Law Commons^™

The Fragile Future Of Aquifer Storage And Recovery, Zachary A. Bray

Law Faculty Scholarly Articles

Buda, Texas-a small town that lies between Austin and San Antonio,

on the banks of Onion Creek and above the Edwards Aquifer-is perhaps

best known, though it is not particularly well known, as the "Wiener Dog

Capital of Texas." Buda's claim to this title is based upon its annual

dachshund races, which are opposed by the Dachshund Club of America

but lauded by locals, tourists, and the international press as an "event that

combines the pageantry of the Kentucky Derby and the excitement of

NASCAR with dachshunds, animals known for their small stature." Buda

is certainly unusual in relying so …

Texas Groundwater And Tragically Stable “Crossovers”, Zachary A. Bray

Law Faculty Scholarly Articles

One recurring question in the academic literature on common-pool resources relates to the persistence of “tragic” commons regimes—systems that encourage, or at least tolerate, the inefficient, wasteful, hazardous, or unfair exploitation of a resource that is easily accessed for and diminished by individual use and consumption. Of course, not all commons are tragic: some common-pool resources invite individual access in efficient, fair, and durable ways. Yet many commonly held resources do lie under systems of governance that are not just tragic but persistently and stubbornly so. Often the tragic aspects of such commons regimes are well known; indeed, for some …

The Supreme Court And The Ppl Montana Case: Examining The Relationship Between Navigability And State Ownership Of Submerged Lands, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court held in PPL Montana v. Montana held that the State of Montana did not own the beds beneath certain rivers and, therefore, rejected the State's claim that the power company owed it millions of dollars in "back rent" for the use of the riverbeds as sites for ten of its hydroelectric power plants. The Montana Supreme Court, which had ruled in favor of the State, declared that even if portions of a river were not navigable for commercial purposes because of physical conditions, the entire river would be treated as navigable if commercial traffic could …

Law, Policy, And The Clean Water Act: The Courts, The Bush Administration, And The Statute's Uncertain Reach, Michael P. Healy

Law Faculty Scholarly Articles

The development of the jurisdictional reach of the Clean Water Act ("CWA") reflects a hybrid of the judicial determination of the clear legal requirements of the CWA and the exercise of discretionary agency policymaking in the form of legal requirements that are binding on both agency and regulated party. This distinction in the content of administrative law was not altogether clear prior to the Supreme Court's 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. Today, the distinction is fundamental to administrative law and important to assessing the evolution of the scope of CWA jurisdictional waters because the …

Still Dirty After Twenty-Five Years: Water Quality Standard Enforcement And The Availability Of Citizen Suits, Michael P. Healy

Law Faculty Scholarly Articles

When Congress enacted the Federal Water Pollution Control Act, commonly known as the Clean Water Act, it established a pollution control regime that imposed a baseline level of technology-based pollution control, and was designed to ensure that water quality would not fall below certain standards. Twenty-five years after the enactment of the Clean Water Act, success may be claimed with regard to technology-based controls. Achieving water quality standard (WQS) compliance has proved much more difficult. Indeed, evaluated from a variety of perspectives, the enforcement of the water quality-based system of pollution control must be viewed as a failure.

In light …

Regulatory Takings And Wetland Protection In The Post-Lucas Era, Richard C. Ausness

Law Faculty Scholarly Articles

In June 1992, the United States Supreme Court decided Lucas v. South Carolina Coastal Council. The case involved a claim for compensation against the State of South Carolina by a landowner who was prohibited from placing structures on two of his beachfront lots. The Court declared that the landowners must be compensated when government regulations deprive them of all economically beneficial or productive uses of their property unless the proscribed uses were not permitted as part of their original titles.

Although some legal commentators have praised the Lucas decision, others have strongly condemned it. A common criticism of Lucas …

Wild Dunes And Serbonian Bogs: The Impact Of The Lucas Decision On Shoreline Protection Programs, Richard C. Ausness

Law Faculty Scholarly Articles

In Lucas v. South Carolina Coastal Council, the United Supreme Court was forced once again to delve into the law of regulatory takings. This experience is seldom a pleasant one. Echoing the poet John Milton, an exasperated state court judge once described takings law as a “Serbonian Bog.” Unfortunately, the takings doctrine is only slightly more comprehensible after the Lucas decision than it was before. Nevertheless, progress in this area, however modest, deserves praise, and the Court is to be commended for clarifying one aspect of takings jurisprudence. As a result of Lucas a “categorical rule” has been announced …

The Influence Of The Model Water Code On Water Resources Management Policy In Florida, Richard C. Ausness

Law Faculty Scholarly Articles

Increasing demands of municipal, industrial, and agricultural water users have taxed existing water supplies in many parts of the Eastern United States. Larger rivers and lakes have not been severely threatened, but recurrent drought conditions in some areas have impaired stream flows and lake levels in smaller watercourses. Groundwater problems have also arisen as more users have turned to groundwater sources to meet water needs. These problems include interference between wells, overdraft of ground- water aquifers, salt water intrusion, and subsidence. Water quality is also a problem in many states. The Florida Legislature has responded to these problems by enacting …

Water Rights, The Public Trust Doctrine, And The Protection Of Instream Uses, Richard C. Ausness

Law Faculty Scholarly Articles

Our society uses water for a variety of productive purposes, including domestic, agricultural, mining, manufacturing, and energy development. Most of these uses require physical removal of water from watercourses or ground water aquifers. Water can also serve useful purposes, however, when it remains a lake or stream. Flowing water helps to maintain water quality and furthers other uses such as recreation, aesthetic values, and ecological interests—referred to as “instream uses.”

Large quantities of water must remain in place to safeguard instream uses. At the same time, the increasing demands of consumptive water users are significantly reducing streamflows and lake levels …

Water Rights Legislation In The East: A Program For Reform, Richard C. Ausness

Law Faculty Scholarly Articles

Expanding municipal and Industrial demand, along with increasing use of supplemental irrigation have escalated consumptive water use dramatically In the Eastern United States since World War II. This escalated use already has caused water shortages in some parts of the East, and experts predict more widespread water supply problems In the future.

As the inadequacies of the common law water rights system in a water-scarce environment have become evident, many eastern states have supplemented or replaced common law rules with some form of statutory water allocation system. Typically, these statutes establish a permit system administered by a state water resources …

Water Use Permits In A Riparian State: Problems And Proposals, Richard C. Ausness

Law Faculty Scholarly Articles

Although adequate supplies of water are generally available in Kentucky, the law governing its use and allocation is much less satisfactory. At present, Kentucky water law is a complex mixture of common law and statutory water rights. The purpose of this article is to evaluate these water rights and suggest a number of improvements. Part I will examine the common law rules as they relate to both surface water and ground water. Part II will focus upon Kentucky's present system of statutory water use regulation and will identify some of its more serious deficiencies. Part III will recommend some short-range …

Land Use Controls In Coastal Areas, Richard C. Ausness

Law Faculty Scholarly Articles

Prolonged exploitation of coastal resources has caused extensive ecological harm. The alarming decline in the condition of the marine environment has become a matter of serious public concern. This Article will examine some of the environmental problems of the coastal zone and the resulting institutional responses. The first part will delineate a number of problems in the nation's coastal areas. The second part will review the doctrines of property law associated with the ownership of littoral land and their relation to land-use control measures. The third part will evaluate recent coastal management legislation. The fourth part will consider constitutional restraints …

A Survey Of State Regulations Of Dredge And Fill Operations In Nonnavigable Waters, Richard C. Ausness

Law Faculty Scholarly Articles

Several states have recently enacted legislation regulating dredge and fill operations in certain classes of nonnavigable waters. Professor Ausness examines some of the decisions arising under these acts to determine if any distinguishable trend has emerged regarding the nature and extent of constitutional limitations on the regulation of such activities.

Administering State Water Resources: The Need For Long-Range Planning, Richard C. Ausness, Frank E. Maloney

Law Faculty Scholarly Articles

Drastically increased demands upon the nation's water resources are predicted in the coming years as a result of population growth, increased per capita use of water, and the progressive concentration of the population in urban areas.

One solution to the water shortage problem is to obtain water from new sources. The boldest and most ambitious proposal is the North American Water and Power Alliance (NAWAPA). This project would result in the damming of various rivers in Alaska and the Canadian Yukon, and transporting the waters of these rivers into a largely man-made five hundred mile long reservoir along the Rocky …

A Modern Proposal For State Regulation Of Consumptive Uses Of Water, Richard C. Ausness, Frank E. Maloney

Law Faculty Scholarly Articles

As a nation, the United States is in the early stages of a developing water crisis. With an exploding population accompanied by great technological advances in industry and agriculture, America is using progressively more water each day; the increasing use threatens to exceed available supplies in the future unless available resources are properly managed.

As the demand for water grows, problems related to the equitable allocation of this important resource will likewise increase. The need that presently exists for an integrated and balanced approach to the problems of water consumption, pollution, navigation and recreation will become even more acute in …

Water Quality Control: A Modern Approach To State Regulation, Richard C. Ausness, Frank E. Maloney

Law Faculty Scholarly Articles

The American public of late has shown increasing concern over the quality of the environment. Water pollution has long been recognized as a major threat to a better environment. Municipal, industrial, and agricultural operations all contribute to the pollution problem. Municipalities empty millions of gallons of inadequately-treated sewage into the nation's rivers and streams. Municipal wastes are almost exclusively organic in nature. Currently municipal wastes are estimated to average about ten million tons annually while industrial pollution averages approximately fifteen million tons. Treatment in general is technologically feasible; the primary impediment is financial inability on the part of municipalities to …