By John Sachs
Complainers must always be ready to offer solutions. This I will do in today’s follow-up to last week’s commentary complaining about abuses to our Sparta aquifer by paper mills and shale gas well fracturing (aka fracking) companies.
First of all, we must immediately pass and implement strong laws that prohibit any actions that imperil the health of our aquifers. Such legislation includes federal laws, which will ensure the protection of aquifers that cross state lines. Clean water is a priority that demands the strongest legislation and regulation. An immediate order to cease and desist harmful practices must be exercised and must remain in effect until corrective action is taken.
We currently have strong legislation regarding surface rights. If someone tries to encroach on your land, you can get an immediate cease and desist order. Why not have similarly tough laws regarding the water under our property? We have such laws regarding rights to mineral deposits under our land, especially oil and gas. Imagine that! However, no such laws exist regarding fresh water, the most precious of all subsurface commodities, without which life will cease to exist.
As soon as we have strong and comprehensive laws protecting aquifers, then courts can order that harmful practices cease immediately. I recommend that the following passage become the primary law, federal or state, regarding aquifer protection:
A Law: Any action, practice, or procedure which does, might possibly, or so much as gives the appearance or suggestion that it may possibly cause damage to an aquifer must immediately cease and desist, and may resume only when it is proven to the court’s satisfaction that such actions, practices, or procedures are not harmful to the aquifer.
Now here’s the critical part. The law must be written so that an indisputable burden of proof rests with the presumed guilty party and NOT with the party making the accusation. My proposed law above accomplishes this. As it is now, the paper mills and shale fracking companies can tie the whole process up in knots for years while they continue their abusive practices. How you ask? By requiring the folks complaining about abusive practices to prove indisputably that they are correct and that the paper mills and fracking companies are wrong.
I realize that this appears to run counter to the “Innocent until Proven Guilty” principle. However, such is not the case where irreversible damage can occur to an irreplaceable natural resource critical to sustaining life. Where that possibility exists, the law must err on the side of caution. There are numerous legal precedents supporting this principle.
The failure to take timely protective measures often results in the accuser incurring additional damages because of continued harmful actions by the accused. The accused, in our case the paper mills and fracking companies, continue to damage the Sparta aquifer while everyone else (the accusers) stand around almost helplessly discussing what should be done about the problem.
The paper mills are playing “delaying games” with those trying to resolve and remedy our declining aquifer problem — which is the result of the mills extracting more water than the aquifer can sustain. The mills prevail because we do not have strong laws that require them to cease their extraction of excessive amounts of water at the first hint that they are damaging the aquifer. Laws putting the burden of proof on the accused would move remedial actions along at warp speed.
The accused will play the “delaying game” by saying that they need proof that the amount they are extracting is damaging the aquifer. Such proof takes at least a year of research, report writing, discussion, and follow-up.
Then the accused asks for assistance in the design and development of an alternative source of water. Another year passes.
Then the accused argues that the EPA, DEQ, Corps of Engineers, or FDA must first approve any proposed alternative water extraction, use and disposal proposals. Another two to three years passes.
Then the accused proposes to implement a method that they know won’t be approved by regulators, well aware that this tactic will allow them to begin court proceedings. More years pass. In the meantime, the accused continue to remove water from the aquifer – quite content to play the “delaying game.”
By this time ten to fifteen years have passed. The aquifer has been destroyed, the mill has closed, and people living in the region are left to suffer the cost and inconvenience from the loss of their clean, pure, reliable, aquifer water – a situation once so easily avoidable if only timely, corrective action had been taken.
Finally, if the mill caught on fire and the water was needed to put it out, how long do you think it would take the West Monroe paper mill manager to determine that there were no environmental or other problems requiring answers before he authorized dropping pumps and hoses into the Ouachita River? Something tells me “delaying games” wouldn’t be a part of that decision process.