Water Law Commons^™

A Human Face To Instream Flow: Indigenous Right To Water For Salmon And Fisheries, Paul Stanton Kibel

Publications

In the United States and throughout the world, there are many indigenous peoples whose culture and identity are closely connected to salmon and fisheries. Such salmon and fisheries are often dependent on maintaining adequate instream flows of water in rivers. Indigenous groups in the United States and in other countries have increasingly relied on indigenous human rights laws as a basis to keep water instream to maintain salmon and fisheries. This includes reliance on sources of international law such as the International Convention on Civil and Political Rights, the United Nations Declaration on the Rights of Indigenous Peoples, the International …

California Should Lead The Nation In Controlling Agricultural Pollution, Helen H. Kang, Deborah Sivas

Publications

Agricultural runoff is one of the largest sources of pollution in the nation’s waterways. In recent years, scientific journals and the media have been filled with reports of toxic algae blooms and dead zones near and far: The Everglades, Great Lakes, Gulf of Mexico, Chesapeake Bay, and San Francisco Bay-Delta. Agricultural pollution also threatens public health in communities that rely on tainted groundwater. In California alone, more than a quarter million residents in largely agricultural areas are served by water systems with degraded groundwater quality.

Salmon Lessons For The Delta Smelt: Unjustified Reliance On Hatcheries In The Usfws October 2019 Biological Opinion, Paul Stanton Kibel

Publications

Pursuant to the Endangered Species Act, in October 2019 the United States Fish and Wildlife Service (USFWS) of the Trump Administration issued a new Biological Opinion (BiOp) for coordinated operations of the Central Valley Project and the State Water Project (2019 USFWS BiOp).

The Central Valley Project is operated by the United States Bureau of Reclamation (Reclamation), and the State Water Project is operated by the California Department of Water Resources. The Central Valley Project and the State Water Project both divert freshwater from the Sacramento River and San Joaquin River watersheds, and the reduced freshwater flow resulting from these …

Of Hatcheries And Habitat: Old And New Conservation Assumptions In The Pacific Salmon Treaty, Paul Stanton Kibel

Publications

The 1985 Pacific Salmon Treaty between Canada and the United States was negotiated to deal with evidence that Pacific salmon stocks originating in Canada and the United States were in decline. The Pacific Salmon Treaty sought to establish total annual fishing limits for Canada and the United States that were consistent with the sustainable conservation of Pacific salmon stocks, and to base the total allowable catch for Canadian fishermen on forecasts of the total abundance of salmon. As the Pacific Salmon Treaty has been implemented, however, there has been a re-occuring pattern of annual abundance forecasts overestimating the actual abundance …

Fisheries Reliant On Aquifers: When Groundwater Extraction Depletes Surface Water Flows, Paul Stanton Kibel, Julie Gantenbein

Publications

IN CALIFORNIA, surface waters have historically been regulated as if they were unconnected to groundwater. Yet in reality, surface waters and groundwater are often hydrologically connected. Many of the rivers that support fisheries such as salmon and trout are hydrologically dependent on tributary groundwater to maintain instream flow. This means that when there is intensive pumping of tributary groundwater, the result can be reductions in instream flow and damage to fisheries. For this reason, stakeholders concerned with adequate instream flows for fisheries in California's rivers, streams, and creeks need to be effectively engaged in the implementation of California's Sustainable Groundwater …

An Aquifer Betrayed: The Monterey Desalinization Project At Odds With California Water Law, Paul Stanton Kibel

Publications

The California American Water Company's Monterey Peninsula Water Supply Project (Cal-Am Project) is a proposed desalinization facility in Monterey County that was approved by the California Public Utilities Commission (CPUC) in September 2018. The Cal- Am Project would treat water pumped from inland coastal groundwater aquifers-the Dune Sand Aquifer and the 180-Foot Aquifer-rather than water pumped directly from the ocean. The Cal-Am Project's pumping of these coastal aquifers is expected to result in increased seawater intrusion in groundwater.

The Marina Coast Water District and the City of Marina filed petitions with the California Supreme Court alleging violations of the California …

California Rushes In—Keeping Water Instream For Fisheries Without Federal Law, Paul Stanton Kibel

Publications

This Article examines the ways that federal law and federal agencies currently provide a legal basis to keep water instream for California fisheries, and the ways that California water law may be in a position to fill the regulatory gap that may be left if federal water law and federal agencies recede.

Following the introduction, Part I of the Article identifies the different ways that instream flow affects California fisheries. Part II then surveys federal laws and federal agencies that have traditionally supported efforts to keep water instream for California fisheries. In Part III, the Article presents examples of how …

Training Course On The Greening Of Water Law: Implementing Environment-Friendly Principles In Contemporary Water Treaties And Laws, Paul Stanton Kibel

Publications

This class focuses on how international water law principles relate to the construction and operations of on-stream dams. Within this general focus, the following more specific topics are reviewed: (1) upstream/downstream nation rights and obligations relating to the impoundment and release of water from on-stream dams; (2) effect of on-stream dams on fisheries/aquatic habitat and fishers; (3) international environmental impact assessment obligations relating to the construction and operation of on-stream dams; (4) relation of hydro-electric dams to efforts to reduce greenhouse gas emissions associated with energy production.

Rivers That Depend On Aquifers: Drafting Sgma Groundwater Plans With Fisheries In Mind, Paul Stanton Kibel, Julie Gantenbein

Publications

Guidebook on rivers that depend on aquifers. Published by the Center on Urban and Environmental Law.

Also available at: https://ggucuel.org/fisheries.

Damage To Fisheries By Dams: The Interplay Between International Water Law And International Fisheries Law, Paul Stanton Kibel

Publications

Following the introduction, Part One documents the effects of on-stream dams on fisheries, aquatic habitat and fishing-dependent communities. In Part Two, the Article examines how principles from international fisheries law (which has traditionally focused more on ocean fisheries than freshwater fisheries) apply in the transboundary river context. Part Three then identifies the rights of upstream/downstream nations under international water law pertaining to the impoundment and release of water from on-stream dams on waterways where fisheries are present. Next, in Part Four, the Article considers how international environmental impact assessment obligations relate to the construction and operation of on-stream dams. Finally, …

Passage And Flow Considered Anew: Wild Salmon Restoration Via Hyrdo Relicensing, Paul Stanton Kibel

Publications

The FERC hydro relicensing process in the United States has often provided an effective mechanism to modify the terms of dam operations to reduce the adverse impacts on fisheries, particularly impacts on wild Pacific Coast salmon. This experience with FERC relicensing suggests that a transparent and scientifically rigorous regulatory framework to periodically review and modify the way dams operate can play a critical role in the restoration of wild fish stocks.

Sea Level Rise, Saltwater Intrusion And Endangered Fisheries - Shifting Baselines For The Bay Delta Conservation Plan, Paul S. Kibel

Publications

UC Davis School of Law's March 2015 symposium on The Future of CEQA, out of which this article evolved, focused on how the substantive law governing the operation of the California Environmental Quality Act might change in the coming decades. In my presentation for the symposium's final panel, I suggested that certain changes in CEQA substantive law may well be driven by the increasing recognition that the background conditions against which projects will operate will themselves change significantly in the future.

A Salmon Eye Lens On Climate Adaption, Paul S. Kibel

Publications

This Article discusses the current gap in climate adaptation law and policy, emphasizing the potential role that the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and California Environmental Quality Act (CEQA) could play in filling this gap. It focuses on the provisions in these laws that establish that agency planning and decision-making should be based on the best available science, and notes that the best available science now confirms that GHG emission-induced climate change is happening now and will continue to happen during this century. This Article posits that the most appropriate and effective way to factor expected …

Wto Recourse For Reclamation Irrigation Subsidies: Undermarket Water Prices As Foregone Revenue, Paul Stanton Kibel

Publications

There are competing demands for fresh water. Farms look to it as an irrigation source, cities rely on it for drinking water, and fisheries (and fishermen) depend on it for instream flow. When the United States Bureau of Reclamation (“Reclamation”) subsidizes the costs of providing fresh water for irrigation in agricultural production, such subsidization can result in tiered water pricing. With tiered pricing, farms pay the government less per unit than other water users. This tiered pricing can distort the water marketplace in a manner that encourages wasteful irrigation practices and leaves insufficient water instream for fisheries. The dispute over …

In The Field And In The Stream: California Reasonable Use Law Applied To Water For Agriculture, Paul Stanton Kibel

Publications

When it comes to fresh water consumption in California, going forward we will need to learn to do more with less. There are at least two main reasons why California will need to learn to do more with less water. First, there is a growing population in the state, a population that is increasingly urban which means there will be greater demand for urban municipal domestic water supplies. Second, there are now increasing demands to leave additional amounts of surface fresh water instream.~ The demands for additional instream flow relate in part to the declining condition of California's native fisheries …

The Public Trust Navigates California's Bay Delta, Paul Stanton Kibel

Publications

California's Bay Delta, where freshwater from the Sacramento and San Joaquin rivers meets the saltwater from San Francisco Bay, has been mired in litigation and political controversy for decades. In the 2009 Delta Reform Act, the California State Water Board was ordered to conduct hearings to establish flow criteria to protect public trust resources in the Bay Delta. This article examines how the statutory deployment of the public trust in the 2009 Delta Reform Act built on the California Supreme Court's 1983 National Audubon decision, and details the California State Water Board proceedings leading up to the public trust Delta …

Instream Flow And The Public Trust: Statutory Innovation In California's 2009 Delta Reform Act, Paul S. Kibel

Publications

No abstract provided.

Climate Adaptation Policy At The Continental Level: Natural Resources In North America And Europe, Paul Stanton Kibel

Publications

This article assesses the extent to which the concepts of climate proofing and climate policy coherence have found expression in continental natural resource regimes established in North America and Europe. The article first examines the recognition of these concepts within three North American crossborder regimes directly impacted by climate change: the Waters Treaty between Mexico and the United States; the Pacific Salmon Treaty between Canada and the United States; and the North American Waterfowl Management Plan between Canada, Mexico and the United States. Next it considers the extent to which these concepts are reflected in recent European initiatives related to …

Wastewater Resources: Rethinking Centralized Wastewater Treatment Systems, Land Use Planning And Water Conservation, Colin Crawford

Publications

This article aims to contribute to the debate about the legal and regulatory failure to search for imaginative-and immediate-solutions to questions of wastewater management. Following this introductory section, Part I examines the existing, highly centralized models of wastewater treatment in the United States. To do so, Part I first examines federal environmental law and regulation relating to wastewater treatment. In addition, Part I briefly looks at a sampling of state laws affecting wastewater treatment and concludes that neither federal law nor typical state laws express a preference for centralized wastewater treatment-the dominant and default method for wastewater treatment in the …

A Line Drawn In Water: Aquifers Beneath The Mexico-United States Border, Paul Stanton Kibel

Publications

This article examines the conservation of the bi-national Mexicali-Imperial Aquifer and the litigation and Congressional response to the proposed lining of the All-American Canal from cross-border natural resource and international law vantage points.

Grasp On Water: A Natural Resource That Eludes Nafta's Notion Of Investment, Paul S. Kibel

Publications

This Article begins by outlining the hydrologic and legal restraints to private ownership of water resources. It then details the provisions of NAFTA that pertain to private rights in water, and reports on two highprofile water entitlement cases that have arisen under NAFTA's foreign investor protection regime. The piece concludes by observing that the experience of United States of America (U.S.) federal courts with state water law may provide a jurisprudential template to bring NAFTA into alignment with existing domestic water law and international water treaties.

Rio Grande Designs: Texans' Nafta Water Claim Against Mexico, Paul S. Kibel, Jonathan R. Schultz

Publications

Our article begins with an analysis of the historical context and key provisions in the 1944 Rivers Treaty between Mexico and the United States. Next, we explain the expropriation claims process established by NAFTA's Chapter 11 and describe the environmental controversy that has arisen over its implementation. We follow with an account of the Texans' NAFTA water claim against Mexico, including an analysis of this claim's relation to the Tulare Lake decision and parallel dispute resolution proceedings at the International and Boundary Waters Commission.

At the end of this review, our finding is that the Texans' NAFTA water claim against …

Creating Open Space: Two Cases Of Conflicts Resolved, Paul S. Kibel

Publications

No abstract provided.

Sprawl And "Paper Water": A Reality Check From The California Courts, Paul Stanton Kibel, Barry H. Epstein

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No abstract provided.