial in Australia) the very

survival of our species could be threatened .

The court should use the “significant nexus” test to address water pollution – provides consistency in enforcement of the Clean Water Act and propagates the standard broadlyJohnson 21 (Lavran Johnson, J.D. Candidate at Harvard Law School, “From Tropics to Swamp: How County of Maui Muddies the Clean Water Act,” Harvard Environmental Law Review Online, Vo. 45, 2021)

IV. Significant Nexus Would Clear the Jurisdictional Waters

In County of Maui, the Court formulated a novel test to determine when indirect discharges require NPDES permitting. In doing so, it overlooked an option that would simplify application of the

CWA for judges, agencies, and private parties : Justice Kennedy’s ‘significant nexus’ test. 59

Although this test originated in a different branch of CWA jurisprudence, it has the legal and analytic

scope to determine jurisdiction over indirect discharges . Moreover, it hews much more closely to the text and structure of the CWA than does the functional equivalence test, has been articulated by lower courts, and would gain further clarity and authority through the Court’s endorsement .

The Court should have adopted the significant nexus test to unite and clarify agency CWA jurisdiction. The functional equivalence test achieves neither of these ends and has two additional shortcomings. First , its novelty and lack of substantive guidance will confuse courts and parties

concerned with the limits of NPDES permitting. Second , the guidance it does provide is designed for

discharges through groundwater and fails to address a broad er range of indirect discharges . Application and articulation of the significant nexus test would resolve the question presented in County of Maui and provide beneficial consistency for the Court’s CWA jurisprudence. This consistency would simplify administration of the CWA and help to settle the jurisprudential

debris stirred up by Rapanos.60See Mark Ryan, An Unwinnable Battle, 35 Nat. Res. & Env’t 64, 64 (2020). While the significant nexus test reached its present form in Rapanos, its construction reflects the broad purposes of the CWA. Properly articulated, it is suitable and desirable as a broad test for agency CWA jurisdiction.

V. The Shortcomings of ‘Functional Equivalence’

Functional equivalence is an addition to the already complex world of CWA jurisdiction . Its

vagueness and novelty will add a new wrinkle to the furrowed brows of dischargers and agencies trying to determine their responsibilities. This isn’t inherently a problem: major polluters shouldn’t rest easy just because they aren’t spewing directly into navigable waters. But for the sake of private parties

acting in good faith and agencies that shoulder complex regulatory duties, the limits of CWA jurisdiction should be as intelligible and consistent as possible. Functional equivalence, hobbled by its vagueness and novelty, does not reach this bar.

A. ‘Functional Equivalence’ Provides Only Vague Guidance for Courts and Parties

The Court articulated three aspects of the functional equivalence test, but gave no specific guidance as to how these aspects should interact or what sorts of presumptions they should impose:

Time and distance are usually, but not always, the most important factors;61

Substantial state responsibility and autonomy over groundwater and nonpoint source regulation should be preserved;62 and

Context will provide other factors weighing for or against EPA’s jurisdiction, which are too numerous to be specified.63

Without elaboration, each aspect individually raises questions and would be difficult to apply

with any consistency to the wide array of “middle instances .”64 How do time and distance weigh against each other? At what distance and speed should discharges be presumed ‘functionally direct’? If a discharge pollutes a large amount of groundwater that eventually reaches navigable water, should that weigh in favor of CWA permitting, because of the amount of pollutant reaching navigable water, or against, because it renders a great deal of groundwater subject to federal regulation? If a state embraces federal regulation, does that weigh in favor of EPA jurisdiction, even though the state’s stance has no bearing on the flow of pollutants? If pollutant A becomes pollutant B during transit, but the causation is still clear, is the discharge covered? What if pollutant B is more toxic than pollutant A? And how do the answers to these questions weigh against one another, in the final jurisdictional balance?

This laundry list of questions, only a few of those which might be posed, does not demonstrate that functional equivalence cannot be administered by courts. To the contrary, courts will extract relevant principles from each case before them and will usually reach reasonable conclusions. However, the chronic problem of CWA jurisdiction is that private parties and administering agencies must

wade through a swamp of unpredictable jurisprudence to determine where jurisdiction exists .65 The issue is not that courts cannot extract factors from facts; it is that these actors have little way to know ahead of time which factors courts will deem salient. This problem will be especially acute and likely to persist for longer because functional equivalence is both complex and underarticulated.66

Besides the specific aspects above, the Court provided two signposts to the application of functional equivalence: the name itself and the restatement of the test. Do the phrases “functional equivalent of a direct discharge” and “reaches the same result through roughly similar means” provide clarity?67 Not much. They leave basic questions : how similar, and in which ways ? An indirect discharge cannot reach the exact same result as a direct discharge; it must be translocated in time and space and somewhat

diluted or otherwise attenuated. The means of conveyance will vary , and it is not obvious whether transit through any particular groundwater, through any medium, or across any land is “roughly similar” to a direct discharge. As the Court suggested, functional equivalence is a highly contextual inquiry; but, as discussed, contextual factors do little to make this test predictable.

In addition to time and distance , the Court suggested five more contextual factors : medium of conveyance, dilution during travel, percentage of pollutant conveyed, manner of entry to navigable waters, and consistency of composition.68 These factors highlight some features of conveyance that will determine the similarity between a point-source discharge and the liquid that reaches navigable waters. They also provide justifications for a wide range of results. Since none of these factors are given

weights or baselines , any one could be interpreted as determinative or unimportant in a given

case. These are the sorts of factors that implicate agency expertise . In judges’ hands, they provide

discretion to reach a desired conclusion and leave jurisdiction unpredictable .

Status Quo Supreme Court water jurisprudence is unclear - only federal court action to advance the significant nexus standard solves for wetlands protection Holm-Hansen 12 (Kristen L. Holm-Hansen, J.D. candidate, Notre Dame Law School, “‘A Stream Would Rise From the Earth, and Water the Whole Face of the Ground’: The Ethical Necessity for Wetlands Protection Post-Rapanos,” 2012, 26 ND J. L. Ethics & Pub Pol'y 621, 631-639)

In 1972, Congress overhauled the 1948 Federal Water Pollution Control Act, which later became known as the Clean Water Act.

Congress stated that the objective of the Act "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." The Act aimed to reduce pollution in the nation's waters through

programs such as the regulation of pollutant discharge and setting water quality standards for

industries. Specifically, the Act prohibited industrial and municipal facilities from discharging pollutants,

dredge, or fill material into navigable waters pursuant to the National Pollutant Discharge Elimination System without a

permit issued by the Army Corps of Engineers under section 404. The Army Corps defined navigable waters "to

include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and

nonnavigable intrastate waters whose use or misuse could affect interstate commerce." The use of the term

" navigable waters " in the statute has led to much of the litigation involving the Clean Water Act . As a result, courts have been called upon to [*632] interpret which waters are actually protected, and determine which isolated waters may affect

interstate commerce. The passage of the Clean Water Act gave the EPA and the Army Corps of

Engineers jurisdiction over important waters that had previously been left to individual states to

regulate . While some states already had effective regulations in place, a few going even further than the Clean Water Act, other states had

not passed any comparable legislation. By requiring that potential polluters and developers apply for a permit before possibly affecting water

quality, the federal government took a proactive step towards preventing environmental degradation and ecological harm. In addition to protecting the water quality of "traditional" waters (rivers, lakes, etc.) through pollution reduction, the Clean Water Act gave the EPA the power to prevent potential developers and landowners from filling in "navigable waters." Thus, the federal

government was able to use section 404's permit process to prevent the destruction of the nation's wetlands. Before the Clean Water Act's passage, wetlands received no federal protection , and as a result were left vulnerable across the United States. Although the statutory term "wetlands" is vague, the Army Corps of Engineers has, through its regulatory authority, defined wetlands as "those areas that are inundated or saturated [*633] by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil

conditions … including swamps, marshes [and] bogs." Wetlands protection is a vital component of water regulation, as it provides "flood control, erosion protection, habitat for a variety of species, and pollution mitigation." In United States v. Riverside Bayview Homes, the Army Corps filed suit in federal court to enjoin a corporation from filling a wetland in preparation for housing construction. The Sixth Circuit reversed the district court's decision that enjoined the defendant from filling in the wetlands without a section 404 permit. In its analysis, the Supreme Court deferred to the Army Corps' definition of a wetland: "lands that are 'inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.'" Reversing the Sixth Circuit's decision, the Court decided that under the definition of "waters of the United States" as stated in the Clean Water Act, the landowner was required to get a permit before filling the land. The Court then found that the Army Corps' decision to include adjacent wetlands within the protected waters of the United States was not inconsistent with Congress's delegation of authority to the agency. The Court reserved judgment, however, on [*634] whether isolated wetlands (those not adjacent to other navigable bodies of water) should be protected. In 1986, one year after Riverside Bayview, the EPA released the Migratory Bird Rule stating that waters of the United States will include not only navigable waters but also those "which are or would be used as habitat by birds protected by Migratory Bird Treaties" and "which are or would be used as habitat by other migratory birds which cross state lines." This regulation modified 33 C.F.R. § 328.3, authorizing the Army Corps to require that permits be issued before landowners can fill certain additional areas, thereby extending the protection and coverage of the Clean Water Act. In 2001, the issue of the extension of protection afforded by the Clean Water Act was once again placed before the Supreme Court. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC"), several Illinois municipalities intended to use a certain site for waste disposal that was covered with both "permanent and seasonal ponds." The Army Corps denied the § 404(a) permit to fill the waters based on the Migratory Bird Rule, but the Supreme Court disagreed, finding that the Migratory Bird Rule exceeded the Army Corps' jurisdiction as authorized by Congress under the Clean Water Act. In doing so, the Court distinguished Riverside Bayview: Our holding [in Riverside Bayview] was based in large measure upon Congress' unequivocal acquiescence to, and approval of, the Corps' regulations interpreting the CWA to cover wetlands adjacent to navigable waters. We found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands "inseparably bound up with the 'waters' of the United States." It was the significant nexus between the wetlands and "navigable waters" that informed our reading of the CWA in Riverside Bayview Homes. Although SWANCC did not directly involve wetlands, it did have

major implications for future wetlands protection. Five years later, the Supreme Court heard Rapanos v. United States, a [*635]

case involving isolated wetlands in Michigan. The litigation had been ongoing for twelve years, after a landowner had filled

wetlands in preparation for development. The Army Corps had informed the landowner, Rapanos, that he could not fill the land without a permit

as the wetlands fell within the jurisdiction of the Army Corps as "waters of the United States." Writing for a plurality of the

Court, Justice Scalia , joined by Chief Justice Roberts and Justices Thomas and Alito, found that the Army Corps could not

extend its jurisdiction over waters that were not permanent and connected on the surface to navigable waters. In its analysis, the plurality implied that the burden of attaining a permit is great, and stated that the Army Corps "exercises the discretion of an enlightened despot relying on such factors as 'economics,' 'aesthetics,' 'recreation,' and 'in general, the needs and

welfare of the people.'" Justice Scalia rebutted the Army Corps' approach to defining protected waters (as water in

general, not the waters) by citing Webster's dictionary definition of "the waters" as requiring permanence , a

feature that m ost wetlands lack . In order to protect the decision in Riverside Bayview, the Court clarified that "only those

wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands, are 'adjacent to' such waters and [are] covered by the [Clean Water] Act." Justice Scalia recognized the potentially adverse effect the ruling will have on wetlands protection: [*636] Finally, respondents and many amici admonish that

narrowing the definition of "the waters of the United States " will hamper federal efforts to

preserve the Nation's wetlands … [But], a Comprehensive National Wetlands Protection Act is not before us, and the "wisdom"

of such a statute is beyond our ken. What is clear, however, is that Congress did not enact one when it granted the Corps jurisdiction over only

"the waters of the United States." Justice Kennedy's concurring opinion in Rapanos used the "significant nexus" test

from SWANCC to resolve the issue of whether an isolated wetland is protected . In order for a body of water to be

protected, it must "posses a 'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made." "A 'nexus' exists 'if the wetlands … significantly affect the chemical, physical, and biological integrity of other covered waters more traditionally understood as

navigable.'" The lack of a majority in Rapanos resulted in confusion with respect to the meaning of the

Clean Water Act , and the issue of wetlands protection . Now courts must choose between the

" significant nexus" test proposed by Justice Kennedy, and Justice Scalia's textual statutory interpretation

based on the permanence of the water. Courts seem to have been applying Justice Kennedy's test more frequently, as it generally leads to a better environmental result ; however, results have been inconsistent. Justice Stevens, joined by Justices Souter, Ginsburg,

and Breyer, wrote a dissent arguing that the plurality erred in its statutory interpretation, and that Justice Kennedy failed to properly defer to the Army Corps' definitional determinations. The dissent stated that the Army Corps' decision to include these kinds of wetlands under its jurisdiction is a reasonable interpretation of the Clean Water Act. Highlighting the expert testimony regarding the ecological importance of the wetlands in contention, Justice Stevens argued that the Court's holding in Riverside Bayview is controlling because the wetlands are not actually isolated, [*637] and thus do not fall under the reservation stated in that case. The dissent also pointed out that the plurality's reliance on SWANCC is

misguided, because (1) the waters in that case were not wetlands, and (2) they were truly isolated waters. The Rapanos decision has left

the lower courts unclear as to what the standard is for defining a wetland . For example, in Northern California River Watch v. City of Healdsburg, an environmental group sued a California municipality under the Clean Water Act for discharging wastewater into a pond. The Ninth Circuit found that the pond satisfied both the textual test advanced by Justice Scalia and Justice Kennedy's "significant nexus" test; therefore, the city was found to be in violation of the Clean Water Act. In United States v. Cundiff, the Sixth Circuit described the difficulty in applying Rapanos: Parsing any one of Rapanos's lengthy and technical statutory exegeses is taxing, but the real difficulty comes in determining which - if any - of the three main opinions lower courts should look to for guidance. As the Chief Justice

observed: "It is unfortunate that no opinion commands a majority of the Court on precisely how to

read Congress' limits on the reach of the Clean Water Act . Lower courts and regulated entities

will now have to feel their way on a case-by-case basis . "

Advantage: Federalism

The affirmative restores the proper jurisdiction to federal authorities to regulate relevant state water systems – the significant nexus test is based on the best available science Ward 20 (Adam S. Ward, Science Adviser for Eos and Riley Walsh, Indiana University, “New Clean Water Act Rule Leaves U.S. Waters Vulnerable,” 2-11-20, https://eos.org/opinions/new-clean-water-act-rule-leaves-u-s-waters-vulnerable)

The Clean Water Act (CWA), which became law in 1972, is the primary federal mechanism by which streams, lakes, and wetlands are protected from degradation in the United States. The act is enforced in tandem by the U.S. Army Corps of Engineers and the Environmental Protection Agency ( EPA ; hereinafter referred to as “the agencies”) and requires that a permit be issued prior to dredging, filling, or discharging pollutants in “navigable waters.” On 23 January, the agencies released the Navigable Waters Protection Rule (NWPR), which details how the CWA will be

enforced, including which waters receive federal protections under the act.

We argue that this rule blatantly ignores established science —including the agencies’ own studies

and syntheses—and risks degrading U.S. waters to the point that ecosystems may be

permanently harmed. Moreover, the rule runs counter to its own goal to strike a “reasonable and

appropriate balance between Federal and State waters” by shifting the cost and burden of

analysis and enforcement to states .

A Brief History of the Clean Water Act

The CWA has always been controversial, especially for its notoriously vague definition of navigable waters: “waters of the United States, including the territorial seas.” Some argue that the definition of waters of the United States, often called WOTUS , should be broad, thus allowing the federal

government to secure protections for intrastate waters , headwater streams (small streams connecting watersheds to main river channels), and isolated wetlands. Others believe that its definition should be narrow , leaving states to regulate these types of waters if they so choose, arguing state agencies would have better regionalized knowledge to manage their water resources. The ongoing battle for clarity continues to this day, as the agencies promulgate rules that establish CWA jurisdiction over certain waters and as those rules are subsequently checked by the courts.

In one of the most recent battles over the CWA, a controversial and influential 2006 U.S. Supreme Court split decision gave the agencies a new test for defining navigable waters. Rapanos v. United States involved penalties brought upon a shopping center developer for filling wetlands in Michigan. Chief Justice John Roberts chided the agencies for failing to develop a comprehensive rule to be used in defining the jurisdictional scope of the CWA. Justice Anthony Kennedy offered his own “significant

nexus” test, establishing jurisdiction on the basis of physical, chemical, or biological connectivity

linking a traditionally regulated water (e.g., a large river) to the water body being considered (e.g., a small tributary or nearby wetlands).

On the basis of instruction from the two justices , the agencies embarked on a massive analysis of

available hydrological research [U.S. Environmental Protection Agency, 2015a] and in 2015

advanced the Clean Water Rule . Several state governments immediately balked, causing the Sixth Circuit Court of Appeals to halt the new rule’s implementation in 18 states. After a series of court cases—while 26 states operated under the new rule and, after several more states resisted it, 24 continued to operate under the 1986 rule it was supposed to replace—the Clean Water Rule was formally repealed last September.

The NWPR now replaces the Clean Water Rule as the latest attempt to define WOTUS.

What Did the Navigable Waters Protection Rule Change?

Since 1986, when new regulatory guidance was established in response to the decision in United States v. Riverside Bayview Homes, the agencies have used a WOTUS definition that relies on the delineation of “ordinary high water marks” to identify streams that fall under the protection of the CWA. Determining an ordinary high water mark requires evidence of regular flow from field observations, including debris lines, water staining, and other visual indicators. The NWPR replaces this definition with one requiring that a waterway exhibit perennial or intermittent flow to be protected. Unlike the 1986 rule, the NWPR explicitly excludes ephemeral waters (those that flow only in response to precipitation events), thus contracting the network of streams that were previously regulated.

This change, however, is in direct opposition to EPA administrator Andrew Wheeler’s objective of streamlining the permitting process and increasing regulatory efficiency. What formerly involved a simple visual inspection in the field now requires more complex assessments of databases and models describing precipitation and resultant streamflow over rolling 30-year windows. Moreover, the rule leaves open the possibility that other models and forecasts may be acceptable forms of evidence to determine which waters are WOTUS, which we expect will seed a cottage industry of consulting firms touting competing models and, ultimately, litigation when models disagree.

Another definition from the 1986 rule specified that waters “adjacent” (clarified to mean “bordering, contiguous, or neighboring”) fell under protection of the act. This definition was typically interpreted to include anything from immediately adjacent lakes and wetlands sharing a surface water connection with regulated streams to waters within 500 feet (152.4 meters) of those streams, even if they didn’t have a visible overland connection. After Rapanos, the “significant nexus” test was added, meaning the body of water in question must have a biological, chemical, or physical connection with downstream, regulated waters. For example, a wetland could be considered regulatory because biota in a river spawn in shallow waters on the floodplain, forging a biological connection between the waters that is critical to the health of the river despite no persistent overland flow linking the two (see more examples in Cohen et al. [2016]).

The new rule changes the scope of lake and wetland jurisdiction in two important ways: (1) The NWPR revises the definition of “adjacent” so that only immediately adjacent lakes and wetlands sharing a surface water connection are federally protected, with no interpretation allowing for subsurface connections. This substantially reduces wetland protections via the CWA . (2) The NWPR

eliminates case-by-case significant nexus tests , which proponents view as a win in terms of

regulatory efficiency. We contend that this efficiency baits litigation and comes at the expense of the environment. The NWPR broadly takes all cases that would have required a test and makes the waters not jurisdictional by rule (i.e., they are “out,” and no consideration is required). These changes reduce federal regulatory coverage of national waters, as we discussed in detail last April [Walsh and Ward, 2019].

Re-balancing water federalism towards centralization is necessary to provide a successful pathway for adapting to the impacts of climate change Craig 10 (Robin Kundis Craig, Associate Dean for Environmental Programs and Attorneys' Title Professor of Law, Florida State University College of Law, “Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources,” Fall 2010, 5 Envt'l & Energy L. & Pol'y J. 183, 185-229) As a republic, the United States depends on the mutual workings of several layers of government--federal, state, local, and, in some circumstances, regional. "Federalism" describes the

interactions of two of these layers: the federal government and the states. However, " federalism " does not describe a univalent relationship .

Instead, the states can and do interact with the federal government in a variety of ways . Nowhere is this fact more clear

than in the management and regulation of water resources. This Article refers to the various relationships between the federal government and the states as water federalism, and water

federalism is multifaceted and complex . Even without the complication of climate change, the regulation and management of water implicates the full spectrum of inter-governmental interactions , from fairly

comprehensive assertions of federal supremacy (navigation), to fairly strong preservations of states' rights (water allocation), to complex but unstructured workings of overlapping

jurisdiction and dynamic federalism (species preservation and regulation), to a no less complex but far more structured cooperative federalism ( water

quality ). The interactions among these various regulatory foci are already the sources of numerous conflicts with respect to the overall management of water resources, but no one has

(yet) seriously proposed a comprehensive shift of water management authority to one level of government or the other. Climate change , however, may well

prompt a reconsideration of the "proper" federalism balancing surrounding the regulation and management of water, particularly

with regard to freshwater allocation, management, and transportation. Indeed, climate change has proven a fertile ground for debates on federalism and the proper roles of the state and federal governments. To date, however, these debates have [*186] concentrated on the problem of climate change mitigation--how to regulate, and who should regulate, relevant sources to reduce

emissions and atmospheric concentrations of greenhouse gases. This Article posits that climate change adaptation also has implications for federalism. In particular, climate

change is expected to exacerbate existing and growing shortages of fresh water . While water

allocation authority, including authority to address drought and other forms of water shortage, have traditionally rested primarily with the states , the widespread water shortages predicted under most climate change scenarios will have serious implications for several issues of national concern, including energy policy, food

security, and interstate resource conflicts. Indeed, there is already evidence of increased federal government interest in national water supplies, especially with regard to national energy policy. This Article examines the potential for climate change impacts to drive a re-balancing of traditional modes of federalism in the management and allocation of water as one facet of climate change adaptation. Part I reviews the spectrum of water federalism as it has traditionally been described, focusing on navigation, water allocation, species protection and regulation, and water quality regulation. Part II lays out the expected impacts from climate change on the nation's water resources, [*187] while Part III explores the national interests that these climate change impacts may threaten and the federal government's possible responses to those threats. The Article concludes that increasing water shortages are already prompting federal interest in water allocation and that water's connections to energy policy in particular are likely to shift the balance in water federalism toward the federal government. I. THE TRADITIONAL SPECTRUM OF WATER FEDERALISM As noted, the federalism surrounding management and use of water resources is already multivalent, covering the spectrum from nearly complete federal preemption over navigation issues, to a pervasive "states' rights" mantra for water allocation, to the sometimes chaotic realm of overlapping and dynamic federalism with respect to species, to the structured cooperative federalism of the federal Clean Water Act. This Part explores each of these variations on water federalism in turn. A. Separate Spheres Federalism One of the oldest descriptions of federalism, dating back to James Madison, is the "separate spheres" model. According to this model, the federal government and the state governments operate in "mutually exclusive spheres of state and federal authority." The separate spheres model resurfaces episodically [*188] in American constitutional jurisprudence, and separate spheres rhetoric appears recurrently in the U.S. Supreme Court's federalism decisions. In legal scholarship, the separate spheres model became the foundation of the New Federalism in the late 1980s and 1990s. Water management incorporates examples of this separate spheres model of federalism. At one end of the spectrum, navigation and its related interstate commerce are fairly definitively considered the nearly exclusive realm of the federal government. In this incarnation of what this Article calls supremacy federalism, sometimes referred to as centralized federalism, the states have little role to play in regulating interstate commerce or navigation. Indeed, most of their attempts to assert any independence in these spheres are preempted, and the limited roles that they can play are generally dictated by Congress. At the other end of the spectrum is states' rights or decentralized federalism--a recognition of states' primacy in certain areas of law and regulation, with occasional back bending attempts on the federal government's part to recognize, protect, and insulate those state roles from federal interference. With respect to water, states' rights federalism is most prominent in [*189] the area of water rights allocation, where the federal government often goes out of its way to preserve--and, indeed, often submits itself to--state law schemes for assignment rights to use water. 1. Supremacy Federalism: Navigation Large waterways in the United States have long been important to navigation and commerce, and protection of these uses has equally long been deemed the province of the federal government. Thus, navigation regulation represents an instance of supremacy federalism in water federalism: an area of water-related law where the federal government's interests are deemed so superior that there is very little room for state action. This supremacy federalism is perhaps most obvious in the federal navigation servitude. The federal navigation servitude describes the federal government's long-recognized paramount interest in maintaining the navigability of navigable waters. This power derives from the federal government's constitutional authority over commerce, and it limits both the states' and private rights in navigable waters. In addition, the interstate commerce aspects of navigation have been incorporated into several statutory regulatory regimes that solidify the federal government's supremacy in this arena. For example, relying on the federal government's interstate commerce authority, the U.S. Supreme Court lodged final authority over navigation upon the navigable-in-fact waters in Congress. Congress exercises this authority primarily through [*190] the various Rivers and Harbors Acts, culminating in the Rivers and Harbors Act of 1899 ("RHA"). The RHA prohibits the construction of actual obstructions in the navigable waters without Congress's explicit consent. The building of lesser structures in the navigable waters requires a permit from the U.S. Army Corps of Engineers, as does excavation in and filling of these waters. Finally, the RHA also prohibits

the disposal of refuse in the navigable waters and their tributaries. The federal government's supremacy over navigation and interstate commerce in water is quite broad and occasionally reaches out to override areas of water regulation deemed to be the states'. For example, the federal paramount interest in navigation may, in extreme cases, limit the ability of water appropriators--and the state agencies assigning water rights--to destroy downstream navigability, even if the waters being appropriated are not navigable at the point of diversion. Thus, when the U.S. Supreme Court addressed the propriety of the complete diversion of the Rio Grande River in New Mexico, where it is not navigable, it concluded that such upstream diversions could not interfere with the federal government's downstream interest in maintaining navigability. According to the Court, "the jurisdiction of the general [federal] government over interstate commerce and its natural highways vests in that government the right to take all needed measures to preserve the navigability of the navigable water courses of the country, even against any state action." The Court has reaffirmed these potential limitations on state regulation of water in subsequent cases. The federal navigation servitude also telegraphs the absolute national import of aquatic navigability by exempting the federal government from the normal operations of the Fifth Amendment's "takings" clause : federal actions to maintain navigation do not require the government to compensate private [*191] persons and entities for injuries to their (state-based) private property rights. For example, as early as 1829 the U.S. Supreme Court noted: Laws in relation to roads, bridges, rivers and other public highways, which do not take away private rights to property, may be passed at the discretion of the legislature, however much they may affect common rights; even private rights, if they are not those of property, may be taken away, if it be deemed necessary consequence of their construction, without making compensation. The Court has affirmed this aspect of the navigation servitude on several occasions. Thus, the federal government's supremacy in the realm of navigation is pervasive, raising the issue of why: Why is it that, with respect to navigation, nearly absolute federal control and dominance was early established and remains the norm? Benjamin Sovacool has created a typology of environmental federalism that suggests some answers. With respect to supremacy (or centralized) federalism, Sovacool notes that: Those in favor of centralizing environmental decision making note that federal intervention brings with it a number of important benefits: (i) it is the most efficient way to address spillovers or transboundary pollution; (ii) it provides a degree of uniformity for manufacturers and investors; (iii) it produces economies of scale; and (iv) it promotes distributive justice and a minimum standard of environmental quality, thus preventing a race to the bottom among the states. Federal domination of navigation generates many of these advantages. First, navigation in the oceans, major lakes, and the nation's river system is inherently interstate, and federal supervision prevents individual states, local governments, and private individuals from blocking, controlling, and/or profiting from this interstate system. A federal layer of preemption thus operates as a means of protecting the general public welfare, as the Iowa Supreme Court's outrage at the suggestion of private control over the Mississippi River suggests: [*192] Are we to be told that the Mississippi river is not a navigable stream, and its bed private property? The father of floods, private property! The great river, to see which the conqueror of Florida periled the lives of his followers, to find for himself a grave in its waters, instead of gold in its sands, belongs to every petty owner who pays a dime for the land on its banks! The river, which carries to sea the products of millions of people, the boundary of states without number, which carries to a single port commerce numbered by hundreds of millions of dollars, and numbers the ships which float on its waters by thousands, cannot be private property. Second, and relatedly, federal preemption in this context assures free and maintained navigability, allowing predictability in business decisions. Third, through statutes such as the RHA, the United States can maintain navigability at the system scale, precluding overlapping, duplicative, or potentially disruptive state efforts to maintain and "improve" navigability. Finally, federal preemption again ensures that no one state or private entity can disrupt interstate navigation on water, preserving those avenues of commerce for use by all. Thus, centralized and pervasive federal control over navigation makes imminent sense, and it is unsurprising, that this aspect of water federalism has never seriously been subject to popular protest. 2. States Rights or Decentralized Federalism: Water Allocation In sharp contrast to navigation, authority over water allocation--the law governing who has the right to remove fresh water from its natural watercourse and to use that water for some consumptive purpose, such as irrigation, drinking water, or industrial manufacturing--is deemed, sometimes obsessively, to belong to the states. Thus, this aspect of water management provides a quintessential example of states' rights or decentralized federalism. There is little question that water allocation is decentralized, with the exact principles and requirements governing the withdrawal and consumptive use of water varying considerably [*193] from location to location. When it comes to ground water regulation, for example, and even generalizing, the states have followed at least five different regulatory systems. With regard to surface water, the eastern states inherited from England the doctrine of riparianism, which ties the right to use water to ownership of the land adjoining the water source--i.e., the riparian landowners. Even so, many eastern states have since realized that the legal connection of consumptive use rights to riparian land ownership limits non-riparian development and have transitioned to "regulated riparianism" and administrative permitting. In contrast, the perpetually water-limited and drought-threatened western states generally rejected riparianism in favor of the prior appropriation doctrine. Prior appropriation operates on a principle of "first in time, first in right"--the first user to apply water to a beneficial use, without waste or abandonment, acquires a continued right to a water supply superior to that of later users drawing water from the same source. Nevertheless, Hawaii follows its own rules regarding the allocation of surface water in order to recognize Native Hawaiian traditions and rights with respect to water, while California, Nebraska, and Oklahoma combine riparian and prior appropriation rules in systems known as the California Doctrine. [*194] Of course, water allocation is not a pure example of decentralized federalism, as Reed Benson has discussed at length. Nevertheless, the federal government does go to significant effort to preserve states' rights with respect to water allocation. For example, the Desert Land Act of 1877 applies to lands in California, Oregon, Nevada, Colorado, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, North Dakota, and South Dakota that were public (federal) at the time of enactment. As interpreted by the Supreme Court, in that statute Congress both severed non-navigable waters from the public lands, ending common-law riparian rights, and gave control over water rights in those waters to the states, effectively shifting the legal ability to water rights on those lands from the federal government to the states. Similarly, in section 8 of the Reclamation Act of 1902, Congress declared that: Nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws . . . . Thus, Congress not only sought to respect the states' laws on water allocation but also to subject the Secretary of the Interior and its subsidiary, the Bureau of Reclamation, to them. As the Supreme Court explained in 1978, "[a] principal motivating factor behind Congress' decision to defer to state law was thus the legal confusion that would arise if federal water law and state water law reigned side by side in the same locality." However, "[b]oth sponsors and opponents of the Reclamation Act also expressed constitutional doubts as to Congress' power to [*195] override the States' regulation of waters within their borders." Notably, this predilection for preferring state law in the context of water allocation is so strong that Congress and the Secretary have followed the Reclamation Act's model even when a particular project could have been justified on navigation grounds, potentially overriding the state's rules. Another example of federal preservation of state primacy in water allocation comes in the Clean Water Act. This statute explicitly states that: It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall cooperate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources. While this provision makes it clear that the EPA and the Army Corps are not in the business of establishing water rights, the courts have done little to explicate its full meaning. In general, the federal courts have adopted a policy of accommodation, emphasizing that while this provision "preserve[s] the authority of each State to allocate water quantity as between users, [it does] not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation." However, more recent cases from the Supreme Court have stressed that "the Clean Water Act provides for a system that respects the States' [*196] concerns" and have read federal regulatory authority narrowly "to avoid significant constitutional and federalism questions . . . ." Perhaps not coincidentally, the U.S. Court of Appeals for the Ninth Circuit recently expressed more definitive protection for state authority over water allocation, concluding that "[i]n the absence of state law to the contrary, water withdrawals are not subject to the requirements of the Clean Water Act." Congress's repeated determination to preserve state authority over water allocation raises, from the opposite perspective from federal supremacy in navigation, the question of why? Why has the federal government generally been deferential to the states in the context of water allocation? Again, Benjamin Sovacool's typology suggests answers. Sovacool argues that: [t]he case for devolution of environmental policy often rests on a set of four interconnected assumptions: (i) that decentralization induces experimentation and innovation; (ii) devolution provides more flexibility in responding to environmental problems; (iii) decentralization improves accountability and equity; and (iv) states will engage in welfare-enhancing competition to craft better environmental policies. These assumptions ring true in the field of state water allocation. First, states have experimented with and evolved many aspects of their water law systems to suit local needs and conditions, from the rejection of common-law riparianism in the West, to the creation of regulated riparianism in the East, to the adoption of widely varying innovations such as instream flow rights and water banks, to large-scale experimentation with state public trust doctrines. Second, one reason for this experimentation is the wide range of ecological, social, and political conditions among the states and the resulting inappropriateness of a "one size fits all" approach to water [*197] allocation. Moreover, decentralization of water rights allocation leaves each set of state authorities accountable to the people of that state and to intrastate views of equity. Finally, the differences among the states' water law systems often do reflect the states' views regarding which water policies best serve state development or other aspects of state welfare, as can be seen, for example, in the wide variety of public interest considerations that states incorporate into their permitting procedures. Thus, so long as the principal interests in and effects of state water allocation decisions are primarily local, a state's rights approach to water allocation makes sense. As Parts II and III of this Article will discuss, however, the assumption that both the interests and effects will remain local in a climate change era is highly questionable. As a result, the traditional states' rights federalism model for water allocation is the most likely to evolve as a result of climate change impacts. B. The Dynamic Federalism of Overlapping Authority: Species Dynamic federalism often arises when federal interests in a given regulatory subject are limited or unarticulated, leaving the state and federal governments to jostle for regulatory and management authority according to the interests of each. As noted, given the lack of comprehensive federal leadership or [*198] legislation, the regulation of greenhouse gas emissions has so far been an example of dynamic federalism. In the realm of water, protection and regulation of aquatic species provides an example of this third kind of federalism. A variety of regulatory authorities, both state and federal, manage and regulate important aquatic species, and the regulation of wild animals in general has been the subject of repeated federalism analyses in the U.S. Supreme Court. On the state side of those analyses, the Court has recognized that "[u]nquestionably the States have broad trustee and police powers over wild animals within their jurisdictions." As one example of this authority, state fish, game, and wildlife agencies engage in varying levels of aquatic species regulation. Moreover, most states and territories have statutes to protect endangered, threatened, and sensitive species, including aquatic species. Finally, in much the same way that Congress has recognized in federal statutes state authority over water allocation, Congress has also recognized and helped to enforce state species-related laws through federal statutes such as the Lacey Act, which prohibits the transport or sale in interstate commerce of fish, birds, or wildlife killed or captured in violation of state law. Nevertheless, in response to repeated state arguments that authority over wild animals belongs exclusively to the states under the Tenth Amendment, the Supreme Court has concluded that "[a]lthough States have important interests in regulating wildlife and natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers . . . ." One such federal power is the [*199] Treaty Clause, which has supported federal intervention in species regulation both in support of Tribes and through congressional implementation of international treaties, limiting state regulatory authority in the process. For example, federal protection of tribal treaty rights to fish can directly affect state regulation of aquatic species such as salmon. Similarly, federal regulation to implement international treaties, such as through the 1918 Migratory Bird Treaty Act, can also limit state regulation of aquatic species, especially waterfowl. In upholding the Migratory Bird Treaty Act against Tenth Amendment challenges, the Supreme Court emphasized the federal interests both in international relations and in migratory birds: Here a national interest of very nearly the first magnitude is involved. It can be protected only by a national action in concert with that of another power. The subject matter is only transitorily with the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We

see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. More domestically, the Supreme Court has also upheld federal regulation of species--specifically, wild burros--pursuant to the Constitution's Property Clause. In response to a federalism challenge to the Wild Free-Roaming Horses and Burros Act, the Court emphasized that the Act "does not establish exclusive federal jurisdiction over the public lands in New Mexico" but did preempt the application of the New Mexico Estray Act, because the Property Clause, like the Treaty Clause, "gives Congress the power to protect wildlife on the public lands, state law notwithstanding." [*200] However, the most contentious federal intervention in species regulation on federalism grounds has been the Federal Endangered Species Act of 1973 ("ESA"). Application of this statute increasingly has implications not only for state aquatic species regulation but also for state water allocation decisions. The USFWS implements the federal ESA for terrestrial species, including most freshwater species, while NMFS implements the Act for marine and anadromous species. The appropriate agency lists a species as "endangered" or "threatened" based on the best scientific evidence available, then is supposed to both designate critical habitat for the species and develop and implement a recovery plan. Once a species is listed, all federal agencies must "insure that any action authorized, funded, or carried out by such agency . . . is not likely to . . . result in the destruction or adverse modification of" critical habitat. Simultaneously, the Act prohibits all persons--including states--from "taking" listed species, and under the agencies' regulations, habitat destruction can constitute a prohibited "take." Congress enacted the ESA pursuant to both its Treaty Clause and its Commerce Clause powers. While the U.S. Supreme Court has not ruled on the constitutionality of the Act, the Act's Treaty Clause basis seems secure. Moreover, several of the federal Courts of Appeals have upheld the ESA against claims that Congress exceeded its Commerce Clause powers and violated federalism principles. [*201] Thus, while federal interventions into species regulation have been many, Congress has not comprehensively structured the federalism of species regulation. Instead, federal statutes regarding species are relatively limited in scope (generally by the types of species protected) and, day-to-day, state regulation often remains far more relevant to the average fishing, hunting, or recreating citizen. Dynamic federalism--the constant interplay and adjustment of state and federal interests--is thus the norm for aquatic (as for all) species. Benjamin Sovacool, lumping unstructured dynamic federalism and structured cooperative federalism together under the label "interactive" federalism, has gleaned five advantages to this approach from the literature: "Proponents posit that the conception of interactive federalism holds five advantages to earlier theories: (i) plurality, (ii) dialogue, (iii) redundancy, (iv) accountability, and (v) economies of scale." However, aquatic species regulation suggests that these rationales are less helpful in explaining the amorphous federalism that pervades species regulation than they will be in explaining the more structured cooperative federalism that governs water quality. For example, with respect to the plurality advantage, Sovacool indicates that "[a]dvocates of interactive federalism note that having multiple regulators means that different officials with differing perspectives review a problem." Species regulation and protection, however, often are not a singular "problem" but rather multiple problems that vary with the species involved and its most immediate stressors. A wholly intrastate species put at risk almost exclusively from in-state fishing presents a different regulatory problem from migratory birds threatened by both hunting and habitat destruction occurring in multiple countries. Thus, too, with respect to the dialogue advantage, federalism in species regulation is often less simultaneous than progressive, with a default rule being that a wild species is the states' to regulate until Congress or a federal agency brings it within a federal regime. Until that point, there may be little dialogue at all between the levels of government. Nevertheless, once a federal regulatory regime applies, the dialogue advantage of interactive federalism may be relevant. The ESA in particular explicitly encourages cooperative federal-state management of federally listed species. [*202] For similar reasons, redundancy and accountability are infrequent advantages in aquatic species regulation, although species subject to both federal and state protective laws may benefit from the best of both worlds. Finally, with the notable exception of migratory and other interstate species, economies of scale are difficult to achieve because one-size-fits-all regulation is often an inappropriate approach to species regulation. In other words, the law views species regulation as primarily a local problem, subject to several exceptional situations deserving of federal attention. As noted, the federal government's interests are triggered when: (1) species are important to Tribes; (2) species are the subject of international treaties; (3) species are found on federal lands; or (4) species destruction and depletion has reached a level where it threatens national biodiversity or interstate commerce. Notably, these exceptions are diverse and difficult to harmonize to a single federal interest, as evidenced by the number of constitutional provisions that have been relevant in federal species regulation and the number of federal species-related statutes that Congress has enacted. Thus, one would expect the states to

retain a prominent role in species protection despite climate change impacts and the need for adaptation measures. C. Structured Cooperative Federalism:

Water Quality In contrast to the unstructured dynamic federalism that characterizes aquatic species regulation, the federal Clean Water Act is

generally considered the quintessential example of the fourth form of federalism relevant to water: cooperative federalism . In a cooperative federalism framework, the federal and state governments work together in structured, overlapping, and synergistic ways to

achieve mutual goals--in the case of the Clean Water Act, improved water quality nationwide. [*203] Industries and municipalities have long exploited waterways' capacities to dilute, disperse,

and in some cases, to treat effectively industrial and municipal wastes and sewage. Abuse of these ecosystem services led to excessively polluted waterways and the enactment of the federal Clean Water Act, in which Congress very purposefully shifted control over water quality from the states to a state/federal balance . The Clean Water Act divides regulatory authority over water quality among two federal agencies, the U.S. Environmental Protection Agency ("EPA") and the Army Corps, and the states and territories. The

federal agencies oversee implementation of the Act, engage in permitting, and set water quality requirements when the states fail to do so. However , the states retain primary authority over water quality

requirements and exclusive authority over nonpoint source regulation and waters that do not qualify as "navigable waters" under the Act. The Act also encourages states to take over permitting within their respective borders. The Act makes "the discharge of any pollutant by any person" unlawful, meaning that it is illegal for any person to add pollutants (broadly defined in the statute) to "the waters of the United States" or the oceans from "point sources," defined as "any discernible, confined, and discrete conveyance," without a permit. In addition, the Act establishes national [*204] goals that "the discharge of pollutants into the navigable waters be eliminated" and, in the interim and where attainable, that "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved . . . ." In federalism terms, the Act sets a federal "floor" for water quality degradation--the minimal water quality protections that dischargers and states must both observe. However, through their water quality standards, states remain free to impose more stringent water quality protections within their respective borders, and all dischargers--including the federal government--must observe these requirements. States often set their water quality standards to reflect local needs, such as drinking water, fish production, or sewage and industrial waste dilution. If, as Erin Ryan has postulated, cooperative federalism "is mostly composed of areas where the federal government could but does not choose to fully preempt state involvement," then structured cooperative federalism in water quality raises two questions: (1) why did the federal government intervene at all; and (2) having decided to regulate at the federal level, why did Congress explicitly and extensively leave roles for the states? Returning to Benjamin Sovacool's five advantages for interactive federalism, we find that they do indeed help to explain why Congress would move to a cooperative federalism structure to regulate water quality. Implementation of water quality regulation benefits from the plurality of governments involved, especially as a result of the interaction of federal water quality "floors" and state [*205] tailoring of water quality standards to local desires and requirements. The dialogue between state and federal regulatory authorities can produce more effective overall results, as is arguably the case for the new numeric nutrient water quality criteria for Florida. The redundancy of overlapping authority ensures that water quality is protected, as again evidenced by the Florida nutrient standards: it was lawsuits against the EPA alleging a failure to ensure the effectiveness of state regulation that led to the new standards. Similar lawsuits against the EPA jumpstarted the implementation of the Act's total maximum daily load (TMDL) provisions. As for accountability, states and the federal government share enforcement authority under the Act, increasing the resources available to ensure compliance. Finally, water quality regulation certainly benefited from the economies of scale that the federal government could achieve by setting national technology-based effluent limitations for all dischargers in specific industrial categories all at once, rather than by having states establish similar standards for similar dischargers 50 different times. Nevertheless, federally structured cooperative federalism differs, in ways that may become important in the climate change adaptation era, from unstructured dynamic federalism. As a result, this Article--unlike many studies of federalism--distinguishes the two in order to highlight differences in federal involvement. To return to the questions that Erin Ryan's summary raises, Congress intervened in water quality regulation only after a long series of attempts to encourage states to regulate more

stringently and the states' failures to do so. Moreover, Congress repeatedly figured federal intervention in water quality regulation as an intrusion into the states' spheres of authority. The

comprehensively structured cooperative federalism approach to water quality regulation embodied in the contemporary Clean Water Act came into being

only after Congress recognized and [*206] would articulate countervailing federal interests in water quality--

first in coastal and interstate waters , then in surface waters more generally . Thus, for example, in the Federal Water

Pollution Control Amendments of 1961, Congress extended federal enforcement authority to the coastal and interstate waters, but it also recognized that: Water has become the No. 1 resource problem confronting the United States today. The water problem is directly related to our country's rapid population and economic growth. This growth is creating a major impact on water resources from a rapidly growing demand for water to produce the things we need to eat, wear, and use, and for an ample supply of clear, safe water for drinking and recreation. For the Nation as

a whole, . . . water quality management can best be affected by the prevention and control of pollution. . . . Pollution control has the advantage of permitting the use of an already available distribution system, the waterways of the country, to deliver water of satisfactory quality to the points where it is needed. By 1971, Congress deemed state water quality efforts inexcusably inadequate and found that national interests were at stake, justifying the more comprehensive intervention of the federal government: [T]he national effort to abate and control water pollution had been inadequate in every vital aspect: --Many of the Nation's navigable waters are severely polluted, and major waterways near the industrial and urban areas are unfit for most purposes; --Rivers are the primary sources of pollution of coastal waters and the oceans, and many lakes and confined waterways are aging rapidly under the impact of increased pollution; --Rivers, lakes, and streams are being used to dispose of man's wastes rather than to support man's life and health; and [*207] --The use of any river, lake, stream, or ocean as a waste treatment system is unacceptable. The Committee believes the restoration of the natural chemical, physical, and biological integrity of the Nation's waters is essential. The Clean Water Act's structured cooperative federalism thus represents a conscious and deliberate federal intervention in an area of water-related law that was traditionally deemed the states'. The Act's retention of state roles in water quality regulation recognizes the states' traditional dominance in this field, and the Act actively encourages states to pursue water quality regulatory programs --but now subject to federal approval and oversight. The history of the Clean Water Act therefore demonstrates that changes in water federalism do occur, and they occur when the federal government perceives national interests that are

threatened by state action (or inaction). Climate change could provide an other such impetus for re-balancing water

federalism in favor of structured cooperative federalism, particularly with regard to water allocation. II. CLIMATE CHANGE IMPACTS ON WATER RESOURCES Climate change

is altering water resources in the United States and will continue to do so for several centuries. Climate change is the result of increasing concentrations of greenhouse gases, especially carbon dioxide (CO2), in the atmosphere. Concentrations of these gases have been building since the Industrial Revolution. Their most immediate effect is increased air temperatures, but those increasing air [*208] temperatures lead fairly immediately to changes in water resources. Climate change is apt to lead to water shortages in many parts of the nation, which could contribute to a rethinking of the federalism implications for water. As early as July 2003, the U.S. Government Accountability Office's ("GAO's") survey of the states revealed that "even under normal water conditions, water managers in thirty six states anticipate water shortages in localities, regions, or statewide within the next 10 years. Under drought conditions, 46 managers expect shortages in the next 10 years. Such shortages may be accompanied by severe economic, environmental, and social impacts." Notably, drought-plagued California and New Mexico did not respond to the survey, suggesting that the totals should actually be thirty eight and forty eight states, respectively: California is already facing water shortages, and New Mexico is vulnerable to water stress. The end of the GAO's ten-year predictive window--2012--is quickly approaching, and drought conditions have persisted in many regions of the country. Now, however, climate change impacts are likely to exacerbate the extent and severity of water shortages and their attendant problems. Indeed, even in 2003 the GAO acknowledged that "[t]he potential effects of climate [*209] change create additional uncertainty about future water availability and use." Climate change is already affecting water resources in the United States and is likely to continue to do so for several decades, perhaps centuries. These impacts threaten the availability of water not just for the traditional state interests of drinking water, agricultural irrigation, local and industrial uses, and recreation, but also the availability of water for decidedly federal interests, such as the military and power generation. The U.S. Global Change Research Program ("USGCRP") recently detailed many of the expected climate change impacts on water resources in the United States. Changes to the water cycle, for example, will include: "changes in precipitation patterns and intensity"; "changes in the incidence of drought"; "widespread melting of snow and ice"; "increasing atmospheric water vapor"; "increasing evaporation"; "increasing water temperatures"; "reductions in lake and river ice"; and "changes in soil moisture and runoff." In addition, across the country more precipitation will fall as rain rather than snow, decreasing snowpack "storage" and late summer flows from snowmelt. The U.S. Environmental Protection Agency (EPA), in turn, has emphasized the problems of sea-level rise, changes in ocean chemistry, warming water temperatures and consequent changes in pollutant concentrations and aquatic ecosystems, new patterns of rainfall and snowfall that could affect drinking water supply and pollution levels, and increased intensity

of storms. Of course, climate change impacts on water resources will not be uniform across the United States . As the USGCRP has noted, "the arid Southwest is projected to experience longer and more severe droughts from the combination of increased evaporation and reductions in precipitation." In these regions, reductions in the amount of precipitation and winter snowpack are already bringing increasingly severe threats to already stressed water supplies, a fact of which California in particular [*210] is already well aware. Both mid-continental areas and the Southeast are also "particularly threatened by future drought." Scientists project overall precipitation increases in the Northeast, Midwest, and Alaska. However, more overall rainfall does not mean that water allocation problems will not arise. Even in these regions, "extended dry periods have become more frequent," and rain, when it comes, is already tending to come in less frequent but heavier events. Moreover, areas in both the West and Northeast depend on winter snowpack for summer water supply, and winter snowfall has already been both decreasing in amount and melting sooner in the spring throughout the U.S. As the USGCRP noted, "Earlier runoff produces lower late-summer streamflows, which stress human and environmental systems through less water availability and higher water temperatures." Summarizing the USGCRP's findings, the National Association of

Clean Water Agencies emphasized in 2009 that most regions of the U.S. will experience "greater uncertainty in water supply." Water demand is also likely to increase as a result of climate change impacts. Increasing temperatures are likely to increase demand for water for drinking, cooling, and recreation,

while drying soils will require more water for irrigation. Climate change impacts are also changing the quality of water resources. Most directly, "[i]ncreased air temperatures lead to higher water temperatures, which have already been detected in many streams, especially during low-flow periods." Increasing temperatures, in turn, can lead to water stratification and reductions in dissolved oxygen levels, stressing aquatic organisms and reducing water bodies' self-purification capacities. In

addition, "[t]he negative effects of water [*211] pollution , including sediments , nitrogen from agriculture,

disease pathogens, pesticides, herbicides, salt, and thermal pollution, will be amplified by observed and projected increases in precipitation

intensity and longer periods when streamflows are low." As a result, water planning needs to change to accommodate climate

change impacts . Traditionally, such planning has quite rationally been based on historical fluctuations in water supply. However, as the USGCRP pointed out, "[b]ecause climate

change will significantly modify many aspects of the water cycle, the assumption of an unchanging climate is no longer appropriate for many aspects of water planning. Past assumptions derived

from the historical record about supply and demand will need to be revisited for existing and proposed water projects." Moreover, this planning is likely to make obvious that federal

interests are implicated in the uncertainties climate change is creating for water supply. III.

RETHINKING WATER FEDERALISM IN A CLIMATE CHANGE ERA: THE FEDERALISM IMPLICATIONS OF CLIMATE CHANGE IMPACTS ON WATER As Part II discussed, climate change is likely to affect water resources in ways that are detrimental to current water resource management and use, even in areas of the country that experience greater precipitation. Such changes, but especially water shortages and water stress, are likely to implicate at least three areas of law and policy where the federal government already asserts strong interests: resolution of interstate water conflicts; national food security; and national energy policy. Each of these interests, moreover, is likely to increase federal attention to water allocation and management as an adaptation to climate change. A. Emerging Federal Priorities with Water Impacts 1. Water Shortage and Interstate Water Conflicts One consequence of water shortages along interstate rivers is interstate conflict, and the federal government has long asserted a strong role in resolving interstate water conflicts. [*212] Perhaps most famously, the U.S. Supreme Court has deemed itself the final arbiter of interstate apportionment conflicts --although, in fact, it has apportioned only three interstate rivers to date. Nevertheless, to the Court, the federal interest in equitable apportionment was clear, and "[t]he primary question is, of course, of national control." Congress also plays a role in the apportionment of interstate rivers. First, on rare occasions, Congress directly apportions rivers itself. More commonly, Congress approves, through its powers under the Constitution's Interstate Compacts Clause, interstate compacts to apportion interstate waters among the relevant states. Once approved by Congress, interstate compacts become federal law, occasionally sending states to the Supreme Court for compact interpretation and enforcement. As climate change has been increasingly impacting water resources and as demands for fresh water have been increasing, interstate conflicts over water have intensified. This intensification is most obvious in the East, which has traditionally escaped the "water wars" that have been a regular feature of western water law. Florida, Georgia, and Alabama have been locked in a twenty-year battle over the waters of the Apalachicola-Chattahoochee-Flint River (ACF) Basin. The consolidation of multiple lawsuits pursuing various aspects of the conflict into the U.S. District Court for the Middle District of Florida led to a recent victory for Florida and Alabama, who [*213] are seeking to prevent the City of Atlanta's acquisition of water in the system. Since February 2005, Mississippi has been litigating the issue of whether the City of Memphis, Tennessee, has been stealing Mississippi's groundwater, while in 2008, Georgia sought to change its border with Tennessee so that Georgia would have access to part of the Tennessee River. In between, South Carolina sought and received the U.S. Supreme Court's permission to sue North Carolina for an equitable apportionment of the Catawba River. Moreover, in a development that underscores the close connection of water and energy policy, the Court's first decisions including allowing Duke Energy to intervene in the case, because its energy interests at eleven facilities along the river could be affected by the apportionment decision. Thus, the federal government looks to play a larger role in resolving interstate water conflicts. Moreover, those resolutions may require the federal government to make allocation decisions, ranging from Congress enacting legislation (or not) to re-allocate portions of Lake Lanier to Atlanta's water supply in the ACF Basin, to the Supreme Court apportioning the Catawba River between South Carolina and North Carolina, and deciding whether Memphis has been stealing Mississippi's groundwater. In the interstate context, therefore, the federal government has long been in the water allocation business, and climate change is only likely to intensify that role. 2. National Food Security and Water Food security refers, loosely, to the availability of a country to feed itself. Scientists have concluded that, world-wide,

"[c]limate change will affect all four dimensions of food security, namely food availability (i.e., production and trade), access to food, stabilization of food supplies, and food utilization." The impacts of climate change on agriculture are many, ranging from [*214] "changes in land suitability and crop yields" as a result of changes in temperature and precipitation, increased crop production as a result of increasing carbon dioxide concentrations in the atmosphere, and "greater fluctuations in crop yields and local food supplies and higher risks of landslides and erosion damage" as a result of more variable weather patterns. By 2008, the USGCRP had concluded that "[c]limate changes--temperature increases, increasing CO[2] levels, and altered patterns of precipitation--are already affecting U.S. water resources, agriculture, land resources, and biodiversity." U.S. agriculture products were valued at over $ 200 billion in 2002, with 52 percent of the total sales value coming from livestock, 21 percent from fruits and nuts, 20 percent from grain and oilseed, and 5 percent from other commodities. All of that agricultural production requires water, whether in the form of precipitation or of irrigation, and climate change will affect the availability of both forms for agriculture. Irrigation is already a substantial source of water consumption in the United States, accounting for about 31 percent of the total withdrawals and 37 percent of freshwater withdrawals in the United States in 2005. About 85 percent of these withdrawals occur in the western United States. Climate-change-induced alterations to precipitation were initially expected to contribute to an overall reduction in agricultural irrigation of 5-10 percent by 2030 and 30-40 percent by 2090. Even then, however, scientists acknowledged that, [*215] "[a]t the regional level, there is the possibility that overall water use will increase in response to climate change." However, more recent analyses suggest that, while predicting crop water consumption in the face of climate change impacts is a complex task, overall "the lengthening growing seasons due to global warming likely will increase crop water requirements." To take corn as one example, regional irrigation requirements are projected to change anywhere from a reduction of 1 percent in the Lower Colorado Basin to an increase of 451 percent in the Lower Mississippi Basin as a result of climate-change-induced rainfall variation. Overall, however, the need to irrigate corn in the United States is expected to increase 35-64 percent, while irrigation of alfalfa is expected to increase nationally by 20-50 percent. These increased needs for irrigation will result from "the decrease in rainfall during the growing season and the reduction in soil water availability." Of course, projecting increased use of water for irrigation assumes that water will in fact be available for irrigation in the correct locations. As just one example, a sizeable percentage of U.S. agriculture is concentrated in drought-plagued California, where climate change impacts are already reducing the available supply of water and impacts are expected to worsen for several decades. As one climate change adaptation strategy, California is already encouraging agriculture to adopt recommended agricultural water efficiency management practices. Water-shortage threats to agricultural production at the national level could prompt increased federal interest in water allocation in order to protect national food security. Indeed, the federal government already has substantial interests in food security. Moreover, it has already invested heavily in building [*216] irrigation projects throughout the United States, but especially in the West, and "[m]anagement of Western reservoir systems is very likely to become more challenging as runoff patterns continue to change." Finally, demand for additional storage projects to manage changing precipitation and runoff patterns is likely to occur across the country regardless of what the actual regional climate change impacts are, because such projects can both store water from wet years (West and Midwest) and control the runoff from larger and more violent storm events (East and South). Therefore, it is not unreasonable to expect food security concerns to prompt increased interest in water management and allocation at the national level. 3. National Energy Policy and Water Although both the federal governments and state governments have long ignored this basic fact, water policy and energy policy are inextricably intertwined. Some examples are obvious: water generates power at hydroelectric facilities, and energy converts salt water to fresh water at desalination plants. The federal government's decision to encourage biofuels in the early 21st century generated significant concern over the potential impacts on water. Other intersections of energy and water, however, are not so obvious. As of 2005, thermoelectric power generation accounted for approximately 49 percent of all water withdrawals in the United States. Because western states rely heavily on hydropower (which can also, of course, be affected by water shortages), 84 percent of thermoelectric power withdrawals occur in the eastern United States. [*217] Energy production is water-intensive. To produce one megawatt-hour of electricity, gas/steam combined cycle plants need 7,400 to 20,000 gallons of water, while coal- and oil-fired power plants require 21,000 to 50,000 gallons and nuclear power plants require 25,000 to 60,000 gallons. To be sure, most of this water is used for cooling and much is returned to the waterbody for reuse --but the water must be there in the first place, and water supply is a factor in locating new power plants. Moreover, based purely on population growth alone, the Department of Energy projects that "[i]f new power plants continue to be built with evaporative cooling, consumption of water for electrical energy production could more than double by 2030 from 3.3 billion gallons per day in 1995 to 7.3 billion gallons per day[.]" The energy demands for water supply are also high. Pumping water from aquifers to supply cities with drinking water requires approximately 1,800 kilowatt-hours per million gallons delivered; treating wastewater requires 2,350 to 3,300 kilowatt-hours, while desalinating seawater requires 9,780 to 16,500 kilowatt-hours. Moving water around is also energy-intensive: "The California Aqueduct, which transports snowmelt across two mountain ranges to thirsty coastal cities, is the biggest electricity consumer in the state." Climate change will exacerbate already growing problems at the water-energy interface. Water shortages, for example, have already threatened power production in Georgia, North Carolina, and at the Hoover Dam. In 2006, the U.S. Department of Energy reported to Congress that "[o]peration of some energy facilities has been curtailed due to water concerns, and siting and operation of new energy facilities must take into account the value of water resources." Climate-change-induced water shortages will almost certainly make things worse. As the World Business Council recently noted, "Climate change acts as an amplifier of the already intense competition for water and energy resources." [*218] In the United States, drought has already proven its ability to affect energy production. For example, "[d]uring California's energy crisis in the summer of 2001, the state faced the risk of even larger, more frequent blackouts because a severe drought in the Pacific Northwest had drained hydroelectric power resources." Climate change impacts on the Colorado River, Lake Mead, and Hoover Dam provide examples of a potentially very conflicted future: Research scientist Gregory J. McCabe of the U.S. Geological Survey reiterated the message to Congress in June. He noted that an increase in average temperature of even 1.5 degrees Fahrenheit across the Southwest as the result of climate change could compromise the Colorado River's ability to meet the water demands of Nevada and six other states, as well as that of the Hoover Dam. Earlier this year scientists at the Scripps Institution of Oceanography in La Jolla, Calif., declared that Lake Mead could become dry by 2021 if the climate changes as expected and future water use is not curtailed. There are also likely to be direct correlations between energy consumption and water demand as a result of increasing temperatures. The USGCRP reported in 2009 that "[h]igher temperatures are projected to increase cooling water withdrawals by electrical generating stations. In addition, greater cooling requirements in summer will increase electricity use, which in turn will require more cooling water for power plants." Congress has a long history of addressing energy policy at the national level. Given the impacts on energy from water shortages and climate change, this national-level interest in energy policy suggests that the federal government will be paying increasing attention to water resources and water allocation. Indeed, the Department of Energy emphasized in 2006 that state-level protests and "[t]he lack of integrated energy and water [*219] planning and management has already impacted energy production in many basins and regions across the country." B. Assertions of a National Interest in Water: What Might the Federal Government Do? Recognizing that the federal government may take an increasing interest in how water is managed and allocated does not dictate any particular federal role, or even a re-balancing of water federalism. For example, a bill introduced into the U.S. House of Representatives in October 2009 acknowledges that "supplying water is highly energy-intensive and will become more so as climate change forces more utilities to turn to alternative supplies" and that "energy production consumes a significant percentage of fresh water resources of the United States." However, its responses are to fund the EPA to conduct research on the effects of climate change on the nation's drinking water utilities. Funding and carrying out research is a traditional federal role in water management (among other areas), and hence this approach can hardly be deemed to shift water federalism in any significant way. A bit more ambitiously, but again without creating any real shift in the federalism balance surrounding water, a bill introduced the next day would: (1) establish a WaterSense labeling program within the EPA "to identify and promote water efficient products, buildings, landscapes, facilities, processes, and services" ; (2) create a federally funded, state-based residential water efficiency and conservation incentives program ; and (3) create a direct federal funding program (the "Blue Bank") to implement mitigation and adaptation measures in water systems. Nevertheless, more radical federal responses are also possible. This section discusses six of those possibilities: federalization of rivers; federal eminent domain over specific water rights for specific projects; a national water inventory; national water planning; a national water market and/or water transportation at the national level; and federalized priorities in water rights permitting and transfers of water rights. [*220] 1. Federalization of Rivers Several rivers--generally larger interstate systems--already have such a strong federal presence that the rivers can be deemed effectively federalized. Such federalization occurs on major interstate rivers and generally works to support federal interests in navigation and flood control. As such, the federalization of rivers that has so far occurred can be considered an extension of the supremacy federalism that has dominated navigation and interstate waterways. In terms of case law, the Missouri River is the most determinedly federalized river in the United States. Several U.S. Army Corps of Engineers dams dominate the flow of the Missouri River, overriding many prerogatives that states would otherwise enjoy regarding the river's allocation and management. Thus, when North Dakota sued the Army Corps to enjoin it from releasing water from the Garrison Dam and draining Lake Sakakawea, which would have violated the state's Clean Water Act water quality standards for cold-water fisheries, the U.S. Court of Appeals for the Eighth Circuit concluded that the Army Corps did not have to acknowledge the state's water quality standards in its operation of the dam. Ordinarily, the Clean Water Act requires all federal agencies to certify that their water-related activities (so long as the activity involves a discharge) comply with state water quality standards. However, the Act also states that it "shall not be construed as . . . affecting or impairing the authority of the Secretary of the Army [] to maintain navigation . . . ." Because the Army Corps proposed to release water to maintain navigation, the Eighth Circuit seized upon the latter statutory provision to declare that the Clean Water Act "exempts the Corps, which operates under the authority of the Secretary of the Army, from complying with the CWA when its authority to maintain navigation would be affected." Beyond this issue of statutory interpretation, however, the Eighth Circuit also clearly perceived proper water federalism balancing to be at issue, and it clearly sought to rebalance this federalism in favor of the federal government. Thus, the states became sources of interference in the river's management: [*221] North Dakota suggests that the construction of new outflow structures at Garrison Dam to siphon warmer water from the top of Lake Sakakawea, rather than colder water from the bottom, might allow the Corps to comply with North Dakota's water-quality standards for a cold-water fishery while still providing the requisite water releases to maintain navigation. If we allowed North Dakota to enforce its water-quality standards on this basis, there is no discernible limit to the new structures and new operational plans that other states with main-stem reservoirs could demand to force the Corps to comply with their own water-quality standards. If each state is allowed to use its reservoir water-quality standards as a tool to control how the Corps must release water from the main stem reservoirs, the "authority of the Secretary of the Army . . . to maintain navigation" will obviously be affected, in violation of § 1371(a). Moreover, state water quality standards would also conflict with Congress's goals for the Missouri River's management: Congress established the goals for the Missouri River main stem reservoir system in the [Flood Control Act of 1944]. The dominant functions of the project are flood control and downstream navigation, and secondary interests include irrigation, recreation, fish and wildlife. Congress also set forth the method by which the federal statute was designed to reach those goals-the FCA vests the Corps with the duty to balance navigation with other water-use interests, including the interests of the reservoir states. Allowing individual states to use their water-quality standards to control how the Corps balances water-use interests would frustrate the design of the FCA. Accordingly, the enforcement of state water-quality standards against the Corps' release of water from Lake Sakakawea is preempted. Thus, management of the Missouri River has effectively been federalized. Other river systems can also be deemed effectively federalized. Like the Missouri River, for instance, management of the flow regimes in the ACF Basin has become far less a matter of state law than of managing the Army Corps' operation of two federal dams--the Buford Dam near the top of the [*222] Chattahoochee River and the Woodruff Dam near the Florida-Georgia border. While state-focused claims based on Florida's water quality standards and coastal zone management plan have yet to be decided in the consolidated litigation, the ACF system is well on its way to becoming a federalized river system like the Missouri. The Mississippi River is another candidate for federalization, although for different reasons. In 2008, a National Research Council committee concluded that, "[a]s a result of limited interstate coordination, the Mississippi River is an "'orphan' . . . ." It advocated a stronger federal role in managing the river, including increasing federal attention to the use of water in agriculture. As noted, these examples of federalization have all so far arisen at the intersection of navigation or hydropower production and water quality, all areas where the federal

government has asserted its interests. Nevertheless, given the number of dams and federal reclamation projects that already exist in the United States, a similar federalization process could also arise with respect to water allocation and larger issues of water management, should Congress choose to declare a national interest and national priorities in those areas of regulation. Most likely, such federalization would begin in the water management and allocation context as an extension of the federal government's acknowledged role in apportioning interstate waters. Indeed, this process is arguably almost complete on the Colorado River, where the so-called "Law of the River" is dominated by a congressional apportionment of its waters, congressionally approved interstate compacts, a system of federal dams, and a bilateral treaty with Mexico. These federal-level rules and projects for managing the river's flow dominate state-level [*223] decisions regarding water allocation and management. Moreover, the increasing assertion and quantification of reserved tribal water rights, protected through federal treaties and the federal government's tribal trust role, have significantly affected state water management decisions in the Colorado River states. Interestingly for the future of other rivers, the GAO reported in 2003 that twenty-nine states that participate in water management agreements with federal agencies would find greater federal participation in those agreements helpful. In particular, "lack of coordinated federal actions--such as the failure to establish federal priorities in a river basin--have created uncertainty for state participants in water management agreements." Thus, in places where the federal government already participates in cooperative water management as a result of federal projects and facilities such as dams, states already find a shifting of the water federalism balance toward the federal government desirable. 2. Federal Eminent Domain over Specific Water Rights On rivers, streams, and lakes where neither navigation nor interstate concerns provide relatively easy justifications for increased federal involvement in water resource management, exercise of the federal government's eminent domain authority could provide for rather limited federal supersession of state regulatory authority over water rights. Nevertheless, exercise of this authority would re-balance water federalism by shifting the decentralized states' rights model of federalism toward a system more akin to what currently dominates species regulation: a presumption that states regulate until the federal government asserts a specific interest in particular water

sources. Notably, Congress so far has been reluctant to grant federal agencies explicit authority to condemn

water rights . Indeed, the three most prominent examples of such authority arise in connection with federally approved hydropower facilities and federal flood control and

navigation, the latter two in terms of "flowage rights." In contrast, federal condemnation of [*224] wetlands for waterfowl

production areas requires the relevant state's permission , while the Reclamation Act of 1902 requires the Secretary of the Interior and

the Bureau of Reclamation to follow state rules regarding condemnation of water rights. Nevertheless, in the face of climate-change-driven water shortages and the potential impairment of national policies, the federal government might choose to allow federal agencies to condemn water rights for specific federal or federally-permitted projects, such as power plants or alternative energy facilities. While both the proponents of and the opposition to the Reclamation Act of 1902 expressed doubts that Congress could, as a constitutional matter, override state regulation of nonnavigable streams, the U.S. Supreme Court has repeatedly acknowledged that, "[i]n the absence of federal legislation to the contrary," the federal government can condemn property without state consent. Indeed, in one of its earliest decisions on the subject, the Court emphasized that the federal government's eminent domain authority "is the offspring of political necessity; and it is inseparable from sovereignty, unless denied by its fundamental law." Thus, project-specific water condemnation appears to be a constitutionally viable mechanism for re-balancing water federalism in the climate change adaptation era, especially if the federal government is willing to pay, in prior appropriation state especially, for priority of use as well as the right to use water. 3. National Water Inventory More radical federal interventions in water allocation and management would involve "nationalizing" water resources in some way--that is, refiguring the streams, rivers, and lakes of the United States as a singular and national natural resource rather than a collection of state and local resources. This kind of [*225] refiguration would rebalance federalism for water management and allocation in much the same way that the Clean Water Act rebalanced water federalism for water quality, when Congress declared the objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." To the extent that Congress continues, even in a climate change era, to want to preserve states' roles in water management and allocation, the least intrusive form of water nationalization would be a federal water inventory. National water inventories are not a new idea, but "[n]ational water availability and use was last comprehensively assessed in 1978," when the U.S. Water Resources Council completed a federal survey pursuant to the Water Resources Planning Act of 1965. It is significant, therefore, that as part of one of Congress's very first forays into climate change adaptation policy, a new national water inventory is already largely underway. In March 2009, Congress enacted the Omnibus Public Land Management Act of 2009, creating a National Water Availability and Use Assessment Program (NWAUAP) in the Department of the Interior. The goals of this program are: (1) to provide a more accurate assessment of the status of the water resources of the United States; (2) to assist in the determination of the quantity of water that is available for beneficial uses; (3) to assist in the determination of the quality of the water resources of the United States; (4) to identify long-term trends in water availability; (5) to use each long-term trend described in paragraph (4) to provide a more accurate assessment of the change in the availability of water in the United States; and (6) to develop the basis for an improved ability to forecast the availability of water for future economic, energy production, and environmental uses. Under this Program, among other duties, the Secretary of the Interior will create and maintain "a comprehensive national water use inventory" and "conduct an ongoing assessment of water availability." Thus, the NWAUAP represents a substantial federal intervention into the assessment of the [*226] nation's water resources, and energy production is a prominent justification. New bills in Congress seek to build on this program. For example, in April 2009, the National Water Research and Development Initiative Act of 2009 was introduced into the House of Representatives. If enacted as introduced, that bill would establish a federal interagency committee to develop a National Water Research and Assessment Plan. More specifically highlighting the new importance of water to national energy policy, legislation introduced into the House in December 2009 proposes the Energy and Water Research Integration Act, acknowledging that the future of national energy policy will depend upon the continued availability of water for energy production. 4. National Water Planning Moving one step beyond a national water inventory in the spectrum of water nationalization possibilities, national water planning could become a federal climate change adaptation strategy in response to increasing water stress and shortage, shifting water management authority away from the states. Energy policy is the most likely driver of national water planning. Indeed, in 2006, the Department of Energy explicitly suggested greater federal involvement in water planning as a means of ensuring energy supply. Similarly, Scientific American concluded two years later that "[s]olving the [energy-water] dilemma requires new national policies that integrate energy and water solutions and innovative technologies that help to boost one resource without draining the other." As James Huffman has discussed, the federal government has already moved to a cooperative federalism model for water planning in the context of federal reclamation projects. In March 2009, Congress took its initial steps toward comprehensive national water planning in the climate change adaptation provisions of the Omnibus Public Land Management Act of 2009. These new provisions are still limited in scope, in the sense that they focus on the water resources that could affect federal [*227] reclamation and hydropower projects. Nevertheless, Congress suggested that national interests in water planning could extend far beyond those projects. Specifically, it found that "adequate and safe supplies of water are fundamental to the health, economy, security, and ecology of the United States," that "global climate change poses a significant challenge to the protection and use of the water resources of the United States . . . which may have a substantial effect on the supplies of water for agricultural, hydroelectric power, industrial, domestic supply, and environmental needs," and that "although States bear the primary responsibility and authority for managing the water resources of the United States, the Federal Government should support the States, as well as regional, local, and tribal governments," in their efforts. Thus, these findings signal a shift away from state primacy in water resource planning, with both agriculture and energy providing prominent rationales for increased federal involvement. In providing federal support to water resources planning, the Act requires the Secretary of the Interior to establish a climate change adaptation program for water. Specifically, the Secretary is required: (1) to assess each effect of, and risk resulting from, global climate change with respect to the quantity of water resources located in a [reclamation project] service area; and (2) to ensure, to the maximum extent possible, that strategies are developed at watershed and aquifer system scales to address potential water shortages, conflicts, and other impacts to water users located at, and the environment of, each service area. The Secretary also "assess[es] specific risks to the water supply of each major reclamation river basin," and, "with respect to each major reclamation river basin, analyze[s] the extent to which changes in the water supply of the United States will impact--" (A) the ability of the Secretary to deliver water to the contractors of the Secretary; (B) hydroelectric power generation facilities; (C) recreation at reclamation facilities; [*228] (D) fish and wildlife habitat; (E) applicable species listed as an endangered, threatened, or candidate species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); (F) water quality issues (including salinity levels of each major reclamation river basin); (G) flow and water dependent ecological resiliency; and (H) flood control management[.]" Moreover, "in consultation with appropriate non-Federal participants," the Secretary must "consider and develop appropriate strategies to mitigate each impact of water supply changes . . ., including strategies relating to--" (A) the modification of any reservoir storage or operating guideline in existence as of the date of enactment of this Act; (B) the development of new water management, operating, or habitat restoration plans; (C) water conservation; (D) improved hydrologic models and other decision support systems; and (E) groundwater and surface water storage needs[.]" Finally, the Secretary can conduct studies "to determine the feasibility and impact on ecological resiliency of implementing each mitigation and adaptation strategy described . . ., including the construction of any water supply, water management, environmental, or habitat enhancement water infrastructure that the Secretary determines to be necessary to address the effects of global climate change on water resources located in each major reclamation river basin." At the same time, the Secretary of Energy must "assess each effect of, and risk resulting from, global climate change with respect to water supplies that are required for the generation of hydroelectric power at each Federal water project that is applicable to a Federal Power Marketing Administration." At the end of the process, a federal intergovernmental panel on climate change and water is authorized: [t]o develop any strategy that the panel determines to be necessary to improve observational capabilities, expand data acquisition, or take other actions-- [*229] (A) to increase the reliability and accuracy of modeling and prediction systems to benefit water managers at the Federal, State, and local levels; and (B) to increase the understanding of the impacts of

climate change on aquatic ecosystems. Thus, as part of a national climate change adaptation strategy , federal legislators

are already beginning to envision a greater federal role in predicting potential conflicts as changing water supplies

impact federal projects and priorities in water resource planning and management . It is not difficult to envision a day when climate

change impacts on water resources will prompt Congress to expand the federal role in water planning beyond existing federal facilities and truly nationalize water planning and management.

Centralized efforts by the federal government on climate adaptation are crucial to avoid economic and social collapse of the United StatesHill 20 (Alice Hill and Leonardo Martinez-Diaz, “Adapt or Perish: Preparing for the Inescapable Effects of Climate Change,” January/February 2020, https://www.foreignaffairs.com/articles/united-states/2019-12-10/adapt-or-perish)

Ever since climate change became a concern for policymakers and laypeople alike, the focus of public debate has largely been on mitigation : limiting greenhouse gas emissions, capturing carbon, and transitioning to renewable energy. Those efforts must

continue if we hope to keep the planet hospitable. But it is also time to acknowledge that — no matter what we do —

some measure of climate change is here to stay . The phenomenon has already affected the U.S. economy, U.S. national security,

and human health. Such costs will only grow over time. The United States must build resilience and overhaul key

systems, including those governing infrastructure, the use of climate data, and finance. Otherwise, the blow to the U.S.

economy will be staggering . Assuming that current trends continue, coastal damage , increased spending on electricity,

and lost productivity due to climate-related illness are projected to consume an estimated $500 billion per year by the time a child born today has settled into retirement. Other estimates suggest that the U.S. economy will lose about

1.2 percent of GDP per year for every degree Celsius of warming, effectively halving the country’s annual

growth . Climate change also threatens to fray the United States’ social fabric . Although no region will be

spared, some parts of the country—especially the South and the lower Midwest—will likely suffer more from climate change, and poor and

vulnerable people across the United States will feel the greatest pain. Hundreds of thousands of people will be forced from their homes by coastal flooding. Against the backdrop of already high economic inequality, these effects will further deepen the United States’ political and regional cleavages . The country is already getting a preview of

the chaos to come. Hurricanes in the Atlantic and on the Gulf coast and wildfires in the West have intensified. Floods have hampered agriculture in the Midwest, even as droughts and heat waves have grown longer and more common across the Southwest. Once regarded as theoretical possibilities in the distant future, the impacts of climate change

have become the stuff of daily headlines. Yet much of this future damage is preventable . The best approach is also the most obvious: cutting greenhouse gas emissions to arrest rising temperatures. The 2015 Paris agreement on climate change established a global framework for governments to cut emissions, but in 2017, U.S. President Donald Trump announced his intention to withdraw the United States from the deal. (He began the formal exit process in 2019.) Washington should return to the Paris agreement and redouble its efforts to reduce

carbon emissions. At the same time, the United States must prepare itself for the future effects of climate change. The country’s industrial, commercial, and military infrastructure has been built to withstand historical weather extremes. But no

matter what is done to slow it, climate change will push beyond historical boundaries, setting new records. The infrastructure, data

systems, and financial policies of the United States must be upgraded in order for the country to

survive . FINDING SAFER GROUND The road to preparedness begins with stronger regulations about where and how the country builds public infrastructure, as well as commercial and residential buildings. Today, building standards and practices assume that the climate is stationary, but climate change has rendered that assumption untenable. Consider the Kwajalein atoll, a group of islands that is home to the U.S. Air Force’s “space fence,” a radar system that can track objects as small as a baseball through outer space to avert collisions with spacecraft. Before construction began on the $1 billion project, the Department of Defense conducted a risk assessment based on historical data and concluded that neither tidal nor wave flooding would pose a threat. But four years later, once construction was already underway, the military commissioned another study, this one informed by future projections. It found that flooding from rising sea levels could threaten the supply of freshwater used by military personnel living on the islands in the near future and that by 2055 a majority of the atoll could flood every year. The problem is not limited to this one facility. In 2019, the Government Accountability Office, an independent watchdog that works for Congress, found that most U.S. military installations failed to use climate projections in their master plans. Civilian construction is also at risk. Unlike many developed countries, the United States has no single, national building code. Private organizations—such as the International Code Council and the National Fire Protection Association—create their own standards. Then, state governments, local communities, and the military decide whether to adopt those regulations. As a result, some parts of the country have outdated codes in place. Others have none at all. Even in areas with strict standards, the building codes do not yet account for future risks from climate change. This is not to suggest that the federal government should develop a mandatory national building code. (Such a code could well run contrary to the constitutional division of power between the

federal government and the states.) But it could certainly create a standard for federally funded projects, which would allow it to redirect existing tax dollars to those investments that have been designed to withstand future climate impacts. The Obama administration took this approach when it created the Federal Flood Risk Management Standard to govern construction in floodplains. But in 2017, ten days before Hurricane Harvey dumped some four feet of rain on Houston, the Trump administration rescinded that standard. Federal, state, and local governments must also work together to encourage people to move out of places that cannot be salvaged or protected at a reasonable cost. Typically, the federal government does this by providing funds to local governments to buy at-risk homes. In the past 30 years, the United States has bought more than 40,000 flood-prone properties. But because such relocation programs remain voluntary, they often result in piecemeal change. To solve this, both the federal and state governments must implement strategies that target the most at-risk areas and encourage community-wide participation. Another key obstacle is cost. The federal government has recently undertaken two experiments in relocating entire communities to safer ground. In 2016, it awarded a grant to move the approximately 80 residents of Isle de Jean Charles, an island off the coast of Louisiana that is slipping into the sea. The bill came to $48 million—a staggering $600,000 per person. In 2018, the federal government paid the 350-odd residents of the tiny Alaskan village of Newtok $15 million to move farther inland. This is just a fraction of the full cost of that relocation, which is estimated to surpass $100 million. For much larger communities, the relocation costs would soon become exorbitant. The government, working with academics and community leaders, must devise more cost-effective ways to facilitate community-scale relocation. The government should also withdraw taxpayer dollars from new developments in risky areas. The problem is that the areas that are the fastest growing and most lucrative for developers are often also the most flood-prone, since the most coveted places to live are typically next to water along rivers or coastlines. In New Jersey, for example, developers have built almost three times as much housing in coastal flood areas as in less risky areas since 2009. By 2100, if such trends continue, an estimated 3.4 million homes nationwide could face regular inundation. To avoid this, the federal government must phase out the insurance subsidies and federally backed mortgages that prop up communities knowingly built in risk-prone areas. The story in wildfire-prone California is not any better. Within weeks of the 2018 Camp Fire—the deadliest and most destructive wildfire in the history of the state—the county of Los Angeles approved a 19,000-home development in areas designated by the state’s fire agency as being particularly vulnerable to fire. Those homes will add to the estimated 1.7 million residences across the country that have already been identified as being at risk from wildfires. Even if some communities relocate successfully and new construction in dangerous areas declines, extreme weather events will still

displace hundreds of thousands of Americans. Indeed, managing climate-related internal migration could become a major social and economic challenge, the likes of which the United States has seen only in miniature. In 2005, Hurricane Katrina turned more than one million people into migrants—in what was among the largest displacements of Americans in history. A quarter of a million of them ended up in Houston; about 150,000 were still there a year after the storm, increasing the total population of the city’s metropolitan area by almost four percent. After the Camp Fire in California, the city of Chico saw its population swell by 20 percent within a matter of hours. In the

coming decades, hundreds of thousands of people may leave vulnerable cities such as Miami and New Orleans.

Such large and sudden movements of people will likely put unprecedented economic and social pressure on the communities that take in the migrants. To prepare for this challenge, federal, state, and local governments should set aside funds to assist communities that receive large numbers of migrants. They should also identify mechanisms that would facilitate the transit and resettlement of displaced people—providing, among other things, modest cash grants to help individuals with their initial moving expenses. Governments should also ease the transition by offering job training and placement assistance, as well as tax relief to cover resettlement expenses. And to shore up the infrastructure in cities likely to be at the receiving end of internal migration, the public and private sectors should collaborate to create transitional housing units, develop additional capacity in schools and medical facilities, and strengthen social service provision. In other words, federal, state, and local governments need to consider how they will reconfigure themselves to deliver better support in the face of growing displacement, perhaps even creating a White House–led national relocation commission to coordinate federal efforts and strategy. KNOW THY ENEMY All these improvements will be tougher to make in the absence of reliable information about where climate change will likely hit the hardest, and how. In a warming world, a variety of activities, from purchasing a home to cultivating crops, will require highly localized climate and weather data. Thus, the quest for resilience will also demand greater access to such data—information that can enable governments, businesses, and households to understand the climate-related risks they face and how to manage them. Without that information, communities will be flying blind. Governments and the private sector collect and process more climate and weather data today than at any other time in history. Satellites, drones, land- and sea-based sensors, and even cell phones collect data about everything from soil moisture to ocean temperatures. And thanks to cloud computing and machine learning, governments and businesses can now use all this information to build ever more powerful models for visualizing and managing future risks. Yet many of those who desperately need these tools and information cannot access them. Think, for example, of Perdido Beach, a small town on the coast of Alabama threatened by rising sea levels, floods, and hurricanes. During a 2014 meeting with government officials focused on building resilience to climate change, Patsy Parker, the town’s part-time mayor, explained her predicament: “I don’t have a big planning staff, grant writers, or any resources. So how can I even know the size of the threats we are facing—and what can I do to protect the people of my town?” Thousands of communities across the United States face the same quandary. During the Obama administration, the federal government worked hard to make climate change data more widely available. But the result was less than ideal: a patchwork of partially overlapping data “hubs” run by separate government agencies, including the Department of the Interior, the Department of Agriculture, the National Oceanic and Atmospheric Administration, and the Federal Emergency Management Agency. To get the information they need, farmers, city planners, first responders, and others are forced to navigate this unwieldy

system. Even federal policymakers have trouble. As the Government Accountability Office warned in 2015, the federal government’s climate data system is so fragmented that “decision makers are vastly underserved.” Cost is another problem. Private-sector companies continue to develop powerful tools to help clients understand how climate impacts could affect individual

industrial parks, farms, and other assets. But those tools remain proprietary and unaffordable for many communities and small businesses. To remedy these problems, the federal government should consolidate the existing system into a network of “resilience hubs,” each serving a different region of the country. Backed by the federal and state governments, these centers would provide localized climate and weather data to those who need the information most. They would also provide technical help and

guidance to local governments, small businesses, and communities seeking to build resilience. The hubs should ensure that climate information collected with taxpayer money remains freely and openly available, along with basic tools for translating the information into useful formats. Academic and nonprofit institutions should also do their part by promoting the development of free, open-source climate and disaster models—simulations that local governments and small businesses could use to forecast and manage risks. THE PRICE OF CHANGE Building resilience on the scale required will be expensive—but not as expensive as trying to deal with the damage after it has occurred. The U.S. government must therefore fundamentally rethink the way it finances preparedness for and recovery from climate-induced disasters. The prevailing approach is to underinvest in resilience and then pay for the damage afterward, leaving taxpayers to foot the bill. Already, the costs are significant. For example, in 2017, after devastating wildfires and the unprecedented destruction of Hurricanes Harvey, Irma, and Maria, Congress authorized nearly $140 billion in emergency aid. It borrowed most of this money, adding to the growing national debt. This is neither smart nor sustainable. As natural disasters grow in frequency and intensity, they will only weaken the country’s already deteriorating fiscal situation. Communities and businesses will need more and more money to rebound from the effects of extreme weather, especially if shortsighted building and land-use practices continue. The smarter way is to spend before disaster strikes. One review conducted by the National Institute of Building Sciences of several thousand federally funded projects over a period of 20 years concluded that every $1 spent on preparation saves society an average of $4. (An update to that study revised the savings upward, to $6.) Similarly, the Global Commission on Adaptation, a group of public- and private-sector leaders from around the world, has calculated that investing $1.8 trillion on preventive and protective measures globally could generate as much as $7.1 trillion in net benefits. But even if investing in resilience is cost effective, these measures will require new money. Prudent borrowing and higher taxes could fill the financing gap. In 2017, under a Republican mayor, voters in Miami approved a referendum to issue $400 million in “Miami forever bonds,” the proceeds of which will pay for coastal-protection infrastructure, new flood pumps, and upgraded storm drains. These investments will buy Miami valuable time to consider longer-term options as the water rises. In general, however, tax hikes are unpopular, and bonds—although useful for funding specific projects—rarely generate the type of sustained, reliable revenue required for investments in climate resilience over the long haul. Governments will need to combine these tools with other approaches. For instance, they could use revenues from carbon taxes and cap-and-trade schemes designed to reduce emissions. But this hasn’t happened yet. The Regional Greenhouse Gas Initiative, a cap-and-trade system run by a group of northeastern U.S. states, has raised at least $2.6 billion through the sale of permits. Yet only Delaware appears to have used a portion of its share to build resilience; the other states have invested primarily in efforts to cut emissions or have returned the money back to taxpayers. Meanwhile, California’s cap-and-trade mechanism generated $4.5 billion between 2012 and 2016. Some of the revenue has been used to pay for activities related to resilience, but the state has not formally designated a share of the funds exclusively for that purpose. Businesses and homeowners will also need to be given incentives to embrace resilience in the first place. To provide those incentives, the government will have to fix the National Flood Insurance Program—the federal program that serves as the primary flood insurer in the United States. The program does not always charge insurance premiums that reflect the true risk of flooding. About 20 percent of the properties insured, typically those in risky floodplains, receive subsidized insurance, transferring the risk to the government and reducing incentives for homeowners to move to safer ground or to invest in retrofits to make their dwellings safer. The NFIP also continues to insure homes that have repeatedly flooded. Because its rates do not reflect actual risk, the program is now billions of dollars in debt. Congress tried to fix the flood insurance system in 2012 by charging actuarially sound premiums, but a political backlash forced the proponents of the change into a swift retreat. The failed NFIP reform did not provide enough time and support for at-risk households to adjust to the increased costs. Congress must try again, but this time it should phase out the subsidies over a longer period of time and offer adequate assistance to affected homeowners, especially to low-income households. WAKING UP TO THE TRUTH If the effects of climate change are increasingly obvious, then why are the public and private sectors so unprepared for its consequences? One reason is that academic disciplines and government agencies often remain isolated from each other, and

neither is particularly good at working with the private sector. Resilience will require unprecedented levels of collaboration among different kinds of experts and across different kinds of organizations. For example, public health officials will have to partner with geospatial analysts and biologists to anticipate how climate change may shift the geographic spread of mosquito-borne diseases, such as dengue and Zika. Corporate risk managers will need to work with engineers to figure out how to protect industrial facilities from new weather extremes.

And military planners will have to learn from climate modelers how to secure bases and supply chains. The politics of the moment haven’t helped, either. Out of a false belief that climate change is exaggerated, the Trump administration has taken a hatchet to

Obama-era reforms designed to manage its risks. Meanwhile, local governments have largely been

left to build climate resilience on their own , with inadequate support from an administration that has all but

erased the term “climate change” from its strategic documents. But federal leadership is urgently needed . It seems likely that the country will have to wait for a new administration to provide it. Besides politics, the other major obstacle to progress is psychological. For decades, both public officials and private citizens have underestimated the growing risks from climate change. Behavioral economists refer to this as “availability bias,” the tendency to judge the likelihood of an event based on how easily a relevant example can be called to mind. The government commission charged with investigating the 9/11 attacks, for example, singled out “a failure of imagination”—the simple inability to conceive of hijackers flying planes into buildings—as a key reason the United States had let its guard down. The 9/11 Commission therefore recommended “routinizing . . . the exercise of imagination.” The same idea could help decision-makers with climate resilience. The Task Force on Climate-Related Financial Disclosures, an advisory group with backing from financial regulators, has recommended that all publicly listed corporations regularly discuss and disclose potential climate-related scenarios to understand how accelerating climate impacts could affect their

businesses. Climate change is here . Reducing its impacts on lives and livelihoods will demand a

sustained , collective effort across the United States . Both the government and private actors will need to rethink where and how they build infrastructure, how they use climate and weather data, and how they mobilize financial resources to offset potential risks. The economic case for such a transformation is clear. But putting it into practice will require creativity and collaboration. Politicians, business leaders,

and the public will have to envision a planet different from the one they have come to know and put in place new systems that can ensure survival, health, and prosperity in a warmer world.

US collapse risks nuclear exchange Metz 15 (Steven Metz, Director of Research at the Strategic Studies Institute, Ph.D. from the Johns Hopkins University, “Strategic Insights: Thinking About Catastrophe: The Army in a Nuclear Armed World,” 12-14-15, http://www.strategicstudiesinstitute.army.mil/index.cfm/articles/Thinking-About-Catastrophe/2015/12/14)

These missions remain vitally important, but today there is an additional, less understood, element of the nuclear threat. As more states join the nuclear club, including some with brittle or unpredictable regimes, a conflict not involving the United States could escalate to the nuclear level or a government could lose control of nuclear weapons or see them used

during a large scale civil war . A catastrophe of this sort would devastate the global economy and

environment , destroy political stability across entire regions, and unleash an unprecedented humanitarian disaster. This means that American strategists and political leaders must expand the way they think about nuclear weapons. In addition to the traditional deterrence and efforts to control what are often called "loose nukes," the United States must now consider stabilization, relief, and reconstruction operations following a nuclear exchange, and large scale, protracted operations to deal with loose nukes after the collapse of a government or during a major internal conflict. The Army would play a leading role in operations of this sort. Imagine a brittle, corrupt, ineffective or repressive government facing mounting internal opposition including large-scale public protests and riots; intense criticism from

social media; factionalism within the elite; escalating terrorism and internal violence; economic stagnation , inflation, and widespread unemployment; and military discontent. If history is a guide, the beleaguered regime would particularly fear its armed forces. To Americans, it might seem that the logical reaction would be to address the causes of discontent and undertake serious reform. However, brittle and repressive regimes can read history too. They know that reform can easily spiral out of the control and lead to the regime's demise. Many dictators who tried to placate intense opposition with reform ended up dead or in exile. There are other options that might seem appealing. Sometimes crackdowns and increased repression works. Another time tested response is distraction: by trumpeting an external threat , the regime inspires its opponents to

"rally 'round the flag." Importantly, the armed forces, which are the most proximate threat to a beleaguered regime, will tend to shift their focus to the external threat rather than the shortcomings of its government. History is littered with examples of beleaguered regimes attempting strategic distraction. Sometimes the results were tragic—think the seizure of the Falkland Islands by the Argentinian military dictatorship in 1982—but not catastrophic. In a world of nuclear states, though, distracting the public, elites, and armed forces from internal problems by external assertiveness could lead neighboring states or adversaries to counter escalate , thus beginning a slide toward doomsday .

After all, that is exactly how World War I began. In the modern era, though, doomsday might not mean four years of horrific trench warfare,

but a nuclear strike or exchange by frightened states convinced that lashing out is their only

chance of survival . Unfortunately, the more brittle a regime, the greater the chances it will attempt to distract attention from its flaws.

The path to doomsday could also begin with civil war or regime collapse in a nuclear armed state. Nuclear weapons might fall into the hands of malfeasant or desperate forces willing to use them or willing to sell them to buy conventional weapons and pay fighters. The bigger, more complex, and chaotic the nuclear state, the greater the danger posed by regime collapse and internal conflict. Of today's nuclear states, North Korea is the most brittle and unpredictable. If nuclear weapons are used in the next few decades, odds are that Pyongyang will be the culprit. To deter this as much as possible, official U.S. policy should state that any use of nuclear weapons by North Korea will result in occupation and regime change. Only the White House can develop such a policy and it should obtain congressional backing as well, but the U.S. military, particularly the Army, can make it more credible by demonstrating its ability to not only destroy North Korean military targets, but also to occupy and stabilize that nation if necessary. Deterrence requires capability, communication, and credibility. The better the U.S. military is at being capable of removing and replacing the North Korean regime, the less likely North Korea will believe that it can get away with using nuclear weapons. Admittedly, China would be opposed to such a policy, but that could have benefits, clarifying the risks of North Korea's behavior and encouraging Beijing to be more active in controlling that dangerous nation. The risk of external assertiveness escalating to the point of a nuclear exchange is less likely for other nuclear states, but the risk is greater than zero. For instance, Pakistan's support for terrorist attacks on India (or at least tacit acceptance of them) could ignite an escalating conflict. If India was the victim of a mass casualty terrorist attack perhaps on an even larger scale than the 2008 Mumbai one, it might feel compelled to respond with force. If the government in Islamabad saw this as an existential threat, it might respond with nuclear weapons, whether through a direct strike on India or a demonstration. That could lead New Delhi to conclude that it had no option other than a nuclear counterstrike. Escalation to the

nuclear level by Russia and China may be less likely but still conceivable. Imagine, for instance, that both devolve into large scale civil war where one or both of the combatants control nuclear weapons. Faced with annihilation, one side might decide that a nuclear strike on its opponent was justified and

necessary . Either could resort to external aggression as a distraction from internal problems as

well, thus increasing the chances of escalation .

Decline causes war – best studies Royal 10 – Jedediah, Director of Cooperative Threat Reduction at the U.S. Department of Defense, 2010, “Economic Integration, Economic Signaling and the Problem of Economic Crises,” in Economics of War and Peace: Economic, Legal and Political Perspectives, ed. Goldsmith and Brauer, p. 213-214

Less intuitive is how periods of economic decline may increase the likelihood of external conflict. Political science literature has contributed a moderate degree of attention to the impact of economic decline and the security and defence behaviour of interdependent states.

Research in this vein has been considered at systemic , dyadic and national levels . Several notable

contributions follow. First, on the systemic level, Pollins (2008) advances Modelski and Thompson's (1996)

work on leadership cycle theory, finding that rhythms in the global economy are associated with the rise and fall of a pre-eminent power and the often bloody transition from one pre-eminent leader to the next.

As such. exogenous shocks such as economic crises could usher in a redistribution of relative power (see also Gilpin. 1981) that leads to uncertainty about power balances, increasing the risk of miscalculation (Fearon. 1995). Alternatively, even a relatively certain redistribution of power could lead to a permissive environment for conflict as a rising power may seek to challenge a declining power (Werner, 1999). Separately, Pollins (1996) also shows that global economic cycles combined with parallel leadership cycles impact the likelihood of conflict among major, medium and small powers, although he suggests that the causes and connections between global economic

conditions and security conditions remain unknown. Second. on a dyadic level, Copeland's (1996. 2000) theory of trade expectations

suggests that 'future expectation of trade is a significant variable in understanding economic conditions and security behaviour of states. He

argues that interdependent states are likely to gain pacific benefits from trade so long as they have an optimistic view of future trade relations. However, if the expectations of future trade decline. particularly for difficult to replace

items such as energy resources, the likelihood for conflict increases , as states will be inclined to use force to

gain access to those resources. Crises could potentially be the trigger for decreased trade expectations either on its own or

because it triggers protectionist moves by interdependent states.' Third, others have considered the link between economic decline and

external armed conflict at a national level. Blomberg and Hess (2002) find a strong correlation between internal conflict

and external conflict , particularly during periods of economic downturn . They write, The linkages between internal

and external conflict and prosperity are strong and mutually reinforcing. Economic conflict tends to spawn internal conflict, which in turn returns the favour. Moreover, the presence of a recession tends to amplify the extent to which international and external conflict self-reinforce each other. (Blomber & Hess,. 2002. p. 84) Economic decline has also been linked with an increase in the likelihood of terrorism (Blomberg. Hess. & Weerapana. 2004). which has the capacity to spill across borders and lead to external tensions. Furthermore, crises generally reduce the

popularity of a sitting government. 'Diversionary theory' suggests that, when facing unpopularity arising from

economic decline, sitting governments have increased incentives to fabricate external military conflicts to

create a 'rally around the flag' effect . Wang (1996). DeRouen (1995), and Blomberg, Hess, and Thacker (2006) find supporting

evidence showing that economic decline and use of force are at least indirectly correlated. Gelpi (1997), Miller (1999). and Kisangani and

Pickering (2009) suggest that the tendency towards diversionary tactics are greater for democratic states than autocratic states, due to the fact that democratic leaders are generally more susceptible to being removed from office due to lack of domestic support. DeRouen (2000) has provided evidence showing that periods of weak economic performance in the United States, and thus weak Presidential popularity, are statistically linked to an increase in the use of force. In summary, recent economic scholarship positively

correlates economic integration with an increase in the frequency of economic crises, whereas political science scholarship links

economic decline with external conflict at systemic. dyadic and national level, This implied connection

between integration, crises and armed conflict has not featured prominently in the economic-security debate and deserves more attention.

Successful governance solutions for climate adaptation are globally adopted Olwig 11 (Mette F., Department of Geology and Geography at the University of Copenhagen, Daivi Rodima-Taylor, African Studies Centre, Boston University, “Adaptation as innovation, innovation as adaptation: An institutional approach to climate change,” Applied Geography, 2011).

While there is an increasing recognition that many adaptation actions are local and build off experience of managing past climatic risks (Christoplos et al.. 2009). There can be barriers and limitations to adaptation. These can come from several fronts including inadequate climate information (Deressa, Hassan, Ringler. Alemu, 82. Yesuf, 2009), partial understanding of climate impacts and uncertainty about benefits of adaptation (Hammill 82 Tanner. 2011),

institutional inertia and lock-in (path dependency) (Chhetri, Easterling. Terando. 82 Meams. 2010). disconnect between climate science and policy leading to a lack of use-inspired research (Moser, 2010), insufficient credit access (Bryan. Deressa. Gbetibouo. 82. Ringler. 2009). and weak market systems (Kabubo-Mariara 2009). By using the conceptual infrastructure of the hypothesis of induced innovation, such as done by Chhetri et al., in this issue, researchers can extend the boundaries of climate change research to take into consideration the role of institutions in the innovation and delivery of technologies to enhance the adaptive capacity of a society. The hypothesis of induced innovation refers to the process by which societies develop technologies that facilitate the substitution of relatively abundant (hence, cheap) factors of production for relatively scarce (hence,

expensive) factors in the economy (Hayami 82 Ruttan. 1985) The concept has earned recognition in climate adaptation and has been used to explain the complex process of institutional and technological change (Koppel, 1995). While the role of climate as a stimulant for institutional and technological innovation is a difficult assumption to test (Abler. Shortle. Rose. 82 Oladosu. 2000), scholars have drawn on this hypothesis in explaining the possible relationships between change in resource endowment and the development of new institutional and technological arrangements (Easterling. 1996; Gitay. Brown. Easterling, 8: ]allow, 2001). Insights about the role of climate as a stimulus to innovation are therefore crucial to improving our understanding of adaptation to climate change. One of the most important insights of this hypothesis is that the innovation of

technologies that are needed to respond to the emerging threat of climate is the function of change (or difference) in resource endowment and the ability of institutions to deliver technologies on demand (Chhetri 82 Easterling, 2010). Technological change is treated as being induced by institutional change (Koppel, 1995). Institutionalized research is therefore crucial for producing innovations leading to advanced technologies capable of making society resilient and adaptable. Institutional change, in turn, is treated as induced by changes in factor supplies (e.g.. land. water) and product demand (e.g.. food. health) and affected by techno- logical change (e.g.. high yielding varieties. better medicine) (Hayami 82 Ruttan. 1985). Institutions that lack the mandate and knowledge to implement climate-sensitive measures can diminish the adaptive capacity of the social-ecological system (Moser. 2009). The innovation of appropriate technologies therefore depends on the sensitivity of institutions to progressively respond to climate change. As climate changes there may be a more pronounced focus on wider partnerships between all stakeholders and on the co- production of knowledge. Nepal's evolving experience in dealing with the nation's dwindling food security has shown a demand for a broad participation of farmers and their supporting institutions in innovation of technologies. The research establishment in Nepal has developed novel multi-level institutional partnerships, including collaboration with farmers and non-governmental organizations at the critical stages of technological innovation (Chhetri et al.. in this issue). In their paper Chhetri et al. also show that existing centralized top-down institutions are increasingly being complemented and sometimes challenged by new forms of collaboration , including public-private partnerships and demand led

collaboration. Yet, notwithstanding this recognition, there is a dearth of research that unravels the role of climate as a stimulus for the innovation of appropriate technologies (Ruttan, 1996; Smithers 82 Blay-Palmer. 2001). As the

transition to a new and highly variable climate does not occur in an institutional vacuum (Agrawal. 2008. 2010) efforts to generate appropriate adaptation response require institutional arrangements that empower the

stakeholders to co-produce the technologies needed to address the new challenges . The induced innovation framework enables the researchers to extend the boundaries of climate change research by taking into consideration the role of institutions in the innovation and delivery of technologies to enhance the adaptive capacity of the society. The impacts of climate change are already being observed , and because of a lag in natural systems , more and severe

challenges are inevitable (Burton. Huq. ljrn. Pilifosova. 82. Schipper. 2002). At the heart of climate response strategies lies the issue of how smallholder farmers in developing countries cope with variable and unpredictable climate (Chn'stoplos et al.. 2009). Local communities and NGOs are demanding an increasingly active role of public institutions in the delivery of technological options to cope with emerging climate challenges (Prowse 8: Scott. 2008). Despite the importance accorded to the role of institutions in fostering adaptation, few researchers have investigated how the challenges of managing natural resources may induce new forms of institutional arrangement that can facilitate adaptation to climate change . Much of the attention on the effects of climate change in developing countries has

focused on its impact on natural systems, producing little insights on the present and future adaptability of whole systems. However, the effect of climate variability on innovation is a crucial factor in the calculus of understanding the adaptive potentials of social-ecological systems. The local

and the global: multi-level institutional linkages and climate adaptation Globalization has increased the mobility of not only people, information and resources, but also new ideas and discourses that can facilitate innovation and adaptation. Local innovations and adaptations are thus increasingly interlinked with

global policy and intervention indicative of a profound global interconnectedness between institutions and actors. Indeed, the global is embedded in the local and vice versa. The very notion of the local and the global constituting a dichotomy is, in fact, problematic because it is based on the idea of "society as a bounded object or closed social system analogous to an organism," which it is not (beach. Meams. 82. Scoones, 1999: pp. 229-230). Rather. as Liep (2001: p. 169) explains: "the modern or global is not something advancing at the boundary of the local but present and active in the midst of it. [...] Regarding creativity, we have thus seen that its viability is not only dependent on the resonance of a local social environment, but subject to the stark realities of a much wider context". Individuals adapt and are innovative through complex interactions between institutions and actors at multiple scale levels. These processes are multi-directional and not - as would be proposed by a structuralist

approach - only the result of larger scale institutions, such as those of donors and national government, providing a structure

within which local actors must navigate. As Leach et al. (1999: p. 235) point out: "the interrelationships between scale levels are far from deterministic. Land claims at the local level may spill over into national, state or provincial-level politics, for example, and influence the direction of future policy and the scope of legally enforceable rights". Scale is a social construction, not a force of nature. Furthermore, institutions are dynamic (Agrawal, 2010: p. 174) and some institutions, as discussed by Yarrow, even alternate between global and local identities depending on the circumstances. Thus, in his study Yarrow (2008: p. 438) found that "the opposition between local and global was employed relation- ally to make a variety of contextual distinctions and to perform a range of shifting identities". Local and global understandings and practices of innovation and creativity in face of climate change are therefore entangled and cannot be analyzed as distinct. Research on the interrelationships between local and global processes shaping adaptation is still in its infancy. Although "cross- scale linkages (crossing boundaries from local to global levels) are commonly asserted to be important in social processes". Adger et al. (2005: p. 80) noted in 2005. "in examining adaptation, the dynamic nature of linkages between levels of governance is not well-understood, and the politics of the construction of scale are often ignored". Six years later, in 2011, the situation is only just beginning to change according to Pelling (2011: p. 163): "Perhaps most important are the interactions between different levels of social actor (individuals and organizations) and of the institutions that give shape to social systems . Research and policy on adaptation to climate change is just beginning to recognize the full contribution of values and governance to behavior and action". Recent work on the importance of the social aspects of climate change (see for example Meams 82 Norton, 2010; Pelling. 2011), has thus particlarly highlighted the interaction between institutions and actors across multiple levels (e.g., Agrawal, 2010: Ribot, 2010).

Adaptation stops otherwise inevitable Indo-Pak war Arias 11 (Eve, Consultant at Booz Allen Hamilton, “Climate Change Adaptation In The Himalayan Sub-Basin Of India,” Columbia, School Of International And Public Affairs, 4-29-11)

Climate change is expected to have a disproportionate adverse impact on the region of South Asia.

Changes in the biophysical and ecosystem level will increase the frequency of natural disasters , disrupt water

supply and food production , and spread water and food-borne diseases . These impacts will exacerbate the

existing social vulnerabilities by putting millions of lives at risk and leading to large-scale population movements.

Climate change impacts could also lead to the escalation of existing inter-state tensions as disputes over scarce natural resources intensify and mass migrations ensue. Faced with rampant poverty,

demographic pressures, scarce natural resources, intense urbanization, and malnutrition, the policy responses in India are inadequate to cope with the impacts of climate change. Adequacy of Policy Response to Climate Change Challenges India lacks a comprehensive water management framework and its agriculture is heavily dependent on rain. The institutional arrangement for water management in India is complex and efforts to conserve and manage water resources are inconsistent across states. Water management is a competence of individual states, while the central government attempts to play a coordination role. These challenges will intensify as policy

makers in India try to account for and manage the projected impacts of climate change on water resources. India is among the largest rain-fed agricultural economies in the world. This dependence leaves communities with little coping ability against precipitation variability, especially with the increasing occurrence of droughts, and higher probability of flooding and water-logging. The national and state authorities have adopted several initiatives to increase food production, improve food accessibility and strengthen cooperation in the region to deal with food crises. At the national level, respective ministries have adopted plans to account for and adapt to climate change impacts. Following the global surge in food prices, the Public Distribution System (PDS) was implemented to control food price volatility and ensure the distribution of commodities to the public. Regional cooperation has also been established among countries of South Asia to coordinate food

production and storage arrangements. Nevertheless, food security in India faces three challenges. First, the lack of soil management programs has led to an over-exploitation and mismanagement of soil and water resources. Second, some Indian Himalayan states

lack crop storage facilities to enhance food security. Third, the Indian economy – especially the livelihood of the poor communities – is highly dependent on rain-fed agriculture. Farmers who possess small landholdings for cultivation will be among the worst affected by climate change. India is one of the countries most affected by natural disasters measured by the

number of victims and damage costs. As the frequency and intensity of extreme weather events is expected to increase with climate change, it is important for India to improve its preparedness and response capacities. India faces challenges with respect to its initial response capacity, the unclear division of responsibilities among government

entities at multiple levels, and the lack of public awareness and education on community based strategies against floods. Climate change

adaptation requires data , research outputs, and public awareness that enable the government and private entities to anticipate impacts and adopt concrete responses. A number of programs are in place to improve

the availability of data at the state and national level in India and at the South Asia regional level. However, there is a lack of research on the impact of the changing climate patterns on the Himalayan region and the role of glacier melt on the water system in the region. Furthermore, assessments also call for additional and more precise local weather forecasts for

farmers and improved early warning systems for weather events. Climate change adaptation and resiliency is further constrained by a relatively low level of public awareness on the available adaptation options. The high illiteracy rates, especially among the poor and rural communities, hamper the effective dissemination of information. There is also an evident lack

of policies to guide the private sector on the risks and commercial opportunities arising from climate change adaption. The engagement of the private sector in developing climate change resistant infrastructure and services can address many of the present and expected challenges. The level of cooperation among the countries of South Asia at the bilateral and

multilateral level is inadequate. Ethnic and religious conflicts have tormented the societies in the region for decades and periodic tensions continue to arise especially between India and Pakistan . The persisting situation of distrust among parties is hampering cooperation that is essential in coordinating

their individual efforts to resist the impacts of climate change and cooperating on data sharing , water management, and migration control.

Pakistani tactical nuclear deployments make global escalation likelyChansoria 14 (Monika Chansoria Senior Fellow at the Centre for Land Warfare Studies, Ph.D. degree in International Relations from the American Studies Division of the School of International Studies, Jawaharlal Nehru University, New Delhi, “Pakistan’s Tactical Nukes Threaten Stability in South Asia,” 5-5-14, http://foreignpolicy.com/2014/05/05/pakistans-tactical-nukes-threaten-stability-in-south-asia/)

Pakistan has upped the nuclear ante in South Asia by choosing to adopt tactical nuclear weapons. T actical

n uclear w eapon s — smaller bombs and short-range missiles that are designed to achieve more limited, or tactical, objectives, rather than be

used against enemy cities, factories, and other large targets — warrant a separate consideration in the realm of nuclear security. These weapons are inherently destabilizing because they lower the nuclear threshold , the

point in a war in which nuclear weapons are brought into use. As such, they are straining South Asia’s

existing deterrence stability — the idea that roughly equivalent nuclear capabilities will deter adversaries from using these weapons.

Security experts are perennially apprehensive that a conflict between India and Pakistan could trigger a chain

reaction and pave the way for a nuclear crisis in the region . As the political, socio-economic, and security situation progressively deteriorates in Pakistan, concerns about the government’s ability to manage its sophisticated nuclear arsenal are being raised.

Pakistan is beset by growing fissures between the military and the civilian leadership, a rising tide of radical fundamentalism and violence, sectarian social divides, and a sluggish economy. If the state becomes increasingly dysfunctional, can Pakistan’s military continue to responsibly manage these weapons? In addition, mounting nuclear warheads on extremely short-range, forward-

deployed ballistic missiles — as is the case for tactical nuclear weapons — greatly increases the risk of an unauthorized or accidental launch. Tactical nuclear weapons require early delegation of the authority to launch and an early release of the custody of nuclear warheads to the launcher batteries. No matter how carefully Pakistan has thought through its command and

control structure, the delegation of authority to the field creates risks. This is the prime reason tactical nuclear weapons are considered to be inherently destabilizing. Pakistan has said that successful testing of the 60-km nuclear-capable short-range surface-to-surface missile Hatf IX (NASR), which has been specially designed to defeat all known anti-tactical missile defense systems," adds deterrence value to Pakistan’s strategic weapons development programme at shorter ranges." While Pakistan has not formally declared a nuclear doctrine, this is an implicit signal to the region that the country is committed to developing full spectrum deterrence, including the use of tactical nuclear weapons.

By further lowering the nuclear threshold, Pakistan aims to alter the strategic scenario and even the playing field in terms of conventional military prowess. In the event of a Mumbai-style terrorist attack like the one that occurred in 2008 for example, if New Delhi responded against Islamabad with a conventional strike, Pakistan could threaten India with the use of tactical nuclear weapons. What Pakistan is signaling to India and to the world at large, says Shyam Saran, chairman of India’s National Security Advisory Board, is that India should not contemplate retaliation in the event of another Mumbai-like terrorist incident. Saran describes this brinkmanship as nothing short of nuclear blackmail, a policy that deserves condemnation by the international community for threatening

international peace and security. India has declared a "no-first-use" policy for nuclear weapons: its nuclear doctrine

clearly says that India will not be the first to initiate a nuclear strike, but that it will respond with punitive retaliation should deterrence fail . India has always viewed nuclear weapons as a political instrument to be used for the sole purpose of deterring other countries from using nuclear weapons against India. But Pakistan’s offensive strategic posture and alleged involvement in terror strikes targeting India complicates this posture. Many of these tensions originated from the terrorist attack on India’s parliament on December 13, 2001, which led to the deaths of 12 people. Following the attack, Delhi’s police commissioner linked the operation — led by five Pakistani nationals — to the terrorist organization Jaish-e-Mohammed and Lashkar-e-Taiba (though LET subsequently denied involvement in the attack). Some in India alleged that Pakistan’s military spy agency, the Directorate of Inter-Services Intelligence, had played a role in sponsoring the attacks. This

horrifying event became the genesis for the Indian Army to initiate a proactive doctrine that many erroneously refer to as the "Cold Start Doctrine." The policy is primarily a "quick and swift response" strategy that enables India to mobilize troops quickly in order to stop future attacks in Pakistan’s proxy war against India. According to the Pakistan army, its tactical nukes are designed to counter this proactive doctrine. Yet even tactical nuclear weapons can’t negate the superiority of India’s conventional

military. If Pakistan intends to develop low-yield nuclear warheads that can be fired from short-

range tactical missiles, even a limited war scenario with India could have grave repercussions .

ExtinctionEdwards 7 (Rob, MA from Cambridge, “Regional Nuclear War Could Trigger Mass Starvation,” The New Scientist, 10-3-7, http://www.newscientist.com/article/dn12728-regional-nuclear-war-could-trigger-mass-starvation.html)

A nuclear war between India and Pakistan could cause one billion people to starve to death around the

world, and hundreds of millions more to die from disease and conflicts over food. That is the horrifying scenario being presented in London today by a US medical expert, Ira Helfand. A conference at the Royal Society of Medicine will also hear new

evidence of the severe damage that such a war could inflict on the ozone layer . "A limited nuclear

war taking place far away poses a threat that should concern everyone on the planet ," Helfand told New Scientist. This was not scare mongering, he adds: "It is appropriate, given the data, to be frightened." Helfand is an emergency-room doctor in Northampton, Massachusetts, US, and a co-founder of the US anti-nuclear group, Physicians for Social Responsibility. In his study he attempted

to map out the global consequences of India and Pakistan exploding 100 Hiroshima-sized nuclear warheads. Global hoarding Earlier studies have suggested that such a conflict would throw five million tonnes of

black soot into the atmosphere, triggering a reduction of 1.25°C in the average temperature at the earth's surface for several years. As a result, the annual growing season in the world's most important grain-producing areas would shrink by between 10 and 20 days. Helfand

points out that the world is ill-prepared to cope with such a disaster. "Global grain stocks stand at 49 days, lower than at any point in the

past five decades," he says. "These stocks would not provide any significant reserve in the event of a sharp decline in production. We would see hoarding on a global scale." Countries which import more than half of their grain, such as Malaysia, South Korea and Taiwan, would be particularly vulnerable, Helfand argues. So, too, would 150 million people in north Africa, which

imports 45% of its food. Many of the 800 million around the world who are already officially malnourished would also suffer. Large-scale impacts on food supplies from global cooling are credible because they have happened before, Helfand says. The eruption of the Indonesian volcano Tambora in 1815 produced the "year without a summer" in 1816, causing one of the worst famines

of the 19th century. Mass starvation The global death toll from a nuclear war in Asia "could exceed one billion from starvation alone", Helfand concludes. Food shortages could also trigger epidemics of cholera, typhus and other diseases, as well as armed conflicts, which together could kill "hundreds of millions". Another study being unveiled at

today's conference suggests that the smoke unleashed by 100, small, 15 kiloton nuclear warheads could destroy 30- 40% of the world's ozone layer . This would kill off some food crops, according to the study's author, Brian Toon, an

atmospheric scientist from the University of Colorado in Boulder, US. The smoke would warm the stratosphere by up to 50°C, accelerating the natural reactions that attack ozone, he says. "No-one has ever thought about this before," he adds, "I think there is a potential for mass starvation." Such dire predictions are not dismissed by nuclear experts, though they stress the large

uncertainties involved. The fallout from a nuclear war between India and Pakistan "would be far more devastating for other countries than generally appreciated," says John Pike, director of the US think tank, globalsecurity.org. "Local events can have global consequences." Dan Plesch from the University of London's School of Oriental and African

Studies, agrees that everyone is at risk from a limited nuclear war . "We live in a state of denial that our fate can be determined by decisions in Islamabad and New Delhi as much as in Washington and Moscow," he says.

Solvency

Court action to advance the significant nexus test in Clean Water Act regulation is necessary and sufficient to resolve uncertainty in water permitting and improve enforcement of the CWA - agency and lower court actions fail without underlying doctrinal shiftsJohnson 21 (Lavran Johnson, J.D. Candidate at Harvard Law School, “From Tropics to Swamp: How County of Maui Muddies the Clean Water Act,” Harvard Environmental Law Review Online, Vo. 45, 2021)

B. Functional Equivalence Reflects a Focus on Discharges Through Groundwater

Although passage through groundwater is not the only means of indirect discharge,69 the Court’s opinion was preoccupied with discharges through groundwater. This preoccupation led to an emphasis on state regulatory supremacy that may constrain or confuse jurisdiction for other indirect discharges.

The CWA’s text and history leave groundwater regulation to states ,70 and the Court’s only explicit guidance regarding context—it “includes the need . . . to preserve state regulation of groundwater and other nonpoint sources of pollution”—reflected this statutory limitation.71 However , that limitation is relevant only to discharges through groundwater, since nonpoint sources of pollution are definitionally excluded from NPDES permitting. By failing to clarify this, the Court left its test open to basic misinterpretation . The CWA preserves state regulatory authority over some groundwater and all nonpoint source pollution,72 but is fundamentally a regime of prohibition and point source permitting.73 Since the indirect discharges at issue are definitionally from point sources, the Court’s reference to nonpoint sources74 makes little sense and may obscure the line between indirect discharges and nonpoint discharges. If there is a genuine dispute as to whether a source is a point source, that is a matter for other jurisprudence. This case, and its test, deal with the connection between clear point sources and navigable waters, and the test should clearly reflect that.

VI. The Better Solution: Significant Nexus

The significant nexus test is a jurisdictional test which reflects the stated purposes of the CWA and bestows jurisdiction when a particular discharge would have significant chemical, physical, and biological effects on traditionally navigable waters. The significant nexus test is suited to analyze the full array of CWA discharges, directly connects permitting to the protection of navigable water from the deleterious effects of pollution, and has been further articulated by lower courts. Furthermore, because lower courts are still actively articulating the significant nexus test, the Supreme Court’s application of the test in County of Maui could have clarified multiple points of CWA jurisprudence.75

A. The Significant Nexus Test’s Murky Beginnings

The significant nexus test originated in a line of cases which addressed a similar jurisdictional question to that posed in County of Maui. In those cases (United States v. Riverside Bayview,76 Solid Waste Agency of Northern Cook County v. USACE,77 and Rapanos) the Court articulated the term ‘navigable waters’ and thus defined the limits of EPA and USACE CWA jurisdiction. The significant nexus test was articulated by Justice Kennedy’s concurrence in Rapanos, which held that EPA and USACE had

jurisdiction over terrain with a significant nexus to traditionally navigable waters or their tributaries. Under Justice Kennedy’s formulation, a significant nexus exists if a water (1) has significant effects on the chemical, physical, and biological integrity of a traditionally navigable water, (2) which effects are more than speculative or insubstantial.78

However, the significant nexus test was not the only jurisdictional test to emerge from the Court’s 4–1–4 decision in Rapanos. Justice Scalia, writing for the plurality, provided a test granting agency jurisdiction over wetlands with a nonephemeral hydrological connection to navigable waters.79 Lower courts have described the problem of discerning which standard to apply as baffling.80 This is problematic for private parties, EPA, and USACE. Determining whether terrain is sufficiently connected to navigable water is a lengthy and scientifically complex task, made only more burdensome by an unclear legal standard.81

Lower courts also continue to develop the substance of the significant nexus test, varying in particular on the level of evidence needed to establish significant effects. Some have conducted “very factually intense analysis . . .includ[ing] expert testimony, field tests, a topological survey, historical maps, scientific literature, pictures, and soil testing,”82 while others have concluded that even the potential for downstream transport of pollutants can create a significant nexus.83

Thus, the reach and substance of the significant nexus test, while clearer than functional equivalence, are still being developed. This creates uncertainty and additional litigation, burdening private parties and agencies alike. Further clarification from the Court could alleviate both issues.

B. The Significant Nexus Test Should Not Be Limited to Navigable Waters Questions

Although the significant nexus test defines the boundaries of WOTUS jurisdiction , its provisions reflect the core purpose of the CWA, giving it broader jurisdictional potential. Justice Kennedy, in establishing the test, drew language directly from the stated purpose of the CWA—“to restore and

maintain the chemical , physical , and biological integrity of the Nation’s waters” 84—which is as applicable to EPA’s NPDES jurisdiction as to USACE’s dredge/fill jurisdiction. Nothing about significant nexus analysis inherently limits its application to USACE jurisdictional analysis or to WOTUS analysis,85 and its case of origin, Rapanos, is more analogous to County of Maui than it may initially appear.

At issue in both Rapanos and County of Maui are the jurisdictional limits of CWA permitting. Although framed differently, Rapanos is, like County of Maui, about a standard that governs the necessary level of connection between a discharge and a traditionally navigable water.86 From an agency perspective, the classifications are analogous. USACE’s jurisdiction, which concerns dredge/fill operations, is necessarily focused on which waters may be protected because of their connection to traditionally navigable waters. EPA’s jurisdiction, which concerns discharges from typically stationary sources, is necessarily focused on which sources may be controlled because of their connection to traditionally navigable waters.

Indeed, wetlands hydrologically and ecologically resemble groundwater more than most

traditionally navigable waters.87 Beyond the obvious shared lack of navigability , both wetlands

and groundwater are often connected to other waters through multiple diffuse interfaces , rather than one or a few defined channels. Both can store pollutants and release them slowly over many years and both can perform chemical and physical filtration, cleaning water that moves through them.88 These shared features are all relevant to a significant nexus analysis, since each may affect the

transmission of pollutants to navigable waters.89 Application of the significant nexus test to the facts of this case is intelligible, appropriate, and would prioritize the protective purposes of the CWA.

VII. The Significant Nexus Test Answers County of Maui’s Question

The significant nexus test addresses the jurisdictional question in County of Maui, and unlike functional equivalence, the Court has articulated it enough to guide parties going forward. The Court’s question in County of Maui, “[w]hether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater,”90 implicates not only groundwater discharges but all discharges that move indirectly from point source to navigable water. The functional equivalence test was not the only or best option to address this question: it was plucked from the ether and crafted too narrowly.91 The significant nexus test would provide a better match for the full range of indirect discharges, draws directly on the CWA’s text,92 and already partially defines EPA’s authority.93 Numerous courts have interpreted the significant nexus test.94 Agencies and dischargers have relied on the test to make and dispute jurisdictional and enforcement claims.95 In short, the significant nexus test could have effectively answered the question before the Court and would have provided a similar result with better prudential ramifications.

VIII. Benefits of Applying the Significant Nexus Test to CWA Problems

Although circuit precedent has developed some particulars of the significant nexus test, further

articulation from the Supreme Court would improve the clarity and predictability of CWA

jurisdiction. Since Rapanos, no case before the Court has provided an opportunity for such

articulation.96 County of Maui provided not only an opportunity to clarify inconsistencies in lower

courts’ administration of Rapanos, but an opportunity to examine the district court’s application of the significant nexus test to the facts of this case. Thus, the Court could provide analysis of the significant nexus test’s application and substance honed through direct response to preexisting analysis.

CWA jurisdiction is a conundrum for private parties ,97 in part because the Court has not clarified

its confusing holding in Rapanos. Although EPA and USACE have promulgated regulations that

guide jurisdictional determinations, confused precedent makes it unclear which legal standard

will ultimately guide determinations in locations with attenuated connections to navigable waters .

Judges are confused by the problem of which Rapanos test to apply in a WOTUS analysis,98 and at least one circuit has taken the approach of avoiding the question altogether, conducting their analysis under the standard that parties have mutually agreed to.99 The EPA has also changed its tune: 2015’s Clean Water Rule100 was based around the significant nexus test, while 2020’s Navigable Waters Protection Rule101 was based around Justice Scalia’s limits on ephemeral flow.

While providing binding precedent on the controlling ‘navigable waters’ standard is beyond the scope of County of Maui,102 the Court could have signaled that the significant nexus test is broadly

applicable for determining federal jurisdiction over waterborne pollution . Such a signal would

settle existing circuit precedent, since most circuits favor the significant nexus test but remain at

least somewhat undecided on their application of Rapanos, and no circuit applies Justice Scalia’s test alone.103 The application of the significant nexus test in County of Maui would have hacked a clearer

path through the thorny problem of interpreting Rapanos’s precedential value, giving courts more doctrinal space to focus on developing the particulars of the test itself. Additionally, the inclusion of the significant nexus test in indirect discharge cases would provide additional opportunities for articulation, leading to additional clarity.

The functional equivalence test does the opposite , creating a new source of uncertainty for

landowners and other dischargers . Neither the functional equivalence nor the significant nexus tests can be effectively administered without expert guidance, and anyone who is uncertain whether they need a permit will find resolution only through a jurisdictional determination.104 But most potential dischargers will be doing their best to come to an independent conclusion before this formal process occurs. In this, they will now face two challenging standards, which will overlap in some but not all instances.

Owners of wetlands, arroyos, or other pieces of geography with uncertain connections to navigable waters must now ask first, could this location have a significant nexus to a navigable water, and second, could a point source discharge here be functionally equivalent to a direct discharge? The answer to these questions may often be the same; but that is true of the significant nexus test and Justice Scalia’s Rapanos standard as well. The problem is that it is unclear when these tests will yield different results. What is more, there exists no agency guidance on how functional equivalence will be administered , while

there exists more than a decade of precedent for how EPA and USACE might administer the

significant nexus test . 105

As the final blow, the Court’s abiding focus on groundwater has led to a standard tailored to address indirect discharges through groundwater but applied to all indirect discharges. Since travel through groundwater is not the only indirect means of reaching navigable waters, potential dischargers must also wonder: Will this standard in fact control all indirect discharges? Or will the EPA or lower courts apply the functional equivalence test’s current form to groundwater and seek out other “potentially relevant factors” when they consider “factually different cases”?106 The significant nexus test, designed for the CWA’s broad purposes and well-suited to consider any potential connection between point source and traditionally navigable waters, does not have this problem. By eschewing the significant nexus test, the Court leaves interested parties “at sea.”107

Status quo water federalism cannot accommodate the escalating impacts of climate change – the affirmative recognition of hydrologic connectivity is necessary for successful adaptation effortsLindsey 15 (Max Lindsey, J.D. Candidate, Albany Law School, “When Every Drop Counts: Addressing Hydrologic Connectivity as a Climate Change Issue,” 2014/2015, 78 Alb. L. Rev. 623, 631-645)

IV. Legally Recognized Examples of Hydrologic Connectivity and How They Address Climate Change One constant feature in addressing any water

rights issue is the fragmentation of regulatory bodies controlling this resource. The water rights federalism has

traditionally allowed federal regulation of navigable waters, while "states' rights federalism is most

prominent in the area of water rights allocation … ." Each respective state may create its own system for

allocating respective water rights for its peoples' consumptive use. These water allocation schemes can vary widely from region to region depending on water's importance to the community and the scarcity or abundance of water, and do so independent from neighboring

resource management. Without regard for the big picture , each [*632] region's water use affects the next .

Taking a closer look at two systems that incorporate hydrologic connectivity into their water allocation schemes provides an understanding of why the impacts of climate change need to be addressed in such systems and how potential problems may arise if climate change is not a part of the conversation. A. Wyoming Increased urban expansion leading to rising need for fertile cropland, coupled with decreased precipitation and increased average temperatures, has produced an urgent call for the Western United States to consider adaptive management of its water resources. Wyoming is on the leading edge of this transition, as it has traditionally had a healthy amount of mountain snow, numerous stream systems, and a high amount of agricultural irrigation at its disposal. In order to protect these resources, Wyoming has codified hydrologic connectivity by stating: "Where underground waters and the waters of surface streams are so interconnected as to constitute in fact one source of supply, priorities of rights to the use of all such interconnected waters shall be correlated and such single schedule of priorities shall relate to the whole common water supply." The legislature recognized the need to include this concept in its water planning, noting that "the use of underground water is approaching a use equal to the current recharge rate … [and g]round water levels are declining or have declined excessively … ." This recognition is an important first step in preserving the full value of Wyoming's precious water resources, but this task has proven a difficult challenge. Importantly, this statute recognizes that the State's groundwater resources are in jeopardy, even when judged by historic levels and not accounting for the future impacts that climate change is likely to have. The Wyoming statutes have been interpreted through cases as [*633] well as administrative actions. Perhaps the most definite description of hydrologic connectivity has been in court proceedings regarding the North Platte Decree in 1984: "A hydrologically connected groundwater well is one that is so located and constructed that if water were intentionally withdrawn by the well continuously for 40 years, the cumulative stream depletion would be greater than or equal to 28% of the total groundwater withdrawn by that well." This so-called "28/40 standard" has been used to assess new groundwater developments in the North and South Platte Basins of Wyoming, which may not be granted if they would lead to increased depletion of those rivers. An obvious problem with the North Platte Decree's 28/40 standard is that it is measured based on current and historic data of water availability and aquifer regeneration. As precipitation levels change, regeneration rates of aquifers also change along with the water availability to wells and streams. Relying on a presumption that a given aquifer and surface water source will have the same hydrologic connection for a forty-year period is not a likely scenario with the imminent impacts of climate change. For example, if a well is dug near a river that has a maximum water level below the water table due to high amounts of precipitation and snowmelt, and is thus a gaining stream, such a well will not diminish the water levels in the nearby river. However, if the precipitation and snowmelt patterns of the area are altered as a result of climate change and the aquifer is not replenished to its historical levels, the water table may drop below the level of the river, turning it into a "losing stream." This potential change in [*634] the water table level would consequently cause the pumping from the well to diminish the amount of water in the river. Wyoming recognizes this potential for change and allows an appropriator of surface water to file a complaint alleging interference to their water rights, thus prompting a new investigation to determine if the ground and surface water withdrawals are connected. This option for reopening the investigation of a well's impact on surface water at times other then when it is first dug allows for some adaptation to changing climate factors, but the reconsideration still relies on measurements of current water conditions and fails to look forward to the likely changes coming to the water systems. Even with this statutory recognition of hydrologic connectivity, the presumption in Wyoming is that no interconnection exists unless it has been previously shown or the water is being pumped from an obvious alluvial well. The presumption that ground water is not connected with surface water favors the consumptive use of ground water since it would not be subject to surface water regulations absent proof of such connection. The presumption, however, does not lead to the most efficient use of the available water supply. This presumption against connectivity can lead to over-allocation of a region's water resources. If an unknown connection does exist, then the water would be allocated as a [*635] groundwater resource and again through surface water allocation, thus hastening the use of the area's water supply. Even absent a presumption against connectivity, over-allocation can also occur from different approaches to addressing hydrologic connectivity, as seen in New Mexico. B. New Mexico The New Mexico Supreme Court recognized the concept of hydrologic connectivity in Templeton v. Pecos Valley Artesian Conservancy District, and thus established the Templeton doctrine. The Templeton doctrine defines a specific hydrologic circumstance where junior wells intercept groundwater that previously discharged to the surface, thereby depriving a senior appropriator of their water right. To address this circumstance, [the] Court in Templeton fashioned an equitable remedy to allow senior surface water appropriators, impacted by junior wells, to timely reassert their priority by drilling a supplemental well. Through the well, the senior surface right owner can supplement existing surface supply, if any, by drawing upon groundwater that originally fed the surface water supply. Although the New Mexico prior appropriation doctrine theoretically does not allow for sharing of water shortages, the Templeton doctrine permits both the aggrieved senior surface appropriator and the junior to divert their full share of water. In Templeton, the drilling of a junior well transformed the stream from a gaining stream to a losing stream. In order to compensate [*636] the senior well owner for this loss of surface water, the court allowed for the drilling of a new well to supplement the surface water allocation with groundwater withdrawals. This construction of rights places a firm importance on prior appropriations and little to no importance on adapting to changing hydrologic conditions. The results from applying the Templeton doctrine may lead to over-allocation of water resources. In applying this rule, the State Engineer has required well owners to retire existing rights to consumptive use of surface water in order to counter the stream depletion caused by its wells. Thus, this system may allow "tributary groundwater appropriators to buy their way out of their stream depletion" and could dry up a stream if tributary groundwater withdrawals are not limited beyond the influences of the market. Although this doctrine has been applied sparingly, the preference it places on existing appropriations and inflexibility in dealing with changing hydrologic conditions shows a vulnerability to adapting to the impending realities of climate change, and therefore places a dangerous and unhealthy strain on the natural system. Just as the recognition of hydrologic connectivity was seen as a necessary, albeit slowly accepted, concept to implement in water management, the same can be said about addressing hydrologic connectivity through a climate change lens. V. Why Adapt Hydrologic Connectivity to Climate Change? Even though the amount of water that is applicable to management by hydrologic

connectivity may seem relatively small compared to other problems facing water resource managers, every drop counts in this time of

water shortages and looming uncertainties . In fact, about thirty percent of all fresh water on Earth, and

around twenty-three percent of fresh water used in the United States, is in the form of groundwater . As noted earlier, [*637] nearly all

groundwater is eventually connected to surface water. Thus, in order to effectively manage all available water , hydrologic

connectivity must be included in the equation. Looking into the future, nearly all environmental management decisions

must be made in the context of climate change and include both mitigation and adaptation measures . Even

with hydrologic connectivity being recognized across the nation as an aspect of the water system ,

this understanding needs to evolve with the impacts of climate change because "quantifying one aspect of a resource a

single time does not provide enough information regarding the effects of changing conditions on water resources to enable good management decisions." As our population continues to expand , development occurs in places that may not naturally be able to provide

necessities such as water to the human population. Tensions between conflicting water rights are constantly

increasing, and the law needs to adapt to allow the most efficient use of water possible. The disjointed approach to allocating water rights

throughout the nation has left gaps in water rights that lead to wasteful water use . The explosion of human

development stretching outside of urban areas has placed increasing demand on water institutions with low-density housing developments (sprawl), leading to many problems with water allocation. The majority of these developments are chosen for their proximity to urban centers and often disregard the necessities [*638] that are required to support the growing populations. Many areas of sprawl have developed beyond the capacity of the water supply, and in several instances the existing water supply cannot even support water allocations for every resident to receive a supply of water for reasonable use. Scholars have been pushing for a movement to center new development in areas that have ample resources and infrastructure to support the growth. As the push for adaptive water management emphasizes, all aspects of the water system must be understood and evaluated in order to sustain growth in accordance with our limited natural resources. VI. How to Effectively Implement the

Idea of Addressing Hydrologic Connectivity Through Climate Change Implementing water planning regimes that address hydrologic connectivity through a climate change lens "may be challenged as unauthorized by law , may fail to be

implemented effectively or even at all, or may lack necessary accountability and assessment measures." The amount of time and knowledge required to implement adaptive water regulation institutions makes it difficult for regulators to keep up with evolving science and information while still looking toward the future. Further, the fact that human use of water does not generally differentiate between using ground or surface water, other than the comparative availability of one over the other, is an impediment to understanding each independent aspect of water supply and its connection to climate [*639] change. The previously discussed examples of legal recognition of hydrologic connectivity, while taking a step to manage the entire water system as a whole, utterly fail to allow adaptive planning in preparing for and reacting to the effects of climate change. The Wyoming statute fails to define "so interconnected" in relating ground and surface waters. Even relying on the 28/40 standard established in the North Platte Decree, this evaluation relies heavily on calculations based on water flows being consistent with historical data. Moreover, the presumption against connectivity places an importance on maintaining traditional appropriation levels instead of working to properly allocate and make the most of every drop in the water cycle. Requiring well applicants to test proposed ground water withdrawals for connection to surface water would provide for a real time, instead of historically based, evaluation of a proposed well's impact on surface water flows. While this requirement may put an initial burden on the development of water systems, if a comprehensive collection of hydrologic information were established, then such determinations could be made by inputting data into an established

inventory. The adaptive management of water resources requires a holistic approach to identifying

and understanding each element of the water system , from precipitation amounts to evaporation rates to relative rates of local

aquifer recharge. Since independent water systems are unique throughout the country, there must be a movement to work locally on water issues and collaborate ideas and examples with other regions. Gaining an understanding of the underlying hydrogeology of an area can help provide the necessary information required to most

efficiently use water resources. Having an entity , such as the USGS , to amass and assess the [*640] requisite information to make fully informed decisions on water management is a necessity. Such an inventory would allow regular updating of water allocations based on the local recharge, evaporation, and precipitation amounts. If a substantial inventory of necessary water table information were readily accessible, then water allocation amounts could be more easily tailored to adapt to current conditions and predict future shortages and surpluses. For example, if the relative recharge rate and extent of recharge area of an aquifer were well-known and available, water resource management could combine that data with the measured precipitation in the aquifer recharge basin to determine how much water is actually available. In water-stricken areas such as the Desert West, this would mean allowing water withdrawals in accordance with the amount of recharge in a given year. This would allow aquifers to remain at constant levels, and in periods of higher precipitation and quicker recharge, this deeper understanding of the hydrogeology would allow planning in advance to save water in times when it may not be prudent to allocate every drop of water in an aquifer. Including [*641] areas with a known hydrologic connection in such an inventory would further allow a more precise computation of how much water was available in an aquifer. As the USGS points out: Assessing water availability involves understanding the storage and movement of water through the cycle, and this understanding can be achieved only through a robust system of observation networks and basic assessment tools that allow users to quantify each component of the cycle and assess trends in those components through time. If a connection exists, then as precipitation and evaporation rates change the amount of gain or loss from an aquifer to surface water will be affected. If an extensive inventory is available with the necessary information on record about the hydrogeology of a given region, then simple observations and calculations will be able to determine the appropriate amount of water in a given basin to be safely

appropriated in order to respond and react to the uncertainties of climate change. Just as the USGS already maps many aspects of subterranean geology, a mapping of hydrologic connectivity and relative aquifer [*642] recharge rates in water basins throughout the country

would be an essential addition to the knowledge base for water allocation . This increased base of knowledge is

necessary to effectively predict the likely impacts of climate change because "prediction relies on mathematical or physical models that capture the essential elements of the water-resources system." The USGS mapping program coupled with subsidiary state geologic surveys strive to fully achieve several listed objectives. The priorities of the federal mapping program are focused on serving areas that have single-and multiple-issue needs for mapping; areas "where mapping is required to solve critical earth science problems," and to aid the needs of the Department of the Interior and other land management agencies. In connection with the broader priorities of the federal program, the state component serves priorities that are more narrowly tailored to the individual geologic resources and interests of the State. Establishing an inventory of local and regional hydrologic data is not beyond the scope of current technology and mapping equipment. Certain water basins have already taken the opportunity to map groundwater flow in their given districts, illustrating the possibility of having important hydrologic data available for all areas. The Portland River Basin conducted one of the most inclusive assessments of hydrogeology, with many of the elements previously mentioned. This study included analysis of geologic setting; groundwater systems such as well inventory, spring inventory, and streamflow measurements; classifications of different hydrogeologic units in the basin; hydraulic characteristics of each unit; relative aquifer recharge rates; groundwater movement; discharge from springs, streams, pumpage from wells and evapotranspiration; and [*643] site specific water-level fluctuations. Despite this being one of the most inclusive collections of hydrogeologic data, the study concluded that even more data would be required for a full understanding of the water basin: The work done in this study has allowed the identification of several types of data that will be required for future ground-water studies. Development and improvement of ground-water flow models for the aquifer system in the basin will require temporal and spatial water-level and pumpage data. A summary of data needs follows: (1) A long-term observation-well network could be established and maintained to provide data for future studies. This network could document changes in water levels with respect to time. Short-term water-level data collected during this study indicate that water levels may be declining in large areas of southern Clark County, Washington, and in Clackamas County, Oregon. Wells in the network could be selected with regard to areal distribution, appropriate well construction, historic record, and representation of all aquifers. (2) Synoptic water-level measurements, similar to those made in this study, could be made to document changes in the ground-water flow directions. (3) Pumpage data, especially for public-supply and industrial users, could be collected so that yearly ground-water use estimates could be facilitated. Given that this compilation of data is one of the most complete listings of hydrogeologic data and the authors still recognize that more information is necessary, this illustrates that the traditional, bare-bones approach to hydrogeology inventorying is not adequate for effective adaptive management of entire water basin systems. The USGS surveys of underlying formations already indicate whether an area is overlain with an impervious natural soil or formation, such as clay. These inventories should also include impervious land due to

construction, paving, and other human-created impediments to aquifer recharge. While the underlying [*644] composition of the geology of an area is relatively unchanging and thus an analysis will remain pertinent and effective for several years, an inventory of human created impervious land would need to be continuously updated to respond to development changes. This could be applied to the underlying geologic maps as an overlay that allows for a fuller understanding and calculation of actual groundwater recharge rates. Updating this periodically would provide for a more comprehensive understanding of the resources actually available in aquifers. Information and understanding of the entire hydrologic system is the key to providing the most comprehensive understanding and efficient use of available water. This comprehensive hydrologic data collection must then be analyzed in conjunction with ongoing water withdrawal and consumption. Using all available information regarding the number of wells in a given aquifer and the rate at which these wells are being pumped would allow water management to adapt to changes in the relative consumptive use/recharge rate of a given aquifer. The adaptive management of our precious water resource is a necessary approach to continuing effective and beneficial use for those who depend on water. VII. Conclusion As more knowledge about the implications of climate change on our water system becomes available, it is more evident that such effects need to be managed in order to save our water system. This process will need to include historical climate and hydrologic data, as well as a forward looking approach to dealing with future [*645] issues. This process needs to be a comprehensive approach to evaluating every element of the water

system, including hydrologic connectivity, in a climate change light. The adaptation to climate change is a long road that

requires a multifaceted approach to each of the individual elements present in the water system. While there have already been significant

advancements in several states' water management systems to adapt to climate change, there are still a significant number of states

that do not recognize any elements of climate change in their water regimes and even fewer that

are inclusive enough to understand geologic connectivity through such a lens. Through implementing a program to inventory several aspects of

important hydrologic and geologic aspects in addition to the existing topology, bedrock, and soil analysis that the USGS already has in place, it will be possible to understand the interworkings of independent water basins in a comprehensive manner. After this understanding is established, precipitation, water usage, and other aspects of water supply can be applied to existing hydrologic data to provide a moldable water allocation system that can effectively react to annual and future changes to supply instead of mechanically relying on historical data that has left us high and dry. In developing policies recognizing the impacts that climate change plays on the connection between "groundwater and surface water, our springs will bubble and our rivers will flow" long into the future.

Clean Water

Uniqueness

2AC A2 “Squo Solves”

SCOTUS ruling in Maui creates regulatory uncertainty over Clean Water Act standards – this impacts new EPA rules as well Tohan 20 (Ankur K. Tohan, former assistant regional counsel for the U.S. Environmental Protection Agency, “Muddied Groundwater: New Supreme Court Test Adds Confusion and Uncertainty to Clean Water Act Permitting Jurisdiction,” 4-28-20, https://www.klgates.com/muddied-groundwater-new-supreme-court-test-adds-confusion-and-uncertainty-to-clean-water-act-permitting-jurisdiction-04-28-2020)

On April 23, 2020, the U.S. Supreme Court announced its much-awaited decision in County of Maui v. Hawai’i Wildlife Fund on whether the Clean Water Act (CWA) regulates the discharge of pollutants that pass through groundwater before reaching waters of the United States. The Court found that such discharges are subject to CWA permitting and enforcement if they are the “functional equivalent of a direct discharge.”1 The Court conceded that its test is nebulous and will require intensive factual inquiry to determine if a discharge through groundwater is the functional equivalent of a direct discharge. The Court stated that agencies will need to develop guidelines and courts will have to use their discretion in applying the new standard. The only meaningful guide the Court offered is a non-exhaustive list of potentially relevant factors to consider, of which time and distance are likely most important, to determine when a pollutant discharged through groundwater to waters of the United States is subject to CWA permitting requirements. The U.S. Environmental Protection Agency (EPA), state agencies with delegated CWA authority, and courts will all struggle to determine where the line is drawn between discharges from a point source that are subject to CWA permitting requirements, and those that fall outside the scope of federal authority. Meantime, the regulated community —

including agriculture operations , public and private wastewater treatment facilities, utilities and

energy companies , developers and other sectors—should prepare for a period of regulatory

uncertainty regarding whether or not their operations or activities are subject to CWA permitting and enforcement.

--1AR UQ: Uncertainty Now

Functional equivalent test creates uncertainty Tohan 20 (Ankur K. Tohan, former assistant regional counsel for the U.S. Environmental Protection Agency, “Muddied Groundwater: New Supreme Court Test Adds Confusion and Uncertainty to Clean Water Act Permitting Jurisdiction,” 4-28-20, https://www.klgates.com/muddied-groundwater-new-supreme-court-test-adds-confusion-and-uncertainty-to-clean-water-act-permitting-jurisdiction-04-28-2020)

COURTS AND EPA ARE LEFT TO FILL THE VOID CREATED BY THE FUNCTIONAL

EQUIVALENT TEST Unfortunately for the regulated community, there is no bright line test delineating regulated discharges through groundwater and discharges that falls outside the ambit of the CWA permitting regime. Justice Alito, authoring one of the opinion’s two dissents questions “[j]ust what is the ‘functional equivalent’ of a

‘direct discharge’”?12 Justice Alito stated that majority “makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application .”13 Justice Alito may well be right. The functional equivalent test is necessarily factually intensive and will have to be handled on a case-by-case basis. Similar to the Court’s last foray into CWA jurisdictional questions in Rapanos v. United States (where the Court announced its “significant nexus” and “relative

permanence” tests),14 the County of Maui decision will lead to unpredictability for the regulated

community and potentially conflicting interpretations of the functional equivalent test . As the Court notes, guidance on this issue will likely come from additional, fact specific court decisions and/or potential future EPA actions (e.g., guidance and/or rulemaking or a general permitting scheme). On remand, the Ninth Circuit may have the first opportunity to apply the functional equivalent test to the County of Maui wastewater treatment plant injection well discharges. Additionally, the Court’s decision has direct implications for an existing set of cases raising analogous CWA permitting issues to County of Maui, including discharges to groundwater from coal ash ponds, a stormwater retention pond, a resort’s wastewater treatment facility, and an unlined mine tailings basin.15 Looking forward, environmental groups may view the Court’s decision as a win (even though the Court declined to adopt the Ninth Circuit’s broad “fairly traceable” test) and likely will continue to file CWA citizen suits against dischargers to push this issue further in cases involving groundwater, subsurface seepage, and or other “indirect” discharges. To ameliorate the impacts associated with potential CWA enforcement suits, the Court noted that judges “can mitigate any hardship or injustice when they apply the statute’s penalty provision . . . so as to calibrate the Act’s penalties when, for example, a party could reasonably have thought that a permit was not required.”16 The regulated community potentially subject to CWA citizen suits, including possible injunctive relief and attendant litigation costs, are unlikely to take much solace in this, however. EPA is now on the clock—and likely in the best position—to offer the regulated community some quantum of certainty regarding the application of the functional equivalent test. At best, the “functional equivalent” test announced by the Court is similar to EPA’s direct hydrologic connection approach that the agency has applied for decades, and the EPA should therefore be well equipped to offer reasonable sideboards to the Court’s ambiguous new test.17 But EPA’s April 15, 2019 interpretive statement, issued in response to the Maui County case, disavowed this approach and the regulation of discharges via groundwater altogether. The Court’s decision summarily rejects EPA’s interpretive statement, sending the agency back to the drawing board to recast its policy in a manner that gives meaning and, one hopes, clearer guideposts to the new functional equivalent test. Another possible approach, and one that might offer the most certainty for select dischargers and industry sectors, is for EPA and states with delegated CWA permitting authority to develop general permits for categories of activities that are similar in nature. In any event, EPA’s efforts here will also come on the heels of its recently published Navigable Waters Protection Rule to define WOTUS, which is destined

for litigation in federal district courts throughout the country.18 One thing is for sure: EPA will have its hands full with complex CWA regulatory and permitting issues for the remainder of 2020. Meantime, the functional

equivalent test offers little more than regulatory uncertainty . Members of the regulated community will have to evaluate their own operations and development plans and consider whether those activities have the potential to result in the functional equivalent of a direct discharge.

Solvency

2AC A2 “Litigation”

Litigation doesn’t impair the effectiveness of the Clean Water Act – citizen enforcement via the courts is a primary method of creating compliance Babcock 4 (Hope M. Babcock, Professor of Law, Georgetown University Law Center, “The Effect of the United States Supr ect of the United States Supreme Cour eme Court's Eleventh Amendment Jurisprudence on Clean Water Act Citizen Suits: Muddied Waters,” 83 Or. L. Rev. 47-106, 2004)

Congress recognized that deputizing private citizens to enforce the CWA was essential for achieving

the Act's goal of "[ r]estoration and maintenance of [the] chemical, physical and biological integrity [of the]

Nation's waters."45 Courts have consistently recognized this fact of legislative intent,46 although recognizing at the same time that citizen enforcement of the Act was only supplemental to the enforcement role of the government.47 This is not to say that

granting private enforcement authority to citizens is without controversy-it is not.48 But few dispute that citizen-initiated litigation

has had a profound impact on the shape of environmental law .49 The workhorse of citizen suit litigation is

section 505 of the CWA. Nearly every environmental law contains a provision like that found in section 505.50 National , regional ,

and local environmental organizations as well as ad hoc groups and individuals concerned about a particular resource or

potential environmental harm have found their way to court to try and enforce federal mandates under those provisions. 51

Impact – Biodiversity

2AC A2 “Resilient”

Wetlands and the biodiversity they support are incredibly fragile – not easily replacedLangrand 21 (Michelle Langrand, writer for Geneva Solutions, “How muddy, mouldy ponds help fight climate change,” 2-5-21, https://genevasolutions.news/climate/how-muddy-mouldy-ponds-help-fight-climate-change)

Aside from being breeding grounds for blood-thirsty mosquitoes, ponds, swamps and other wetlands are important hotspots

for biodiversity and play a key role in protecting us from the effects of climate change. But they are also incredibly fragile

ecosystems in dire need of protection . Like every year, the second day of February went by without much fuss, despite

World Wetland Day marking the anniversary of one of the oldest environmental conventions. But these ecosystems, which have been under enormous pressure from human activity for centuries and now from global warming, provide crucial services for humans, such as improving the quality of our drinking water, says Tobias Salathe, senior regional advisor of the Geneva-based secretariat of the

Ramsar Convention on Wetlands. “If wetlands cease to exist , the ecosystem functions that they deliver to

humanity may simply not exist either,” he says. Why they matter. Wetlands are areas covered by water which are not very deep, such as swamps, ponds, lakes, rivers and mangroves. Initially spearheaded by ornithologists worried by the decline of migratory bird populations, the Ramsar Convention watches over the conservation and "wise use" of these unique aquatic ecosystems. Since its entry into force in 1975, 171 States have ratified the treaty and submitted over 2,400 wetlands to the list of protected sites. While wetlands only make up six per cent of the Earth's surface, they excel in keeping the planet from heating up. Research has found that all ponds combined can store as much carbon as the world’s oceans. This is because the rate at which organic material is buried can be as much as 20 to 50 times faster. They can also keep carbon locked up for long periods of time. Unlike other terrestrial vegetation such as leaves and branches, which release the emissions back into the atmosphere once they fall to the ground and break down, water plants get trapped in water covered soils, along with the carbon they have absorbed, and can remain like that for hundreds of years, as long as it does not dry out. Wetlands also help reduce the impact of climate-related events. Floodplains and swamps act as sponges and retain excess rainfall, preventing flood surges but also providing wildlife and humans with water during periods of drought. Coastal wetlands, such as mangroves, salt marshes, seagrass beds and coral reefs shield coastlines from the shock of tsunamis and storms. When wetlands fade away. The world's wetlands have declined by a third since the convention came into effect. This is mainly because of human activity. Around 15 per cent of the world's peatlands have been drained for agriculture, a number as high as 48 per cent when it comes to Europe and 95 per cent in certain countries like Germany, Salathe says. The situation in Switzerland is also worrisome. "In the past 200 years, Switzerland has lost 90 per cent of its wetlands, mainly due to urbanisation and agriculture," says Beat Oertli, professor at the Haute école du paysage, d'ingénierie et d'architecture de Genève, who specialises in small stagnant water bodies. This has contributed to loss of biodiversity but also to more flooding, he notes. Rising global temperatures are also putting enormous pressure on these water bodies, he adds.

"Climate change is happening too rapidly and biodiversity is not able to adapt that fast." As these inland water bodies

continue to disappear, this triggers domino-like negative effects . When they dry out, the organic material stored by

the soil begins to decompose, releasing methane, one of the gases with the strongest greenhouse effects. The surrounding

ecosystem, which depends on these water bodies, can also be at risk of collapsing . Dried out peatlands, which represent only

0.5 per cent of the Earth's surface, emit as much as five per cent of total greenhouse gases, Salathe notes. Ponderful, a six million euros EU-funded project in which Oertli is taking part, will be measuring the efficiency of small stagnant water bodies to trap carbon but also how much methane they would release if they were to become dry. More restoration and protection needed. Oertli argues that while Switzerland does a good

job on keeping track of its wetlands, more needs to be done to restore them, especially natural ones. "Currently, many of the wetlands

that are being created are artificial , for example when a pit is dug to extract gravel for the building industry. These new

wetlands are becoming more and more present in our landscape, but they do not compensate for the 90 per cent that we have lost,"

Oertli warns, adding that artificial ponds only bring half of the biodiversity compared to natural ponds. The Lac des

Vernes in Meyrin is a good example of what can be done, he notes. Opened to the public in 2017, the 2.5-hectare near-natural lake was built to collect the excess water from rainfall and prevent flooding. At the same time, it has brought a splash of green and many other colours that the inhabitants of the Geneva commune can enjoy. These types of projects make economic sense, according to Salathe, but have a hard time gathering support. "The real comparative economic analysis is seldom done to show that it may indeed be much cheaper in the long run to maintain or to revert a natural wetland, rather than build a dam for electricity production, or for water irrigation," he says. Salathe does feel that progress has been made in the 45 years since the convention and that there is a growing recognition of the services that these ecosystems provide,

but time is running out, he warns. As climate change accelerates and populations continue to grow,

wetlands only become more fragile .

1AR A2 “De-extinction”

De-extinction fails – resource intensity and ecosystem complexity doom the ideaEhrlich & Ehrlich 14 (Paul Ehrlich and Anne H. Ehrlich, “The Case Against De-Extinction: It’s a Fascinating but Dumb Idea,” 1-13-14, https://e360.yale.edu/features/the_case_against_de-extinction_its_a_fascinating_but_dumb_idea)

Reintroductions of surviving endangered species (which are vastly more important than attempted de-extinctions)

illustrate the complexity and scale of the task . Culturing and reinserting animals into nature is

already known often to require intense and expensive effort (consider the California condor), and even invasions of

“ natural” species (such as the first two introductions of starlings to North America) often fail to “take . ” And as National

Geographic photographer Joel Sartore has emphasized to me, zoos are already overwhelmed trying to breed endangered

species for reintroduction and thus facing triage conundrums about which species to save and which to let go. Allocating more effort there is far more essential than research into restoring a few prominent elements of earth’s biodiversity with laboratory-created

resurrections. De-extinction thus seems far-fetched, financially problematic, and extremely unlikely to succeed on a

planet continually being vastly transformed by human action. There are also risks beyond failure.

Resurrected , previously benign organisms could become pests in new environments, might prove ideal reservoirs or

vectors of nasty plagues , or might even harbor dangerous retroviruses in their genomes . But frankly, I think such problems will probably prove minor compared to the main problem, which is “moral hazard.”

Impact – Disease

2AC A2 “Burnout”

Burnout is wrongKarl-Heinz Kerscher 14, Professor, “Space Education”, Wissenschaftliche Studie, 2014, 92 Seiten

The death toll for a pandemic is equal to the virulence, the deadliness of the pathogen or pathogens, multiplied by the number of people eventually infected. It has been hypothesized that there is an upper limit to the virulence of naturally evolved pathogens. This is because a pathogen that quickly kills its hosts might not have enough time to spread to new ones, while one that kills its hosts more slowly or not at all will allow carriers more time to spread the infection, and thus likely out-compete a more lethal species or strain. This simple model predicts that if virulence and transmission are not linked in any way, pathogens will evolve towards low virulence and rapid transmission. However, this assumption is not always valid and in more complex models , where the level of virulence and

the rate of transmission are related, high levels of virulence can evolve . The level of virulence that is possible is instead limited by the existence of complex populations of hosts, with different susceptibilities to infection, or by some hosts being geographically isolated. The size of the host population and competition between different strains of pathogens can also alter virulence. There are numerous historical examples of pandemics that have had a devastating effect on a large number of people, which makes the possibility of global pandemic a realistic threat to human civilization .

2AC Mutations

Mutations make emerging diseases more deadlyFrieden 14 (Thomas R. – Director of the U.S. Centers for Disease Control and Prevention; Administrator of the Agency for Toxic Substances and Disease Registry; previously New York City health commissioner – “Why Global Health Security Is Imperative,” 2-13-14, http://www.theatlantic.com/health/archive/2014/02/why-global-health-security-is-imperative/283765/)

These threats come from three directions. Emerging diseases don’t just happen in the movies . Every day the CDC starts a new investigation; on average we turn up one new disease-causing organism every year. In 2011 we found three. As I write, the second wave of the deadly H7N9 avian flu is hitting China. We’ve been lucky that this strain hasn’t, yet, learned to pass easily from person to person. New diseases are inevitable, but new epidemics aren’t. ¶ Drug-resistant infections are the second

and perhaps most pernicious threat we face . Already the nightmare bacteria called CRE (carbapenem-resistant enterobacteriaceae), resistant to most or all antibiotics, have gone from a single patient in one state in the U.S. to at least 47 states and thousands of patients. Extensively drug-

resistant tuberculosis bacteria are another example of why the end of the antibiotic era is already close for some infections. When I was in charge of tuberculosis control in New York City in the early 1990s, I cared for a man with extensively drug-resistant tuberculosis. It took two years, surgery, extended periods of intravenous antibiotics, and more than $100,000 to cure him. A few years later, I helped his village in India set up a treatment program that would have prevented his resistant infection for less than $10.

2AC/1AR Disease Impact Ext.

Diseases end civilizationDavid Quammen 12, award-winning science writer, long-time columnist for Outside magazine for fifteen years, with work in National Geographic, Harper's, Rolling Stone, the New York Times Book Review and other periodicals, 9/29, “Could the next big animal-to-human disease wipe us out?,” The Guardian, pg. 29, Lexis

Infectious disease is all around us. It's one of the basic processes that ecologists study, along with predation and competition. Predators are big beasts that eat their prey from outside. Pathogens (disease-causing agents, such as viruses) are small beasts that eat their prey

from within. Although infectious disease can seem grisly and dreadful, under ordinary conditions, it's every bit as natural as

what lions do to wildebeests and zebras. But conditions aren't always ordinary. Just as predators have their accustomed prey, so do pathogens. And just as a lion might occasionally depart from its normal behaviour - to kill a cow instead of a wildebeest, or a human instead of

a zebra - so a pathogen can shift to a new target. Aberrations occur. When a pathogen leaps from an animal into a person, and succeeds

in establishing itself as an infectious presence, sometimes causing illness or death, the result is a zoonosis. It's a mildly technical term, zoonosis, unfamiliar to most people, but it helps clarify the biological complexities behind the ominous headlines about swine flu, bird flu, Sars,

emerging diseases in general, and the threat of a global pandemic. It's a word of the future, destined for heavy use in the 21st century. Ebola and Marburg are zoonoses. So is bubonic plague. So was the so-called Spanish influenza of 1918-1919, which had its source in a wild aquatic bird and emerged to kill as many as 50 million people. All of the human influenzas are zoonoses. As are monkeypox, bovine tuberculosis, Lyme disease, West Nile fever, rabies and a strange new affliction called Nipah encephalitis, which has killed pigs and pig farmers

in Malaysia. Each of these zoonoses reflects the action of a pathogen that can "spillover", crossing into people from other animals. Aids is a disease of zoonotic origin caused by a virus that, having reached humans through a few accidental events in western and central Africa, now passes human-to-human. This form of interspecies leap is not rare; about 60% of all human infectious diseases currently known either cross routinely or have recently crossed between other animals and us. Some of those - notably rabies - are familiar, widespread and still horrendously lethal, killing humans by the thousands despite centuries of efforts at coping with their effects. Others are new

and inexplicably sporadic, claiming a few victims or a few hundred, and then disappearing for years. Zoonotic pathogens can hide.

The least conspicuous strategy is to lurk within what's called a reservoir host: a living organism that carries the pathogen while suffering little or no illness. When a disease seems to disappear between outbreaks, it's often still lingering nearby, within some reservoir host. A rodent? A bird? A butterfly? A bat? To reside undetected is probably easiest wherever biological diversity is high and the ecosystem is relatively undisturbed. The converse is also true: ecological disturbance causes diseases to emerge. Shake a tree and things fall out. Michelle Barnes is an energetic, late 40s-ish woman, an avid rock climber and cyclist. Her auburn hair, she told me cheerily, came from a bottle. It approximates the original colour, but the original is gone. In 2008, her hair started falling out; the rest went grey "pretty much overnight". This was among the lesser effects of a mystery illness that had nearly killed her during January that year, just after she'd returned from Uganda. Her story paralleled the one Jaap Taal had told me about Astrid, with several key differences - the main one being that Michelle Barnes was still alive. Michelle and her husband, Rick Taylor, had wanted to see mountain gorillas, too. Their guide had taken them through Maramagambo Forest and into Python Cave. They, too, had to clamber across those slippery boulders. As a rock climber, Barnes said, she tends to be very conscious of where she places her hands. No, she didn't touch any guano. No, she was not bumped by a bat. By late afternoon they were back, watching the sunset. It was Christmas evening 2007. They arrived home on New Year's Day. On 4 January, Barnes woke up feeling as if someone had driven a needle into her skull. She was achy all over, feverish. "And then, as the day went on, I started developing a rash across my stomach." The rash spread. "Over the next 48 hours, I just went down really fast." By the time Barnes turned up at a hospital in suburban Denver, she was dehydrated; her white blood count was imperceptible; her kidneys and liver had begun shutting down. An infectious disease specialist, Dr Norman K Fujita, arranged for her to be tested for a range of infections that might be contracted in Africa. All came back negative, including the test for Marburg. Gradually her body regained strength and her organs began to recover. After 12 days, she left hospital, still weak and anaemic, still undiagnosed. In March she saw Fujita on a follow-up visit and he had her serum tested again for Marburg. Again, negative. Three more months passed, and Barnes, now grey-haired, lacking her old energy, suffering abdominal pain, unable to focus, got an email from a journalist she and Taylor had met on the Uganda trip, who had just seen a news article. In the Netherlands, a woman had died of Marburg after a Ugandan holiday during which she had visited a cave full of bats. Barnes spent the next 24 hours Googling every article on the case she could find. Early the following Monday morning, she was back at Dr Fujita's door. He agreed to test her a third time for Marburg. This time a lab technician crosschecked the third sample, and then the first sample. The new results went to Fujita, who called Barnes: "You're now an honorary infectious disease doctor. You've self-diagnosed, and the Marburg test came back positive." The Marburg virus had reappeared in Uganda in 2007. It was a small outbreak, affecting four miners, one of whom died, working at a site called Kitaka Cave. But Joosten's death, and Barnes's diagnosis, implied a change in the potential scope of the situation. That local Ugandans were dying of Marburg was a severe concern - sufficient to bring a response team of scientists in haste. But if tourists, too, were involved, tripping in and out of some python-infested Marburg repository, unprotected, and then boarding their return flights to other continents, the place was not just a peril for Ugandan miners and their families. It was also an international threat. The first team of scientists had collected about 800 bats from Kitaka Cave for dissecting and sampling, and marked and released more than 1,000, using beaded collars coded with a number. That team, including scientist Brian Amman, had found live Marburg virus in five bats.

Entering Python Cave after Joosten's death, another team of scientists, again including Amman, came across one of the beaded collars they had placed on captured bats three months earlier and 30 miles away. "It confirmed my suspicions that these bats are moving," Amman said - and moving not only through the forest but from one roosting site to another. Travel of individual bats between far-flung roosts implied circumstances whereby Marburg virus might ultimately be transmitted all across Africa, from one bat encampment to another. It voided the comforting assumption that this virus is strictly localised. And it highlighted the complementary question: why don't outbreaks of Marburg virus disease happen more often? Marburg is only one instance to which that question applies. Why not more Ebola? Why not more Sars? In the case of

Sars, the scenario could have been very much worse. Apart from the 2003 outbreak and the aftershock cases in early 2004, it hasn't recurred. . . so far. Eight thousand cases are relatively few for such an explosive infection; 774 people died, not 7 million. Several factors contributed to limiting the scope and impact of the outbreak, of which humanity's good luck was only one. Another was the speed and excellence of the laboratory diagnostics - finding the virus and identifying it. Still another was the brisk efficiency with which cases were isolated, contacts

were traced and quarantine measures were instituted, first in southern China, then in Hong Kong, Singapore, Hanoi and Toronto. If the virus had arrived in a different sort of big city - more loosely governed, full of poor people, lacking first-rate medical institutions - it might have burned through a much larger segment of humanity. One further factor, possibly the most crucial, was inherent in the way Sars affects the human body: symptoms tend to appear in a person before, rather than after, that person becomes highly infectious. That allowed many Sars cases to be recognised, hospitalised and placed in isolation before they hit their peak of infectivity. With influenza and many other diseases, the order is reversed. That probably helped account for the scale of worldwide misery and death during the

1918-1919 influenza. And that infamous global pandemic occurred in the era before globalisation. Everything nowadays

moves around the planet faster, including viruses. When the Next Big One comes, it will likely conform to the same

perverse pattern as the 1918 influenza: high infectivity preceding notable symptoms. That will help it move through cities and airports like an angel of death. The Next Big One is a subject that disease scientists around the world often address. The most recent big one is Aids, of which the eventual total bigness cannot even be predicted - about 30 million deaths, 34 million living

people infected, and with no end in sight. Fortunately, not every virus goes airborne from one host to another. If HIV-1 could,

you and I might already be dead. If the rabies virus could, it would be the most horrific pathogen on the planet. The influenzas are well adapted for airborne transmission, which is why a new strain can circle the world within days. The Sars virus travels this route, too, or anyway by the respiratory droplets of sneezes and coughs - hanging in the air of a hotel corridor, moving through the cabin of an aeroplane - and that capacity, combined with its case fatality rate of almost 10%, is what made it so

scary in 2003 to the people who understood it best. Human-to-human transmission is the crux. That capacity is what separates a bizarre, awful, localised, intermittent and mysterious disease (such as Ebola) from a global pandemic . Have you noticed the persistent, low-level buzz about avian influenza, the strain known as H5N1, among disease experts over the past 15 years? That's because avian flu worries them deeply, though it hasn't caused many human fatalities. Swine flu comes and goes periodically in the human population (as it came and went during 2009), sometimes causing a bad pandemic and sometimes (as in 2009) not so bad as expected; but avian flu resides in a different category of menacing possibility. It worries the flu scientists because they know that H5N1 influenza is extremely virulent in people, with a high lethality. As yet, there have been a relatively low number of cases, and it is poorly transmissible, so far, from human to human. It'll kill you if you catch it, very likely, but you're unlikely to catch it except by butchering an infected chicken. But if H5N1 mutates or reassembles itself in just the right way, if it adapts for human-to-human transmission, it could become the biggest and fastest killer disease since 1918. It got to Egypt in 2006 and has been especially problematic for that country. As of August 2011, there were 151 confirmed cases, of which 52 were fatal. That represents more than a quarter of all the world's known human cases of bird flu since H5N1 emerged in 1997. But here's a critical fact: those unfortunate Egyptian patients all seem to have acquired the virus directly from birds. This indicates that the virus hasn't yet found an efficient way to pass from one person to another. Two aspects of the situation are dangerous, according to biologist Robert Webster. The first is that Egypt, given its recent political upheavals, may be unable to staunch an outbreak of transmissible avian flu, if one occurs. His second concern is shared by influenza researchers and public health officials around the globe: with all that mutating, with all that contact between people and their infected birds, the virus could hit upon a genetic configuration making it highly transmissible among people.

"As long as H5N1 is out there in the world," Webster told me, " there is the possibility of disaster . . . There is the theoretical possibility that it can acquire the ability to transmit human-to-human." He paused. "And then God help us." We're unique in the

history of mammals. No other primate has ever weighed upon the planet to anything like the degree we do.

In ecological terms, we are almost paradoxical: large-bodied and long-lived but grotesquely abundant. We are an outbreak. And here's the thing about outbreaks: they end . In some cases they end after many years, in others they end rather soon. In some cases they end gradually, in others they end with a crash. In certain cases, they end and recur and end again. Populations of tent caterpillars, for example, seem to rise steeply and fall sharply on a cycle of anywhere from five to 11 years. The crash endings are dramatic, and for a long while they seemed mysterious. What could account for such sudden and recurrent collapses? One possible factor is infectious disease, and viruses in particular.

Federalism

Internal Link

2AC A2 “Local/State Better – Climate Change”

Local and state efforts on climate adaptation are fragmented – political hurdles and resource constraints impair the effectiveness of regional solutionsRai 20 (Dr. Saatvika Rai, assistant professor of environmental policy in the Department of Political Science and Public Administration, University of Toledo, “Policy Adoption and Policy Intensity: Emergence of Climate Adaptation Planning in U.S. States,” 2020, https://onlinelibrary.wiley.com/doi/am-pdf/10.1111/ropr.12383)

With climate change, extreme weather events in the U.S. are expected to increase in both frequency and

severity (IPCC, 2018). Disasters like hurricane Katrina (2005), floods in Iowa (2019), and the on-going droughts and wildfires in California,

all illustrate the high potential for damage to life and property caused by these disasters. Despite growing scientific evidence on climate change, there is limited federal action on mitigation (reducing GHG emissions) and adaptation (building resilience) in the country. Much like the historical pattern in environmental policymaking, states and local governments are filling the federal climate policy void by taking action on their own initiative (Rabe, 2008). A range of scholars have examined the development of climate policy in the U.S. (Wheeler, 2008; Rabe, 2010; Krause, 2011, Bromley‐Trujillo, Butler, Poe, & Davis, 2016; to name a few). Most of these studies focus on understanding climate mitigation

policies and emissions reduction programs among state and local governments. Climate adaptation, in comparison, is relatively underexamined (Javeline, 2014) [there are exceptions, like: Bierbaum, Smith, Lee, Blair, Carter, Chapin, et al., 2013, Koski & Siulagi, 2016;

Koski and Keating, 2018]. The politics surrounding adaptation is different from mitigation as adaptation does not present the same collective action problems. Resilience initiatives undertaken by a government, such as improved water storage infrastructure, will benefit its jurisdiction irrespective of whether other jurisdictions take similar measures. Conversely, mitigation measures to reduce emissions within the same jurisdiction would not necessarily result in benefits of reduced climate change impacts, if other governments and individuals do not

undertake similar measures (free-rider problem). This demands a separate investigation of climate adaptation. Additionally, climate

change poses various challenges of governance . As a ‘ wicked problem ’, policies to build

resilience or reduce emissions often involve complex scientific and technical information, and cut across

different agencies and bureaucracies . There are large risks and uncertainties, and these are spread over long timeframes,

spanning beyond a decade to the next 50 to 100 years (IPCC, 2018). Within the U.S ., these challenges are further

exasperated with the large partisan divide on the issue. This contentious nature of climate politics presents a unique

case to explore differences between symbolic and substantive policymaking (Krause, 2011). There is growing scholarship examining drivers of policy stringency (Carley & Miller, 2012, Bromley‐Trujillo et al., 2016) and examining the same through politics of climate adaptation will expand our understanding of the mechanisms at play. This article examines the factors that predict the emergence of State Adaptation Plans

(SAPs) in the United States. I ask two main questions – why are some states initiating adaptation planning while

others are not ? And do these predictors vary across policy intensity - states that set ambitious policy goals for more substantive outcomes

versus states that adopt limited goals as mere symbolic policymaking? I apply the Diffusion of Innovation (DOI) theory using two dependent variables. The first is a basic measure of policy adoption, noting if a state has adopted its State Adaptation Plan (SAP) or not. The second dependent variable captures the intensity of a state’s commitment to climate adaption by measuring the number of goals articulated in these plans. Using panel data from 2009 to 2015, I consider the relative influence of internal state characteristics, such as problem severity, citizen demand, state fiscal capacity and interest group pressures along with testing the impact of external pressure driving the development and level of

commitment to climate adaption. I find that states tend to adopt policies when faced with greater climate vulnerabilities, and are influenced by the prevailing ideology of the mass public . While there are differences between adaptation and mitigation policies, my results show that states with previous experience of mitigation were more likely to adopt adaptation plans. To adopt a mitigation policy, states would most likely have to cross policy hurdles associated with building consensus around climate change. While this consensus is not necessary to build resilience, benefits of creating acceptance tends to help build support for

adaptation as well. Policy intensity, on the other hand, is driven by interest group politics , fiscal capacity, and diffusion of

policy ideas. As states overcome the negative pressures from carb on intensive industries and adopt a

policy, the presence of greater number of environmental groups leads states to prepare more detailed and

stringent plans (Bromley-Trujillo and Poe, 2018). And these plans are more likely to have a higher number of policy goals in states with

greater resources to cover costs associated with implementing strategies. Additionally, once a state decides to adopt, they seem more likely to work with other states in their Environmental Protection Agency (EPA) region to prepare ambitious and comprehensive plans (Stoutenborough and Beverlin, 2008). It maybe that regional offices serve as conduits for information and sharing policy lessons such as resources,

scientific/climate data and recommendations for effective adaptation strategies. For highly salient and politicized issues like climate

change , the politics is definitely complex . My findings indicate that some policymakers maybe responding to forces such

as climate vulnerabilities and citizen demands, but are limited in their ability to act due to factors like insufficient

resources or substantial negative push-back from the carbon intensive industry . This is likely to

result in either inaction or mere symbolic efforts where policies are adopted (to please their constituents) but

without sufficient stringency of goals to build adequate climate resilience (responding to the industry). When

environmental group pressures are high, and states have more resources at their disposal, they are more likely to learn from other states and develop comprehensive adaptation plans aimed at creating substantive policy change. These finding advance our understanding of which factors are potential barriers and incentives for policymakers in decisions on climate adaptation planning.

--1AR Local Fails – Adaptation

Local government is ill-suited to tackling climate adaptation – too many competing prioritiesMeasham 11 (Measham, T.G., Preston, B.L., Smith, T.F. et al. “Adapting to climate change through local municipal planning: barriers and challenges,” Mitigation and Adaptation Strategies for Global Change volume 16, pages 889–909, 2011)

While the interest in local adaptation planning and policy highlights the relevance of local government

for adaptation , its ultimate role with respect to practical implementation of policies and measures is

dependent upon other actors within the governance network (Smith et al. 2009; Boydell 2010; Dovers and Hezri 2010). This raises questions regarding the extent to which the mantra that ‘adaptation is local’ truly applies when examined through the lens of governance. Local government , like other

institutions, operates within an ‘ institutional void’ ( Hajer 2003; Hajer and Versteeg 2005), where the

complexity of governance poses challenges to clear definitions of institutional roles and

responsibilities , resulting in ineffectual policy development . Crabbé and Robin (2006) comment that

the issue of climate change appears ‘ distant and cloudy’ amongst an already crowded agenda of

demands placed on local government by concerned citizens . Even in a single locality, the mandate of municipalities frequently extends from aesthetics to infrastructure, from parking to waste management (Wild River 2006; Pini et al. 2007). Furthermore, the mandate of local government is expanding, due to the shifting of responsibility from higher levels of authority to lower levels of authority, particularly from state and provincial authorities (Ivey et al. 2004). Such constraints to action may explain why the apparent interest in adaptation and adaptation planning hasn’t necessarily translated into the implementation of actions to reduce vulnerability (Repetto 2008; Ford et al. 2011; Berrang-Ford et al. 2011; Preston et al. 2011).

--1AR States Fail – Climate

State-driven efforts on climate fail – risk of race to the bottom and leakage are too highKaswan 8 (Alice Kaswan, Professor of Law, University of San Francisco School of Law, “A Cooperative Federalism Proposal for Climate Change Legislation: The Value of State Autonomy in a Federal System,” 85 Denv. U. L. Rev. 791, 2008)

In the absence of U.S. participation in the Kyoto Protocol and the absence of a comprehensive federal regulatory approach,' the states have taken the lead in adopting significant climate change initiatives.2 California's Global Warming Solutions Ace and the northeastern states' Regional Greenhouse Gas Initiative,4 as well as several other less specific or developed state and regional programs, have been critical.5 However,

initiatives to date are unlikely to reduce emissions sufficiently to address the threat of climate change.6 Furthermore, given the global

nature of climate change , future state initiatives are unlikely to provide a sufficient response . In

determining the appropriate jurisdictional level for regulation, scholars frequently refer to the "matching principle": that the jurisdictional level should match the scale of the environmental problem in question.7 Local environmental problems should be resolved at a local level, problems that cross state lines should be resolved nationally, and, presumably, problems that cross national boundaries, like climate change, should be resolved internationally. Matching the jurisdiction to the problem means that the jurisdiction can fully account for the net costs and benefits of

regulation. Otherwise, perverse results would ensue. For example, in the context of global climate change, states may be unwilling to regulate sufficiently because the costs of regulation-all internal-could exceed the benefits-benefits

necessarily shared with the rest of the globe. 9 Leaving action solely to the states also creates the risk of free riders , who

hope to benefit from other states' regulation but are unwilling to assume the costs themselves.' 0 States acting alone consistently fear " leakage ": that state regulation to control greenhouse gas emissions will drive economic activity to unregulated states, merely

relocating rather than reducing emissions." If the emissions simply shift location, then the regulating state would not have achieved its reduction goal and could, in the meantime, have suffered adverse economic consequences from its regulation. Leakage concerns are thus likely to chill state

action. A related concern is the race to the bottom , in which states forego or weaken desired environmental

regulation because they fear it could drive away business .12 In addition, in the climate change context, different

states perceive different internal cost/benefit alignments. Some states might perceive significant benefits from controlling greenhouse gases and not experience significant costs from its regulation.' 3 California, for example, is deeply concerned about the impact of climate change on its coastline, its water supply system, and its air quality. 14 In addition, given its strong technology sector, California anticipates net economic benefits from climate change regulation as the state develops the innovative technology necessary to transition away from a carbon-intensive economy.' 5 Moreover, California's control costs could be less than those of other states because it is not heavily dependent on coal, a significant source of greenhouse gases.' 6 Other states might foresee fewer short-term benefits from controlling greenhouse gas emissions, but expect significant costs.1 7 For example, a state that relies heavily on coal mining or burning is responsible for significant emissions, but would experience high costs of control and, at least in the short-term, might not find the benefits of regulation worth the costs. 18 These disconnects between the causes and consequences of enmissions, and the disconnects between the distribution of the costs and benefits of control, suggest that

reliance on the states could lead to significant under-regulation. 19 In light of the United States' unwillingness to take a global approach by ratifying the Kyoto Protocol, 20 the next-best approach, under the matching principle, would be federal regulation. A federal approach would require all states to address the out-of-state con sequences of their emissions and would reduce leakage among' the

states.2 Other arguments, in addition to the matching principle, support federal regulation . Rather than having each state

explore the greenhouse gas-reduction potential of each sector, it would be more efficient for the federal government

to research technological and operational opportunities.22 The federal government also has more

resources at its disposal2 3 In addition, although I argue for allowing state flexibility, the existence of a federal approach is likely to reduce the multiplicity of approaches to greenhouse gas regulation around the country. To the extent that many states simply follow the federal approach, without adding state-specific implementation measures, the number of diverse approaches would be reduced in comparison with a purely state-based approach.24 Finally, to the extent the federal government adopts a cap-and-trade program, a larger market could lower costs25 and increase

the fluidity of the market by creating more trading opportunities and smoothing out the consequences of local events.26 The nation thus

needs a federal approach to climate change.

2AC A2 “State/Local Better for Wetlands”

State water protection fails – they lack the requisite infrastructure – resulting in loss of wetlands leading to erosion and flooding Ward 20 (Adam S. Ward, Science Adviser for Eos and Riley Walsh, Indiana University, “New Clean Water Act Rule Leaves U.S. Waters Vulnerable,” 2-11-20, https://eos.org/opinions/new-clean-water-act-rule-leaves-u-s-waters-vulnerable)

Water Protection Now Falls to States

The contraction in federal protections under the NWPR means that each state will need to

determine what waters within its boundaries are no longer covered and whether adjustments are needed to its own current regulations. Some states may need to decide whether to continue enforcing their existing regulations that go beyond the now contracted federal rules. The agencies’ own economic analysis predicts several states will contract their protections to match those of the NWPR. Although other states may expand coverage, this process is not instant and will require scientific input and political will to achieve.

Notably, these states will also accrue costs as a result of ecosystem service loss. Wetlands have

historically been carefully protected because they not only provide important habitat , store floodwater, prevent shoreline erosion, and improve water quality but are also comparable to rain forests and coral reefs in productivity. These and other benefits have been estimated to generate up to $78,500 per acre each year [Costanza et al., 2014]. In states choosing to contract regulations to match those of

the federal government , the loss of wetlands and their associated ecosystem services will mean that

floods , water treatment , and erosion control will become more costly . Although the agencies’ recent economic analysis identified wetland loss as the single highest cost resulting from the NWPR, the value it estimated for wetlands was 80%–95% lower than values suggested by the agencies’ prior economic analysis of the Clean Water Rule [U.S. Environmental Protection Agency, 2015b].

One notable danger in shifting the regulatory power to the states is that most states lack the

policy infrastructure to handle these new responsibilities. For example, Michigan and New Jersey

are the only states that have opted to, and have been deemed capable by the agencies of, administering the federal wetland permitting program. In all other states, final permitting decisions for WOTUS wetlands have been made by the U.S. Army Corps of Engineers. In 48 states, the decision to maintain status quo wetland protections will necessitate hiring and training new staff to handle permit obligations. The administration’s economic analysis concluded that the NWPR will net cost savings for the federal government. However, this ignores real costs to the states. From the perspective of a taxpayer who wants to keep the previous level of water protections, there are new costs in having state and local agencies re-create enforcement and protection systems that existed nationwide a month ago.

In addition, there will be costs when issues involving interstate waters inevitably arise, whether these issues are addressed collaboratively or contentiously. Waters crossing state lines have been

regulated by the federal government for decades , reducing the potential for state versus state

legal disagreements. The elimination of these long-standing protections will undoubtedly result in legal costs undocumented by the economic analysis.

Impact – Climate

2AC A2 “Adaptation Fails”

Adaptation efforts can succeed BUT governance innovations are critical Klein 14 (Klein, R.J.T., G.F. Midgley, B.L. Preston, M. Alam, F.G.H. Berkhout, K. Dow, and M.R. Shaw, 2014: “Adaptation opportunities, constraints, and limits. In: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Field, C.B., V.R. Barros, D.J. Dokken, K.J. Mach, M.D. Mastrandrea, T.E. Bilir, M. Chatterjee, K.L. Ebi, Y.O. Estrada, R.C. Genova, B. Girma, E.S. Kissel, A.N. Levy, S. MacCracken, P.R. Mastrandrea, and L.L.White (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, pp. 899-943)

Understanding of how the adaptive capacity of societal actors and natural systems influences

the potential for adaptation to effectively manage climate risk has improved since the Fourth Assessment Report (AR4; very high confidence). Adaptive capacity is influenced by actors’ abilities to capitalize on available opportunities that ease the planning and implementation of adaptation as well as constraints that make adaptation processes more difficult for both human and natural systems. Opportunities and constraints are unevenly distributed among global regions, communities, sectors, ecological systems, and species as well as across different time periods. Recent studies have provided greater recognition of the role of private businesses in facilitating adaptation. However, much of the current knowledge about adaptation opportunities and constraints is dominated by insights from public institutions and community-based case studies. {16.2-5, Box 16-1} Opportunities exist to enable

adaptation planning and implementation for actors across all sectors and geographic regions (very high confidence). Adaptation guidance, information, and tools are increasingly available to practitioners operating in different sectoral, regional, and organizational contexts. Enhancing the

awareness of individuals , organizations, and institutions about climate change vulnerability ,

impacts, and adaptation can help build individual and institutional capacity for adaptation planning and implementation. However, addressing knowledge deficits alone is not sufficient to achieve successful adaptation. The development and provision of tools for risk and vulnerability assessment as well as decision-support tools and early warning systems can help actors prioritize adaptation needs and identify options that reduce vulnerability. Opportunities can also arise as actors learn from experience with climate variability and incorporate consideration for long-term climate change into disaster risk reduction efforts. Formal policies regarding infrastructure design standards or spatial planning can trigger adaptation action. However, many adaptation opportunities arise as ancillary benefits of actions implemented for reasons other than climate change. {16.2, 16.3.1, 16.5; Tables 16-1, 16-3; Boxes 16-1, 16-2, CC-EA} A range of biophysical, institutional, financial, social, and cultural factors constrain the planning and implementation of adaptation options and potentially reduce their effectiveness (very high confidence). Adaptation of both human and natural systems is influenced by the rate of climate change as well as rates of economic development, demographic change, ecosystem alteration, and technological innovation. Adaptation planning and implementation may require significant inputs of knowledge as well as human, social, and financial capital. Real or perceived deficiencies in access to such resources can and do constrain adaptation efforts in both developing and developed nations. Public and private institutions influence the distribution of such resources as well as the development of policies, legal instruments, and other measures that facilitate adaptation. Therefore, institutional weaknesses ,

lack of coordinated governance , and conflicting objectives among different actors can constrain adaptation. Cultural characteristics including age, gender, and sense of place influence risk perception, entitlements to resources, and choices about adaptation. Societal actors and natural systems may experience multiple constraints that interact. {16.2, 16.3.2, 16.5; Tables 16-2, 16-3; Boxes 16-1, 16-3}

Impact – Econ

2AC US K2 Global

US collapse triggers global collapse – trade, banking and currency reservesLagarde 13 (Christine Lagarde, Managing Director, International Monetary Fund, “The Interconnected Global Economy: Challenges and Opportunities for the United States—and the World,” U.S. Chamber of Commerce, 9-19-13, https://www.imf.org/external/np/speeches/2013/091913.htm)

The United States plays a unique role in the global economy . I am thinking, for instance, of global trade—of which the U.S. accounts for 11 percent. The U.S. also represents 20 percent of global manufacturing value-added. I know that you recognize the potential of an even bigger market. Tom and others at the Chamber have often referred to 95 percent of

your potential customers living “outside the U.S.” America’s global financial ties are even deeper. Foreign banks hold about $5½ trillion of U.S. assets, while American banks hold about $3 trillion of foreign claims.

Meanwhile, close to half of the S&P500’s sales originate from foreign operations. These interconnections have great benefits for the United States. But they are not without risks— two-way risks —and we saw some of these play out during this crisis. We all remember, five years ago, how the collapse of one U.S. bank ushered in a harsh new reality across sectors, across countries, and across the world. As those

tensions traveled across the Atlantic, for example, they exposed tensions in Europe. Considering that 20 percent of U.S. exports are destined for Europe, and that more than half of U.S. overseas assets are held in Europe, you clearly have a large stake in the recovery there. And yet, despite the risks, I know that you are also deeply aware of how much can be gained from engaging with the rest of the world. President Taft, who helped establish the Chamber, captured this when he said:

“I am in favor of helping the prosperity of all countries because, when we are all prosperous, the trade with each becomes more valuable to the other.” What was true in President Taft’s day is even more true in today’s interconnected world : a strong U.S. economy and a strong global economy are two sides

of the same coin .

2AC/1AR: Decline = War

Crises cause under-balancing – encourage aggressive revisionism – escalating miscalculated conflictsRoyal 10 (Jedediah, Director of Cooperative Threat Reduction at the US Department of Defense, MPhil from the University of New South Wales, Australian Defence Force Academy, “Economic Integration, Economic Signalling, and the Problem of Economic Crises,” in Economics of War and Peace: Economic, Legal, and Political Perspectives, Emerald Group Publishing Limited, p. 215-218)

The rationalist theory of war suggests that ‘war is costly and risky’ so rational states should have incentives to locate negotiated settlements that all would prefer to the gamble of war' (Eeatoli. 1995). However, states are not always able to find

negotiated settlements, and inter-state war doe s occur , often because states are uncertain about the private

information of other states, such as resolve and capabilities, which can lead to miscalculation ,

escalation and conflict . Costly signaling, including through the use of economic costly signals as described above, is a means of

overcoming uncertainty . However, economic costly signalling theorists have not described under what conditions economic costly signals are useful for settling disputes

short of the use of force. For example, how useful is signalling among divergent types of political systems (autocratic and democratic), economic systems (capitalist and socialist) and dependency levels (asymmetric and co-dependent)? Each of these conditions are worthy of further study. This section considers the impact of economic crises on the practicality of ECST. I propose that

economic crises have a dichotomous effect on the utility of economic costly signals . On the one hand, crises decrease the willingness of states to undertake economic costly signals because they are relatively more costly during crises. On the other hand, the very fact that they are more costly should increase the efficacy of such signals should they be used. However, the potential for states to 'underbalance' against foreign threats , including by declining to send economic costly signals, also increases as a result of economic crises. This tendency undermines the practical utility of ECST during and following economic crises. As economic growth becomes scarce, its value increases to states and their societies. Negative economic shocks, therefore, increase the costs of economic

costly signals, because those signals further undercut the prospects for economic growth at a time when it is scarce. A corollary of this argument would be that a state that enjoys strong economic stability can accept economic (trade and financial) costs vis-a-vis a potential adversary with less relative repercussion than an economically weakened state . At times of general economic growth, accepting some economic costs for the sake of national security is a more palatable policy adjustment than during times of economic weakness. Along with increasing economic (monetary) costs, the political costs of economic costly signals also increase as a result of economic crises. Economic stability is a key public good for which leaders of states, particularly in open societies, are held responsible. Given that leaders desire to retain power, and given that leaders consider their political survivability when crafting foreign policies (Bueno de Mesquita. Smith. Siverson. & Morrow. 2003). leaders are thus unlikely voluntarily to undermine economic recovery during and following economic crises. In other words, domestic political interests in economic growth are relatively stronger during an economic crisis, leading to a greater probability that a political leader would be punished by an electorate or selectorate for undermining foreign trade and financial linkages that promote

economic growth." This problem of increased costs ought to be particularly acute for states that increase their role in the economy as a mechanism of supporting economic recovery from a crisis.

That is, governments have a strong interest in immediate stabilisation of the domestic economy during a crisis. They may undertake interventionist policies such as economic stimulus packages, bailouts for vulnerable industries or even nationalisation of companies that are particularly important for the country's overall economic health. As a result, the involvement of the state in commerce, trade and financial flows tends to increase during economic crises as it takes a more activist role in directing the economy's recovery. In the most recent economic crisis of 2007-2009, French President Nicholas Sarkozy went so far to announce that 'laissez-faire is dead', an emotive claim that can be attributed to political posturing rather than historical clairvoyance. Nevertheless, it does poignantly convey how an economic crisis can draw governments into new levels of engagement and commitment in the private sector. The increasing government role in the economy can lead to a blending of national and private sector interests: governments want to protect their investments. The problem for economic signalling is that states begin to act on this new set of interests in their foreign policies. The government is incentivised to ensure public funds are not lost, reducing its willingness to allow the very industries it has propped up to suffer for the sake of foreign policy posturing. The result is a further internal constraining of a state's capacity to undertake economic costly signals. The link between changes in the amount of a government’s intervention in its domestic economy and changes in its foreign policy is an area

worthy for further study in the economic-security literature. Yet another perspective of how economic crises increase the costs of signalling can be observed among the broader international audience. Where many states depend on a single system for their economic well-being, the costs

of any one state signalling within that system impact the many. In periods of economic health, a costly move by one state would likely have little impact on the integrity of the system. However, during an economic crisis when the entire system is

under duress, adverse economic moves by those relatively important to the functioning of the entire system could be interpreted by third-party states as undermining their own economic well-being. This external constraint is thus manifested as diplomatic audience costs. Indeed, one could posit that the aggregate level of importance of an interdependent dyad to crisis recovery would be inversely related to their willingness to take punitive economic measures. Pressure by third-party states on the dyad to support the integrity of the system through continued integration would be at a maximum during a period of economic crisis. Although states may be less inclined to undertake economic costly signals, the simple fact that they are so costly during an economic crisis should indicate that, if undertaken, the signal itself will be more credible and thus more effective. A receiving (targeted) state that recognises the severity of the cost assumed by the sending state ought to be more convinced of the genuine nature of the signal. The efficacy of the signal is made stronger by the elevated cost. One can therefore come to the conclusion that economic crises strengthen the conditions for economic costly signals to be successful.

There is, however, another trend at play. Economic crises tend to fragment regimes and divide polities .

A decrease in cohesion at the political leadership level and at the electorate level reduces the ability of the state to coalesce a sufficiently strong political base required to undertake costly balancing measures such as economic costly signals. Schweller (2006) builds on earlier studies (see. e.g., Christensen. I996: Snyder. 2000) that link political fragmentation with decisions not to balance against rising threats or to balance only in minimal

and ineffective ways to demonstrate a tendency for states to 'underbalance' . Where political and social cohesion is

strong, states are more likely to balance against rising threats in effective and costly ways. However, 'unstable and fragmented regimes that rule over divided polities will be significantly constrained in their ability to adapt to systemic incentives: they will be least likely to enact bold and costly policies even when their nations survival is at stake and they are needed most'

(Schweller. 2006. p. 130). Papayoanou (1997) observes this tendency in British, French and American behaviour towards Germany in the 1930s. The Great Depression

led states to become inward-looking , prioritising domestic economic interests above external

national security threats . The inherent weakness in the disparate political outlooks that coincided with the economic crisis hindered their ability to balance effectively

against Germany. Indeed, in the case of Great Britain, Papayoanou indicates that even though the political elite wanted to break Britain's strong economic ties with Germany for fear of 'sleeping

with the enemy', a weak political base and relatively stronger interests in domestic economic growth bound the hands of the British government. Great Britain thus elected not to undertake economic costly signals despite the presence of a clear and growing threat . Papayoanou

(1997, pp. l14-ll5) concludes that when 'status quo powers have strong economic links with threatening powers, weaker balancing postures and conciliatory policies by status quo powers, and aggression by aspiring revisionist

powers , are more likely' . Underbalancing (in this case, by not sending economic costly signals) during economic crises is consistent with a growing body of literature on the influence of domestic 'veto players' on the decision to use force. Veto players are those vested interests within an electorate or selectorate that have the authority to resist change in status

quo policies. The tendency to under- balance is disproportionately strong in states with large numbers

of veto players, a situation more prevalent in democracies than autocracies . Where relatively higher numbers of veto

players exist within a polity, the opportunity to change status quo economic and trade policies, for example, through costly signaling, decreases (Tsebelis. 2002; Mansfield. Milner. & Pevehouse.

2008; St. Marie. Hansen. & Tuman. 2006: Maclntyre. 200l; Walsh. 2007). In summary, I hypothesise that the occurrence of an economic crisis increases the cost associated with ECST and thus decreases the willingness of states to send economic costly signals. Although the fact that increased costs should make the signal more effective, scholarship on underbalancing theory and veto player theory provide

rationale for why economic crises may inhibit the use of economic costly signals, even in the face of a

direct threat .7

2AC A2: Resilient

No resilience in the economy – stimulus and monetary responses to COVID-19 leave few policy tools to avoid future recessions SRG 20 (Swiss Re Group, one of the world's leading providers of reinsurance, insurance and other forms of insurance-based risk transfer, working to make the world more resilient, “Global resilience has taken a hit – these countries will bear the brunt,” 8-26-20, https://www.swissre.com/risk-knowledge/building-societal-resilience/global-resilience-taken-a-hit.html)

The global economy has suffered its biggest shock since the Second World War . When

coronavirus hit, we battened down the hatches and it’s driven us into deep recession . As countries begin to

emerge, they face a different landscape. Massive stimulus packages rolled out by hard-hit economies have

created a seismic shift . They may have softened the impact , but they have left us more exposed to

future economic shocks than before. According to initial figures from the Swiss Re Institute's Resilience Index 2020, we

estimate global resilience has dropped by a fifth in 2020 compared to 2019 levels. This is a comparable

fall to that seen during the 2008 Global Financial Crisis. But this time, the impacts have been far

more rapid : during the GFC, the same scale of decline took three years to materialise. In addition, we went into this recession less resilient

than in 2007 ahead of the GFC. And despite major bailouts and fiscal stimuli, lockdowns continue to hamper economic activity. In an uncertain global economy, resilience is key to building economic stability. Identifying weak spots at a macro and micro level will put us in a stronger position to manage risk. Alongside their resilience status prior to the pandemic, fiscal policies are likely to be

key in shaping the economic resilience of each country post-pandemic. But, even for some at the top half of the resilience index,

monetary policy buffers are all but exhausted . Many levers have already been pulled . This reduced space to manoeuvre means our preliminary 2020 rankings have seen some major shifts from 2019. Here are some of the most notable changes. United Kingdom From sixth place in 2019, we estimate that the UK will fall to 14th in the 2020 macroeconomic resilience index. The country’s fiscal package has been unprecedented, with measures amounting to in excess of GBP 190 billion by July. Widespread and costly interventions mean macro policy measures are mostly spent. This leaves the country very little policy space to respond to additional infection waves. It is set to witness a drop in its economic resilience score from 0.74 in 2019 to 0.41 – one of the biggest drops in the rankings. Brazil Like the UK, Brazil too has seen a significant decline in policy space. It is set to fall from 20th to 30th place in the index. Fiscal policy interventions have left it with less space than the average for both advanced and emerging economies. The country, which has been one of the worst hit by the pandemic, was already on a fragile economic footing. Policies introduced to aid its recovery from recession in 2015-16 had little time to bed down – or have seen their effects wiped out by stimulus packages. Even before the current crisis, the World Bank highlighted restoring fiscal sustainability as one of the most pressing economic challenges for the country. With insufficient time to rebuild its economic buffers the country is now one of the most vulnerable to shocks within our ranking. Japan Japan had virtually no monetary policy space going into the pandemic. Years of borrowing had already left the country debt-ridden and vulnerable. And heavy borrowing and spending to bolster the COVID-19-hit economy have further accentuated this position and widened the budget deficit. The recorded infection rate in the country has been comparatively low among others in the rich world. But, unlike many other rich countries, Japan's economic growth was already fragile and heading into for recession prior to the

pandemic. United States Like the UK and Japan, the US will face a steep economic contraction this year and see its

fiscal buffers depleted the most . It is set to fall from a 2019 index score of 0.80 to a 2020 score of 0.58. As a result, the US is likely to drop down the rankings to fifth place. However, the US's relatively small dip in the rankings masks the resilience divide between it and resilience champions such as Switzerland and Canada.

-- 1AR A2: Resilient

US economy remains fragile – recent progress could easily be reversed UN 21 (United Nations, Department of Economic and Social Affairs Economic Analysis World Economic Situation And Prospects: February 2021 Briefing, No. 146,” 2-1-21, https://www.un.org/development/desa/dpad/publication/world-economic-situation-and-prospects-february-2021-briefing-no-146/)

Global economic recovery remains precarious – the projected rebound of 4.7 per cent will barely offset

2020 losses Global economic outlook The World Economic Situation and Prospects (WESP) 2021 warns that the COVID-19 pandemic, which has delivered a heavy blow to economic

activities worldwide, may exert devastating long-run socio-economic effects, unless global policy responses can ensure a robust and sustainable recovery. Those actions should comprise smart investments in economic, societal and climate resilience, revitalization of global trade, avoidance of premature austerity policies and addressing widening inequalities. In 2020, world output shrank by 4.3 per cent, over three times more than during the global financial crisis of 2009. The modest recovery of 4.7 per cent, which is expected in 2021, would barely offset the losses sustained in 2020. The pandemic hit the developed economies the hardest, with an estimated output decline of 5.6 per cent in 2020, due to the strict and prolonged lockdown measures that were imposed in many European countries and some parts of the United States during the outbreak. The contraction was comparatively milder in the developing countries, with output shrinking by 2.5 per cent in 2020. The aggregate figure masks, however, significant regional variation (figure 1). East Asia registered positive, albeit low GDP growth in 2020, performing much better than all other developing regions. In contrast, Latin America and the Caribbean and South Asia experienced the sharpest declines in output. The least developed countries (LDCs) saw their GDP contract

by 1.3 per cent in 2020. The pandemic unleashed a severe employment crisis worldwide. By April 2020, full or partial lockdown measures

had affected almost 2.7 billion workers, representing about 81 per cent of the global workforce. Despite some improvement later in the year, unemployment rates in most countries still remain well above pre-crisis levels (figure 2). Job and income losses have pushed an estimated 131 million additional people into poverty in 2020, many of them women, children and people from marginalized communities. Women have been hit particularly hard by the pandemic, as they make up more than 50 per cent of the workforce in labour-intensive service sectors, such as retail

trade, hospitality and tourism, where working remotely is often not an option. In the United States, the national poverty rate, for example,

jumped from 9.3 per cent in June to 11.7 per cent in November 2020, while the total wealth of 644 United States

billionaires increased by 31.6 per from $2.95 trillion to $3.88 trillion. The growing income and wealth inequalities - not only in

the United States but also in most regions of the world - will breed further discontent , fray social cohesion and potentially

undermine recovery efforts . Reining in inequality will remain critical for steering a resilient post-crisis recovery. The long-term consequences of the crisis will be

equally severe. The pace of digitalization, automation and robotization is set to accelerate, further depressing labour demand in the medium term. While productivity will experience some growth in economic sectors embracing automation, average productivity growth will likely falter. Declining investments in fixed capital, low average productivity growth and lower labour-force participation rates are expected to weigh on potential output going forward. Massive and timely stimulus measures, amounting to US$12.7 trillion, prevented a total collapse of the world economy and averted another Great Depression. However, stark disparities in the size of the stimulus packages (figure 3) between developed and developing countries will put them on different trajectories of recovery. The stimulus spending per capita by the developed countries has been nearly 580 times higher than that of the least developed countries (LDCs), whereas the average per capita income of the developed countries is only 30 times higher than that of the LDCs. Financing these stimulus packages entailed the largest peacetime borrowing in history, increasing public debt globally by 15 per cent. This massive rise in debt will unduly burden future generations unless a significant part is channelled into productive and sustainable investment that stimulates economic growth. The fiscal measures have been complemented by unprecedented monetary responses. Since March 2020, 92 central banks have cut policy rates a total of 241 times. Many central banks implemented additional monetary and prudential measures to boost liquidity and ensure financial stability. A number of monetary authorities also announced changes in their monetary policy frameworks to enhance policy flexibility and improve monetary transmission. As many as 30 central banks worldwide are now engaged in direct asset purchases. The US Federal Reserve announced the unlimited purchase of government-backed debt and also started to buy corporate bonds for the first time, and so did the Bank of Japan. The European Central Bank is engaged in a €1.85 trillion emergency bond-buying programme. As a result, balance sheets of the leading central banks in developed countries swelled. Meanwhile, several developing country central banks have also started their own asset purchase programmes. However, rather than stimulating productive investment, the surge in global liquidity has contributed to the under-pricing of risk in financial markets, posing a threat to longer-term financial stability. The crisis has exposed and exacerbated the weaknesses that persist because of the lack of progress in the implementation of the 2030 Agenda for Sustainable Development. A sustained recovery from the pandemic will depend not only on the size of the stimulus measures, and the quick rollout of vaccines, but also on the quality and efficacy of these measures to build resilience against future shocks. The economic recovery from the crisis must go well beyond restoring GDP growth and embrace improved living standards and prosperity and greater equality, including gender equality, and the improved environmental and social sustainability of economic activities. The path to recovery and progress on SDGs will critically hinge on the ability and political commitment of countries to make sure that the crisis response builds resilience against future economic, social and climatic shocks. There is no sustainable development without resilience and there is no resilience without sustainable development. The imperatives of strengthening public finance and debt sustainability, expanding social protection and building climate resilience must inform policy choices to put the world firmly on the trajectory of sustainable development. Emerging challenges facing global trade The COVID-19 crisis has delivered a significant shock to trade, restricting cross-border travel, disrupting international production networks and depressing demand worldwide. Global trade in goods and services shrank by an estimated 7.6 per cent in 2020, a slightly smaller contraction than during the global financial crisis. While international travel remains at a fraction of its pre-pandemic level, global merchandise trade has been recovering since mid-2020 on the back of strong demand for electric and electronic equipment, pharmaceuticals and, especially, personal protective equipment. The recovery in merchandise trade has been led by China and other East Asian economies, which were relatively successful in containing the spread of the virus and experienced a faster-than-expected rebound in economic activities. Beyond these short-term dynamics, the pandemic is likely to accelerate several structural shifts, which are shaping the future of the global trade landscape. These include the rise of digital technologies, the increasing significance of global trade in services, and the move towards more resilient and flexible global value chains (GVCs). By redefining comparative advantages, the changing international trade environment will have a profound impact on countries’ growth prospects and their progress towards sustainable development. How global trade patterns and trade policies evolve over the coming decade will be an important determinant of progress towards achievement of all of the goals within the SDG framework. The COVID-19 pandemic has exposed some of the critical challenges faced by the multilateral trading system as countries around the world initially resorted to unilateral trade measures to protect domestic interests. But the crisis can also serve as a catalyst for restoring confidence in the multilateral trading system and generate positive momentum for WTO reform, as the pandemic has underscored that in times of crisis, keeping trade flowing and limiting protectionist and nationalist measures are vital to ensuring the safety of

lives and livelihoods. Regional developments and outlook Developed Economies Northern America: despite rebound in economic activities, continued fiscal support is needed In the United States, the economy came to a standstill in mid-March owing to lockdown measures taken to combat the COVID-

19 pandemic; and the unemployment rate jumped to 14.7 per cent in April from 3.5 per cent in February. The Government,

supported by the Federal Reserve, promptly responded with unprecedented stimulus packages , whose cumulative size totalled 12 per cent of

GDP by the end of October, expanding income transfers to households and providing emergency loans to businesses. During the third quarter of 2020, the economy rebounded as lockdown measures were relaxed, with the consumption of goods and residential investments exceeded the pre-crisis level, and unemployment subsiding.

However , the mid-year rebound fell short of the pre-crisis levels of both consumption of services and corporate investments. The fragile

recovery could easily be reversed if fiscal support measures, including income transfers and loan guarantees, remain inadequate. Following a 3.9 per cent

contraction in 2020, the United States economy is forecast to grow by 3.4 per cent in 2021 and 2.7 per cent in 2022.

Impact – India/Pakistan

2AC/1AR Impact Ext.

India-Pakistan conflict goes nuclear – kills billions and destroys global agricultureGaurino 2013, Nuclear Threat Initiative (NTI), cites study from Physicians for Social Responsbility “"Nuclear Famine: Two Billion People at Risk,"(Douglas, “Study: Two Billion Could Starve in Event of 'Limited' Nuclear War”, http://www.nti.org/gsn/article/study-two-billion-could-starve-event-limited-nuclear-war/)

WASHINGTON -- A hypothetical nuclear war in South Asia could trigger worldwide famine and

“probably cause the end modern industrial civilization as we know i t,” the lead author of a new report tells Global Security Newswire. Published by the watchdog group Physicians for Social Responsibility, the report, titled "Nuclear Famine: Two Billion People at Risk," updates prior studies on the potential impacts that a "limited" nuclear war between India and Pakistan could have on the global climate , and consequently on food supplies . The prior research, published in 2012, predicted that corn and soybean production in the United States would decline 10 percent on average for 10 years. It also projected a decline in Chinese middle-season rice production -- on average by 21 percent during the first four years and on average 10 percent in the following six. At the time, Physicians for Social Responsibility said these effects could "put more than one billion people at risk of starvation." The new forecast released on Tuesday indicates the number of people at risk of starvation would actually be double that figure, the group says. The fresh analysis includes a study completed this fall showing there could be even larger drops in Chinese winter wheat production. These crops could

decline by 50 percent during the first year and by more than 30 percent over 10 years . Increasing prices would exacerbate the shortage of available food, according to the report, which goes on to call for the elimination of nuclear weapons "as quickly as possible." "Significant, sustained agricultural

shortfalls over an extended period would almost certainly lead to panic and hoarding on an

international scale as food exporting nations suspended exports in order to assure adequate food supplies for their own populations," the report says. "This turmoil in the agricultural markets would further reduce accessible food." Ira Helfand, a medical doctor from Northampton, Mass., who served as the lead author of the report, told GSN the data shows that the equivalent of 100 Hiroshima-size bombs

could "probably cause the end modern industrial civilization as we know it." A conflict of this size would represent the use of about half the nuclear arsenals that India and Pakistan possess, or a “tiny portion” of the U.S. and Russian stockpiles, according to Helfand. "This is an unbelievably huge

shock to the international system, " Helfand said. "We saw what happened to the world’s economy when the housing bubble collapsed in the United States -- [here] we’re talking about a shock to the international economic-social system orders of magnitude larger than that. I think it’s quite hard to imagine how this much-more-fragile-than-we’d-like-to-think system can survive that." According to Helfand, the chain of events that would lead to such catastrophe is as follows: Firestorms caused by

nuclear detonations would launch more than 6 million metric tons of soot into the Earth’s

atmosphere -- blocking out sunlight and causing a sort of global cooling effect commonly

referred to as " nuclear winter ." The cooling and other anticipated climatological impacts -- such as

decreased precipitation -- substantially reduce crop yields, which in turn causes disrupted markets and famine. "Even a limited use of nuclear weapons essentially is an act of suicide," Helfand said. "These weapons simply have to be understood to be completely useless. From the U.S. perspective, if we were to use even a tiny fraction of our own arsenal against an adversary on the other side of the planet, we would end up causing this global catastrophe that would have terrible repercussions here at home."

2AC A2 “No Escalation”

Escalation likely in India-Pakistan conflict Siddiqa 15 (Ayesha, Dr. Ayesha Siddiqa, PhD, is a Pakistani civilian military scientist, geo-strategist, author, former bureaucrat and political commentator, former visiting scholar at the Johns Hopkins University, “Over-reaction to fishing boat reflects paranoia that has gripped India-Pakistan ties,” 1-4-15, http://scroll.in/article/698439/Over-reaction-to-fishing-boat-reflects-paranoia-that-has-gripped-India-Pakistan-ties)

India's security establishment could keep having sleepless nights at least until US President Barak Obama's visit at the end of the month, as it frets about the possibility of a terror attack from Pakistan. Since the Mumbai strikes of 2008, the fear of a similar incident recurring has obviously been one of New Delhi's greatest worries. But this haunts the intelligence and security community so intensely that at times it tends to over-react,

as in the case of the small fishing boat intercepted off the coast of Gujarat on New Year's Eve. Although it turned out to be a hoax, the incident was indicative of the Indian perception of Pakistan and the paranoia that has set in to the bilateral relationship. Since militaries tend to plan in terms of capabilities rather than intent, the possibility of another terrorist attack in India is a real threat for the security establishment. The constant image of the Lashkar-e-Taiba leader roaming

around freely in Pakistan or the actual planner of the Mumbai attacks getting a bail in a court case superimposes such fears. New Delhi isn't given much confidence from the fact that while Islamabad cracks down in Waziristan claiming to eliminate all good and bad Taliban, Islamabad continues to be lenient towards groups that focus on India. Some even believe that all communication with Pakistan should be stopped until there is credible evidence that Pakistan has punished those involved in Mumbai. This will be considered as a benchmark to assess Islamabad’s

sincerity. Unlike the previous Congress government, the Modi administration intends to react harshly to any possible misadventure from other side of the border. Since coming to power, the new government seems to have redrawn the red lines. Any

excitement on the Kashmir border will get a severe reaction. This also means that in case of a terrorist attack linked with Pakistan, New

Delhi would not sit back but take an aggressive stance . In Pakistan, expression of such intent is interpreted as India’s decision to strategise to bleed its neighbor. Not surprisingly, the attack in Peshawar claimed by the leader of the Tehreek-e-Taliban Pakistan

Maulana Fazlullah is considered as a tragedy prompted and even designed by India. Heightened paranoia Even if there is no truth to it, the heightened paranoia on both sides of the border increases the risk of an accidental eruption of conflict that

would then prove extremely costly for the two countries. Both sides think in terms of having a greater capability to avert the threat of conflict

escalation due to the nuclear umbrella. But the game is too risky to play. However, threat escalation seems to occur in an environment where systems are not fully cognisant of the high possibility of conflict eruption and its

cost. For instance, it isn't a simple error that the various agencies in India did not talk to each other or the Indian Navy did not consider report of a smuggling boat coming from Karachi important enough to warn the coast guard and other agencies. In the absence of maritime boundary, fishing boats could cross over both advertently or inadvertently. One way of minimising threat is to establish additional lines of communication between coast guards and navies of the two countries. Increasing communication should not necessarily be

seen from the prism of giving concessions to Islamabad but securing India’s own interests. After all, using extreme force in case of any act

of violence on Indian soil that can be traced to Pakistan is an option, but it could set off a cycle of events which may

become uncontrollable and prove costly for peace and stability in the region.

2AC A2 “Deterrence”

Deterrence and history don’t apply – combination of factors means Indo-Pak relationship is fragileKoblentz 14 (Gregory D. Koblentz, associate professor in the School of Policy, Government and International Affairs at George Mason University, “How to Keep Future Cold Wars Cold: Mind the Missiles,”11-28-14, http://www.latimes.com/opinion/op-ed/la-oe-koblentz-nuclear-threats-20141128-story.html)

The third challenge is found in South Asia, which is the region most at risk of a breakdown in strategic stability. India

and Pakistan face more severe security challenges than those of the other nuclear weapon states

because of their geographic proximity , history of conflict, higher levels of domestic instability, the

dispute over Kashmir and the threat of cross-border terrorism. The two countries have been

engaged in a nuclear and missile arms race since 1998 that shows no signs of abating. Pakistani

development of short-range nuclear-armed missiles and India's pending deployment of sea-based nuclear weapons raise further concerns about command and control and the heightened vulnerability of these weapons to accidents and terrorism. Furthermore, because of the security trilemma, the deterrence relationship between India and Pakistan is intertwined with that of China. This trilateral linkage increases the region's susceptibility to outside shocks and amplifies the risk that regional developments will have far-reaching effects. Each of these dynamics is worrisome on its own, but the combination of them could be particularly destabilizing . The United States should proactively shape the second nuclear age before it finds itself trapped in a new nuclear order that is less stable,

less predictable and less susceptible to American influence.

Topicality Answers

Protection

Aff affects 25% of water in the USNewburger 21 (Emma, “EPA to expand clean water protections to smaller U.S. waterways, reversing Trump policy,” 6-9-21, https://www.cnbc.com/2021/06/09/clean-water-biden-epa-to-expand-protections-reverse-trump-rule.html)

The EPA and the Army said they discovered that the Trump rule significantly reduced clean water

protections , a major issue as the U.S. West grapples with a severe drought and water supply shortages.

In New Mexico and Arizona, the agencies found that almost all of more than 1,500 streams assessed were non-jurisdictional and thus unable to receive protection from the federal government .

Jaime Pinkham, acting assistant secretary of the Army for Civil Works, said the Trump rule led to a 25% reduction in “ determinations of waters that would otherwise be afforded protection .”

Ag DA Answers

2AC – Thumper

EPA is working to repeal the Trump era rule now – thumps the DA but not the aff – EPA will use current court precedent Newburger 21 (Emma, “EPA to expand clean water protections to smaller U.S. waterways, reversing Trump policy,” 6-9-21, https://www.cnbc.com/2021/06/09/clean-water-biden-epa-to-expand-protections-reverse-trump-rule.html)

The Environmental Protection Agency and the U.S. Army on Wednesday announced their intent to expand the number of waterways that receive protection under the Clean Water Act. The move would reverse a rule adopted last year by the Trump administration , which limited the bodies of water

that could receive federal protection . The Biden administration wants to expand protections to smaller waterways like streams,

ditches and wetlands that feed into bigger bodies of water. EPA Administrator Michael Regan said in a statement that the Trump administration

policy had led to “significant environmental degradation.” The EPA and the Army said they discovered that the Trump rule significantly reduced clean water protections , a major issue as the U.S. West grapples with a severe drought and water

supply shortages. In New Mexico and Arizona, the agencies found that almost all of more than 1,500 streams assessed were non-jurisdictional and thus unable to receive protection from the federal government. Jaime Pinkham, acting assistant secretary of the Army for Civil Works, said

the Trump rule led to a 25% reduction in “determinations of waters that would otherwise be afforded protection.” The ruled adopted under

Trump, known as the Navigable Waters Protection Rule, reversed a previous attempt by the Obama

administration to provide a more expansive definition of “waters of the United States” under the Clean Water Act. The EPA and the Army Corps of Engineers will consider the latest science and impact of climate change on U.S. waters during

the new rulemaking process, according to a press release. “We are committed to establishing a durable definition of ‘ waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations,” Regan said.

2AC – No Link

No link – ag companies can apply for permits, etc. Brown & Brimmer 20 (Kim, journalist with the real news network; & Janette Brimmer, an attorney with Earthjustice, “Trump’s New Rule Favors Pollution Over US Waterways,” 2-20-20, https://therealnews.com/trump-clean-water-rule-pollution-waterways)

KIM BROWN: Also wanted to play another clip, Janette, from Zippy Duvall, who is the president of The American Farm Bureau. And

farmers really seem to have an issue … Or let me rephrase: The farming lobby really seem to have a problem with the

WOTUS rule implemented by president Obama . But let’s hear from Zippy real quick. ZIPPY DUVALL: Farmers want to make sure that the water is clean. They want to protect their natural resources. But just like Mr. James says, if you’re a regulator, under this ruling, it was impossible to regulate it. Under this ruling, it was impossible for our farmers to know what they were supposed to do and what they could and couldn’t do. So we welcome the opportunity to get rid of this old rule and take our time and make sure we develop a new rule that gives us clear rules so that we can have clean water. KIM BROWN: So Janette, for people who are not familiar–like myself–with exactly what farming practices are and how they could possibly pollute the environment or pollute the waterways around them, what is it that the farmers want to do that the WOTUS rule was precluding them from doing, but now the new Trump rule will allow them to do? JANETTE BRIMMER: Well,

let’s start with that assumption that they’re making, that the rules somehow prevented them from doing things. It really didn’t . That’s a fiction , frankly. There might have been a few instances here and there with a wetland that had

not already been farm historically, where they may have to get a permit to do something. Like if they wanted to dig you up or dredge

or put fill into a wetland . And let’s be clear, that just means they have to get a permit . That doesn’t even mean that they

can’t do it. It just means they have to go through a process. But farming practices do in fact affect waters of the US. It’s just that,

for the most part, they have been unregulated. Even under the original Clean Water Act , many farming practices are

exempt from the reach of the act and always have been . And that’s what’s so frustrating about the narrative that’s

been developed to try to push through what we call these dirty water rules. Many wetlands have been farmed over the

years. Those are grandfathered in , so they don’t have to do anything about that. And so, those wetlands have been destroyed throughout the great plains especially. You’ve got situations where there is runoff from fields. Current farming is quite chemical intensive. There may be manure runoff. And many of those practices, because it is just runoff from the fields when it rains or when there’s snow melt, has not been regulated. They don’t have to get a permit. It’s not considered something that’s regulated under The Clean Water Act. So again, the practices that the farming community may think were covered by the Obama rule, for the most part, I think there are a lot of hyperbole. KIM BROWN: So Janette, in addition to what the farmers say that they disliked about the WOTUS rule, other industries are celebrating in addition to the farming lobby, including the oil and gas. Mining is a big industry that has been very ecstatic about the Trump decision to change the rule, so to speak. So what are some of these other industries now going to be doing that they were not previously doing? Because again, it’s confusing in the sense that I don’t know what they were doing before, so I don’t know what they are now being allowed to do. But because Trump is in favor of it, I should just assume that it’s bad. JANETTE BRIMMER: Yeah. Well, I think your assumptions will be borne out. So I think you’re right to call out mining, housing development and not just housing, just real estate development generally, oil and gas. Any kind of larger industrial things. Even some things like wastewater treatment. These are all industries that I think are more directly benefiting from what the Trump administration is setting out to do here, but they make use of the agriculture narrative, right? And that’s not an unusual thing. Let’s talk a little bit about what The Clean Water Act really does. What the Clear Water Act did is it came in and it said, “You can’t do bad things to our waters. You can’t discharge pollution to them through a pipe or a ditch or some conveyance. You can’t go dig them up or don’t fill into them.” And that’s

wetlands , that’s rivers , that’s streams , that’s lakes . And that’s just prohibited. Now, if you think you have to do that,

if you think there is some reason that that is necessary, then you go to the government and you get a permit. There’s a permitting system for the discharge of pollutants, which allows us to monitor what the kind of pollutants are, what are the

levels. We can set limits. We can impose the latest, greatest technology. Or if you’re on the dig it up and dredge side of things,

we can put boundaries on what ones you’re allowed to dig up and dredge. There are mitigation requirements if you’re going to affect a wetland over here, then let’s restore another one over here so that we retain what they call the functions and values that those water bodies give to us on the landscape. That’s what these guys are targeting. It’s not so much that they couldn’t do their projects in the past, they just had to do them in a way that the public knew about it. We had some rules set on it, and they were subject to some permitting so

someone was looking over their shoulder. Now, these destructive activities can occur in many places ; especially in the

more dry West I think we’re going to see it, or the prairie regions, or Northern regions of the United States. I think we’re going to see that destructive behavior with nobody monitoring it; nobody minding the store. They’re just going to go out and do it. And that’s, I think the big danger of ruling.

--1AR – No Link

Significant nexus preserves permitting process and agricultural exemptions under the Clean Water ActEPA 17 (United States Environmental Protection Agency, “Guidance to Identify Waters Protected by the Clean Water Act,” 12-15-17, https://www.epa.gov/cwa-404/guidance-identify-waters-protected-clean-water-act)

U.S. EPA and the U.S. Army Corps of Engineers have developed draft guidance for determining

whether a waterway, water body, or wetland is protected by the Clean Water Act . This guidance

would replace previous guidance to reaffirm protection for critical waters. It also will provide clearer ,

more predictable guidelines for determining which water bodies are protected by the Clean Water Act. The draft guidance will be open for 60 days of public comment to allow all stakeholders to provide input and feedback before it is finalized.

The draft guidance will reaffirm protections for small streams that feed into larger streams,

rivers, bays and coastal waters. It will also reaffirm protection for wetlands that filter pollution and

help protect communities from flooding. Discharging pollution into protected waters (e.g., dumping

sewage, contaminants, or industrial pollution) or filling protected waters and wetlands (e.g., building

a housing development or a parking lot) require permits . This guidance will keep safe the streams

and wetlands that affect the quality of the water used for drinking , swimming, fishing, farming , manufacturing, tourism and other activities essential to the American economy and quality of life. It also will provide regulatory clarity, predictability, consistency and transparency.

EPA and the Corps will follow up the final guidance with rulemaking to provide further opportunity for comment and to clarify Clean Water Act regulations. What's Covered :

The proposed guidance will help restore protections for waters by providing:

Clarification that small streams and streams that flow part of the year are protected under the Clean

Water Act if they have a physical, chemical or biological connection to larger bodies of water downstream and could affect the integrity of those downstream waters. Agencies would be able to evaluate groups of waters holistically rather than the current, piecemeal, stream-by-stream analysis.

Acknowledgment that when a water body does not have a surface connection to an interstate water or a traditional navigable water, but there is a significant physical, chemical or biological connection between the two, both waterbodies should be protected under the Clean Water Act.

Recognition that waterbodies may be “traditional navigable waters,” and subject to Clean Water Act protections, under a wider range of circumstances than identified in previous guidance.

Clarification that interstate waters (crossing state borders) are protected.

What's Not Covered:

This new guidance does not change any of the existing agriculture exemptions under the Clean Water Act. All of the Act’s exemptions from permitting requirements for normal agriculture, forestry and ranching practices continue to apply. The guidance also clearly describes waters not

regulated under the Act, including:

Certain artificially irrigated areas

Many agricultural and roadside ditches

Artificial lakes or ponds, including farm and stock ponds

Summary of Key Points in the Proposed Guidance

Based on the agencies' interpretation of the statute, implementing regulations and relevant caselaw , the following waters are protected by the Clean Water Act:

Traditional navigable waters

Interstate waters

Wetlands adjacent to either traditional navigable waters or interstate waters

Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally

Wetlands that directly abut relatively permanent waters

In addition, the following waters are protected by the Clean Water Act if a fact-specific analysis determines they have a " significant nexus " to a traditional navigable water or interstate water :

Tributaries to traditional navigable waters or interstate waters

Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters

Waters that fall under the "other waters" category of the regulations. The guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.

2AC – H2O K2 Ag

Clean Water Act enforcement is key to agriculture – farms rely on clean water to survive McCarthy 14 (Gina McCarthy, EPA Administrator, “Opinion: Clearer protections for clean water support a strong farm economy,” 4-2-14, https://www.agri-pulse.com/articles/3826-opinion-clearer-protections-for-clean-water-support-a-strong-farm-economy)

WASHINGTON, April 2 - The U.S. Environmental Protection Agency (EPA), in partnership with the Army Corps of Engineers (USACE), is taking action to protect the precious waters and natural

resources that sustain our way of life . Water is the lifeblood of American agriculture . The 1930s

taught us that enduring lesson. Fueled by historic drought and dryness , the Dust Bowl in the

“dirty thirties” plagued the Great Plains and devastated crops and livelihoods . The threat to

clean , usable water came to a tipping point in the late 60s and early 70s, when water pollution

was so dense , a river in Ohio caught fire. That’s why , in 1972, Congress passed the Clean Water Act to protect our rivers, lakes, streams, and wetlands. For more than four decades, the Clean Water Act has safeguarded drinkable water and unspoiled places to hunt, fish, swim, and play. The law didn't just defend the mighty Mississippi or our Great Lakes; it also protected the smaller streams and wetlands that weave together a vast , interconnected system . It recognized that healthy families and

farms downstream are beholden to healthy headwaters upstream. Incredibly, one in three Americans can thank those seasonal, rain-dependent, headwater streams for delivering clean water to drink. From manufacturing and outdoor recreation to farming the fuel, food, and fiber that feed our nation—water is critical to every sector of our economy, accounting for billions in economic productivity. Unfortunately, over the last decade, the Clean Water Act has been bogged down by confusion . Two complex court decisions narrowed legal protections and muddled everyone’s understanding of what waters are—or are not—covered under the law. Protections have been especially confusing for those smaller, interconnected streams and wetlands.

--1AR – H2O K2 Ag

Water management is crucial to agricultureHansman 21 (Heather Hansman, “The Drought in the West Is Bad and It’s Gonna Get Worse,” 6-16-21, https://www.outsideonline.com/2424946/extreme-drought-west-colorado-river)

“I’m nervous looking forward. It’s wishful thinking to assume it will get better,” says Eric Kuhn, former general manager of the Colorado River

District and coauthor of Science be Dammed. Kuhn has worked in water management for decades and believes the way we’re currently managing rivers isn’t sustainable and hasn’t been for a while. It’s coming to an inflection point

where things will really have to change . The signs (like dry rivers) and symptoms (the wave of early-season fires)

are cascading on top of each other. In 2019, I wrote a book called Downriver about water policy with a subtitle that now feels painfully flippant: “Into the future of water in the West.” That was two years ago. Now the future is here—hotter, drier, sooner than predicted,

and scarier than imagined. By June 1, snowpack in the Sierra Nevada was at zero percent of its average, and California’s governor had

declared a drought emergency in two-thirds of the state’s counties . After a record-breaking fire year in 2020,

wildfire risks were already high, and the state’s agriculture industry , which supplies a huge amount of the

country’s veggies , fruits , and nuts , was facing shortages and cutting crops to compensate . In Oregon, fragile, threatened salmon are dying because streams and lakes are drying up. Wide swaths of northern New England and the upper Midwest are abnormally dry. Even Hawaii is at elevated risk for wildfires.

2AC – Adaptation K2 Food

Climate adaptation key to stop food warsSmith 7 (Dan Smith, Professor of Peace and Conflict at the University of Manchester, Secretary General of International Alert, Former Director of the International Peace Research Institute, “A Climate Of Conflict: The links between climate change, peace and war,” November 2007, http://www.international-alert.org/sites/default/files/publications/A_climate_of_conflict.pdf)

Climate change is the latest hot topic on the international agenda. Even before the Nobel Peace Prize for 2007 was awarded to the Inter-governmental Panel on Climate Change (IPCC) and to Al Gore, the issue’s profile was rising. At the end of 2006, Sir Nicholas Stern headed a major review of the economics of global warming for the UK government and gained considerable media coverage.1 In 2007 the IPCC itself produced its Fourth Assessment Report (AR4) with major media attention as each of its three working groups issued their findings.2 The AR4 has moved the climate change debate along in several ways. First, it reflects a major increase in the degree of scientific consensus about the reality of climate change and, second, growing consensus that it is caused by human activity. Third, the AR4 emphasizes that the consequences of climate change are already unfolding and, fourth, it makes long-term projections about the extent and physical consequences of climate change that are more serious and far reaching than in previous reports. The evidence and arguments of the international scientific body will be neither

queried nor extended in this report. Our starting point is the IPCC’s finding that climate change and its consequences are not topics for

the long-term future alone – they are upon us . Some governments and international organisations are developing strategies to address the

causes of climate change and mitigate global warming by reducing carbon emissions and energy consumption. But mitigation , even if taken

up immediately and on a massive scale, cannot prevent the initial effects of global warming from unfolding through world

weather systems and affecting the lives of hundreds of millions of people. Climate change is upon us and there is an urgent need to work out how to adapt to it. This is the next step in governmental policy. There have been some moves in this direction, with the 2006 Stern Review offering policy-makers a comprehensive assessment of the impact climate change will have on the global economy. Working Group II of the IPCC on Impacts, Adaptation and Vulnerability also offers valuable analysis of the implications of the physical effects of climate change across the world. This report sets out to look further into these consequences of consequences of climate change. It looks at their socio-political effects – particularly in fragile states – and their implications for the risk of violent conflict. The people for whom the knock-on social consequences of climate change will be most serious and hardest to adapt to are largely those living in poverty, in under-developed and unstable states, under poor governance. For them, the impact of the physical consequences will interact with a mix of these economic, social and political factors to produce a low capacity to adapt and a high risk of serious consequences such as widespread malnutrition and starvation, mass migration or violent

conflict. These fragile states thus face a double-headed problem: that of climate change and violent conflict . If nothing

is done, the relationship between the two parts of the problem will be mutually and negatively reinforcing. There is a real risk that climate change will compound the propensity for violent conflict which, in turn, will leave communities poorer, less resilient and less able to cope with the consequences of climate change. But there is also an opportunity here: if it is targeted and appropriately addressed, this vicious circle can be

transformed into a virtuous one. If communities can enhance their ability to adapt to consequences of climate change,

this will help reduce the risk of violence . And peacebuilding activities, which address socio-economic instability and weak

governance, will leave communities better placed to adapt to the challenges of climate change which, in turn, will result in more peaceful

societies regardless of how climate change unfolds. Indeed, climate change offers an opportunity for peacebuilding, for it is an issue that

can unite otherwise divided and unreconciled communities . It offers a threat to unite against and multiple tasks

through which to cooperate. So, as the Stern Review argues with reference to economic policy, even if the science is wrong and the

predictions of the future impacts of climate change are not ultimately borne out, taking account of climate change will create a win-win situation in fragile states. The physical consequences of climate change may be largely in the hands of nature, but the consequences of these consequences

are not. The issue of adaptation to climate change is at heart a matter of governance – the strength of government

institutions, the state’s efficiency (or lack of it) in providing basic services, and the influence of regional and international cooperation. It is the

state’s job to handle the effects of climate change so as to minimise harm to its citizens; states with good governance are by

definition better equipped for the task than those without. For example, where global warming shortens the growing

season , the result will be a risk of food insecurity . The government’s response will define whether this insecurity is redressed through

a redistribution of resources, or whether it leads to a violent struggle for control of dwindling resources, or to large scale

migration . Equally, global warming may make it impossible for people to carry on living and working in low-lying coastal areas. In this

case, the response of government will define whether those people are looked after and get alternative economic opportunities or are neglected,

resentful and ready to support violently overturning an unjust social order. The task of rising to the challenge of adaptation to face the

social and political consequences cannot be left in the hands of individual states that are already unable (even when willing) to care properly for

their citizens. The only prospect of handling these challenges positively is through international cooperation. That means mobilising not just

international organisations such as the UN and its agencies but, more especially, regional and sub-regional groupings. It means drawing on the capacities of stronger neighbours to help the less capable governments. It means richer governments – the western donor governments but also

China, India and other new donors governments, such as those from the Middle East – stepping up to provide the resources to

analyse and prepare for the se challenges . At the same time, the place where adaptation must happen is in local communities

themselves. International and national policies need to be shaped so as to engage in the task of adapting the energies of those with most to lose by inaction and most to gain by responding creatively to the challenge of climate change. In many countries, rising to the challenge will mean unprecedented degrees of cooperation between local and national leaders, between the formal and informal authorities, and between the state and its people. The purpose of this report is to understand how the consequences of climate change can lead to violent conflict, and to show how this

will hinder the effort to adapt to climate change. Out of this, we want to show that peacebuilding and adaptation to climate

change can complement each other in laying the basis for long-term social and economic development. And lastly, we want to

identify policies and mechanisms that will help communities understand the challenges of climate change and respond in such a way that they avoid violent conflict.

2AC – No Food Impact

Food shortages won’t cause warAllouche 11, (Jeremy Allouche, a Research Fellow at the Institute of Development Studies, University of Sussex, “The sustainability and resilience of global water and food systems: Political analysis of the interplay between security, resource scarcity, political systems and global trade,” Food Policy, Vol. 36 Supplement 1, p. S3-S8, January 2011)

The question of resource scarcity has led to many debates on whether scarcity (whether of food or water) will lead to conflict and war. The underlining reasoning behind most of these discourses over food and water wars comes from the Malthusian belief that there is an imbalance between the economic availability of natural resources and population growth since while food production grows linearly, population increases exponentially. Following this reasoning, neo-Malthusians claim that finite natural resources place a strict limit on the growth of human population and aggregate consumption; if these limits

are exceeded, social breakdown, conflict and wars result. Nonetheless, it seems that most empirical studies do not support any

of these neo-Malthusian arguments . Technological change and greater inputs of capital have dramatically increased

labour productivity in agriculture. More generally, the neo-Malthusian view has suffered because during the last two

centuries humankind has breached many resource barriers that seemed unchallengeable. Lessons from history:

alarmist scenarios, resource wars and international relations In a so-called age of uncertainty, a number of alarmist scenarios have

linked the increasing use of water resources and food insecurity with wars. The idea of water wars (perhaps more than food wars) is a dominant discourse in the media (see for example Smith, 2009), NGOs (International Alert, 2007) and within international organizations (UNEP, 2007). In 2007, UN Secretary General Ban Ki-moon declared that ‘water scarcity threatens economic and social gains and is a potent fuel for wars and conflict’ (Lewis, 2007). Of course, this type of discourse has an instrumental purpose; security and conflict are here

used for raising water/food as key policy priorities at the international level. In the Middle East, presidents, prime ministers and foreign ministers have also used this bellicose rhetoric. Boutrous Boutros-Gali said; ‘the next war in the Middle East will be over water, not politics’ (Boutros Boutros-Gali in Butts, 1997, p. 65). The question is not whether the sharing of transboundary water sparks political

tension and alarmist declaration, but rather to what extent water has been a principal factor in international conflicts. The evidence seems quite weak. Whether by president Sadat in Egypt or King Hussein in Jordan, none of these declarations have been followed up by military action. The governance of transboundary water has gained increased attention these last decades. This has a direct impact on the global food system as water allocation agreements determine the amount of water that can used for irrigated agriculture. The likelihood of conflicts over water is an important parameter to consider in assessing the stability, sustainability and resilience of global food

systems. None of the various and extensive databases on the causes of war show water as a casus belli. Using the International Crisis Behavior (ICB) data set and supplementary data from the University of Alabama on water conflicts, Hewitt, Wolf and Hammer found only seven disputes where water seems to have been at least a partial cause for conflict (Wolf, 1998, p. 251). In fact, about 80% of the incidents relating to water were limited purely to governmental rhetoric intended for the electorate (Otchet, 2001, p. 18). As shown in The Basins At Risk (BAR) water event database,

more than two-thirds of over 1800 water-related ‘events’ fall on the ‘cooperative’ scale (Yoffe et al., 2003). Indeed, if one takes into account a much longer period, the following figures clearly demonstrate this argument. According to studies by the

United Nations Food and Agriculture Organization (FAO), organized political bodies signed between the year 805 and 1984

more than 3600 water-related treaties, and approximately 300 treaties dealing with water management or allocations in international basins have been negotiated since 1945 (FAO, 1978 and FAO, 1984). The fear around water wars have been driven by a Malthusian outlook which equates scarcity with violence, conflict and war. There is however no direct correlation between water scarcity and transboundary conflict. Most specialists now tend to agree that the major issue is not scarcity per se but rather the allocation of

water resources between the different riparian states (see for example Allouche, 2005, Allouche, 2007 and [Rouyer, 2000] ). Water rich countries have been involved in a number of disputes with other relatively water rich countries (see for example India/Pakistan or Brazil/Argentina). The perception of each state’s estimated water needs really constitutes the core issue in transboundary water

relations. Indeed, whether this scarcity exists or not in reality, perceptions of the amount of available water shapes people’s

attitude towards the environment (Ohlsson, 1999). In fact, some water experts have argued that scarcity drives the process of co-operation among riparians (Dinar and Dinar, 2005 and Brochmann and Gleditsch, 2006). In terms of international relations, the

threat of water wars due to increasing scarcity does not make much sense in the light of the recent historical record. Overall, the water war rationale expects conflict to occur over water, and appears to suggest that violence is a viable means of securing national

water supplies, an argument which is highly contestable. The debates over the likely impacts of climate change have again

popularised the idea of water wars. The argument runs that climate change will precipitate worsening ecological conditions contributing to resource scarcities, social breakdown, institutional failure, mass migrations and in turn cause greater political instability and conflict (Brauch, 2002 and Pervis and Busby, 2004). In a report for the US Department of Defense, Schwartz and Randall (2003) speculate about the consequences of a worst-case climate change scenario arguing that water shortages will lead to aggressive wars (Schwartz and Randall, 2003,

p. 15). Despite growing concern that climate change will lead to instability and violent conflict, the evidence base to substantiate the connections is thin ( [Barnett and Adger, 2007] and Kevane and Gray, 2008).

--1AR – No Food Impact

Food insecurity doesn’t produce conflict – empirics proveBarnett 2000 (Jon Barnett, Australian Research Council fellow and Senior Lecturer in Development Studies at Melbourne University School of Social and Environmental Enquiry, “Destabilizing the environment-conflict thesis”, Review of International Studies, Vol. 26, No. 2, pp. 271-288, April 2000, https://www.researchgate.net/publication/232031299_Destabilizing_the_Environment-Conflict_Thesis)

Considerable attention has been paid to the links between population, the environment and conflict. The standard argument is that population growth will overextend the natural resources of the immediate environs, leading to deprivation which, it is assumed, will lead to conflict and instability either directly through competition for scarce resources, or indirectly through the generation of ‘environmental refugees’. For example, according to Myers: ‘so great are the stresses generated by too many people making too many demands on their natural-resource stocks and their institutional support systems, that the pressures often create first-rate breeding grounds for conflict’.37 The ways in which population growth leads to environmental degradation are reasonably well known. However, the particular ways in which this leads to conflict are difficult to prove. In the absence of proof there is a negative style of argumentation, and there are blanket assertions and abrogations; for example: ‘the relationship is rarely causative in a direct fashion’, but ‘we may surmise that conflict would not arise so readily, nor would it prove so acute, if the associated factor of

population growth were occurring at a more manageable rate’.38 It is possible though, that rather than inducing warfare ,

overpopulation and famine reduce the capacity of a people to wage war . Indeed, it is less the case

that famines in Africa in recent decades have produced ‘first rate breeding grounds for conflict ’; the more important,

pressing, and avoidable product is widespread malnutrition and large loss of life.

1AR – No China Impact

No CCP collapse and no lashoutKroeber 15 (Arthur R., Editor of China Economic Quarterly, non-resident senior fellow of the Brookings-Tsinghua Center When Will China’s Government Collapse?, Foreign Policy, 3/13, http://foreignpolicy.com/2015/03/13/china_communist_party_collapse_downfall/)

Neither China nor its Communist Party is cracking up. I have three reasons for this judgment. First, none of the factors

Shambaugh cites strongly supports the crackup case. Second, the balance of evidence suggests that Xi’s government is not weak and desperate, but forceful and adaptable. Third, the forces that might push for systemic political change are far weaker than the party. Shambaugh thinks the system is on its last legs because rich people are moving assets abroad, Xi is cracking down on the media and academia, officials look bored in meetings, corruption is rife, and the economy is at an impasse. This is not a persuasive case. True, many rich Chinese are moving money abroad, both to find safe havens and to diversify their

portfolios as China’s growth slows. But in aggregate, capital outflows are modest, and plenty of rich Chinese are still investing in their own economy. Following an easing of rules, new private business registrations rose 45 percent in 2014 — scarcely a sign that the entrepreneurial class has given up hope. The crackdown on free expression and civil society is deeply distressing, but not necessarily a sign of weakness. It could equally be seen as an assertion of confidence in the success of China’s authoritarian-capitalist model, and a rejection of the idea that China needs to make concessions to liberal-democratic ideas to keep on going. It is also related to the crackdown on corruption, which Shambaugh wrongly dismisses as a cynical power play. Corruption at the end of the era of Xi’s predecessor Hu Jintao had got out of control, and posed a real risk of bringing down the regime. A relentless drive to limit corruption was essential to stabilize the system, and this is precisely what Xi has delivered. It cannot work unless Xi can demonstrate complete control over all aspects of the political system, including ideology. As for the economy and the reform program, it is first

worth pointing out that despite its severe slowdown, China’s economy continues to grow faster than that of

any other major country in the world. And claims that the reform program is sputtering simply do

not square with the facts. 2014 saw the start of a crucial program to revamp the fiscal system, which led to the start of restructuring local government debt; first steps to liberalize the one-child policy and the hukou, or household registration system (discussed for years but never achieved by previous

governments); important changes in energy pricing; and linkage of the Shanghai and Hong Kong stock markets. News reports suggest that we will soon see a program to reorganize big SOEs under Temasek-like holding companies that will focus on improving their flagging financial returns. These are all material achievements and compare favorably to, for instance, the utter failure of

Japanese Prime Minister Shinzo Abe to progress on any of the reform agenda he outlined for his country two years ago. Finally, there is no evidence that the biggest and most important political constituency in China — the rising urban bourgeoisie — has much interest in chang ing the system . In my conversations with members of this class, I hear many complaints, but more generally a satisfaction with the material progress China has made in the last two decades. Except for a tiny group of brave dissidents, this group in general displays little interest in political reform and none in democracy. One reason may be that they find uninspiring the record of democratic governance in other big Asian countries, such as India. More important is probably the fear that in a representative system, the interests of the urban bourgeoisie (at most 25

percent of the population) would lose out to those of the rural masses. The party may well be somewhat

insecure, but the only force that might plausibly unseat it is more insecure still. Predictions of

Chinese political collapse have a long and futile history . Their persistent failure stems from a basic conceptual fault. Instead of facing the Chinese system on its own terms and understanding why it works — which could create insights into why it might stop working — critics judge the system against what they would like it to be, and find it wanting. This embeds an assumption of fragility

that makes every societal problem look like an existential crisis. As a long-term resident of China, I would love the government to become more open, pluralistic and tolerant of creativity. That it refuses to do so is disappointing to me and many others, but offers

no grounds for a judgment of its weakness. Seven years ago, in his excellent book China’s Communist Party: Atrophy and Adaptation,

Shambaugh described the Party as “a reasonably strong and resilient institution …. To be sure, it

has its problems and challenges, but none present the real possibility of systemic collapse .” That

was a good judgment then, and it remains a good judgment now.

Incentives CP Answers

2AC – Incentives Fail

Incentives programs fail to provide long-term solvency for conservation – private owners can easily rollback protectionsStolton et al 14 (Sue Stolton, Kent H. Redford and Nigel Dudley, with the assistance of: William (Bill) M. Adams, Elisa Corcuera and Brent A. Mitchell, “The Futures of Privately Protected Areas,” International Union for Conservation of Nature and Natural Resources, 2014, https://www.landconservationnetwork.org/sites/default/files/PATRS-001.pdf

Ineffective incentive structure: In efforts to encourage the role PPAs could play in national or subnational protected area systems there may be incentive programmes put into place that result in unwanted outcomes. These might include establishment of PPAs that exclude people

inappropriately or are not important areas for biodiversity or ecosystem services. Although incentives have been critical in

driving the development of PPAs in some countries (see part 3), they may also distort and sometimes

weaken them as well . Short-term incentives can lead to temporary protection : the US Government’s

Conservation Reserve Program creates incentives so that farmers either do not convert or restore highly

erodible cropland or other environmentally sensitive acreage , but most farmers ploughed this land when

the price of commodities increased . Longer term incentive changes can and do threaten the future of even more well-

established PPAs. Conservation is temporary : One of the most commonly expressed concerns about PPAs is that they may

not be permanent and will stop being a protected area when owners change their minds or when

ownership changes . As discussed in part 2, a fundamental assumption in the definition of a protected area is that it will be in place in

perpetuity, or at least that the intent of conservation is long-term. This can never be guaranteed of course, and there is already a list of protected area degazettements, through a phenomenon known as Protected Area Degrading, Downsizing and Degazettement (PADDD) now being recognized (Mascia et al., 2014). But PADDD still reflects only a minority of sites and although many protected areas are under increased threat due to development pressures, land use changes and the increased need for agricultural land, most governments regard their protected areas as

long-term commitments. Many PPAs are managed by individuals and future management will be subject to their own choices. Private reserves may be sold to or inherited by someone who has no interest

in conservation . A few countries, such as Brazil, Finland and South Africa, have addressed this concern through legislation: in these places once a PPA is established it has the same legal protection as a state protected area and whoever owns it cannot change this at will. In the UK, the National Trust has a proportion of its land set aside as ‘inalienable’, meaning that an act of parliament is needed to change its status, providing very strong legal protection for these PPAs. Easements and covenants also provide stronger legal structures for private protection. In some countries, temporary agreements are often a phase in the development of PPAs (see part 3); the country review for Spain provides a good example of a conservation strategy which progresses from short-term agreements between conservation organizations and individual landowners (e.g. land stewardship agreements) to long-term management often with the purchase or donation of an area to the conservation organization (see country review).

2AC – No Solvency – Wetlands

Private conservation efforts fail to protect wetlands – they seek to maximize profit rather than the public goodOwley 13 (Jessica Owley, Professor of Law and Faculty Director for the Environmental Law Program at the University of Miami, “Increasing Privatization of Environmental Permitting,” 46 Akron L. Rev. 1091, 2013)

Citizen participation is often listed as one of the primary elements of democracy.190 Citizens participate in environmental

permitting programs through a few different avenues. Initially, they can participate in the public review processes. Both Section 404 permits and incidental

take permits go through lengthy public review processes. 19' Rules from the governing statutes as well as the Administrative Procedure Act require public notice and comment processes for the issuance of any permits. Additionally, the issuance of a federal permit triggers review under the National Environmental Policy Act.192

Unfortunately, it is rare for the conservation easements or land trusts to be subject to such review. Often neither (1)

the identity of the land trusts that will be involved nor (2) the details of the conservation easements are known at the

time the permit is deliberated and discussed. While some agencies are moving toward including sample conservation easements in the permits of associated environmental review documents, 193 the timing of the permit approval process means that some of the core elements of the agreements escape review. This is less so for mitigation banks because they are more commonly established before permit issuance. In such cases, the public may be able to review mitigation banking agreements or conservation easements burdening land within banks, but as the agreements are already completed before permits are issued review processes for those projects are unable to influence the terms of such agreements or the management of the mitigation lands. Once mitigation programs are in place, there is no

requirement for public review of any changes to the land or documents. Citizens can also participate in environmental permitting programs as public enforcers or whistleblowers . Both the Clean Water Act and the Endangered Species Act contain citizen

suit provisions enabling suits for permit enforcement.194 This law enables private individuals (who can show standing)

to enforce wetland fill permits and incidental take permits. This gets murky with conservation easements though. It is not clear whom one

would bring a citizen suit against. The permittees have absolved themselves of responsibility through the purchase of mitigation bank credits or conservation

easements. Thus, bringing an action for permit violations doesn't really work. It is not clear citizens would have a cause of action

against the private contractors. Particularly if courts hold that such conservation easements are governed by state conservation easement statutes,

few citizens would be able to challenge such violations. Indeed, many states limit conservation easement enforcers to the holder and potentially the state Attorney

General. b. Accountability Some of the factors that hinder public participation also affect accountability. Accountability concerns emerge when it appears

that the private contractors are insulated from legislative, executive, and judicial oversight. 195 This is certainly a concern with private

mitigation enforcers . To begin with, the private actors conducting mitigation and making mitigation policy are not popularly elected. As revealed

above, it is also infrequent that members of the public even participate in the choice of public actor (which land trust, which bank) that carries out the mitigation duty. When we are unhappy with actions by agencies, we can react by bringing legal challenges or by voting for new executive officers or legislative representatives. 19 6 When unhappy with actions by private actors, we can try those same avenues, hoping that actions against public officers and branches will send the message that we are dissatisfied with the private actors, but that is an attenuated message that is difficult to convey.' 97 And the judicial review options simply seem absent. We might

also have concerns about contracting out because the private actors involved are not necessarily expected to serve the public

interest . Public choice theory tells us that bureaucrats rationally pursue their own interests. 198 Following this theory, private groups will also

work to benefit themselves at the expense of others. This can be in conflict with ideals of civic republicanism that tells us that government is

supposed to be a moral force for the common good (not a vehicle for personal gain).' 99 A company running a mitigation bank may just be seeking to engage in a

profitable business venture. Their oversight of the wetlands they are protecting may seek to ensure functioning wetlands or meet certain

requirements simply to meet contractual requirements not because the company wants to do all it can to protect wetlands. For land trusts and mitigation banks, their clients are the landowners and permittees, not the government agencies overseeing the mitigation programs.

This may offer some indication as to motivations of these private actors. They may be more focused on things like maximizing profits ,

making donors happy, and maintaining amiable relationships with neighbors. Democratic legitimacy and accountability are strengthened by impartiality. That can be lacking here. This concern may be lessened for land trusts compared to entrepreneurial mitigation banks. As nonprofit charitable organizations, land trusts do have an obligation to support the public interest. Under many conservation easements statutes, the organizations must have conservation as one of their core goals or values.200 In this way, these organizations have obligations to the public through state laws regarding charitable organizations. In her work, Jody Freeman suggests that private organizations may have mechanisms that increase the likelihood that public interest will be served even if the organizations are private and thus not

subject to typical restrictions that agencies must abide by.202 Both land trusts and mitigation bank operators are constrained by a host of laws as well as industry norms. Thus, there are practices and attitudes governing their work that may be even more effective than agency oversight. The organizations must be responsive to their members, boards, and investors. Where nonprofit organizations are involved, we might have even greater solace as they may not operate in ways simply designed to maximize profits or client satisfaction. Land trusts also have organization norms from the Land Trust Alliance and external standards for charitable organizations that may make them more responsive to the public interest than the owner of the for-profit wetlands mitigation bank. c. Transparency Although both the permits and conservation easements are public documents, they are not equally easy to track down. Where one can obtain a permit, it may be difficult to also get a copy of the conservation easement that embodies the mitigation required in the permit. The mitigation details may be hidden from view. Thus, we have to overcome the threshold issue of obtaining information. It is impossible to get comprehensive information on how and where conservation easements are being created and whether they are being monitored. An extensive effort to track conservation easements through online registries, county recorder office documents, and spatial data in California revealed piecemeal tracking systems, leading scholars to recommend new tracking systems that include information on conservation easement locations, terms, and greater monitoring of the monitors. 20 3 It can be challenging just to learn when there is a problem. For example, I examined the Section 10 incidental take permit for San Bruno 204 Mountain. Examining the associated Habitat Conservation Plan reveals references to the developers' intention to use habitat easements to meet mitigation needs.205 The plan did not explain in any detail what the conservation easements would look like, where they would be located, or who would hold them.206 Tracking down those conservation easements was challenging. Repeated phone calls and emails to the public agencies, consultants, and developers only unearthed one conservation easement (even though many acknowledged that conservation easements were used pervasively in the project). 207 Thus, even where I knew conservation easements were operating, I could not locate copies of them or learn who held them. Beyond locating permits and associated mitigation

documents, it can be difficult to determine when permits violations occur . First, if we can't find the documents, we

have no way of knowing whether the mitigation programs are being carried out correctly (if at all). Under the Endangered Species Act and the Clean Water Act, citizens can bring suit against permit violators (or indeed any violators of the statute).208 But the struggle of finding the information makes it challenging to learn of when permit violations occur. Furthermore, because conservation

easements and mitigation bank practices lack consistency, it can be even harder to assess them. To understand the mitigation requirements, one must look at each individual agreement because the terms could be quite different. The permits and mitigation bank agreements differ by state, by agency office administering the program, by the private contractor involved. Additionally, individual landowners and permittees may add other requirements or provisions. When the conservation easements are written by different holders and there is no agency guidance or model conservation easement, there is a lack of consistency in permitting. Mitigation requirements in permits may effectively vary because of the nuances and requirements of the different holders involved.

--1AR No Solvency – Wetlands

Private management of wetlands cannot guarantee compliance with environmental regulationsOwley 13 (Jessica Owley, Professor of Law and Faculty Director for the Environmental Law Program at the University of Miami, “Increasing Privatization of Environmental Permitting,” 46 Akron L. Rev. 1091, 2013)

Capacity and oversight concerns merge with the issue of enforcement . Repercussions for lack of enforcement

are unclear. What do we do when private groups are not good at environmental protection ? There are lots of flaws with public actors, but the response is a bit clearer. We have a general sense of what our legal and political options are when we don't think a public agency is doing the right thing, but this gets harder when we are looking at the actions of a private party. What happens when the land trust does not enforce the conservation easement? This may happen by mistake (the land trust does not realize that there is a violation) or

quite consciously. The land trust may decide that the infractions are not worth the expense of

enforcement and litigation . The land trust may determine that the property is not really that

valuable .2 14 Thus, whether the decision not to enforce is due to a lack of capacity or is a strategic one, it is not clear what recourses are

available when enforcement does not occur. A similar issue arises with mitigation banks . Without consistent study and

oversight, it is hard to know whether mitigation banks are delivering promised ecological benefits. In 2001, the National Resource Counsel reviewed federal wetlands mitigation and found several disturbing things. 2 15 First , there

was a high rate of noncompliance with mitigation plans . 2 1 6 The long-term monitoring and management of the

mitigation projects was limited (often with inadequate funding). 2 17 Other studies supported these findings,218 including a 2005 study from the

Government Accountability Office. 2 19 The GAO study noted that the permit performance and success criteria were

inadequate .22 0 Mitigation sites were not well located and there was inadequate agency support

for compliance monitoring , tracking , training , or research . 2 2 1 The studies generally demonstrated that projects

minimized the avoidance option (what should have been prong one of a mitigation program) and jumped to focusing on compensation.222 It is

not clear what a concerned citizen could do upon discovering a poorly operated mitigation bank. There are no avenues for

public oversight or enforcement . Land trusts involved with holding conservation easements on mitigation banks admit that

many of them protect marginal sites and provide little habitat. 223 Old mitigation banks (especially those that have

changed ownership) face problems with the continual maintenance needed to maintain the purported ecological value of the site. As I have written elsewhere, we may be able to find some legal hooks to allow enforcement by government agencies, attorneys general, or even through citizen suits.224 An added conundrum is who to enforce against and what are we enforcing. Are we enforcing the conservation easement, the mitigation banking agreement, or are we enforcing the permit? The conservation easement was a requirement of the permit and incorporated into the permit by reference usually. Is that enough to make conservation easement terms permit terms? If so, then violation of the conservation easement could be considered violation of the permit and enforced by any party that would have the ability to enforce the permit. But

enforcement of the permit may not be entirely satisfying if the remedies are permit revocation or fines from the permit holder. Overall, we are left with a lot of uncertainty regarding these private mitigation operations .

2AC Court Key

Court action advancing the “significant nexus” test is necessary to protect imperiled wetlands – critical biodiversity losses occur otherwiseCraig 8 (Robin Craig, Attorneys’ Title Insurance Fund Professor of Law, Florida State University College of Law, “Justice Kennedy and Ecosystem Services: A Functional Approach to Clean Water Act Jurisdiction after Rapanos,” Environmental Law, Vol. 38, February 2008)

However, in June 2006, a fractured U.S. Supreme Court decided Rapanos v. United States, 25 restricting the scope of the Clean Water Act’s

“navigable waters.” In that 4–1–4 decision, Justice Kennedy articulated a “significant nexus” test that, despite his being the

only Justice to sign his concurring opinion, has become either the controlling test or one of two possible tests (depending on the circuit)

for identifying “ navigable waters ” subject to the Act’s jurisdiction.26 Justice Kennedy’s test is at heart a

functional analysis of jurisdiction, and hence it opens jurisdictional analyses under the Act to consideration of both ecosystem function

and ecosystem services arguments for including waters within the Act’s protections. This Article argues that, if federal courts

continue to accept Justice Kennedy’s invitation to look at aquatic ecosystem function and aquatic ecosystem

services, Rapanos may—contrary to initial appearances—end up producing two salutary effects for Clean Water Act jurisprudence. First,

incorporating ecosystem function and ecosystem services into the Act’s jurisdictional analysis will likely require agencies and

courts to stress the interrelationship and interconnection of water resources , providing stronger

arguments for broad Clean Water Act jurisdiction . Second, repeated articulation of ecosystem function and ecosystem services will underscore the vital role that the Act plays in protecting economic as well as ecological values, enhancing the Act’s continuing popular and political support. Part II of this Article defines and describes the ecosystem services that aquatic ecosystems provide and that the Clean Water Act can protect. Part III describes approaches to establishing Clean Water Act jurisdiction, emphasizing the classic formalistic approach to analyzing Clean Water Act jurisdiction and analyzing the three major Supreme Court opinions on the scope of “navigable waters,” with an eye to this traditional approach. In addition, Part III concludes by describing how Justice Kennedy’s “significant nexus” test from Rapanos could demand a new approach to the jurisdictional analysis. Part IV describes the ascendancy of Justice Kennedy’s test and the Western District of Kentucky’s use of a functional jurisdictional analysis in United States v. Cundiff, 27 arguing that Cundiff demonstrates how the difference in analytical approach can both identify ecosystem functions and services that aquatic ecosystems provide and underscore the value of those functions and services to humans in the surrounding area, ultimately disclosing broader water quality concerns. The Article concludes by

arguing that if other courts follow the Western District of Kentucky’s lead, the Rapanos decision and Justice Kennedy’s “ significant

nexus” test may unexpectedly enhance public and legal awareness of the larger values of the Clean

Water Act and the aquatic ecosystems that it protects. II. ECOSYSTEM SERVICES AND THE PRESERVATION OF AQUATIC ECOSYSTEMS UNDER THE CLEAN WATER ACT A. Ecosystem Services in General “Ecosystem services are the conditions and processes through which natural ecosystems, and the species that make them up, sustain and fulfill human life.”28 These services include both the processes that produce ecosystem goods, such as seafood and timber, and “the actual life support functions, such as cleansing, recycling, and renewal,” that ecosystems provide.29 Ecosystem services are thus obviously tied to ecosystem function, creating a link between an ecosystem approach to environmental and natural resources regulation and the economic emphasis that the evaluation of ecosystem services provides.30 Indeed, one of the points of recognizing ecosystem services is to acknowledge that intact and functional ecosystems have economic value for humans.31 Nevertheless, it is important not to confuse ecosystem functions, which are ubiquitous, with ecosystem services, which are the consequence of only some ecosystem functions. The critical difference between the two, and which makes the development of ecosystem services policy both complicated and controversial, is that ecosystem services have relevance only to the extent human populations benefit from them. They are purely anthropocentric.32 B. Ecosystem Services from Aquatic Ecosystems and Wetlands Freshwater ecosystems provide a variety of goods and services,33 which can be grouped into three broad categories: “(1) the supply of water for drinking, irrigation, and other purposes; (2) the supply of goods other than water, such as fish and waterfowl; and (3) the supply of nonextractive or ‘instream’ benefits, such as recreation, transportation, and flood control.”34 The monetary value of freshwater supply can be estimated by comparing the costs of treatment or, at the extreme, desalinization of seawater; for example, to supply the world with freshwater, the cost of the latter could run into the billions or even trillions of dollars.35 Freshwater fisheries and waterfowl similarly produce goods valued in the billions of dollars.36 The value of instream services is more difficult to estimate, but pollution dilution and assimilation are certainly two of the more valuable of these natural services. Moreover, the costs of technological replacement for such natural ecosystem services can be estimated through the known costs of sewage and drinking water treatment. In 1997, for example, two researchers estimated the value of freshwater dilution and

assimilation services to be at least $150 billion per year.37 Wetlands, both freshwater and saltwater, are particularly important

sources of ecosystem services . “Although wetlands account for only a small portion of the earth’s surface, they are often

concentrated in a particular area, where they dominate the landscape.”38 Wetlands provide a variety of ecosystem services, including support of biodiversity , “[p]roduction of harvested wildlife,” wood and fiber production, “[c]arbon accumulation,” “[m]ethane production,” and “[s]ulfur reduction.”39 In the context of the Clean Water Act, however, the most relevant ecosystem services that

wetlands provide are “[ w]ater quality improvement,” “[f]lood mitigation and abatement,” and “[ w]ater

conservation .”40 Indeed, municipalities can substitute functional wetlands for more expensive treatment plants in pursuit of wastewater treatment and recycling.41 More expansively, natural wetlands “have absorbed and recycled nutrients from human settlements since the dawn of civilization”42 and are particularly good at sequestering and retaining phosphorus, nitrogen, and sediments.43 Another important aspect of

freshwater ecosystems and the services they provide is that the United States has lost a significant percentage of its aquatic ecosystems. Over half of the nation’s wetlands have been converted to agriculture , and

approximately 98 percent of the continuing wetland losses of over 58,000 acres a year are freshwater wetlands.44 In addition, “less than 2 percent

of the nation’s 3.1 million miles of rivers and streams remain free flowing for longer than 125 miles . . . .”45 Loss of habitat has also

imperiled many aquatic species . 46 “Thus, the number and amount of intact functional aquatic ecosystems have been

substantially reduced in recent decades. This relative scarceness has called increasing attention to the need to better understand the functionality and value of the remaining ecosystems to society.”47

Land-Use CP Answers

2AC CP = Climate Gentrification

The counterplan exacerbates gentrificationBonjour 20 (Rakiah Bonjour, J.D. Candidate, Seton Hall University School of Law, “Flooding the Cities: How Land Use Policies Contribute to Climate Gentrification,” 44 Seton Hall Legis. J. 91, 101-106, 2020)

Retreat policies attempt to reduce the hazards of sea levels risin g by restricting , prohibiting ,

or removing development altogether from areas at risk of being destroyed by flooding. These policies force

populations out of their homes either through the acquisition of the entire property by eminent domain, or by prohibiting land

development via land use [*102] regulations . Retreating is generally deemed impossible by local governments because it is "politically unpopular and expensive," especially when it is done through an eminent domain taking of already-developed properties. Although unpopular, retreating has slowly crept into city planning in urban and rural areas through zoning ordinances; these ordinances are considered to be a more proactive approach of climate change policies that prevent flood disasters. While some coastal dwellers choose to retreat without government intervention due to high costs of maintaining their coastal property, or because they become disillusioned by competing with the sea, more often retreat occurs from direct land use regulations enacted to encourage retreat. Typical regulations to ward off the rising sea level include prohibitions against residential use, setting parcel bulk restrictions, and prohibitions of any further development on the property. By declining further development or residential use, the city exercises its police powers to protect public health, safety, and welfare, which changes with the

needs of time. Zoning regulations are generally held valid in recognition of those police powers. In a regulatory taking , the

government regulates land use , but it does so to the point at which the owner loses all beneficial use of the property. Regulatory takings should not be confused with eminent domain - the difference being that the government explicitly takes property by eminent domain for a specific public purpose. A regulation is not a taking if it destroys the utility of one portion of the land as long as the entire land as a [*103] whole remains valuable. Retreat policies may be challenged as regulatory takings if the ordinance deprives the land of all economically beneficial use. In such a case, the government will have to answer to a regulatory takings challenge and might have to pay just compensation if the action is found to be a taking. In a seminal regulatory takings challenge, Lucas v. South Carolina Coastal Council,a landowner paid nearly one million dollars for two residential lots on an island that was subsequently regulated by the municipality to ban any permanent habitability structures from being built. Lucas contended that the ban was an unconstitutional regulatory taking, even though the government did not take the land for its own use, because it had prevented Lucas from using the land in its entirety. South Carolina insisted that the regulation was enacted to protect the land from harmful and noxious uses, which the Court had seemingly always allowed a government to do within its police powers. South Carolina argued that Lucas's development would be a nuisance because the construction would contribute to the erosion of the island, furthering the public harm. The Supreme Court held that, notwithstanding the regulation, if an ordinance deprives land of all economically beneficial use, the government may resist compensation only if the inquiry into the nature of the owner's estate shows that the proscribed uses were not part of the title to begin with. Particularly, if the state can prove that its nuisance law would have enjoined the development, then a regulation that prevents the development does not constitute a regulatory taking - even if it leaves the property valueless. The Court used examples to describe regulatory takings that would not entitle a landowner to just compensation: a lakebed owner who was denied a permit to participate in a landfill operation would not be entitled to compensation if the effect would flood others' land; a nuclear generating plant owner would not be entitled to compensation for removing all of the land improvements if the plant sat on an earthquake fault. Both of these regulations eliminate all economic productive use for the landowners. [*104] However, the use of these properties for the now-prohibited purposes was already unlawful, the regulations did not prohibit a productive use that was previously permissible under existing nuisance principles. The inquiry into nuisances entails an analysis of the degree of harm to public lands and resources, degree of harm to adjacent private properties, the social value of the claimant's activities and their suitability to the locality in question, and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and government alike. The Court remanded Lucas, and stated that, in order for South Carolina to succeed, it "must identify background principles of nuisance and property law that prohibit the uses" Lucas intended in the circumstances in which the property was presently found. "Only on this showing can the State fairly claim that, in proscribing such beneficial uses, the [land use regulation] is taking nothing." Lucasmay be one of few land-owner-friendly regulation cases. This presents a seemingly new question, that is, if regulations were enacted to protect the landowner against harmful or dangerous property, would they too be struck down? If a regulation prevented a landowner from building not to protect the land as a historical site or open space, but to prevent the landowner from any physical or financial harm due to impending floods or storms, would that regulation be upheld to protect against an existing [*105] nuisance? Or would it be struck

down as in Lucas as stripping the landowner of the value of his property? Land use law and flood ordinance jurisprudence

suggest "that the prevention of risky flood plain development , even if partially done for parental reasons, is a

valid police power objective " and would withstand a landowner's takings challenge. Under Lucas,if a new development causes flooding on surrounding parcels, that constitutes a nuisance. A regulation that prevents such construction, then, would not be a regulatory taking even if it led to a total loss in value because the development was a nuisance to begin with. "Courts have rejected many Fifth Amendment

challenges to flood plain ordinances." Courts have only held regulations pertaining to flood plain zoning invalid "in a few of the more than 125 appellate state and federal cases addressing floodplain regulations over the last decade," including those that challenge the regulation as a taking of private property. In Beverly Bank v. Illinois Department of Transportation, the court held that the Illinois legislature had the authority to prohibit the construction of new residences in the 100-year floodway and that a taking claim was premature. In State of Wisconsin v. Outagamie County Board of Adjustment, the court held that a variance for a replacement of fishing cottage in the floodway of a river was barred by a valid zoning ordinance. In yet another case, a court rejected a claim that the rezoning of a 150-acre golf course from residential to strictly recreational use was a taking because the property was important for floodwater storage. As sea levels rise, regulatory takings challenges will likely increase as local governments strive to find the best solution to protect their citizens. Because the courts have routinely held that restricted zoning to protect citizens, wildlife, or for preservation purposes all fall within a city's police powers, it is likely that restricting coastal living will be deemed

lawful and appropriate to further a city's safety scheme. Retreat policies , which [*106] focus on keeping the population

safe and are constitutional, only exacerbate the effects of climate gentrification . As a result of retreat policies, people may be increasingly forced out of their homes and obligated to find homes on the mainland, rushing displacement and not allowing time for any solutions to form. As for retreat policies that would take an entire property through eminent domain, the Supreme Court has expanded eminent domain powers by interpreting "public use" broadly; thus it is likely these would be constitutional takings. The Supreme Court ruled in Kelo v. City of New London that a city could take private property and redistribute it to private developers without violating the public use requirement of the Constitution's Fifth Amendment. The Court reasoned that "public use" also meant anything could fall under the purview of "public purpose," meaning economic revitalization promoted the government's interest in economic development. Using Kelo,local governments have justified flipping the urban demographic. For example, New York City revitalized Harlem and Brooklyn using Kelo's very principle. Kelo led to displacement in these instances where the original residents lost their housing to those who could pay more money for the new-and-improved housing in the same location. Retreating may seem, to coastal residents, as the most unjust form of policy. Many littoral residents may not want to leave their homes due to strong ties to their communities, children, schools, and personal attachments. Moving may no longer be a choice as

rising sea levels requires moving as the only option for safety, but forcing residents out without planning for an

adjustment on the mainland only worsens the effects of climate gentrification .

Gentrification is an example of anti-black racism – reject itFeder 20 (Sandra Feder, “Stanford professor’s study finds gentrification disproportionately affects minorities,” 12-1-20, https://news.stanford.edu/2020/12/01/gentrification-disproportionately-affects-minorities/)

A new study by a Stanford sociologist has determined that the negative effects of gentrification are felt

disproportionately by minority communities , whose residents have fewer options of

neighborhoods they can move to compared to their white counterparts . “If we look at where people end up if

they move, poor residents moving from historically Black gentrifying neighborhoods tend to move to poorer non-gentrifying neighborhoods within the city, while residents moving from other gentrifying neighborhoods tend to move to wealthier neighborhoods in the city and in the suburbs,” said study co-author Jackelyn Hwang, assistant professor of sociology in Stanford’s School of Humanities and Sciences. Hwang and co-author Lei Ding of the Federal Reserve Bank of Philadelphia conducted one of the first studies to examine empirically where disadvantaged residents move as a result of gentrification and how a neighborhood’s racial context affects those moves. Looking at the city of Philadelphia,

Hwang and Ding found that financially disadvantaged residents who moved from neighborhoods that were not predominantly Black benefitted from gentrification by moving to more advantaged locations, but those moving

from once predominantly Black areas did not. The research is published in the American Journal of Sociology. “As neighborhoods gentrify, when poor people can no longer remain in their neighborhoods and move, there are fewer affordable neighborhoods,”

Hwang said. “Our findings suggest that, for the Black community , there are additional constraints when

they move, leading them to move to a shrinking set of affordable yet disadvantaged neighborhoods within the city.”

2AC Land Use Fails

Land use adaptation fails – property owners will use lawsuits and court action to block solvencySullivan 19 (Edward Sullivan, and A. Dan Tarlock. “The Western Urban Landscape and Climate Change,” Environmental Law 49.4, 2019): 931-994)

As with transportation, land use planning requires state, regional, and local government participation. Without such planning, it is likely that more sprawl will occur and economic segregation will set aside islands of large-lot privilege and delay the inevitable

realization that the days of the single-family lot eludes the grasp of increasingly large segments of the population. Land use planning must anticipate and foster climate resilience, carbon sequestration, and although it will be difficult, retreat from

hazardous areas. Moreover, it is likely that non- land use, but related areas must be re-examined, such as property tax policies that preserve the interests of existing owners and strangle revenues to deal with a more just allocation of housing, public facilities and other goods.

This effort will not be easy , as we have stressed in the case studies. Property owners will use all available

tools in the zoning challenge such as takings suits , endless environmental review , and attempts

to landmark anything old. In an ideal world, there. would be federal and state guidelines that mandate elements of adaptation such as plan content, CD-adjusted projects for urban services and public health and property risks, the integration of public transportation planning and land use, and infrastructure resilience. But, there will be no federal guidance in the foreseeable future and no state that develops a comprehensive legislative adaptation program.

2AC Double-Bind

Double Bind - Either the CP links to the DA or the CP doesn’t solve – agricultural water use is a key barrier to climate adaptation Flörke et al 18 (Martina Flörke, Faculty of Civil and Environmental Engineering at Ruhr-Universität Bochum, Christof Schneider, Universität Kassel · Center for Environmental Systems Research, & Robert I. McDonald, The Nature Conservancy · Science, Ph.D., Nature Sustainability volume 1, pages 51–58, 2018)

Urban water demand will increase by 80% by 2050 , while climate change will alter the

timing and distribution of water . Here we quantify the magnitude of these twin challenges to urban water security, combining

a dataset of urban water sources of 482 of the world’s largest cities with estimates of future water demand, based on the Intergovernmental Panel on Climate Change (IPCC)’s Fifth Assessment scenarios, and predictions of future water availability, using the WaterGAP3 modelling

framework. We project an urban surface-water deficit of 1,386–6,764 million m³. More than 27% of cities studied,

containing 233 million people , will have water demands that exceed surface-water availability. An additional

19% of cities , which are dependent on surface-water transfers, have a high potential for conflict between the

urban and agricultural sectors , since both sectors cannot obtain their estimated future water

demands . In 80% of these high-conflict watersheds, improvements in agricultural water-use efficiency could free up enough water for urban

use. Investments in improving agricultural water use could thus serve as an important global change

adaptation strategy .

--1AR Double-Bind

Clean water regulation is necessary for climate adaptation – addressing agricultural pollution is required Craig 10 (Robin Kundis Craig, Attorneys’ Title Insurance Fund Professor of Law, Florida State University College of Law, “Climate Change Comes to the Clean Water Act: Now What?,” 1 Wash. & Lee J. Energy, Climate, & Env't 9, 2010, https://law2.wlu.edu/deptimages/Journal%20of%20Energy,%20Climate,%20and%20the%20Environment/Craig.pdf)

President Obama’s Administration and the EPA should recognize and embrace the Clean Water Act as a relevant and

potentially very powerful climate change adaptation tool . To that end, increases in the amount of funding provided to the

EPA, other federal agencies such as the Army Corps and U.S. Geological Survey, and the states for basic water quality research and, in particular, water quality monitoring and modeling could greatly increase and improve federal, state, and local governments’ abilities to identify climate change impacts to particular water resources as they are occurring and to predict future changes and their effects on species, ecosystems, ecosystem services, and socio-ecological systems—including effects on human health, industry, and economics. Such information is essential to

climate change adaptation planning and strategizing. In addition, the Obama Administration and its EPA should fully embrace the

plethora of authorities that the Clean Water Act provides that could help to reduce or blunt the ultimate

ecological and socio-ecological effects of climate change impacts on water quality . They should provide

renewed vigor in pursuing the Act’s aspirational goal of eliminat ing all discharges of pollutants into the nation’s

waters , with particular attention to drastically reducing toxic water pollution and regulating pollutants and sources of

pollutants currently escaping rigorous (or any) regulation even though they are known to impair water quality and stress

aquatic ecosystems. Similarly, the Obama Administration and Congress should strongly consider increasing states’ capacities to implement more effective water quality programs, from NPDES permitting to water quality certifications to nonpoint source regulation. While increased and renewed funding to states will be an important component of this support, informational and technical support are equally important, particularly if the EPA is engaging in nationwide monitoring and modeling. Finally, the Obama Administration and Congress should analyze what portions of the Clean Water Act could and should be strengthened—and what portions need additional flexibility to allow for rational responses to

unavoidable and irreversible climate change impacts to water quality. The first important amendment in this regard should be a congressional “ fix ” to the Rapanos jurisdictional issue . Beyond that, Congress should seriously

consider pulling agriculture and other nonpoint sources into the Act’s federally enforceable reach and adding “climate change exemption” flexibility to the Act’s water quality standards and TMDL provisions.

2AC Water Key

Water management is an essential part of climate adaptation efforts – holistic federal assessment and integrative policymaking require its inclusionLindsey 15 (Max Lindsey, J.D. Candidate, Albany Law School, “When Every Drop Counts: Addressing Hydrologic Connectivity as a Climate Change Issue,” 2014/2015, 78 Alb. L. Rev. 623, 631-645)

Water is the resource that sustains populations and allows for the growth and expansion of society.

Across the nation , from contaminated water sources to depleted reservoirs , conflicts over water

supplies are becoming increasingly common . One of the main drivers of these conflicts is the rapidly growing understanding of the effects of climate change on the water cycle. The fact that climate change is affecting our world and consequently our water system is an

undeniable truth. The disjointed , and often [*624] uncoordinated allocation of water rights across our

country is in drastic need of an overhaul in light of the evolving conditions of climate change . In order to fully appreciate all of the challenges and opportunities present in current water allocation regimes, each element of the water system needs to be independently analyzed and adapted to prepare for future changes. Some of the necessary changes and adaptations are easily recognized by the general public, and therefore have seen a more rapid response from regulators aimed at tackling the issues before they cause greater problems for water use. However, full understanding and adaptation to climate change requires an analysis of all elements of the water system and how they are affected by the impacts of climate change. This note will focus on a relatively obscure and unrecognized aspect of the water system - hydrologic connectivity. Due to the (until recently) largely unknown properties of groundwater flow and its connection to surface

waters, hydrologic connectivity has been a historically underrepresented element of water law. In

order to [*625] effectively govern water rights allocations, the entire water system needs to be analyzed

in the context of climate change to ensure the preservation of sufficient water for our whole country. There is not enough of this precious resource to let it fall through the gaps of our management systems. We need to adopt a holistic approach to accounting for climate change impacts on every element of the water system in an environment where every drop counts. This note will address the idea of hydrologic connectivity as a climate change issue through a multifaceted approach that looks at many impediments and advantages of adaptive management of hydrologic systems throughout the country. Part II touches on the current understanding of the impacts climate change has and will continue to have on water supplies and provides an overview of the current scope of adapting water rights to climate change. Part III provides an understanding of how hydrologic connectivity has developed as a water management device. Part IV identifies water regimes that have included hydrologic connectivity as a part of their management system and discusses whether these take into account the impacts of climate change. Part V addresses the specific implications of hydrologic connectivity and why this element is necessary to include in the adaptive management of water rights. Finally, Part VI identifies several challenges impeding the inclusion of hydrologic connectivity in adaptive water management systems and provides possible solutions to the problem of implementing such a comprehensive policy. II. Climate Change Impacts on the Water System The scientific community has finally accepted the human contribution to climate change. The impacts of climate change reach well beyond the common focus of increased temperatures on Earth, and these changes on Earth will impact nearly every aspect of human society over the next century. Further,

"changes in the global water cycle in response to the warming over the 21st century [*626] will not be uniform." The changes to the water cycle will require an adaptive approach in order to evolve existing water institutions and

policy to fit with climate change : "The likely hydrological effects of climate change will upset settled expectations and require

water institutions to adapt." While many impacts of climate change may seem like distant problems that only future generations will have to deal

with, the impacts of climate change on precipitation patterns and water supplies are already very

real elements of our society . This reality has caused urgency for the adoption of more holistic and inclusive water management in

face of its growing scarcity in some regions. "The legal system will struggle to reconcile "secure' water rights

and allocations … with hydrological conditions , that will differ greatly from the assumptions on which

those rights and allocations were granted." Rather than looking to the past, water institutions of all scales and areas need to be forward-thinking in creating new and adaptive concepts for how to best manage water rights. Given that there is now a lower extent of snow cover, uncertain changes to precipitation patterns, and an overall quicker rate of evaporation, the excess water that has traditionally recharged aquifers, rivers, and

reservoirs may not exist to provide enough recharge in the near future. As aquifers continue to be depleted and recharge

rates are altered from the historical measurements, climate change continues to challenge water resources

and existing approaches to groundwater allocations .

--1AR Water Key

Water planning and action is a necessary feature of climate adaptation effortsSuzman 21 (Mark Suzman, Chief Executive Officer, Bill & Melinda Gates Foundation, “The time to adapt to climate change is now,” 2-16-21, https://www.gatesfoundation.org/ideas/articles/mark-suzman-climate-adaption)

Water is of course central to both human life and smallholder agriculture , but the effects of climate

change on water pose a vicious double-edged problem . On one hand, rising seas and more extreme weather threaten to inundate coastal and low-lying regions, forcing mass relocation and damages that are projected to exceed $1 trillion per year by 2050.

Increased rainfall also means more floods that endanger crop yields and swamp rudimentary sanitation systems, exposing more families to unsafe drinking water and dangerous pathogens . On the other hand, climate change also means

that many more people will be increasingly subject to droughts that prove devastating to both safe drinking water and food supplies. Left

unchecked, climate change will increase the number of people experiencing water scarcity to as many as 3 billion by 2050. Nations and

communities need to prepare now for these additional climate risks by incorporating them into

future planning , strengthening water infrastructure , investing in healthy watersheds , and supporting

new technologies that can more efficiently use and allocate water. Among these potential innovations are more decentralized (and thus more resilient) wastewater systems and toilets that can operate without a water supply. At the foundation, we support research into these reinvented toilets, which could also drastically reduce disease and improve sanitation for billions around the world. Stronger safety nets, wiser policies We know that even though the world must adapt to the changing climate now, people can’t be insulated against all eventualities. Already, the effects of climate change threaten hundreds of millions who are still reeling from the pandemic. These families face poverty, disease, and hunger through no fault of their own—and they aren’t even causing the emissions that are driving this crisis. In light of this reality, the foundation strongly urges governments, the private sector, and international organizations to shore up social safety nets and help people in the most vulnerable communities gain access to credit, insurance, and savings. Similarly, climate change is placing increasing constraints not just on water but on other critical natural resources such as soil and forests. Public policy should recognize these growing constraints and conserve critical natural resources

whenever possible. We can no longer afford to pretend that climate change is a problem for the future. Its impacts are being felt right now all over the planet, and they will only grow worse if the world does not begin reducing emissions and helping people adapt to the new normal. Even as we work to contain and ultimately defeat COVID-19, it is time to come together and address the climate crisis in earnest.

--1AR Water K2 India-Pakistan

Water based strategies are crucial for Pakistan to manage its climate adaptation effortsParry et al 16 (Jo-Ellen Parry, Anika Terton, Hisham Osman, Christian Ledwell, Saeed Asad, “Making Every Drop Count: Pakistan’s growing water scarcity challenge,” 9-29-16, https://www.iisd.org/articles/making-every-drop-count-pakistans-growing-water-scarcity-challenge)

Pakistan is facing a serious water crisis . The country is rapidly moving from being classified as water “stressed” to water “scarce”—and

with its annual water availability fall below 1,000 cubic metres per person, it may in fact have already crossed this threshold. For comparison, that means that the annual water available for each person in Pakistan would not even fill half of an Olympic swimming pool. The scope of the crisis can be demonstrated by a few key facts: About 92 per cent of Pakistan is classified as semi-arid to arid, and the vast majority of Pakistanis are dependent on surface and groundwater sources from a single source—the Indus River basin. Since gaining independence in 1947, Pakistan's population has more than quadrupled; by 2100 its population will have increased by tenfold. About 90 per cent of the country's agricultural production comes from land irrigated by the Indus Basin Irrigation System (Qureshi, 2011), firmly linking national food security to water levels in the Indus River basin. Pakistan’s water storage capacity is limited to a maximum 30-day supply, far below the 1,000-day storage capacity recommended for a country with its climatic characteristics. With water availability per person declining year by year, and demand for food production continuously increasing, Pakistan faces not only a water crisis but also serious concerns regarding its future food security. This situation also has clear implications for the government's efforts to become an upper middle income country by 2025 and achieve long-term peace and security. What Does Climate Change

Mean for the Water Crisis? Climate change is likely to only enhance Pakistan’s water crisis , although perhaps not in the

way that many expect. When climate change and its implications for Pakistan’s water resources are discussed, the conversation normally revolves around the expected decline in water flow in the Indus River basin as the glaciers of the Hindu Kush-Karakorum-Himalaya mountains retreat and are lost. This concern is understandable given that snow and ice melt runoff currently generates between 50 and 80 per cent (Yu et al., 2013) of average water flows in the Indus River basin. And there is in fact some evidence that the amount of water flowing into the Indus River basin has declined in recent years (but due to cooler and cloudier summers). Inevitably, climate change will lead to significant changes in hydrologic patterns in the Indus River basin. But at least until 2050 the scientific evidence suggests that the volume of water flowing in the Indus River and its tributaries likely will remain relatively stable or even increase. The most significant change could be a shift in the timing of peak flow to slightly earlier in the year, along with a potential increase in variability from one year to the next. Such changes could in fact help to somewhat alleviate Pakistan’s growing water stress. Largely overlooked in the discussions around water and climate change in Pakistan are the likely impacts of climate change on the

country’s steadily growing water demand. Rising temperatures will increase the agriculture sector’s already substantial

demand for water as evapotranspiration rates increase and soil moisture levels decline. Higher temperatures will also affect

the country’s growing thermal power production sector , which provides approximately 65 per cent of the country's energy. The

thermal sector is highly dependent on water for steam production and subsequently for cooling the steam. As higher air temperatures decrease the efficiency of the thermal conversion process (Makky & Kalash, 2013), greater volumes of water will be required by this sector to maintain production levels. Better Management of Water Demand The potential impacts of climate change on water demand have been highlighted in recent research completed by Amir & Habib (2015), and analyses completed by IISD as part of a larger project looking at the vulnerability of Pakistan's water sector to climate change undertaken in partnership with the Centre for

Climate Research and Development, Pakistan's Ministry of Climate Change and UNDP-Pakistan. These studies suggest that higher temperatures will lead to a significant increase in water demand compared to a business-as-usual scenario. The immediate threat posed by climate change to Pakistan’s water sector therefore is on the demand side. This finding reinforces the need for Pakistan to focus on improving the efficiency with which it uses its water—to make sure that every drop counts. The recently completed studies also highlight the potential benefits of investing in efforts to improve the efficiency of water use—particularly in the irrigated agriculture sector, where the opportunities for improvement are significant. The Indus River Irrigation System is characterized by large inefficiencies at the canal, watercourse and field levels; only about 30 per cent of water flowing through the system is delivered to farms, and farmers at the

tail end of the system rarely get water. Water management is weak; water prices and recovery rates don't generate the revenue needed to cover

operation and maintenance costs; there is an absence of regulatory enforcement ; and farmers continue to follow traditional flood

irrigation practices that overwater crops and have led to waterlogging of soils in parts of the Indus Basin. Greater effort to promote the uptake of high-efficiency irrigation systems by smallholder farmers, along with infrastructure investments such as canal upgrades and precision land levelling, would be important steps to improve the situation. At the same time, much more effort is needed to understand the water demand challenges facing Pakistan. There is a general absence of water demand data and analysis, particularly for different provinces and sectors. More research is also needed in areas such as water pricing to develop and implement

systems that promote more efficient water use. Next Steps Towards Preventing Water Scarcity As Pakistan strives to respond to

climate change and its associated risks—for example, by completing recently announced plans to develop a comprehensive climate change strategy—

water demand solutions need to be at the forefront of its efforts. This focus will help to overcome the country’s

immediate and growing water crisis. It will also help reduce Pakistan's vulnerability to more variable water flows and the inevitable longer-term impacts of climate change on the essential water resources of the Indus River basin.