National Waters, Legal Fictions, and Rivers of Fertilizer

If drawn maps rely on distinguishing lines of property, territoriality, or even shorelines, the overlaps of more interactive web maps provide new strategies to trace the complexity of relations between land and water.  The projection of the network of rivers within the United States Jason Davies mapped above, in the header to this post, creates an entrancing web of the body of rivers less as a network, but a nourishing group of waterways.  The map’s beauty provokes us to rethink relations between land and water.  In rendering rivers, rather than territory, it suggests how a dynamic mapping of layers and overlays from directly and remotely sensed data might lead to a range of new cartographical strategies to chart the increasingly complex relationships between land and water in ways that would be less concerned to abstract the waterways or supplies of water from their surrounding environment, but to integrate water into the landscape and ecosystem which it nourishes–or the ways that the entry of pollutants into that hydrographic network might compromise local ecosystems across the country.

To be sure, the apparently pristine pathways that irrigate a disembodied nation in Davies’ map are not so static as they might seem, but his map calls attention to the need to map this body of waters as a constantly challenging collective that registers its fluidity and the changing nature of its composition:  to be sure, not only are not all waterways on the map, but despite omissions the delineation suggests a delicate ecology increasingly in need of being mapped–and increasingly challenging to be embodied.  It is no coincidence, perhaps, that even as Davies created a utopian image of an unpolluted riverine network, it is in response to the attention that the 1972 Clean Water Act gave to the “national waters” of the country that a clearer mapping of these very waters have been called to attention.  If only to stop the range of legalistic reinterpretations of “national waters,” we face increasing challenges to coherently map rivers in isolation from wide the augmentation of phosphorous and nitrogen in surrounding lands, and difficult to disentangle from numerous questions of irresponsible misuse.  No doubt Davies would admit that his data on rivers are not meant to hide the multiple sources of pollution and human diversion of the nation’s hydrography.  Even in a recent rendering of the National Hydrography Database (NHDPlus v2) by the Pacific Institute estimates the magnitude of river flows across the lower 48, show a gage-adjusted record of flow in cubic feet per second as a quite pristine blue:

Average Anual FlowMatt Heberger/Pacific Institute

But the elegance of his hydrographic map, which morphs the fragile constellation of the riverine network of national waters, challenge readers to read the magnitudes of rivers’ flow, but preserves the raster image as an elegantly designed artifact.

It almost provokes us to develop something like a truly comprehensive cartography of the “national waters” the Clean Water Act first addressed in the deep need it isolated to protect the “untrammeled” identity of national parks or woodlands.  Even as we emend the perhaps unnecessarily broad language of “national waters,” which verges on attributing a misleading uniformity to water and to only include those waters that lie on the surface of a land map–and not deep within the ground–it behooves us to work with something like a new map.  To create this map, we must exploit rich data on water diversion and water quality to create a far more dynamic set of models to register the increased impact of pollutants not only on single points of entry into above-ground water, in addition to groundwater, man-made diversion, and return water and run-off into our nation’s rivers and lakes, as we seek to develop not only a better map of water-use but of the risks of polluting significant bodies of drinking water through continued inattentive agricultural policies or policies of drilling.  The attention that a new map could compel to the fragility of the landscape, and perhaps the dynamics of water-use, is particularly relevant.

There is a deep-lying prejudice to registering only above-ground waters as part of nation’s hydrographic network, one that was perpetuated in early terrestrial cartographies, that only viewed the water from the land, and was perpetuated in the USGS surveys that focus on surface water alone.  The disembodied electric blue network in the header to this post almost recalls the fulsome praise that the French Renaissance cartographer Maurice Bouguereau dedicated in his 1594 atlas to the rivers of his native France for providing “water and ornament” to the realm and contributing to its vitality, as if to suggest the pastoral nature of his nation in neoclassical poetry.  Unlike the sinuous rivers which Bouguereau lent prominence as navigable waterways and nourishing streams by the use of his burin, both by straightening their course and increasing their prominence beyond other existing national maps, to create an atlas whose extremely detailed potomography of his whole country wen long unsurpassed, the relation between land and water that includes groundwater reserves, watersheds, and drainage must depart from seeing the hydrographic network from a landlocked point of view.

Two huge changes that have occurred in our water system since the framing of the Clean Water Act that suggest the need to reframe its coverage of national waters:  both the increasing scarcity of freshwater that is drinkable, and its decreasing amount, and the need for agrarian efficiency in diverting and recycling water, and a far more complex relation of industry to water supplies.  Whereas most stipulations of the 1972 Clean Water Act were framed from the growing danger of augmenting single-point pollution in the 1960s and 1970s, in continuing to protect the purity of our “national waters,” we are in danger of inadequately mapping rivers only as points of pollutants entry into pathways of national nourishment alone.  Whereas once industrial pollutants were discharged into water, the evolution of agribusinesses and fertilizer spreading means that we far past the era of single-point pollution of the 1970s, when threats of chemical discharge and pollutants were primarily posed by manufacturing industries.  In other words,, relying on a simple map of a system of isolated waterways as pathways open to navigation runs the risk of ignoring the greatest dangers of pollution to waters–from the levels of phosphorous in fertilizers returned to the ocean in agrarian return waters, from the entry of pollutants into diminishing groundwater reserves, or from hydraulic fracking, as well as the diffusion of pollutants into the waters from agricultural return waters.

The early modern hydrographer Bouguereau boasted he crafted an atlas to display a detailed landscape of those waters that the nourished France; we are in need of a suitably dynamic atlas which, beyond extant maps of navigable waterways, orient viewers to waters within a landscape of over-use, poor land management or drought.

French Hydrography from MB

1.  Our network of rivers is less able to be embodied than their ecological equilibria monitored for the entry of pollutants from wastewater, industry, or agricultural run-off, and as subject to diversions.  Dynamic web-based maps can orient us to the causes and effects of water scarcity rarely faced before, to allow us to chart the effects of agriculture and industry on water-use across the country, in order to document and trace the changed character of our national waters–especially in the moisture-challenged West.  We demand dynamic maps of the national waterways in our own age of water scarcity and water diversion that will try to comprehend the increasing likelihood of the absence of drinkable water in several counties of California’s Central Valley–an atlas able to map land from the point of view of its waters, and more dynamically map rivers in relation not only to landscapes but to the available data of water-use.  Indeed, the availability of such dynamic web maps provides an opportunity to synthesize a far greater range of data than Bougereau had at his disposal–he usually traced and synthesized extant maps, increasing the sinuosity or curvature of a river or stream–within a far more subtle range of map signs.

The possible atlas that we might shape of national waterways reveals a shifting relation between water and landscape, in other words, and more accurately map waters in relation to land-use.  Whereas Bouguereau sought to expand the potomography of France beyond the navigability of rivers as a hydrographic network of wealth, recognizing streams, rivers, and lakes as something akin to a national resource, the changing economy of water, a mapping that foregrounds the relative scarcity of water, the fluidity of its presence, and the instability of its purity presents more of a shifting picture of national waters no longer able to be surveyed from fixed or stable shores.  Indeed, any consideration of national waters demands not only the multiple sources of potential impurities but demands to include both the depletion of groundwater reserves as well as wetlands, and the risks of the increased diversion of waterways based on permits issued in times of far greater (relatively speaking) plenitude of water as a commodity.  Rather than focus on the plenitude and abundance of the national waters that Bouguereau took as a synecdoche for national greatness, we must encourage increasingly compelling cartographical strategies to orient the viewer to the character of the national waters in an age of their increasing absence, and meet the challenges of registering how the  diminution and pollution of waters will increase the value of those pure waters that remain.

More dynamic maps of the national waters compellingly engage debates about defining the “national waters” of the United States or that “nexus of waters”–an almost poetic circumlocution whose parsing has become both increasingly crucial and contentious in recent interpretations that revisit the 1972 Clean Water Act.  If the Act’s passage ensured the cleanliness of national waters, what constitute these waters has been increasingly questioned.  Increased parsing of the meaning and subject of “national waters”–distinct from “jurisdictional waters” of legal oversight or “territorial waters” around nations–as comprehending navigable waters and waters having a “significant nexus” to them, while compelling, provide little clear precedent.  For such waters have been left poorly clarified, overly difficult to pin down on maps, and omit groundwater as much as the impact on water-systems of granted water-rights.  Any map of waterways must, in short, recognize that the waters of any land constitute a particularly fluid subject of oversight, including data as well as maps of geographic precision to gain consensus about what the body of “national waters” constitutes.

Do “national waters” refer only to those waters that have direct entrance on navigable bodies of water, or might they indeed exclude those man-made ponds, lakes, or ditches storing agrarian waste draining to rivers, directly or indirectly, as well as the groundwater that is rarely mapped as a body of water per se, and which the CWA does not address?  While court rulings have included playa lakes, intermittent streams, prairie potholes, wetlands and watersheds, the 2006 Supreme Court ruling  Rapanos v. United States defined them as “relatively permanent, standing, or continuously flowing bodies of water ‘forming geographic features,’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes,” thereby reducing the  integrity of the nation’s waters in which the EPA must prevent point and nonpoint pollution sources, as well as providing assistance to publicly owned treatment works for the improvement of wastewater treatment.

An elegant image of our nation’s riverine paths was created by CartoDB’s senior data scientist, Andrew X. Hill, that reveals the problem and potential of maps to render the flow of water around the topographically quite variable surface of the lower forty-eight, by rendering their directionality of their flow in different shades:


rivers and directional flowAndrew X. Hill/CartoDB

The color-coding of rivers by directionality in a postGIS platform creates a tacit appreciation of the relief of the country, in ways that would make the tracking of the possible dangers of pollutants even more concrete.

1.  In a recent response to a ruling advancing a rather restrictive notion of discharges to “navigable waters” not including wetlands, the ruling limited the authority of the Army Corps of Engineers over the “national waters” by excluding waters not directly connected to navigable waters from their jurisdiction in the CWA.  Despite the appeal of the above delineated blue network of rivers as a fragile lattice of nourishment, the complexity of defining the “national waters” suggests the deep fragility of the network of waterways, flowing, standing, or somewhere in between when it is determined only by a continuous surface water connection to permanent waterbodies, so difficult is it to determine where one waterbody ends and the wetland begins.  While maps suggest one objective image of that jurisdiction–an appealing one, to judge by the image in this post’s header–the complexity of judging sources of pollution that are less likely to be less from point-source pollution to broadly dispersed pollutants in an agricultural or industrial region suggests that the entry of pollutants into a network of water is a less compelling model of regulation than when the CWA was framed.

The difficulty of managing the continued purity of the “national waters” led to a non-majority decision excluding wetlands from the “national waters” by the Supreme Court.  But the 4-4-1 decision gave ground to Justice Kennedy’s criteria of attention due to any “significant nexus” of waters that affects the physical, biological or chemical integrity of downstream navigable waters that has become something of a legal precedent.  The pragmatism of Kennedy’s elegant locution still challenges the application in maps, however, as it leaves the issue of “significance” not only open to interpretation but in need of clarification since it is difficult to consider consensus-based.  Data maps offer a basis to construe the nature of Justice Kennedy’s “significant nexus” of waters that embodies their flow.  But the challenge of focussing on a “significant nexus” as worthy of attention, as in recent years the points of entry of different sources of pollutants is often distributed widespread across a region–rather than likely to enter the waterways at one point of entrance–in ways that challenge the supervision of local pollutants.  A word map may actually provide a better form of orientation, here, than a point that posits single-point pollution, so multiple are current risks to water purity.


The locution of defining a “significant nexus” might be best understood through the potential damages that pollutants or construction might incur, in other words, rather than through the attempt to defining those geographic features that make them worthy of attention.  Unlike paper maps, or static maps, dynamic web maps can uniquely chart the fragility of the fluid nature of water-flow and water-use, expanding importantly on the “geographic features” aspect of the 2006 decision and better serve to express one’s relation to the blue expanse of water that the conventions of paper maps–which lack the signs or conventions to describe the variations and variability of water quality, pollution, or diversion and color all water a uniform light blue–may lack.  Of particular significance here is the gauging the continued permitting of point sources of pollution, parsing a “significant nexus,” and in muddying the relations of groundwater to national waterways.

More recent maps made by the USGS of watersheds that contained “impaired waters” in the United States–water bodies containing excess sediment, nitrogen, phosphorous, or pathogenic organisms–chart the extent of water-quality standards across the country.


Environmental Protection Agency (1998)

For the continued intersection of point sources with the entry of pollutants, while monitored officially by the Environmental Protection Agency (EPA) and falling in their purview, demand to be linked more clearly to the broader project of ensuring the chemical, physical, and biological integrity of the nation’s waters by preventing point and non-point pollution sources and improving wastewater treatment plants.  (Debate about the definition by which the breadth or size of streams included in the national waters suggests it is a subject of ongoing debate.)   By mapping measurements of the local contamination from industrial, agricultural, animal feedlots, and municipal governments–including the now-exempt agrarian irrigation return flows that carry fertilizer, salinity, and Nitrogen contents into waterways–web-based maps could offer, more than a static map, a necessary layer on which the new nature of the our national waters could be read in ways that might better register threats of environmental pollutants, according to the Comet Program.

Point source to non-point source pollutants


Even a static map might set a basis to imagine the data such a web map might include:


Discharged Toxins in RiversMother Jones (uncredited map)

2.  More dynamic maps might effectively both resolve questions over not only what constitute national water systems but how we might best act to protect those waters.  Such maps might help determine whether the riverine network of national waters extends to artificial ponds, lakes, or ditches that are often repositories of agrarian waste, or the relation between groundwater and the national waters–a significant question in parts of the drying-up West, where low groundwater supplies have not hampered pumping or the concession of often-wasteful water rights.  Web maps offer forms to help embody the shifting and fragmented constellation that make up our “national waters” beyond “geographic features” which are often designed to map land, rather than water–and web-based maps can chart how they have changed and will change over time.  For the need to provide a more dynamic ways to embody the “national waters”–encompassing water waste, agrarian return flows into streams and rivers, levels of pollutants, and groundwater levels–offer a sufficiently dynamic picture of an ecology of water that is in the process of change and fluid.  Although we can continue to map a disembodied riverine network, we can only embody the fluid spaces of our national waters through the continued challenges that they are poised to face, best understood as the end-product of a shifting relation to waterbodies and waterways, and not a pristine image of nourishing a Virgin Land.  The complex permits allowing water use and diversion paint a picture that is even then difficult to synthesize or comprehend.

Debates over interpreting and defining “national waters” have provoked an uncomfortable plurality of glosses not likely to be resolved in a static map.  But a web map can best orient viewers to those waters subject to government oversight, and new hydrographic maps of the United States have tried to respond to doubts raised about what exactly “national waters” include, and what sorts of waters they include.  Debate about the parameters of “national waters” is intense because it delimits what areas mandated by the 1972 Clean Water Act to be kept free of pollutants and preserved in their integrity–and to what extent the Act is an optative or enforceable model.  If the intent of the law has been interpreted as only limited to navigable bodies of water, the potential exclusion of streams, tributaries, ditches, headwaters and agrarian return flows have called into question what the body of national waters is in ways that web maps offer opportunities to measure water-use, gauge water diversion, and embody the environmental effects of water waste and of pollutants.  As much as to celebrate the aesthetic idealization of a virgin land and promise of agricultural abundance, more dynamic web maps offer something stronger than a cautionary note of how water levels and quality offer a more adequate and reliable map of how waters are adversely impacted by land use.

The evolution of mapping tools give a basis to parse whether “national waters” constitute every body of water in the country–and to distinguish what bodies of water that merit inclusion within that once self-evident but now benighted category.  The ways that maps can most dynamically render the inter-relation between water bodies to offer a more compelling picture of the effects of water management and use in an era of water’s lack?   Such a map of water management and use may most effectively and persuasively compel us to better refine how we define a legal relation to our national bodies of water:  does the below map indeed offer a comprehensive picture of the future network of our national waters?

Tile Vector map of Unfair INsularity

All of these rivers might be considered “waters,” given the deep ecologically interconnected natures of their paths; the aesthetics of the digitized projection in the header to this post, designed by Davies based on data from Michael Bostock, below, offers a landless image of a well-nourished land, irrigated by natural tributary networks discounting canals, man-made ditches, or man-altered ditches. stands as an eloquent response to the difficulty that the definition of national waters has come to face.   Debates over the real jurisdiction of these waters–and their relation to property claims or industrial use–threatens to encourage something more like despair than idealization of the celebration of riverine nourishment one feels after seeing Davies’ map of a water rich continent.  Can we better define who has rights to use their waters, or to what event they can pollute their flow, so that their tributary networks don’t exclude canals, streams, or man-made ditches?

The multiple and different claims of water-use have resulted in something of a legal quagmire of defining the “national waters” across the apparently pristine fluvial system that is embodied below:  “national waters” are more narrow than “jurisdictional waters” and clearly lie within the territorial confines of the country.  Yet the range of legally sanctioned uses of groundwater and rivers relies on claims of property ownership and industrial uses difficult to simply follow a paper map.  It is far easier to idealize the riverine network than draft maps to define “reasonable use” of groundwater or reasonable standards of cleanliness–or what makes up a rationale for the appropriation and diversion of waterways within “reasonable use.”  The pressing need to map more effectively groundwater use, overdraft, or pollutants returned to waterways is compelling, and the objective image isolating a nation that is irrigated by natural tributary networks and unmapped watersheds suggests an inadequate basis to register the complex relation of water to land pollutants and to the land, accentuated by their lack of attention to actual levels of regional groundwater reserves.

River Map of US--Bostockian, by Jason Davies

Jason Davies

The lattice-like web of bright blue riverine pathways reveals a visually compelling icon of agrarian fertility by mapping the “blue streets” that run across America.  As in any map, questions arise for cartographers of what is a river:  the Russian River is left out as a water source in California, and regional rivers in Mendocino like the Noyo or Little River seem compressed to one.  Does the map imply categories of what bodies of running water it recognizes as a river?  Such questions are of import to designing maps of national waters for the EPA, which is directly concerned with addressing the nature of the pollution of “national water” or an adjacent “nexus of waters” which the Clean Water Act has been interpreted as addressing.   The notion of an objective system of rivers seems less crucial, especially in water-challenged areas, as defining the potential entry points of pollutants or as posing the question of water bodies whose purity from pollutants demands comprehensive oversight–on account of the multiple and actually undefinable points of entrance of pollutants that such a map either glosses over or omits:  indeed, it might make more sense to spend less attention on discrete rivers than a map of the nation’s groundwater aquifers–the best template on which to judge the relative pollution of national waters and especially of drinking water, yet which the national hydrographic maps do not take into account.  Indeed, the map is only based on the best data on which it is based.  The map of riverine courses offers a form of way-finding, but not for adequate water-management.

groundwater3Mission 2012;

The issue of mapping and remapping the national waters is a major enterprise for the Environmental Protection Agency, working often in concert with the USGS.

The Environmental Protection Agency has indeed taken some heat for detailing its own maps of the waters and wetlands of each of the 50 U.S. states, defining in the last year a National Hydrographic Dataset that embraces the varied types of waters in the country, from streams and water bodies (lakes, ponds, etc.) to “adjacent waters”–in short, “the waters” of the United States themselves that the Clean Water Act’s authors concerned and addressed–in a massive act of constitutional clarification to define the limits of pollutants and maintain the integrity of the aforesaid waters in perpetuity.  Rather than only address waters that were navigable, or the question of what the traditional understanding of navigable waters is, the agency sought clarification on what such waters were outside the broader rubric of territorial seas to clarify the purview of the wages over which they have jurisdiction–and debates about whether to preserve the exempt status of waste treatment centers or converted cropland from the body of “waters of the United States.”

The resulting clarification of national hydrography traced in “Streams and Waterbodies” tried to set a standard nut was quickly feared as a posturing to seek control over private lands, but constitutes an early attempt to fashion a standard to differentiate surface water features across the United States.


Streams and Waterbodies

The remapping of these water bodies–surface water features that cast as comprehending stream water, perennial, intermittent, ephemeral, or unclassified, canals, lakes, ponds, reservoirs, playa or just “wash,” so as to comprehend them all, manmade and “natural,” within the scope of the standards for pollution that are applied to the national waters.

They range in complexity even in the Bay Area alone, viewed thanks to the considerable scale of the USGS projection, is dauntingly comprehensive, at the impressively discriminating scale of 1:63,360:


Bay Area Water Types

In a larger section of the complete map, if its shades of granularity in this intensively farmed area comprehending the Central Valley and High Sierra are less clear, the complexity of what it means to be water in the United States are tantalizingly evident.


Norhtern California

The fragility of this network of waterways has begun to be measured and mapped by public interest nonprofits whose web maps effectively distinguish the claims, ownership, or rights of water use across the country, and indeed suggest some of the standards for mapping local pollutants. Interactive web-based maps offer  interactive tools to track both rights and relation of industries to bodies of water with a level of detail never possible, directing a new level of attention and access to relations between water-use and industry by remapping the context of riverine waters in the United States to illuminate levels of chemical pollution.

The access that they offer to the landscape, and a range of stories that they both tell about it and invite viewer to zoom in to better examine at the same time as our access to a precious common need like water is increasingly challenged due to environmental change.  Maps cannot freeze or forestall changes, but offer versatile tools to track the effects that agricultural or industrial claims make upon our national waterways.   For while we are used to the legal fictions that dominate much of corporate life in contemporary America–yes, of course Amazon exists as a corporation only in Seattle, where it operates from its sole warehouse, and from which it sub-contracts to many nondescript warehouses, just as many companies base headquarters or P.O. Box offshore in the Cayman islands or elsewhere, to subvert national tax codes; Richard Branson lives on a Caribbean island Necker which he bought in 1979, purely for health reasons, we accept grudgingly, rather than to avoid paying taxes on his business empire or personal wealth of £3 billion, moving to the British Virgin Islands where tax on income is nil, even if he incorporated the British flag into his corporate logo.  He is as a result required only to pay taxes on UK income; what constitute personal earnings outside of Britain are exempt.  Similarly, the owner of airbnb himself resides at no actual address but instead regularly travels.  But one ascends new heights of legalistic terms and legal fictions to parse the undefined category of “national waters” as verbal geography in which man-made sites are absent–the prospect of such reprising is especially perilous, given that water is hardly fixed in any given location–in the manner of a town or city–and by nature circulates in space, or might reasonably be polluted at multiple points independent from its status, and such pollutants will be always carried down water.

3.  The compelling interest to discriminate varieties of water usage within a map by distinct coloration demands new inventiveness to use maps as machine to think about terrestrial and territorial space, and remap inhabited lands from the point of view of water-use.  The need for the above maps lie in creating a  precedent to track water bodies themselves not distinguished on a map–where all share the colors light blue without much variation or discrimination.  Pinning down both water usage and “water rights” on a map has been a sort of fiction which American law has long engaged, often without employing clear map signs; one result is the difficulty of using map-colors or conventions to map the effects of declines in groundwater levels or overdraft, groundwater management, squander of water, groundwater contamination, polluted agricultural return water and the effects of existing water rights on ecosystems.  Such changes in water use are especially difficult to map given its fluid nature.  But one can start to scrutinize these questions carefully through a map of granted water rights, which grant “permission to withdraw water from a river, stream, or ground water source for a ‘reasonable’ and ‘beneficial’ use” of the 250 million acre feet of water in California.

The historical concession of “water rights” within the state of California are particularly complex, tied to local agrarian industry and the water-sources and the precedent of staking claims to water rights in the Gold Rush, and rarely construed from the point of view of the best provision of future water needs.  Despite the standing rejection back in 1903 that stripped Californians of Anglo-Saxon rights of possessing waters on wells dug on lands that whose deed they own, and a consequent prohibition on unregulated pumping on any tract of land, it is striking that given the endemic scarcity of water in the state, as of now no regulations on the book prevent pumping water or diverting rivers to protect the integrity of the “national waters” from poor water-management.  The restriction on well-digging did not seem to include prevalent practices of groundwater pumping.  California has been the only state not to restrict pumping, even as the depletion of aquifers only recently compelled the state to review this all too laissez faire policy in use.

Indeed, the absolute lack of regulation on groundwater extraction that has historically encouraged California farms has created large loopholes and exceptions for the Water Resources Control Board.  The inadequate regulation of groundwater–regulations that are “sorely needed,” according to Graham Fogg a groundwater expert at UC Davis–and its waste has led directly to the eventuality of the current “chronic lowering” of aquifer levels, and created collapses of overlying lands, and increased subsidence after heavy pumping of groundwater has significantly lowered the ground level.  Even as 80% of the state lands in California has been classified as being in the highest category of drought–and reservoirs like the Almaden in San Jose virtually dry, reduced to trickles–debate on regulating water-pumping have only recently begun with the requisite seriousness.


California Reservoirs

Current legal entitlements permit diversion of water from their source allegedly to serve the public interest.  But do these entitlements constitute the best use of our national waters?  These entitlements include, unlike most of the United States, jointly by the claims of property holders for water passing their lands by riparian rights, not requiring government approval , and appropriative rights of staking claims by posting public notice, now prevalent in agricultural uses of water as well as private land ownership. The web of water use has been greatly beneficial to agriculture, but raises questions not only of the diversion of water or groundwater extraction, but of the considerable pollution agricultural return waters.  The complex web of water usage requires all uses to be “reasonable and beneficial,” but creates difficulties of affirming that a given nexus of water would fall under EPA jurisdiction, and how the multiple claims brought for the water forms a considerable challenge for the EPA to monitor effectively in ensuring their continued cleanliness or lack of significant biological or chemical pollution.  The role or status of waters that did not have a “significant nexus” to other territorial waters as lying within the “water of the United States,” and as outside the purview of the CWA.  Sanctioned access to waters as defined by existing water rights constitute something of an exception to maintaining the “chemical, physical, and biological integrity” of the “national waters of the United States,” in a patchwork of promised water rights that fragment how we understand their integrity.  Indeed, the recognition of the need to accommodate claims of owners of properties next to water while ensuring that the diversion or appropriation of water matches “reasonable and beneficial” use.

The web of different varieties of water usage in California alone is worthy of attention both because of the shortages of water that threaten the state’s economy and the variety of legal rights to water-use that the state sanctions.  Different water rights create a complex quilt of recognized access to bodies of water that suggest just how complex overseeing or managing agrarian or industrial water usage is, let alone mapping its use.  Yet increased stressors on state groundwater in California and environmental challenges to such precious resources, when combined with challenges of global warming, compel the need for increased attention to developing strategies of mapping water and water use to speak back to industry and agribusiness.  The recent revelation of permits for oil-drilling and discharge of waste into California aquifers, issued after the 1974 federal Safe Drinking Water Act set standards for clean public drinking water for all Americans, suggesting that the contamination of aquifers were at risk at some 2,553 injection wells across he state, suggests an even more troubling issue of poor and inadequate oversight within the state.  Later revelations that some 3 billion gallons of wastewater from fracking in California was illegally injected into central California drinking-water and irrigation aquifers has compelled the Environmental Protection Agency ordered a review of the waste water sites that were shut down in July 2014, when the presence of toxic fluid in the waters, including carcinogens like arsenic, thallium and nitrates, led to Health Violations to be issued by the Central Valley Regional Board.  The sustained risks that such groundwater has long faced have only come to light, it seems, in a period of risk of severe drought.

Despite recent challenges of the pollutants that enter through the exemption of waters flowing from irrigated agriculture across the state, irrigation return flows include not only selenium and sodium-rich minerals harmful to animal environments, and populations, but agricultural drainage water and return flow above and below the ground that include pollutants which can affect drinking water quality, while not constituting a discharge of “point source” pollutants that the wording of the Clean Water Act pointedly prohibits as including “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit . . .”   Notwithstanding the clear attempt at comprehensive language in CWA section 301(a), its framers did not address discharges of pollutants into wetlands or wildlife areas in return flows from agricultural irrigation–although such return flows involve pumping polluted waters in untreated irrigation return flows, often collected in culverts, channels, and ponds and then discharged.  Both salinity accumulations and nitrate contamination from fertilizer pose threats to drinking water in California in cities like Davis and Fresno, whose groundwater supplies are threatened by the presence of salts, often result of treated wastewater, and of high quantities of nitrate discharge. Such measurements provide  basis for gauging and limiting water rights, no doubt, in such moisture-challenged regions of the state.

Notwithstanding knowledge of water rights, can we start to map more responsibly the effect of agricultural return flows, both on the state’s water supplies as well as widespread stock watering (dedicating waters to livestock) across the state?  Does the stewardship of “national waters” not extend to the control over the diversion of waters for agricultural needs in much of the Sacramento and Central Valleys, and their potential effects on the land as they re-enter the water systems shown below, often increasing its salinity?


California Water Map

California Water Rights LegendCalifornia Water Atlas


The above data for the California Water Atlas, based on face amounts collected by California’s  State Water Resource Control Board together with measurements of daily stream gauge values by the United States Geographical Society, can be examined at the recent clickable webmap at California Water Rights:  the detailed synthesis provides the most comprehensive picture of water usages and availability–an especially useful map when the scarcity of water and conservation needs must be better tracked and understood.

The arrogation of claims proves even more difficult to “map” with comprehensive clarity, combining coverage by private ownership and water-use rights, difficult to join to the “waters of the United States,” given the reluctance of encompassing varied water-usages or of tracing water rights that have been granted along riverine web within a single regulatory system.  If the mapping of a distinct topography seems a gambit to “freeze” the image of national waters, at a time when increased drought challenged their availability for the future, the claims for water usage constitutes layers of different water usage that is necessary to be read with considerable care.


California Water Rights

Simulated Streams

The colorful dots gauge the wide range of reasons recognized for the diversion of water across the state, and claims for water usage along the rivers’ paths.  It’s difficult to process the plurality of rights in anything like a single comprehensive image given the range of water rights staked around the rivers running into northern California’s San Francisco Bay or from the High Sierra, or the loss of massive amounts of water diverted to irrigate the central valley; the complex mosaic of artificial canals and reservoir or diversions against the natural paths and bodies of waters suggests a wide aggregation of claims to water codified over time, whose complex map remains sadly unknown to most even in an era of state-wide drought:


W Rights in Efflux of water in Bay Area

California Water Rights LegendCalifornia Water Atlas

The veritable mosaic of distinct claims for water-rights inland of the Bay Area show a complex adjudication of water-rights around the rivers that run into the San Francisco Bay.  Their mapping maps the region’s settlement against its rivers, revealing a hidden economy of water usage that has accreted over the last century and a half, and suggesting the largest sites for the diversion of waters along a dense riverine web:

Water Use Mosaic outside East BayCalifornia Water Atlas


The crazy quilt of water-rights claimed for stock watering in the Central Valley include licensing for irrigation, fire protection, fish culture or recreational needs, as well as domestic use, begin to trace the complex variety of water use–some rights are merely “claimed” or “cancelled” no doubt made on largely local decisions, without an overall picture existing of water usage across the state–as well as several revoked water claims.  Sort of a negative map of areas of dense settlement–San Francisco is itself entirely black, since it also lacks any above ground water-source, whereas the dense outflow of water along the Central Valley and through Sonoma County meets agricultural uses.

But the agrarian regions of the state are distinguished by a broad belt of a variety of water claims.  Better monitoring of agricultural return flows in tandem  with groundwater supplies could offer the sort of necessary synthetic image of water usage that would effectively benefit the state not only as it faces an era of increasing stresses brought by drought.  Indeed, monitoring return flow from agricultural regions could direct more attention to levels of nitrate contamination from agricultural fertilizers that returns to the drinking water–which , especially as decreased steam flows have effectively decreased the amount of groundwater supplies, are increasingly salient.


Central Valley

Simulated Streams

Hydrologic Watershed


Particularly significant to this post are the multiple exemptions from the EPA’s regulation or from the regulation of the Army Corps of Engineers, the body designated with the waters’ protection by the CWA.  Indeed, they afford a somewhat terrifying loophole to original intent of the law in how we understand the need to construe their cleanliness and proscribed limits on pollutants that enter their waters.  For how can we limit the waters of farmland from the mandate to maintain the “chemical, physical, and biological integrity of the nation’s waters,” at the same time as we try to keep the riparian network clean, and recognize existing industrial uses of water as not, in fact, able to be controlled, and presuming that they do not create disturbances to that integrity that we continue to oversee?  Indeed, while groundwater use in California was approached with a misguided belief in its continued presence, while the pumping of water has drained riparian ecosystems and reduced surface supplies, agrarian discharge has effectively more highly polluted a diminishing amount of water.

All of which reminds us of the need for mapping the other side of how the irrigation of the land promised to lead to the bountiful cultivation of crops with the westward progress of Empire–and the need to develop strategies for mapping the often poorly defined presence of water in land.  We have recently learned of the increased loss of water in the state’s major reservoirs–whose startlingly low levels demand monitoring water-rights with better consideration of their impact on local groundwater levels or poorly supervised and managed usages for livestock and cropland, or municipal, domestic and industrial markets.  A map that might readily refreshed of these levels of California state reservoirs suggest the widespread depletion of reserves of waters in ways that might serve to trigger limits on groundwater use–or greater attention to limits on waters for municipal use in areas with low groundwater, low water tables, or low water in reserve.


California Reservoirs

The absence of these reserves–clearly part of our “national waters”–has been less widely remarked.  Yet even as groundwater levels have declined, the amount of available reservoir has dramatically dropped further, on would think putting more pressure to bear on water waste. But the fears of a coming mega-drought in the future of the region makes such attention to local land-use especially important–and make it incumbent to think of the need for a better road-map for the future.




Needless to say, the policies of pushing water down through a system of aqueducts to nourish much of the Central Valley and Southern California demands an enormous expenditure of energy:  unlike Roman aqueducts, these are not built to flown, majestically, downhill with the sway of gravity.  So much energy is required to pump an acre-foot of water through the system of aqueducts that criss-cross the state in the State Water Project, indeed, that Heather Cooley, director of the Pacific Institute’s Water Program, notes that the energy needed to pump that acre-foot from the Delta to Southern California is itself almost equivalent and comparable to the amount of energy required to pump an acre-foot of sea water through a desalination plant–giving rise to the call to consider coastal desalination plants a useful alternative once more.  A problem seems apparent in the economic abstraction of costs of energy from the role of waters and pollutants in a broader landscape.  For those plants already springing up in the Southlands’ coastal communities to convert saltwater to drinking water would produce an dumping of brine water to the coasts that could create a destruction of a delicate offshore ecosystem from the Farallon to the Channel islands.

Such a threat to ecosystems from desalination are also present in the diversion of waters and agrarian returns, but are best exemplified in the destruction of the aquatic habitat in the Gulf waters, which the final section of this post will conclude, making due on a consideration of the mapping of the national waters of the United States.


imageCarlsbad, CA Desalination Plant


4.  As the diversion of waters has adversely affected local environments, both by agrarian return waters that bear increased traces of salinity and nitrates, the national waters of much of the Mississippi basin bear a similarly terrifying imprint of industrial farming.  Moving to the effluents deposited in rivers in the wide farmlands of middle America, one can read their prominence and density in Jeffries’ national map with new eyes.  For the annual nitrate yield from highly fertilized farmlands along the Mississippi from its start to the Gulf of Mexico in particularly striking as it heightens the pollution that enters a formerly rich agrarian land, with unclear consequences.

Recent decades have seen a startling rise in the flow of the remnants of chemical fertilizer into the Gulf.  Adding the unseen enrichment of the crop lands of the basin, active area agribusiness augmented local fertilization of lands in the decade from 1997-2006 increased the runoff of nitrogen wastes in noticeable ways, according to the non-profit Ceres, which charted the extent of nitrogen pollution across it basin, reflecting the marked increase in ethanol plants in regions of agricultural pollution that enter the broad range of interconnected waterways that contribute to the Mississippi River to which they lead.




Their effects on the land show the increasingly compromised character of the “waters of the United States,” looking only at Nitrogen risks around the Mississippi basin and surrounding shallow groundwater.


Miss Basin average annual fertilizer



We can look more closely at this striking level of shockingly widespread groundwater contamination confining ourselves to the area around ethanol plants around the Mississippi River’s basin.  In the below map, whose “red” layer registers a very high level of nitrogen pollution, plants are noted by black dots in their actual location–one can comprehensively survey in it the extend of nitrogen delivery into watersheds, in something like a secret history of local land-use suddenly made all too plain to survey:


Nitrogen Pollution of Miss WatershedsCeres

One can focus on expanse corn that surrounds and supplies these plants, here illuminated with light green bubbles, to communicate the intertwining of ethanol plants with the local agricultural economies:


Courn-sourcing Radii includedCeres


The density of sites that deliver high agricultural pollution to local waterways has created a clotting of Nitrogen pollution that stands to fundamentally alter the very notion of the national waters’ inviolability:


Watersheds of High N PollutionCERES/Google Maps


One result of such habits of land-use across such a large share of the nation is to imbue an almost radioactive glow to saturated waters that enter the Gulf of Mexico, where waste-water standard developed in the CWA in 1972 have only begun to be developed to curb the resulting “dead zone” in the oxygen-starved Gulf of Mexico, where the enforcement of the CWA obligingly turned the other cheek until quite recent years–and we still await standards for the many industrial wastewater treatment centers along the Mississippi:




Could the dangers of the changing relations between water and landscape be more clearly mapped?  The concentration of almost half the number of fracking wells in sites where water scarcity is greatest and water stresses extreme creates a further and even more tragic wrinkle in how we view the national waters of the US as “clean.”  In such areas, 80% of allocated waters have already been allocated for existing industries, municipal, agricultural, or industrial users, leaving few real supplies available, and the risk of water contamination and pollution extremely great.  If we map a black dot for each and every site of hydraulic fracturing or fracking in the United States against a projection of variability in water stresses, the resulting graphic in almost the same area of the Mississippi basin suggest not only the availability of cheap lands ready for reconversion, but a large national landscape that stands largely depleted of water supplies across almost all of the western states, and little of an encouraging image of the dangers posed by hydraulic fracking to the ecology of the deep south.


Water Stress Dots- Shale and Hydro-FrackingCeres/Google Maps


Zooming in by enlarging the map’s scale the pronounced density of a range of hydraulically fractured oil and gas wells that are clustered around the Mississippi suggests an alternate use for water around the waters of the Mississippi, a concentration of intense water demand, rich with the potential of future pollution.  Deep concern about the future plowback of wastewater–chemically enriched waters designed to loosen up shale deposits the better to extract or free oil and gas from underwater reservoirs–into national waters.  Whether these waters enter drinking water supplies or not–their impact is not yet fully known, and under study–the apparent violation of the Clean Water Act’s provisions for the national waters has often gone unremarked.


Fracking Concentrations?


Can we ever isolate the image of a pristine web of blue waterways on a white field in the same way?


Tile Vector map of Unfair INsularityNelson’s vector tile web map of rivers across United States


These rivers do not exist, save as a selective base-map from which we must better recognize the need to watch their relation to farmlands and industry in future web maps in ways that might adequately register claims of water use, allowing continued lamination of layers onto the fluvial network that we would be wise to take as a basis to remap their relation to the surrounding lands.


Filed under American Rivers, clean rivers, Clean Water Act, data visualization, Fracking, megadrought, Safe Drinking Water Act, webmaps

3 responses to “National Waters, Legal Fictions, and Rivers of Fertilizer

  1. Great use of layers of public information to show hydrological disasters past, present, and pending.

  2. Pingback: The Many Other Flints Out There | Musings on Maps

  3. Pingback: Water In The US | Modern Steader

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