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Articles 1 - 30 of 82
Full-Text Articles in Law
Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman
Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman
Washington Law Review
The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s …
When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli
When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli
Washington Law Review
The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.
Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …
Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely
Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely
Washington Law Review
Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and …
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 …
Legal Analysis: Daesh Control Of Watercourses In Syria And Iraq, Nadim Damluji
Legal Analysis: Daesh Control Of Watercourses In Syria And Iraq, Nadim Damluji
Washington International Law Journal
After years of turmoil, the volatile situation in Iraq and Syria erupted into chaos, setting the stage for the rise of Daesh. Under the leadership of Abu Bakr al-Baghdadi since 2013, Daesh has successfully gained control of territory and influence throughout vast regions of Iraq and Syria to create a new religious caliphate. In the water-scarce region, Daesh has executed a plan to capture the most precious resource available: water. The critical threat Daesh poses to watercourse installations along the Tigris and Euphrates in Syria and Iraq poses a pressing challenge to water security in the Middle East. How might …
Changing Course: Revisiting Instream Flow Rulemaking In Washington State Following Swinomish V. Ecology, Haylee J. Hurst
Changing Course: Revisiting Instream Flow Rulemaking In Washington State Following Swinomish V. Ecology, Haylee J. Hurst
Washington Law Review
Since the adoption of Washington’s Water Resources Act in 1971, legal recognition of instream water uses to preserve fish, wildlife, and other environmental values have become firmly entrenched in Washington water law. By establishing “instream flow rules,” rules that require a certain amount of water to be left in streams before water may be withdrawn for any new uses, the Washington State Department of Ecology (Ecology) must protect the environment while also managing water to achieve “maximum net benefits” for the people of Washington State. Ecology may only allow new withdrawals of water that will impair established instream flows if …
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 Law Review
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 …
The Decline And (Possible) Renewal Of Aspiration In The Clean Water Act, Robert W. Adler
The Decline And (Possible) Renewal Of Aspiration In The Clean Water Act, Robert W. Adler
Washington Law Review
In the approximately four decades since Congress adopted sweeping amendments to the Federal Water Pollution Control Act—creating what is commonly known as the Clean Water Act (CWA)—the United States has made significant progress in reducing many kinds of water pollution. It is clear, however, that the United States has not attained the most ambitious of the statutory goals and objectives, including the overarching objective to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.”1 Indeed, although discrete water quality improvements continue in some places and for some forms of pollution, on a national scale progress toward …
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 …
All Carrot And No Stick: Why Washington's Clean Water Act Assurances Violate State And Federal Water Quality Laws, Oliver Stiefel
All Carrot And No Stick: Why Washington's Clean Water Act Assurances Violate State And Federal Water Quality Laws, Oliver Stiefel
Washington Law Review
Current Washington State rules governing timber activities—including logging, road construction, and timber processing—were achieved through negotiated compromise. In response to growing concern over the decline of several salmonid species, stakeholders from government agencies, environmental groups, and the timber industry negotiated a plan for regulating timber activities to better meet the needs of aquatic species, while maintaining a robust and sustainable timber industry. The rivers and streams flowing through Washington’s forests provide habitat for numerous aquatic species, including several species of anadromous salmonids. Timber activities, however, pose a threat to healthy habitat. In the 1990s, degraded forest habitat in Washington necessitated …
Indigenous Restitution In Settling Water Claims: The Developing Cultural And Commercial Redress Opportunities In Aotearoa, New Zealand, Jacinta Ruru
Washington International Law Journal
Water is important to all peoples, including indigenous peoples. In recent years, the government in Aotearoa, New Zealand has utilized various cultural redress-type legal mechanisms to recognize and revive the importance of water to the Maori people’s identity, health, and wellbeing. These mechanisms create revolutionary modern opportunities for Maori to participate in the decision-making of how specific waters are used and protected. In particular, the negotiated agreements for the Te Arawa Lakes, and the Waikato, Waipa, and Whanganui rivers are studied in this article as prominent examples of how the government has agreed to, for example, co-management regimes. With the …
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 …
The Mccarran Amendment And Groundwater: Why Washington State Should Require Inclusion Of Groundwater In General Stream Adjudications Involving Federal Reserved Water Rights, Aubri Goldsby
Washington Law Review
All water is connected through the hydrologic cycle. When a farmer pumps water from an underground aquifer to irrigate crops, that act may affect a family relying on a nearby surface water stream for its water supply. Despite the scientific link between surface and groundwater, the law often treats the two separately. The legal choice to ignore the interaction of surface and groundwater is particularly notable in “general stream adjudications.” States file these large-scale lawsuits against users in a particular stream or waterbody to determine, in a single lawsuit, all the rights existing in that water source. In 1952, Congress …
The Mccarran Amendment And Groundwater: Why Washington State Should Require Inclusion Of Groundwater In General Stream Adjudications Involving Federal Reserved Water Rights, Aubri Goldsby
Washington Law Review
All water is connected through the hydrologic cycle. When a farmer pumps water from an underground aquifer to irrigate crops, that act may affect a family relying on a nearby surface water stream for its water supply. Despite the scientific link between surface and groundwater, the law often treats the two separately. The legal choice to ignore the interaction of surface and groundwater is particularly notable in “general stream adjudications.” States file these large-scale lawsuits against users in a particular stream or waterbody to determine, in a single lawsuit, all the rights existing in that water source. In 1952, Congress …
Leading A Judge To Water: In Search Of A More Fully Formed Washington Public Trust Doctrine, Ivan M. Stoner
Leading A Judge To Water: In Search Of A More Fully Formed Washington Public Trust Doctrine, Ivan M. Stoner
Washington Law Review
Under the public trust doctrine, a state must hold certain types of natural resources, most particularly navigable waters and shorelands, in trust for the benefit of the public. For that reason, courts closely scrutinize state actions impacting these public trust resources. In Caminiti v. Boyle, the Washington State Supreme Court developed a test that addresses situations where the State transfers control of public trust resources to private parties. But no firm rule guides Washington courts where a state action impacts the public trust without an alienation. This Comment examines the review Washington courts have applied in such situations, and …
Got Water? Limiting Washington's Stockwatering Exemption To Five Thousand Gallons Per Day, Kara Dunn
Got Water? Limiting Washington's Stockwatering Exemption To Five Thousand Gallons Per Day, Kara Dunn
Washington Law Review
In Washington, a comprehensive groundwater code governs groundwater withdrawals and use. This regulatory scheme protects water users, minimizes disputes over water rights, and maximizes the beneficial use of public water resources. Despite these protections, groundwater resources are declining in many parts of the state. Washington exempts certain types of small withdrawals from the groundwater code’s regulations, including water for livestock. Conflicting interpretations of this stock-watering exemption have created uncertainty over whether exempt stock-watering withdrawals are unlimited, or are limited to 5000 gallons per day. This Comment analyzes the conflicting interpretations of the groundwater exemption statute under Washington’s rules of statutory …
Murky Waters: Courts Should Hold That The "Any-Progress-Is-Sufficient-Progress" Approach To Tmdl Development Under Section 303(D) Of The Clean Water Act Is Arbitrary And Capricious, Kelly Seaburg
Washington Law Review
Congress enacted the 1972 Amendments to the Clean Water Act (CWA) to combat water pollution stemming from both discrete and diffuse sources. Section 303(d) of the CWA reduces both types of pollution by requiring each state to promulgate "total maximum daily loads" (TMDLs) of pollutants for all waters that are unable to meet water quality standards. A TMDL is the maximum amount of a pollutant that can be discharged from all combined sources into a given body of water if that water is going to comply with water quality standards. Although section 303(d) required states to promulgate TMDLs by 1979, …