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Full-Text Articles in Law
Treading Water: How Citizens, States, And The Environmental Protection Agency Can Restore Proper Criminal Enforcement Of The Clean Water Act's National Pollutant Discharge Elimination System, Marley Kimelman
Washington Journal of Environmental Law & Policy
Upon the passage of the Clean Water Act (“CWA”) in 1972, primary responsibility for protecting the United States' water quality and preventing water pollution shifted from the states to the Environmental Protection Agency (“EPA”). The program at the heart of the Clean Water Act, the National Pollutant Discharge Elimination System (“NPDES”), requires anyone who discharges pollutants into the waters of the United States to abide by the terms of a permit issued under the program. If a discharge occurs in violation of the permit or without a permit, and prosecutors are able to prove the responsible party acted with ordinary …
From Loon Lake To Chuckanut Creek: The Rise And Fall Of Environmental Values In Washington's Water Resources Act, Rachael Paschal Osborn
From Loon Lake To Chuckanut Creek: The Rise And Fall Of Environmental Values In Washington's Water Resources Act, Rachael Paschal Osborn
Washington Journal of Environmental Law & Policy
The year 2021 marks the 50th anniversary of the Water Resources Act of 1971, Washington’s program to protect instream flows in state rivers. Implementation has been controversial and, even a half century later, incomplete. Part 1 introduces the Act. Part 2 examines its legislative history, and administrative development by the Department of Ecology. The Act innovated water allocation, putting instream flows and public uses of rivers on par with out-of-stream water rights. But river protection labors under serious limitations, chief among them the subordination of instream flows to pre-existing water rights. And, although only half of Washington’s watersheds are protected …
The Fight Over Columbia River Basin Salmon Spills And The Future Of The Lower Snake River Dams, Michael C. Blumm, Doug Deroy
The Fight Over Columbia River Basin Salmon Spills And The Future Of The Lower Snake River Dams, Michael C. Blumm, Doug Deroy
Washington Journal of Environmental Law & Policy
One of the nation’s most longstanding environmental-energy conflicts concerns the plight of numerous Columbia Basin salmon species which must navigate the Federal Columbia River Power System (FCRPS), a series of hydroelectric dams that make the basin one of the most highly developed in the world. Although the FCRPS dams produce a wealth of hydropower, the mortalities they cause due to the construction and operation of FCRPS dams led to Endangered Species Act listings for the basin’s salmon. Since those listings a quarter-century ago, the federal government has repeatedly failed to produce biological opinions that can survive judicial scrutiny. The latest …
Environmental Justice In The United States: The Human Right To Water, Tamar Meshel
Environmental Justice In The United States: The Human Right To Water, Tamar Meshel
Washington Journal of Environmental Law & Policy
Many low-income communities, communities of color, and indigenous communities in the United States are suffering from unequal access to safe and affordable water. This is partially the result of an ineffective and fragmented legal framework governing water issues in the country. In addition, the notion of a human right to water and sanitation, accepted internationally to reinforce and protect human needs related to water, has yet to be meaningfully recognized in the United States. This article sets out, first, to examine the legal framework governing access to freshwater in the United States and the concerns underlying the reluctance of the …
Exhausted Of Concurrent Jurisdiction: A Reexamination Of National Audubon V. Superior Court Of Alpine County, Zoe A. Wong
Exhausted Of Concurrent Jurisdiction: A Reexamination Of National Audubon V. Superior Court Of Alpine County, Zoe A. Wong
Washington Journal of Environmental Law & Policy
California maintains a complex system of water rights, with the State Water Resources Control Board as the premiere administrative agency overseeing it. The State Water Resources Control Board has the ability, for example, to investigate water usage and implement regulations. However, when it comes to adjudicating water rights disputes, the agency’s power is not absolute. Under the California Supreme Court’s holding in National Audubon v. Superior Court of Alpine County, the trial court shares concurrent jurisdiction with the State Water Resources Control Board over water rights disputes. As California faces extreme drought conditions and climate change, legal battles over …
Using The Clean Water Act To Tackle Ocean Acidification: When Carbon Dioxide Pollutes The Oceans, Miyoko Sakashita
Using The Clean Water Act To Tackle Ocean Acidification: When Carbon Dioxide Pollutes The Oceans, Miyoko Sakashita
Washington Journal of Environmental Law & Policy
Carbon dioxide is an invisible pollutant that threatens water quality and entire marine ecosystems. The oceans absorb carbon pollution from the atmosphere, which reacts with seawater causing it to become more acidic. Ocean acidification impairs the growth, survival and reproduction of marine animals, and if unabated will massively disrupt entire ecosystems. One of the most powerful tools that we have to combat ocean acidification is the Clean Water Act—a law that has successfully solved difficult water pollution problems for decades. This article will discuss how the Clean Water Act can be leveraged to address ocean acidification and to protect our …
Dealing With Ocean Acidification: The Problem, The Clean Water Act, And State And Regional Approaches, Robin Kundis Craig
Dealing With Ocean Acidification: The Problem, The Clean Water Act, And State And Regional Approaches, Robin Kundis Craig
Washington Journal of Environmental Law & Policy
Ocean acidification is often referred to as climate change’s “evil twin.” As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its pH is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture; over the long term, they pose the risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a worldwide reduction in carbon dioxide emissions. In the interim, however, environmental groups such as the Center for Biological Diversity …
Washington's Water Right Impairment Standard: How The Current Interpretation Impedes The State's Policy Of Maximizing Net Benefits, Matthew Rajnus
Washington's Water Right Impairment Standard: How The Current Interpretation Impedes The State's Policy Of Maximizing Net Benefits, Matthew Rajnus
Washington Journal of Environmental Law & Policy
Washington manages water rights under conflicting goals—maximizing net benefits while protecting water rights from any impairment. Over time, the state judiciary, often at the request of the Washington Department of Ecology (Ecology), has elevated the water right impairment standard to an absolute protection. Initially, Division III of the Washington Court of Appeals held that it was proper for Ecology to require a modeled impact of 0.004 percent in river flows, finding that this was substantial and could not be allowed; then, the Washington Supreme Court concluded that any impact constituted impairment; and most recently, the Court paradoxically declared that instream …
The Columbia River Treaty's Canadian Entitlement: The Role Of Liberalized And Integrated North American Electricity Markets In A New Calculation, Kevin Kirkpatrick
The Columbia River Treaty's Canadian Entitlement: The Role Of Liberalized And Integrated North American Electricity Markets In A New Calculation, Kevin Kirkpatrick
Washington Journal of Environmental Law & Policy
The Columbia River Treaty between the United States and Canada may be terminated unilaterally by either nation beginning next year; this has brough attention within the Pacific Northwest and beyond to the 1964 agreement on river flows. Much of the discussion about updating the accord highlights important goals such as bettering the protection of fish and increasing public participation in ecosystem governance, but often neglects analysis of how electricity markets have changed over the past fifty years. This Comment, through an examination of key developments in utilities law and application of economic theory, attempts to parse principles that may prove …
A Solution To The Exempt Well Problem? The New Role Of Counties In Determining Legal Water Availability In Washington State, Jeremy Lieb
Washington Journal of Environmental Law & Policy
Washington, like most western states, exempts domestic groundwater use from water rights permitting requirements. The cumulative impact of exempt groundwater use threatens senior water rights and protected stream flows in certain arid parts of the state that have seen significant exurban and suburban development. Exempt domestic wells, however, are only exempt from requirements to obtain a permit and are still subject to regulation under the principles of prior appropriation; exempt well users can be forced to curtail their water use in order to satisfy the full extent of a senior water right. In Kittitas County v. Eastern Washington Growth Management …
A Next, Big Step For The West: Using Model Legislation To Create A Water-Climate Element In Local Comprehensive Plans, Michelle Bryan Mudd
A Next, Big Step For The West: Using Model Legislation To Create A Water-Climate Element In Local Comprehensive Plans, Michelle Bryan Mudd
Washington Journal of Environmental Law & Policy
The West is witnessing early, important efforts to join water supply and land use planning, and the reality of climate change makes this convergence all the more critical. Local comprehensive planning presents itself as an existing and indispensable tool for unifying important planning efforts in the areas of land use, water, and climate change. As the primary regulators of land use, local governments are at the front line of regulating a myriad of environmental concerns. They are also integral partners in planning and implementing water-related initiatives alongside tribal, state, federal, and private partners. The West’s potential for broad-based action is …
Climate Change And The Columbia River Treaty, Rachael Paschal Osborn
Climate Change And The Columbia River Treaty, Rachael Paschal Osborn
Washington Journal of Environmental Law & Policy
The year 2014 is a key date for the potential re-negotiation of the Columbia River Treaty between the United States and Canada. The Treaty coordinates hydropower operations at 14 mainstem and multiple tributary dams, with the dual goals of maximizing flood control and electrical power generation. In 2024, either party may terminate, with ten years’ notice to the other. Regardless of termination, a key Treaty provision will change, requiring the United States to maximize use of its reservoirs before asking Canada to do the same, leading to deeper drawdowns in Grand Coulee’s Lake Roosevelt and other major reservoirs and potential …
The Flood Control Regime Of The Columbia River Treaty: Before And After 2024, Nigel Bankes
The Flood Control Regime Of The Columbia River Treaty: Before And After 2024, Nigel Bankes
Washington Journal of Environmental Law & Policy
This article examines the flood control rules established by the Columbia River Treaty and Protocol between Canada and the United States before and after 2024. The flood control operations change automatically in 2024. Part I discusses the flooding risks posed by the Columbia and Kootenay Rivers. Part II offers an account of the general international law pertaining to flood protection and in particular the duties that one basin state may owe to another. This section draws on the work of the International Law Commission which informed the adoption of the United Nations Convention on the Non-Navigational Uses of International Watercourses. …
Looking Forward: The Columbia River Treaty, A. Paul Firuz
Looking Forward: The Columbia River Treaty, A. Paul Firuz
Washington Journal of Environmental Law & Policy
Since 1964, the Columbia River Treaty has shaped the joint use of the Columbia River by the United States and Canada. The Treaty will be impervious to change until 2024, but either party may give notice of an intent to alter it as soon as 2014. Since the Treaty’s ratification, changes in United States domestic law have reflected a shift in attitude toward the environment and the Columbia River. These changes have impacted the Columbia River’s governance on the United States side of the border and though domestic law has evolved in response to environmental concerns, the Treaty has remained …
(When) Does A Contract Claim Trump A Takings Claim? Lessons From The Water Wars, David W. Spohr
(When) Does A Contract Claim Trump A Takings Claim? Lessons From The Water Wars, David W. Spohr
Washington Journal of Environmental Law & Policy
As in other river basins, the disparity in the Columbia is growing between ever-expanding water demands and ever-shrinking water availability. Looming near the forefront of decisions on how to manage such waters is the potential liability the government faces if it reduces water distributions to further environmental objectives. While recent cases raise fascinating takings and contract issues, the most interesting issue may be the intersection of the available remedies. Does the contractual relationship between an aggrieved water user and the government preclude a takings claim, even where the contract claim ultimately fails? On one end of the spectrum, courts have …
Dewatering Trust Responsibility: The New Klamath River Hydroelectric And Restoration Agreements, Thomas P. Schlosser
Dewatering Trust Responsibility: The New Klamath River Hydroelectric And Restoration Agreements, Thomas P. Schlosser
Washington Journal of Environmental Law & Policy
In order to protect Indian property rights to water and fish that Indians rely on for subsistence and moderate income, the Interior Department Solicitor has construed federal statutes and case law to conclude that the Department must restrict irrigation in the Klamath River Basin of Oregon and Northern California. Draft legislation, prescribed by the February 18, 2010 Klamath River Hydroelectric Agreement and the Klamath Basin Restoration Agreement, would release the United States from its trust duty to protect the rights of Indian tribes in the Klamath River Basin. The agreements will also prolong the Clean Water Act Section 401 application …