Law Commons^™

Policy Tools For Smart Growth In New England, New England Environmental Finance Center

Smart Growth

Across New England communities have been experiencing a rapid outward surge of development away from our community and downtown centers. Effects of sprawl include a loss of wildlife habitat, farm and timber lands; increased costs of community services and higher taxes; auto-dependency, longer commutes, and increased congestion; increases in air and water pollution; a sedentary lifestyle and increased obesity; and losses to one’s sense of place and social ties.

State-level responses to sprawl have surfaced throughout New England in recent years. This report describes 11 examples of these responses, representing all six New England states and a diversity of recent …

Water Forum 2006, Susan Kelly

Publications

No abstract provided.

The Commerce Clause, Interstate Compacts, And Marketing Water Across State Boundaries., Michael Pease, Olen Paul Matthews

Geography Faculty Scholarship

Increasing competition for scarce water resources should lead to a re-examination of constraints on water reallocation. Some constraints are "spatial" in nature and reduce the areal extent of reallocation processes. Interstate compacts are an example. Proponents of state protectionism look on compacts as a permanent allocation of water between states. A willing seller is not allowed to sell their water to a willing buyer in another state. On the other hand, the U.S. Constitution's Commerce Clause was designed to create an economic union that includes all states and all citizens. State attempts at economic protectionism through export bans are generally …

Precious, Worthless, Or Immeasurable: The Value And Ethic Of Water, Gabriel Eckstein

Faculty Scholarship

This Article introduces and briefly explores some of the topics related to the value and ethics of water that were considered at the symposium, Precious, Worthless, or Immeasurable: The Value and Ethic of Water, which took place November 2-4, 2006, at the Texas Tech University School of Law. The purpose of the Symposium was to consider how this precious liquid is valued, assessed, and perceived with regard to law and regulations, economics and commerce, people and communities, culture and religion, and others aspects of society that are impacted by water. While far from a comprehensive analysis of the subject matter, …

Active Water Resource Management: Tools For Better Water Management, John D'Antonio

Publications

No abstract provided.

Water For Energy In The Southwest: Where Will It Come From?, Marilyn C. O'Leary

Publications

No abstract provided.

Water For Energy In The Southwest: Finding Water For Mohave, Stanley M. Pollack

Publications

No abstract provided.

Five Views Of The Great Lakes And Why They Might Matter, A. Dan Tarlock

All Faculty Scholarship

No abstract provided.

Western Growth And Sustainable Water Use: If There Are No "Natural Limits" Should We Worry About Water Supplies? (With S. Van De Wetering), A. Dan Tarlock

All Faculty Scholarship

No abstract provided.

Brief For Respondents American Rivers And Friends Of The Presumpcot River, S.D. Warren Co. V. Maine Bd. Of Envtl. Prot., No. 04-1527 (U.S. Jan. 6, 2006), Richard J. Lazarus

U.S. Supreme Court Briefs

No abstract provided.

Symposium: Introduction And Dedication, Brian E. Gray

Faculty Scholarship

No abstract provided.

The Shrinking Dead Sea And The Red-Dead Canal: A Sisyphean Tale, Stephen C. Mccaffrey

McGeorge School of Law Scholarly Articles

No abstract provided.

Initial Steps Towards An Assessment Of The Potential For A Collaborative Approach To Colorado Delta Ecosystem Restoration, Gregory S. Weber

McGeorge School of Law Scholarly Articles

No abstract provided.

Keep Your Money: Let The West Pay For Its Own Water Projects, Denise D. Fort

Faculty Scholarship

The question posed here is what role the federal government should play in responding to the western water crisis, in light of the changes in the social and political landscape that have occurred in the last decade. My thesis is that solutions to water needs that are funded locally are more likely to be sustainable than those produced through national appropriations. My thinking is affected by the work I did on a Presidential commission that recommended sustainability be the cornerstone of western water policy.

Deflating The Deference Myth: National Interests Vs. State Authority Under Federal Laws Affecting Water Use, Reed D. Benson

Faculty Scholarship

This Article seeks to separate the myth from the reality of federal deference to state water allocation authority. Section I briefly addresses background principles of state water law and federal constitutional law, and Section II traces the early history of deference prior to 1910. Section III analyzes three federal statutory schemes and Supreme Court cases applying them, suggests that each represents a different level of federal deference, and distills a few principles for analyzing deference under federal statutes. Section IV addresses deference issues arising in the context of the CWA and the ESA, applying the principles identified in the previous …

Can States Regulate Hydropower Dams As Dischargers Pursuant To Their Clean Water Certification Authority?, Robert H. Abrams

Journal Publications

Under §401 of the Clean Water Act, 33 U.S.C §13·n, to obtain a federal license for any activity that results in a "discharge into the navigable waters," the license applicant must obtain a certification from the state in which the activity takes place that the discharge complies with several aspects of state water-quality regulation under the Clean Water Act. A common setting in which this requirement has been applied is when a hydropower dam seeks to be relicensed by the Federal Energy Regulatory Commission (FERC).

Rethinking The Great Lakes Compact, Mark Squillace

Publications

On December 13, 2005, the Governors and Premiers of the Great Lakes states and provinces signed a Compact and Agreement that commits the parties to a rigorous program to regulate individual water uses, with citizen suits to enforce the requirements. While the Great Lakes-St. Lawrence River Basin Water Resources Compact and companion Agreement are commendable in many respects, this Article argues that people who care about the future of the Great Lakes should urge policymakers to reject the current proposals and rethink the entire approach. The proposed compact is fundamentally flawed and will not achieve the ultimate stated goal of …

Hetch Hetchy: To Drain Or Not To Drain, Brian E. Gray

Faculty Scholarship

No abstract provided.

Whose Job Is It Anyway?: Governmental Obligations Created By The Human Right To Water, Amy Hardberger

Faculty Articles

The importance of water is difficult to quantify, but because it is necessary for survival, it deserves recognition as a human right. Although the right to water has received considerable attention, it has not yet achieved the status of customary international law.

If the human right to water becomes an accepted norm of international law, there could be differing consequences for governments. A human right is enforceable by a citizen against her government by investigating intragovernmental responsibilities in different contexts, including times of peace and more complicated relationships, such as those created in times of conflict or belligerent occupation. Different …

The First Half Century Of Western Water Reform: Have We Kept Faith With The Rivers Of The West?, Charles Wilkinson

Publications

No abstract provided.

Indian Water Rights And The Federal Trust Responsibility, Robert T. Anderson

Articles

Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid West. Modem litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few U.S. Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non- Indian uses while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history …

Indian Water Rights: Litigation And Settlements, Robert T. Anderson

Articles

This article provides a brief overview of the law of Indian and federal reserved water rights and continues with an examination of the Snake River Water Rights Act. The Act serves as a vehicle for discussion of what is right and what is wrong with the current Indian water rights settlement process. Finally, the article suggests that the Administration modify the portion of its criteria and procedures for Indian water settlements dealing with federal financial contributions. These criteria and procedures need to more accurately reflect the realities of past settlements and promote more successes like the Snake River Water Rights …

The Law Of The Lakes: From Protectionism To Sustainability, Christine A. Klein

UF Law Faculty Publications

This Article has a practical goal: to convince state lawmakers of the need to regulate in a comprehensive and evenhanded manner, avoiding short-sighted fixes or politically appealing shortcuts. To accomplish that goal, Part I focuses upon another region of the country-the Colorado River Basin-where residents have also undertaken the task of managing a water system that includes two nations(The United States and Mexico) and numerous states. Learning from the successes and failures of the resultant Law of the River, this Article derives guiding principles for the emerging Law of the Lakes. Part II makes a crucial distinction between protectionism and …

Middle Eastern And North African Hydropolitics: From Eddies Of Indecision To Emerging International Law, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Aboriginal Title And Oceans Policy In Canada, Diana Ginn

Articles, Book Chapters, & Popular Press

The Oceans Act of Canada sets out a broad framework for the unified management of Canada’s oceans based on an ecosystem approach. In particular, the Oceans Act calls on the Minister of Fisheries and Oceans to lead and facilitate the development of a national strategy to guide the management of Canada’s estuarine, coastal and marine ecosystems. The Oceans Act also reflects awareness that aboriginal rights may affect the development or implementation of policy surrounding oceans management. For example, s. 2(1) of the Act states that “. . . nothing in this Act shall be construed so as to abrogate or …

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

Publications

No abstract provided.

Drinking From A Deep Well: The Public Trust Doctrine And Western Water Law, Carol N. Brown

Law Faculty Publications

American water law reflects the diverse geography and population patterns of this expansive country.1 In the eastern states, where water is rather abundant, the doctrine of riparian rights dominates water law.2 The arid western states, in contrast, rejected the doctrine of riparian rights in favor of the doctrine of prior appropriation due to a natural scarcity of water and increasing population growth.3 The western states provide fertile ground to consider the burdens of a rapidly growing region on already scarce water resources.4 My thesis is that the public trust doctrine is being underutilized by the states and that the optimal …

The Taxation Of Aquaculture In Canada: A Comparison With The Taxation Of Agriculture And Its Policy Implications, Faye Woodman

Articles, Book Chapters, & Popular Press

In Canada, at both the federal and the provincial government levels, the tax rules applicable to agricultural producers under the Income Tax Act and other taxing statutes often apply with relatively few modifications to the aquaculture sector. The agriculture rules differ in significant aspects from those applied to other taxpayers. They also tend to be more generous. Thus, the aquaculture sector operates under regimes of taxation in Canada that may be characterized as preferential, but may also have been developed with the needs and circumstances of agriculture, not aquaculture, in mind. This chapter will examine the rationales underlying the various …

An Environmental Pool For The Rio Grande, Kara Gillon

Publications

The Bureau of Reclamation and Corps of Engineers operate a series of dams, reservoirs, and levees along the Middle Rio Grande of New Mexico. The plight of the Rio Grande silvery minnow, an endangered species, and of the river itself demonstrates the need for a change from the emphasis on water development to sustainable river management. Conservation groups invoked the protections of the Endangered Species Act to catalyze this change. Recognizing that flexibility is necessary to meeting competing water needs, the groups also promoted the need for and several approaches to a sustainable and long-term approach to river management and …

Mediation Of The Snake River Basin Adjudication, Francis Mcgovern

Faculty Scholarship

No abstract provided.