Water Law Commons^™

County Of Maui, Hawaii V. Hawaii Wildlife Fund, Rachel L. Wagner

Public Land & Resources Law Review

The Supreme Court of the United States was recently asked to decide whether the Clean Water Act requires a permit for the discharge of pollutants that originate from a point source but are conveyed to navigable waters by a nonpoint source. Vacating the Ninth Circuit’s “fairly traceable” test, the Court held the Clean Water Act requires a permit when there is a direct discharge of pollutants from a point source into navigable waters or when there is the “functional equivalent of a direct discharge.”

When The Well Runs Dry: Why Water-Rich States Need To Prepare For Climate Change And Protect Their Groundwater, Danielle Takacs

William & Mary Environmental Law and Policy Review

It may seem surprising to see such concern over groundwater usage in a state like Wisconsin. While known for its dairy and cheese production, Wisconsin is first in the nation for producing snap beans and cranberries. Agriculture contributes $88.3 billion annually to Wisconsin’s economy alone. In addition to bordering two of the Great Lakes, Lake Michigan and Lake Superior, Wisconsin boasts that it is home to about 15,000 lakes. And this does not include the numerous rivers and streams throughout the state. These facts alone may make Wisconsin seem an unlikely place for disputes over groundwater, as water seems to …

Lust In The Heart Of Florida: Regulation Of Pollutant Storage Tanks, William D. Preston, Thomas K. Maurer

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Hawai'i Wildlife Fund V. County Of Maui, Lowell J. Chandler

Public Land & Resources Law Review

In Hawai’i Wildlife Fund v. County of Maui, the Ninth Circuit held that the plain language of the Clean Water Act provides jurisdiction over indirect discharges of pollutants from a point source into groundwater that is shown to be connected to navigable waters. The court found that studies confirmed pollutants entering the Pacific Ocean were fairly traceable to the County of Maui’s sewage disposal wells. In affirming the district court’s ruling, the Ninth Circuit held that Maui County violated the Clean Water Act by discharging pollutants into a navigable water without the required permit. The court also concluded the …

Bitterrooters For Planning, Inc. V. Montana Department Of Environmental Quality, Rebecca A. Newsom

Public Land & Resources Law Review

In Bitterrooters for Planning, Inc. v. Montana Department of Environmental Quality, the Montana Supreme Court found that the Montana Department of Environmental Quality did not violate the Montana Environmental Policy Act when the department issued a wastewater discharge permit for a large retail merchandise store. This decision enforced a narrow interpretation of agency requirements under the Montana Department of Environmental Quality Act, focusing only on direct effects with a close causal connection to the agency action.

Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib

Michigan Law Review

In 2015, a federal court held for the first time that the Environmental Protection Agency (“EPA”) may regulate runoff manure as a “solid waste” under the Resource Conservation and Recovery Act (“RCRA”). The holding of Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation’s primary toxic waste statute. This Comment argues that, once classified as a “solid waste,” runoff manure fits RCRA’s definition of “hazardous waste” as well. This reclassification would expand EPA’s authority to monitor and respond to the nation’s tragically common groundwater-contamination emergencies.

Whatcom County V. Hirst, Et Al, Stephanie A. George

Public Land & Resources Law Review

Upending decades of common practice in water management and building in the state of Washington, the Washington Supreme Court found Whatcom County violated the state’s Growth Management Act. Whatcom County used the Department of Ecology’s Nooksack Rule in evaluating permits for buildings and subdivisions that rely on permit-exempt wells. This decision affects families across the state of Washington.

The Clark Fork Coalition V. Tubbs, Jonah P. Brown

Public Land & Resources Law Review

Before landowners may appropriate groundwater in Montana, they must first apply for a DNRC permit pursuant to the Montana Water Use Act. Landowners may qualify for an exemption from the arduous permitting process if their appropriation meets certain criteria. However, the Act provides an exception to the exemption when a “combined appropriation” from the same source is in excess of ten acre-feet per year. The Clark Fork Coalition v. Tubbs affirmed the district court’s invalidation of the DNRC rule defining “combined appropriation” to only include physically connected groundwater wells.

For Texas, Now Is The Time To Force Groundwater Owners To Accommodate, Hilary C. Soileau

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Coal Ash And Groundwater: Past, Present And Future Implications Of Regulation, John Daniels

William & Mary Environmental Law and Policy Review

No abstract provided.

Legal Protection For Groundwater-Dependent Ecosystems, Collin Gannon

Michigan Journal of Environmental & Administrative Law

This Note concerns the legal protection of groundwater-dependent ecosystems in the United States and abroad. By first describing the science and ecology of ecosystems that are dependent on groundwater and then surveying the current American legal system that fails to adequately protect groundwater-dependent ecosystems (GDEs), this Note proposes legal reforms that could vastly improve groundwater management systems. State protection of GDEs is sparse and often only operates indirectly as a result of states’ water policies focused on water quantity upkeep for consumptive purposes. Part I provides an overview of GDEs. Part II discusses state legal protection, including indirect state protection …

Hydraulic Fracturing And The Baseline Testing Of Groundwater, Keith B. Hall

University of Richmond Law Review

This article discusses some of the legal and practical issues relating to baseline testing of groundwater and the rules designed to encourage or require such testing. Part I of the article discusses basic background material why this issue is important, what fracturing is and why it is used, the basic types of fracturing, why it can be challenging to determine the cause of alleged contamination, and why baseline testing might help. Part II examines different approaches to increasing the use of baseline testing, including regulations that require such testing and legislation that creates presumptions that provide incentives to conduct such …

The Rise And Demise Of The Absolute Dominion Doctrine For Groundwater, Joseph W. Dellapenna

University of Arkansas at Little Rock Law Review

Increased human populations, together with increased per capita water usage and climate changes, have resulted in our planet coping with greater water shortages than ever before. Groundwater has played, and will continue to play, a critical role in dealing with water shortages. Consequently, more and more attention, legal and otherwise, is being given to groundwater across the United States.

Much legal confusion about groundwater exists. For starters, there is no single legal definition for groundwater. Moreover, the law has developed legal categories such as percolating water and underground streams which, while contradictory to scientific hydrology, remain embedded in the law. …

Domestic Well Exemption In Oklahoma Groundwater Law — Impact And Implications, Drew L. Kershen

Oklahoma Law Review

No abstract provided.

Alice In Groundwater Land: Water Supply Assessments And Subsurface Water Supplies, Kevin M. O'Brien

Golden Gate University Environmental Law Journal

The purpose of this Article is to explore the preparation of Water Supply Assessments in the context of subsurface water supplies. The term “subsurface water supplies” is used here rather than “groundwater” because, as discussed below, the proponent of a development project may propose to utilize a subsurface water supply (such as water produced from beneath the surface of land via a well or a flowing spring) that is not properly classified as groundwater because it falls within the legal definition of subterranean stream flow. In such a case, the supply would be subject to the water rights permitting jurisdiction …

Water Federalism And The Army Corps Of Engineers' Role In Eastern States Water Allocation, Robert Haskell Abrams

University of Arkansas at Little Rock Law Review

No abstract provided.

Transboundary Groundwater In New Mexico, Texas, And Mexico: State And Local Legal Remedies To A Challenge Between Cities, States, And Nations, Jennifer Evans

William & Mary Environmental Law and Policy Review

No abstract provided.

The Water Resources Protection Act And Its Impact On West Virginia Water Law, David M. Flannery, Blair D. Gardner, Jeffrey R. Vining

West Virginia Law Review

No abstract provided.

A Water Management Law For Arkansas, Frank J. Trelease

University of Arkansas at Little Rock Law Review

No abstract provided.

The Trend In Water Law Development, Jerome Maslowski

University of Michigan Journal of Law Reform

The basis of public and private rights in the waters of the State of Michigan is grounded principally in the common law. There has been a scarcity of statutory law on the subject and it is only within the last ten years that any statutes have been enacted which seek to delineate public and private rights.