HomeMy WebLinkAboutCommunication No. 2022-12- Dr Bennett Testimony (Redacted) Post Office Box 895 Honaunau, HI 96726
808.640.2413
drrhbennett@gmail.com
May 10, 2022
Kona Community Development Plan
Action Committee Meeting
Dear Committee Members.
This testimony aims to urge the Committee and the County of Hawai‘i to include water
resource sustainability as a top priority in the design and function of our communities.
Article XI, section 1 of Hawai‘i’s Constitution establishes that “all public natural resources are
held in trust by the State for the benefit of the people,” and Article XI, section 7 of Hawai‘i’s
Constitution specifically references water and includes the directive “to protect, control, and
regulate the use of Hawai‘i’s water resources for the benefit of its people.” The need for wise
water use and reuse is a Constitutional and Environmental Imperative.
Historical rainfall data and scientific projections paint a dire picture for the future of water
resources on our island. We are part and parcel of global climate changes. Researchers tell us
that in the next 20 to 30 years, our drought is likely to worsen with a 30% reduction in rainfall.
We currently have a 14% reduction. This will eventually mean our freshwater aquifer will be
much smaller. We must begin now to implement conservation and reuse actions to provide for
the future well-being of our people.
The following is a priority list of actions we can take.
1. Integrate all county functions, including the Department of Water Supply, to account
for their water use and conservation impact.
Communication No. 2022-12
2.Design homes and communities for freshwater conservation to include landscaping and
home water conservation devices. Landscapes that do not require irrigation could be
necessary for new developments.
3.Implement the sections of the current Uniform Plumbing Code (UPC) that provides for
home greywater reuse
4.Design communities to capture and redirect stormwater for beneficial uses.
5.Institute plans and techniques that significantly reduce the impervious structures on the
land, such as vast streets and parking lots.
6.Institute Grubbing and Grading regulations that effectively mitigate rainfall runoff and
erosion
7.Where wastewater treatment plants provide sewage treatment, upgrade the plants to
reuse plants (reuse plants do not discharge wastewaters HAR §11-62-27), treat the
water to the highest reuse standard, R1, and provide the water for agriculture, public
parks and recreation, and other commercial uses.
8.In new developments, neighborhood scale wastewater treatment may be more
economical than conveying the sewage long distances in buried sewer lines. In this
case, the reclaimed water can be returned to the home for toilet flushing and landscape
needs.
9.In new home construction, install waste systems that separate the black water from the
grey water. This will facilitate greywater reuse and reduce the size and cost of onsite
sewage treatment. This step will augment the cesspool conversion process.
10.Prohibit the use of Injection Wells for the disposal of human wastewaters. Injection
wells on the island transfer pollutants to the subterranean estuaries common to all
coastal areas of the island
These actions will affect more than doubling fresh groundwater for human needs and prevent
draconian measures when severe water shortages arise. Such measures create severe
economic consequences. These actions listed above serve and honor the Public Trust Doctrine
of our State Constitution.
/s R.H. Bennett Ph.D.
Former Chair of the Environmental Management Commission, COH
Environmental Science Researcher, Hawai‘i Island
Communication No. 2022-12
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Adding to the County of Hawaiʻi’s Sustainability Conversation:
A Discussion on Water Law & Policy
Richard H. Bennett Ph.D. and Rhiannon R. Tereari‘i Chandler-‘Īao, Esq. of
Waiwai Ola ʻOhana1
Summary
The County of Hawaiʻi (COH), under the leadership of Mayor Mitch Roth, has engaged the
community in two broad online conversations on the topic of sustainability. It is the purpose of
this discussion paper to build on these conservations, and invite our best systems sustainability
thinking to engage the topic of water – our most critical resource, in all of its forms.
Introduction
Central to any climate resiliency strategy or sustainability plan must be our island’s water
security. Hawaiʻi Island has a long history of drought episodes. We have dealt with these short-
term events with various site-specific mitigations, however, any changes in how water is
managed, allocated, and used, remain elusive and are often controversial.
With the guidance of the National Research Council, the Environmental Protection Agency
adopted the following definition of Sustainability.
“Sustainability is based on a simple principle: Everything that we need for our survival
and well-being depends, either directly or indirectly, on our natural environment.
Pursuing Sustainability is to create and maintain the conditions under which humans and
nature can exist in productive harmony to support present and future generations”
(USEPA 2021).
1 Waiwai Ola ʻOhana was formerly organized as Waterkeepers in Hawaiʻi. While names will be used
interchangeably in this document, all “Waterkeeper” programs currently fall under Waiwai Ola ʻOhana.
Communication No. 2022-12
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Our survival and well-being is largely dependent on healthy breathable air and clean water
resources. In Hawaiʻi, freshwater is derived from rainfall and forest dew which support healthy
aquifer systems. Unlike other states, underground rivers or aquifers that move water over great
distances, are non-existent in Hawaiʻi. Rainfall distribution on our island is highly variable.
Water availability, like the climate, differs regionally. Distances of only a few miles can mean
the difference between a rainforest and a desert.
Thus, it seems somewhat incongruent that our water resources were not a substantial portion of
the recent Hawaiʻi Island sustainability conversations. A major rainfall study provides an
alarming conclusion.
“Almost imperceptibly, rainfall over the Hawaiian Islands has been declining since 1978,
and this trend is likely to continue with global warming through the end of this century,
according to scientists at the University of Hawaiʻi at Mānoa and the University of
Colorado at Boulder”(Oliver 2013).
The historical trend for the dry or Kona side of Hawaiʻi Island is particularly concerning.
“From 1920 to 2012, over 90% of the state experienced drying trends, with Hawai‘i
Island, and in particular the western part of the island, experiencing the largest significant
long-term declines in annual and dry season rainfall” (Frazier 2016).
Our reservoir, and the only lifeline for true sustainability, is a floating lake or lens of freshwater
sitting on top of the seawater that intrudes through the fractured rock and lava at and below sea
level. Forty feet of floating freshwater provides one foot of water above sea level. Inland and
below the high rainfall zones, hundreds of feet of freshwater “floats” in a lens and thus is
available for domestic pumping. That same lens drains away in a perpetual slow migration to the
sea. Recharge of the freshwater lens is rainfall-dependent (USGS, 2000).
Many authors stress the issue of water resource sustainability, notably:
“Given that approximately 70% of the annual rainfall happens during the wet season,
Hawaiʻi is expected to face an overall reduction in annual rainfall leading to a decline in
sustainability of groundwater recharge” (Burnett and Wada, 2014).
SUSTAINABLE WATER RESOURCE POLICY AND PRACTICE
The prevailing practice on Hawaiʻi Island for water resource management is drill and pump. The
policy of drill and pump is predicated on the sustainable yield of the aquifer. Of concern is the
fact that the current sustainable yield does not take into account decreased rainfall and decreased
recharge.
People need high-quality potable water. Water is essential for drinking, bathing, cooking, waste
disposal, and cleaning, among other needs, however, individual and family water use only
accounts for about 25% of household water usage. Where does the balance of the water go?
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Figure 1. Home Water Use Outdoor irrigation is the largest domestic
water user, however, our irrigation water
could be used more efficiently and
sustainably. The choice of plant species and
the irrigation method are areas with
excellent conservation potential. Xeriscapes
in the southwest states are notable examples
of sustainable and effective water
conservation practices. The Board of Water
Supply for the City and County of Honolulu
states that with the proper choices, a
homeowner can save 30 to 50% of the water
used on landscaping (2021 Board of Water
Supply, City and County of Honolulu). This
option conserves water, reduces the family
water bill, and addresses multiple crucial
sustainability issues.
Accordingly, irrigation water conservation programs must be an essential component of any
sustainability effort for the County of Hawaiʻi. Water conserved for other domestic demands
will be far less expensive than increasing pumping capacity for additional water. For select
wells, such savings can reduce saltwater uptake from over-pumping and lower the cost of
blending water to manage excessive salts. The challenge for the COH is how best to achieve
sustainable policies and water conservation education. The Department of Water Supply is not
noted for progressive water conservation policies and effective public education. A change in
policy and programmatic efforts will likely require leadership and engagement from the Mayor
and Council to effect significant water conservation measures.
Grey Water Reuse
Every home has additional options to conserve even more freshwater. Fixing leaks and reusing
the greywater from the laundry and shower will conserve about 22% of home water resources.
When combining this conservation with proper irrigation, a household water savings can
approach 72%. Gray water from the laundry, shower, and bathroom sinks can be lawfully and
safely reused on-site to irrigate landscaping. In some cases, little if any freshwater is needed.
The new provisions of the Uniform Plumbing Code (UPC 2012) allow for greywater reuse.
Greywater reuse applications will help conserve wastewater treatment plant capacity as sewer
flows would also be reduced. Sufficient black water will remain in the system for gravity flow
sewers to remain functional. A new COH policy enabling, encouraging, or even mandating
greywater reuse for commercial and residential units would go a long way to addressing local
water sustainability.
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Wastewater Reuse
When greywater is comingled with toilet or black water (sewer water), as is the current practice,
it all becomes black water and requires a higher level of treatment to remove nutrients and
incidental pathogens. Such treatment is expensive and even more costly if the treated water is
then discarded. The cost of legally dumping secondarily or partially treated black water is very
high in light of the recent U.S. Supreme Court ruling on wastewater injection wells in Lahaina.
It is no longer lawful to discharge wastewater to drains or injection wells that lead to Waters of
the United States without an NPDES permit. Where the receiving water is “impaired” under the
US Clean Water Act provisions, as it is in West Hawaiʻi, permits will not be issued unless any
further impairment is mitigated.
It is more economical to treat blackwater to R1 reuse standards than it is to permit wastewater
discharge to the ocean. Reusable R1 water has a market value. Other grades of wastewater do
not. R1 water may be reused for landscaping, golf courses, and agricultural uses. In each case,
the reused water provides revenue to the COH and replaces some freshwater pumping
distribution and use, which is a critical conservation measure for climate resiliency.
As the COH builds out new water infrastructure for subdivisions, parks, and open space, the
reuse of R1 water is key to sustainable development. For example, vacuum flow sewers can
successfully move high solids blackwater and have other advantages over gravity lines, including
an almost zero risk of leakage to the environment, groundwater, and coastal seawater. Moreover,
vacuum sewer lines are far less costly to install and are well suited to regional small-scale
wastewater treatment facilities.
The COH would be well advised to adopt and implement new water use and reuse policies as
soon as possible, as hundreds of new homes and many subdivisions await approvals and
construction. Once they are built, without a reuse plan, the option is lost.
Water from 50,000 Cesspools
By 2050 all cesspools must be retired, converted, or retrofitted. The water will have to be further
treated to remove nutrients and the occasional pathogen. As opposed to being discharged to the
ground, the water could be collected and reused as greywater for landscaping. In so doing, we
remove 90% of the nutrients that are currently over nourishing our coastal waters, killing corals
and turning our clear blue waters green and brown. A recent report from UH to the Legislature
details the extent of human waste nutrients flowing to the sea (Smith et al. 2021).
There is no question that we must stop using holes in the ground, cesspools, to dispose of human
waste. The huge question remains, what are the alternatives?
From today until 2050, thousands of new homes will be constructed on Hawaiʻi Island and it is
very likely, at least in the near term, the Hawaiʻi Department of Health will recommend and
approve traditional septic systems as a primary alternative to cesspools. Unfortunately, this
practice runs contrary to overwhelming scientific data revealing that the effluent from a modern
Communication No. 2022-12
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septic system is functionally no better than that of a cesspool. States from Maine to Florida are
requiring the removal and retrofitting of septic systems. In these states, coastal waterways have
become eutrophic, fish kills have occurred, and red and brown tides replace the deep blue waters
as the quality of life and coastal property values plummet due to poor water quality from poor
wastewater management.
A very comprehensive research project in Florida documents the impacts of conventional septic
systems. The waste nutrients, nitrogen, and phosphorus are ubiquitous in coastal waters. The
isotopic signatures of nitrogen and the presence of sucralose in coastal waters leave no doubt as
to the source. (Herren 2021). In Sarasota Bay, when septic systems were removed there was a
64% reduction in N pollution, which was reflected in relatively low human waste nitrogen
isotope values δ15N of ~+3.8‰ (SBEP, 2014). Accordingly, it is important to note that
communities across the nation are removing septic systems while Hawaiʻi is approving them. As
a result, the nutrient loads to the nearshore waters will likely continue, which is a practice that is
not ecologically sustainable.
Figure 2. Nitrogen Reducing Biosystem (NRB) (Gobler 2021)
The technology to best replace or convert
cesspools to systems that protect water quality
remains in development for Hawaiʻi. However,
states on the East Coast demonstrate many
suitable alternatives. The most promising
among them is the NRB or Nitrogen Reducing
Biosystem (Figure 2.). The term belies
simplicity. The leach-line field overlies two
layers, one layer of sand over one layer of sand
and wood shavings, a 50/50 mix. The layers
create unique microbial habitats. The top layer
is aerobic and the bacteria convert waste
nitrogen products into nitrate. The lower layer
is anaerobic and the microbes there act on the
nitrate and convert it to nitrogen gas released to the atmosphere. The iron content of the sand
absorbs phosphate removing it from the wastewater. This simple NRB layer system adds
marginal cost to a conventional septic system while removing up to 90% of the nutrients and a
100,000 fold reduction in the fecal bacteria indicator E. coli, according to a study for the state of
Massachusetts (Heufelder 2019). This type of system is recognized and approved by the State of
Florida. The State of New York approves other denitifying systems that meet its nutrient
reduction requirements (Gobler 2021).
Stormwater Redirection
Occasionally, it rains very hard on Hawaiʻi Island and vast quantities of stormwater rage down
streets like wild rivers. The COH has thousands of “dry wells” that function to direct some of
this flow into the porous ground below. In some cases, the stormwater is directed to natural
drainages that can also become raging rivers, carrying mud and debris to the sea. These flooding
events are very deleterious to our nearshore ecosystem. The fine silts alone can smother and
Communication No. 2022-12
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destroy a coral reef. Many communities have learned that promoting hard surfaces like asphalt
and concrete add volumes of sediment to the storm flows. The County could design natural
water catchments and allow the stormwater at the top of the watershed to percolate and settle into
the ground before collecting roadway debris and pollutants. This water flow can help offset
seawater intrusion, common to coastal areas, and help protect the anchialine ecosystems unique
to the Kona Coast.
Stormwater Education
Each year, there are nearly 400 sewage
overflows statewide from Hawaiʻi’s
sewer systems. Spills of untreated
sewage can enter streams and the ocean,
endangering public health and
compromising our natural resources.
Rainwater entering the sewer line is a
major cause of sewage spills. Too much
rainwater overwhelms the system to the
point where untreated wastewater spills
out of manholes and can even back up
into homes through toilets and drains.
The County can help people learn how they can make a difference. With each water bill, the
County could include a diagram similar to the one above produced by Hawaiʻi American Water.
In 2020, Hilo Bay Waterkeeper launched a social media campaign to educate residents about
land-based sources of pollution and impacts on Hilo Bay. Our website also contains information
about how ordinary citizens can play an active role in improving water quality. In partnership
with the County Department of Public Works, Waiwai Ola ʻOhana is working to raise awareness
about stormwater pollution with a new storm drain stenciling youth program.
In 2021, Waterkeepers began
working with a certified FAA pilot
to collect aerial footage of Hilo’s
ahupuaʻa (watershed) system and
include the three main rivers:
Wailoa, Wailuku, and Honoliʻi. Our
goal is to use this as an awareness
tool for residents who may not
realize their impact on the ʻāina
(land) and people. This would also
be used to pin-point local
agricultural and commercial runoff
washing into the rivers and observe the flow events of the rivers from the top of the watershed to
the coastal waters. Alongside runoff testing, this drone footage is key in community engagement
Communication No. 2022-12
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actions to tell the story of the effects communities can have on their watershed and how we can
positively shift how much pollution we put into our coastal communities.
Waiwai Ola ʻOhana will continue to provide outreach and education by collaborating with
fishponds and other community groups as well as holding virtual and/or in-person community
talks about stormwater runoff and its effect on our watersheds and our health. Our continuing
goal is for our residents to become aware of pollution impacts and work to reduce the flow of
pollution to our nearshore waters.
The Ocean Resource
Water inexorably flows downhill to the sea. Unlike wastes in the Mississippi River that flow
hundreds of miles into the Gulf, the island's water makes its trip to the sea more directly. On the
Hilo side, about 212 rivers and streams flow continuously, allowing people to see the hydrologic
cycle in action. The Wailuku River in Hilo is a dramatic example. Its watershed is a vast
mountainside. Heavy rains create a torrent of brown water carrying dirt and fine sediments to
Hilo Bay. Less apparent are the urban drainages of the Waiākea and Wailoa rivers. A drive
through Hilo town reveals many storm drains and gutters that convey street rain runoff to these
rivers and the bay.
Communication No. 2022-12
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Figure 3. Konaʻs Subterranian Estuary (Johannesson 2017)
There is only one stormwater
channel in the Kona area that drains
Holualoa mauka. Most rainfall
runoff migrates underground and
joins the subterranean estuary that
flows under the entire Kona plain.
Figure 3. depicts a model of the
water flow. University of Hawaiʻi
hydrologists suggest the brackish
ground water flows into the sea at
the rate of about 2.5 million gallons
per mile of coastline, per day (Peterson 2009).
This groundwater flow is rich in dissolved pollutants, ranging from fertilizers and wastewater
nutrients to many other chemicals used in the home and the community. Two chemical markers
of “human activity” found in the groundwater are sucralose, the artificial sweetener, and
anomolous levels of Gadolinium, a metal used in medical MRI imaging. Both chemicals are
excreted unchanged in human wastes, and serve as proof of concept markers for human
pollutants in the groundwater flowing into the sea.
We have designed our communities to drain to the sea, emphasizing flood mitigation, however,
this feature has also created the largest waste sink on the planet. Globally, the coastal waters of
most continents are heavily polluted by both intent and ignorance. A recent study identified
135,000 sites on the planet where sewage wastes flow to the sea (Ogasa 2021). As we look to a
more progressive future, we know that using the sea as a waste dump is not sustainable.
We have made some progress regulating and controlling “Point Source” pollution in Hawaiʻi. A
more significant challenge is redesigning communities to prevent “Non-Point Source” pollutants
from joining the water as it flows downhill to the sea. We must account for pollutants in runoff,
be it motor oil on streets, or the water seeping out of the new home septic systems. There is
actually a requirement for this accounting. A TMDL (Total Maximum Daily Load) study is
required by the Clean Water Act for watersheds that drain into any “impaired”2 watershed.
Almost all ocean sites on the Kona Coast are impaired as listed by the EPA, however, the State
of Hawaiʻi has conducted no TMDL’s on Hawaiʻi Island, other than those developed in
partnership with nonprofits.
2 Section 303(d) U.S. Clean Water Act.
Communication No. 2022-12
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Figure 2. Kailua Bay May 2020 Phytoplankton Bloom
Once our coastal waters become
polluted, our single greatest economic
asset - one that attracts both visitors and
locals – will become a dangerous
nuisance. Figure 2 shows a dark green
phytoplankton bloom in Kailua Bay that
reduced visibility to under 3 feet. This
is a very popular ocean swimming area,
used by residents and visitors pursuing
exercise and competing in world famous
events. The blue line shows a major
nutrient-rich submarine groundwater discharge.
The economic impacts from similar greening events will be disastrous. Even when the ocean
may still look deep blue and “AA Pristine” (a state policy requirement), the scientific data
portends an ecological tipping point. Once tipped, reversing the ecological collapse is nearly
impossible.
Water is the Key to Sustainability
As briefly outlined above, sustainability of our water resources is the kingpin for just about every
other sustainability issue. The COH and the DWS must coalesce to implement a whole range of
sustainable water policies and practices. Without ample high-quality water for all, at affordable
prices, sustainability becomes moot. It is time to become proactive, pick the can up and fix these
problems, rather than continue to kick the can down the road of climate resiliency.
The Public Trust and County Duties3
Article XI, section 1 of Hawai‘i’s Constitution establishes that “all public natural resources are
held in trust by the State for the benefit of the people,” and Article XI, section 7 of Hawai‘i’s
Constitution specifically references water and includes the directive “to protect, control, and
regulate the use of Hawai‘i’s water resources for the benefit of its people.” Article XI, section 7
also establishes the State Commission on Water Resource Management (Water Commission),
which is currently housed within the Department of Land and Natural Resources.
Although the Water Commission has the primary kuleana under Hawaiʻi law to protect
Hawaiʻi’s fresh water resources, other government decisionmakers, including state and county
agencies, have an independent duty to conserve natural resources, including water.4 In Hawaiʻi,
3 This section has been excerpted from: D. Kapuaʻala Sproat, Kūkulu Waiwai: Building Pono Water Management
in Hawaiʻi Nei, Ka Huli Ao Center for Excellence in Native Hawaiian Law Boards & Commissions Training, pp. 2,
4-5 (July 2021).
4 See HAW. CONST. art. XI, § 1; Kelly v. 1250 Oceanside Partners, 111 Hawai‘i 205, 225, 140 P.3d 985, 1005
(2006).
Communication No. 2022-12
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we trace the origin of the public trust to Indigenous custom and tradition, which firmly
established that natural resources, including water, were not private property, but were held by
the government for the benefit of the people. Today, “the people of [Hawaiʻi] have elevated the
public trust doctrine to the level of a constitutional mandate.”5 Pursuant to the Constitution,
Water Code, and common law, the “state water resources trust” applies to “all water resources
without exception or distinction.”6
The public trust also prescribes a higher level of scrutiny for private commercial uses.7
Hawai‘i decision-makers must, therefore, closely examine requests to use public resources for
private gain to ensure that the public’s interest in the resource is fully protected.8 Agencies “may
compromise public rights in the resource pursuant only to a decision made with a level of
openness, diligence, and foresight commensurate with the high priority these rights command
under the laws of our state.”9 After all, “[t]he duties imposed upon the state [and counties] are
the duties of a trustee and not simply the duties of a good business manager.”10 For example, the
Hawaiʻi Supreme Court ruled that the public trust requires that agencies do more than simply
impose requirements and conditions; they also have an obligation “to ensure that the prescribed
measures are actually being implemented after a thorough assessment of the possible adverse
impacts . . . on the State’s natural resources.”11
In addition to the public trust, the Hawaiʻi Supreme Court also adopted the
“precautionary principle,” ruling that “the lack of full scientific certainty should not be a basis
for postponing effective measures to prevent environmental degradation” and that “where
[scientific] uncertainty exists, a trustee’s duty to protect the resource mitigates in favor of
choosing presumptions that also protect the resource.”12
Issues for Hawaiʻi decision-makers often arise in the context of permits or other
applications that may impact streams, springs, groundwater, or traditional and customary Native
Hawaiian practices dependent upon those resources, such as kalo cultivation or gathering
practices. For example, a planning commission may receive a permit application from a water
bottling company. Or, the Board of Land and Natural Resources may want to lease state land
where streams are diverted. Many different scenarios arise in which decision-makers must
consider their duty to protect and conserve Hawaiʻi’s precious water resources.
We pray that this discussion paper will greatly further our efforts toward sustainable use of
water, in all of its forms, for the benefit of all people of our island home.
END
5 Waiāhole I, 94 Hawai‘i 97, 131, 9 P.3d 409, 443 (2000).
6 Id. at 133, 9 P.3d at 445.
7 Id. at 142, 9 P.3d at 454.
8 See id.
9 Id. at 143, 9 P.3d at 455.
10 Id.
11 Kelly, 111 Hawai‘i 205, 231, 140 P.3d 985, 1011 (2006).
12 Waiāhole I, 94 Hawai‘i at 154, 9 P.3d at 466.
Communication No. 2022-12
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for valuing the recharge benefits of watershed conservation Environ. Econ. Policy Stud., 16
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1920 to 2012. International Journal of Climatology, 37(5), pp. 2522-2531.
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Molly Graffam, Bruce Brownawell et al. "Removing 80%–90% of nitrogen and organic
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