Law Commons^™

Dustbowl Waters: Doctrinal And Legislative Solutions To Save The Ogallala Aquifer Before Both Time And Water Run Out, Warigia M. Bowman

Articles, Chapters in Books and Other Contributions to Scholarly Works

Eighty-three years after the Dust Bowl, residents of America’s High Plains face a dire threat: their primary aquifer faces depletion, and entire sections of the country are set to run out of groundwater by the end of the century or sooner. The Ogallala Aquifer provides a significant amount of America’s agricultural irrigation water and is a primary source of drinking water for Colorado, Kansas, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, and Wyoming. This Article argues that policymakers should slow the Aquifer’s depletion rate by implementing changes to irrigation technology, crop choice, consumer behavior, legal doctrine, and legislation. This Article …

Transboundary Waters, Annie Brett

UF Law Faculty Publications

In 2018, toxic algae spread from Lake Okeechobee through the State of Florida, leading to a state of emergency and costing the state over $17 million. Similar toxic algal blooms have become an annual occurrence throughout the country and highlighted the pervasive issues with the US. water supply. Inadequate and incomplete monitoring data means that state and federal managers, as well as the public, know shockingly little about water quality in most of the waters in the United States despite the fact that the Clean Water Act requires extensive water quality monitoring and assessment. Academics have widely discussed failings of …

Owning Groundwater: The Example Of Mississippi V. Tennessee, Christine A. Klein

UF Law Faculty Publications

In Mississippi v. Tennessee, a case currently on the U.S. Supreme Court’s docket, Mississippi claims that it owns all groundwater stored underneath its borders that does not cross into Tennessee under “natural predevelopment” conditions—before the advent of modern well technology. Mississippi seeks more than six hundred million dollars for pumping by Tennessee wells that tap into a geologic formation that underlies both states. This is a remarkable claim that departs from the almost uniformly established proposition that the states do not “own” the water within their borders, but instead are authorized to manage that water for the “use” of …

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places. We …

The Brave New Path Of Energy Federalism, Jim Rossi

Vanderbilt Law School Faculty Publications

For much of the past 80 years courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” with a fixed, legalistic boundary between federal and state regulators. This Article explores how recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes.

These recent decisions do not approach federal-state jurisdiction as either/or proposition, but instead recognize it is concurrent in certain contexts. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been target …

Got Guts? The Iconic Streams Of The U.S. Virgin Islands And The Law’S Ephemeral Edge, Jesse Reiblich, Thomas T. Ankersen

UF Law Faculty Publications

The legal status of “guts” — the ephemeral streams of the U.S. Virgin Islands that typically flow only after rainfall — is uncertain. Furthermore, it is unclear what, if any, property interest the Government of the Virgin Islands, and the public, have in these watercourses. This uncertainty stems from the non-navigable nature of guts, and is compounded by the Virgin Islands’ unique legal system, a legal system that recognizes at least some Danish law from its colonial past, and has seemingly inconsistent provisions purporting to confer legal and regulatory interests in these guts to the Government of the Virgin Islands. …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2014, the United States Court of Appeals for the Eleventh Circuit, addressing an issue of first impression, rejected the district court's use of a Lone Pine case-management order as a means of testing the sufficiency of the plaintiffs' pleadings in a state law environmental torts case. The court also interpreted Florida law to mean that plaintiffs are not required to allege that groundwater contamination exceeded regulatory maximum contaminant levels for drinking water to maintain their claims and that they could recover "stigma" damages to their property without alleging actual contamination. The United States District Court for the Middle District …

Vetoing Wetland Permits Under Section 404(C) Of The Clean Water Act: A History Of Inter-Federal Agency Controversy And Reform, Michael Blumm

Faculty Articles

For most of its four-decade history, section 404(c) of the Clean Water Act could have been considered to be a sleeper provision of environmental law. The proviso authorizes the U.S. Environmental Protection Agency (EPA) overrule permits for discharges of dredged or fill material issued by the U.S. Army Corps of Engineers (Corps) where necessary to ensure protection of fish and wildlife habitat, municipal water supplies, and recreational areas against unacceptable adverse effects. This authority of one federal agency to veto the decisions of another federal agency is quite unusual, perhaps unprecedented in environmental law. The exceptional nature of section 404(c) …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2013, the United States Court of Appeals for the Eleventh Circuit rejected a challenge to the Navy's Undersea Warfare Training Range (Range) off the coast of Jacksonville, Florida, based on potential impacts the Range could have to the endangered North Atlantic Right Whale and other endangered species. The court held that the Navy and the National Marine Fisheries Service (NMFS) had met their obligations under the National Environmental Policy Act of 1969 (NEPA as amended and the Endangered Species Act of 1973 (ESA as amended thus far in the project.' The court also decided two cases under the Clean …

Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris

UF Law Faculty Publications

This article will explore a number of legal mechanisms that could play a role in ensuring that discharges from agricultural activities do not cause or contribute to violations of water quality standards. Specifically, this article will evaluate the relative effectiveness of: (1) narrative nutrient criteria as compared with numeric nutrient criteria; (2) Total Maximum Daily Load (TMDL) implementation through regulatory and non-regulatory mechanisms; and (3) the relative efficacy of design-based standards such as Best Management Practices (BMPs) and performance-based standards in reducing water pollution from agriculture. The article will draw on experiences from the State of Florida, including Everglades' restoration …

Climate Change And Water Transfers, Jesse Reiblich, Christine A. Klein

UF Law Faculty Publications

Climate change adaptation is all about water. Although some governments have begun to plan for severe water disruptions, many have not. The consequences of inaction, however, may be dire. As a report of the U.N. Environment Programme warns, “countries that adopt a ‘wait and see’ approach potentially risk the lives of their people, their ecosystems and their economies.” In the United States, according to one study, nearly 60% of the states are unprepared to deal with the impending crisis. Responding to this void, we offer what we believe is the first comprehensive, fifty-state survey of water allocation law and its …

Anti-Waste, Michael Pappas

Faculty Scholarship

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Addition” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable waters” to such an extent that it threatens to eviscerate half of the CWA’s regulatory strategies and programs: water quality standards and the § 404 program protecting wetlands. This Article examines the interpretation of “addition” …

Wetlands Regulation In An Era Of Climate Change: Can Section 404 Meet The Challenge?, Alyson C. Flournoy, Allison Fischman

UF Law Faculty Publications

This Article raises the question of how we should assess the potential threat to wetlands posed by the impacts of a changing climate and considers the role that section 404 of the Clean Water Act can play both in assessing and responding to that threat. Our inquiry is two-fold. First, should we be concerned about climate impacts on wetlands? And if so, how can section 404 help us to assess and respond to this threat?

Part I surveys the scientific literature on the projected impacts of climate change of particular relevance to wetlands and the impacts anticipated for particular types …

Hydraulic Fracturing And Water Management In The Great Lakes, Nicholas Schroeck, Stephanie Karisny

Law Faculty Research Publications

No abstract provided.

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 …

The Judicial Assault On The Clean Water Act, Mark Squillace

Publications

No abstract provided.

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

A Once And Future Gulf Of Mexico Ecosystem: Restoration Recommendations Of An Expert Working Group, Charles H. Peterson, Felicia C. Coleman, Jeremy B.C. Jackson, R. Eugene Turner, Gilbert T. Rowe, Richard T. Barber, Karen A. Bjorndal, Robert S. Carney, Robert K. Cowen, Jonathan M. Hoekstra, James T. Hollibaugh, Shirley B. Laska, Richard A. Luettich Jr., Craig W. Osenberg, Stephen E. Roady, Stanley Senner, John M. Teal, Ping Wang

Faculty Scholarship

The Deepwater Horizon (DWH) well blowout released more petroleum hydrocarbons into the marine environment than any previous U.S. oil spill (4.9 million barrels), fouling marine life, damaging deep sea and shoreline habitats and causing closures of economically valuable fisheries in the Gulf of Mexico. A suite of pollutants — liquid and gaseous petroleum compounds plus chemical dispersants — poured into ecosystems that had already been stressed by overfishing, development and global climate change. Beyond the direct effects that were captured in dramatic photographs of oiled birds in the media, it is likely that there are subtle, delayed, indirect and potentially …

Just A Reminder, Paul Huntington

Student Environmental Law Films/Golden Tree Films

A musical exploration of the challenges of being a law student. Original music by Paul Huntington.

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Correcting Mismatched Authorities: Erecting A New "Water Federalism", Robert Abrams

Journal Publications

Conflicts over water allocation have, become a national topic, rather than a regional one confined to the West. Increased water use and projections for further increased demand are combining with the decline of stationarity to underscore the importance of having sound water management policies and a coherent plan for water allocation at the ready and capable of implementation. Historically, and in an earlier era of water federalism, the state police power was acknowledged as the proper locus for making water law and policy.

In the twentieth century, even while laws and rhetoric respected the division of authority favoring the states, …

Managing The Risks Of Co2 Sequestration, Amy Hardberger

Faculty Articles

Carbon capture and sequestration (CCS) is an emerging technological development which enables coal to be used while avoiding significant greenhouse-gas emissions. The most effective way to combat the predicted impacts of climate change is to limit carbon dioxide (CO₂) emissions, particularly from coal-burning power plants. CCS is ready to be deployed now but is expensive. Although CCS presents challenges, environmental concerns can be mitigated through careful project planning and execution. If the current administration successfully passes and funds a climate bill, CCS will achieve the incentive needed for commercialization.

There are several risks associated with CCS. Some of the most …

Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November

UF Law Faculty Publications

The Outstanding Florida Water (OFW) designation is the highest protection offered to a body of water by the state of Florida and is available only to those waters whose “natural attributes” warrant it. An OFW designation provides that water body with an antidegradation standard for certain activities affecting its water quality. Ordinarily, waters in Florida must meet the criteria established by rule for their respective class of water (based on the Florida water body classification system), regardless of existing water quality. Once a water body is designated as an OFW, however, a baseline water quality standard is set based on …

The Role Of Case Studies In Natural Resources Law [Summary], John Copeland Nagle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"John Nagle, Univ. of Notre Dame Law School" -- Agenda

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

Some Preliminary Thoughts On Contrasts And Convergence In Environmental And Natural Resources Law, Karin P. Sheldon

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

16 pages.

Includes bibliographical references

The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

19 pages.

"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda