Law Commons^™

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 …

Customary Practice And Community Governance In Implementing The Human Right To Water--The Case Of The Acequia Communities Of Colorado's Rio Culebra Watershed, Gregory A. Hicks, Devon G. Peña

Articles

This paper offers commentary on the appropriateness of viewing, as a human right, the authority to manage water and to participate meaningfully in watershed governance, and it takes as an example the community of Hispano farmers of the Rio Culebra watershed of Southern Colorado in the headwaters of the Upper Rio Grande. In earlier work, the authors have written about the uneasy relationship between the formal system of appropriative water rights under Colorado law and the enduring set of local water norms practiced within acequias—the traditional water governance institutions and irrigation systems of the Culebra's Hispano farmers. The present …

Indian Water Rights, Practical Reasoning, And Negotiated Settlements, Robert T. Anderson

Articles

This Article first reviews the few Indian water rights cases that the U.S. Supreme Court has decided. The Article then traces a threshold issue common to Indian water rights litigation in the federal and state courts: how to determine the purposes of a reservation for which a reserved water right should be implied. A review of major Indian water rights cases demonstrates the generally confusing state of the law in significant respects, especially with regard to the "purposes" determination.

This Article posits that the relative uncertainty in this area has created an environment in which creative, practical solutions to conflicts …

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, …

Enjoys Long Walks On The Beach: Washington's Public Trust Doctrine And The Right Of Pedestrian Passage Over Private Tidelands, Ewa M. Davison

Washington Law Review

Under Washington's public trust doctrine, the state retains a jus publicum interest in tidelands, regardless of ownership. This interest obligates the state to protect the public rights encompassed within the jus publicum: navigation, fishing, boating, swimming, water skiing, and corollary recreational activities. The state satisfies this duty so long as its actions do not circumscribe public access to those resources, including tidelands, traditionally protected by the public trust doctrine. The title to any tidelands property sold into private ownership is similarly burdened; a private tidelands owner may not utilize property in a way that would compromise the state's jus …

The Tonle Sap: Reconsideration Of The Laws Governing Cambodia's Most Important Fishery, Ian J. Mensher

Washington International Law Journal

The Tonle Sap Basin is not only Cambodia’s largest inland fishery, but also the source of food and income for roughly one million Cambodians. Its biodiversity is unrivaled within Southeast Asia, and its sustainability is vital to the socioeconomic and political stability in the region. However, Cambodia’s current fishery, forestry, and land laws do not adequately protect the Tonle Sap Basin from over-fishing and the introduction of sedimentation and pollution caused by increasing development. The laws do not create or reflect a model for sustainable fishing and development. Both the laws currently in force and proposed legislation fail to limit …

Indian Water Rights And The Federal Trust Responsibility, Robert T. Anderson

Articles

Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid West. Modem litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few U.S. Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non- Indian uses while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history …

Indian Water Rights: Litigation And Settlements, Robert T. Anderson

Articles

This article provides a brief overview of the law of Indian and federal reserved water rights and continues with an examination of the Snake River Water Rights Act. The Act serves as a vehicle for discussion of what is right and what is wrong with the current Indian water rights settlement process. Finally, the article suggests that the Administration modify the portion of its criteria and procedures for Indian water settlements dealing with federal financial contributions. These criteria and procedures need to more accurately reflect the realities of past settlements and promote more successes like the Snake River Water Rights …

Washington's Municipal Water Rights Bill Of 2003: Providing "Certainty And Flexibility" Or Violating The Separation Of Powers Doctrine?, Jason T. Morgan

Washington Law Review

The separation of powers doctrine limits the ability of the legislature to retroactively overrule judicial constructions of existing statutes. It is the province of the judiciary to interpret the law. Once a court interprets a statute, the legislature can only amend that statute prospectively. In the 1998 case of Theodoratus v. State Department of Ecology, the Supreme Court of Washington interpreted the Water Code to require that the proper measure of a water right is the amount of water actually beneficially used, and not the capacity of a water delivery system. In 2003, the Washington Legislature responded to the …

Treatment As Tribe, Treatment As State: The Penobscot Indians And The Clean Water Act, William H. Rodgers, Jr.

Articles

No abstract provided.

Water, Property, And The Clean Water Act, Janis Snoey

Washington Law Review

In PUD No. I of Pend Oreille County v. Department of Ecology, the Supreme Court of Washington held that Washington State has authority under the Clean Water Act to impose a minimum stream flow requirement on a hydroelectric project seeking to amend its federal license, regardless of whether the flow requirement affects an existing water right. A water right is property protected by the U.S. Constitution's prohibition on taking without just compensation. If a state's imposition of a minimum flow requirement under the Clean Water Act restrains a project from diverting the full quantity of an existing water right, …

Community Acequias In Colorado's Rio Culebra Watershed: A Customary Commons In The Domain Of Prior Appropriation, Gregory A. Hicks, Devon G. Peña

Articles

This article presents an account of the landscape and water institutions of the acequia communities of Colorado's Rio Culebra watershed. The physical and social landscape of the Culebra watershed, a product of water institutions introduced by Hispano settlers in the years immediately following the Mexican War, and the persistence of those institutions after the introduction of the system of prior appropriation, offers an instance of a successful engagement of community water institutions in the creation of a sustainable and resource-rich watershed landscape. The ultimate goals of this article are threefold. First, the article describes the acequialandscape and its social, …

Extending Winters To Water Quality: Allowing Groundwater For Hatcheries, Amy Choyce Allison

Washington Law Review

The Winters Doctrine of federally reserved water rights applies to groundwater and water quality. Because most Indian tribes would have no water rights under state law, the reserved water rights doctrine, known as the Winters Doctrine, emerged to establish a federal right to water on Indian reservations sufficient to fulfill the purposes of the reservation. The reserved water rights doctrine originated in Winters v. United States, which was preceded by two cases upholding the federal government's right to reserve certain water rights. Winters rested on one of the Canons of Construction for Indian treaties that require agreements involving Indians …

All Together Now: Legal Responses To The Introduction Of Aquatic Nuisance Species In Washington Through Ballast Water, Jason R. Hamilton

Washington Law Review

Aquatic nuisance species (ANS) are a substantial threat to the global environment, causing harm to ecosystems and costing U.S. industry billions of dollars per year. To combat ANS, legal regimes are being established on the international, federal, and state levels. In some western states, advocates have proposed legislation that is more stringent than the international and federal legal regimes' voluntary ballast-water-exchange regulations. This Comment argues that Washington and the United States should remain in conformity with the international legal regime and should not enact regulations calling for mandatory ballast water-exchange at this time. Instead, the U.S. Coast Guard should strengthen …

Ferc's Dam Decommissioning Authority Under The Federal Power Act, Beth C. Bryant

Washington Law Review

The Federal Energy Regulatory Commission (FERC) asserted in a 1994 Policy Statement that it has the authority under the Federal Power Act to deny a new license for a hydroelectric dam or impose environmental conditions on a new license that may render a project unprofitable, when doing so is in the public interest. In addition, FERC stated that it would impose decommissioning costs on the dam owner. The hydroelectric industry claims that FERC lacks the authority to take these actions, and that if maintaining a dam is no longer in the public interest, either the federal government or another party …

The Rhetoric And Reality Of Water Quality Protection In China, W. Scott Railton

Washington International Law Journal

With the majority of its freshwater sources polluted, and the pursuant incurrence of significant economic losses, and substantial health risks, China has reached a critical stage in its water resource management. Past efforts to legislate for water quality protection, although promising in content, have been less than effective. Four modes of enforcement—administrative controls, economic incentives, legal responsibility, and campaigns—have achieved only moderate success. This Comment examines the statutory and regulatory framework for water pollution control in China and suggests that if China's water pollution controls are ever to be more than mere rhetoric, China must focus on eliminating conflicts of …

Tribal Water Quality Standards Under The Clean Water Act: Protecting Traditional Cultural Uses, William C. Galloway

Washington Law Review

Since 1987, the Clean Water Act has allowed Indian tribes to be treated as states for various purposes under the Act. Among the regulatory powers of states under the Clean Water Act is the ability to set water quality standards, subject to approval by the Environmental Protection Agency (EPA). Upstream pollution dischargers must comply with a downstream state's water quality standards once it is established that an upstream discharge demonstrably impacts downstream water quality. The power to set water quality standards represents a new and potentially powerful tool to protect traditional uses and enhance reservation environments, but only if tribes …

Mission Revival Jurisprudence: State Courts And Hispanic Water Law Since 1850, Peter L. Reich

Washington Law Review

In this Article, the author argues that after the United States' annexation of the Southwest, state judges in California, New Mexico, and Texas knowingly distorted the communal nature of applicable Spanish and Mexican water law. While previous scholars have acknowledged that courts misinterpreted municipal and riparian water rights originating in the Southwest's Hispanic period, most historians have attributed the distortion to ignorance rather than design. Using archival sources, the author demonstrates that American judges created an historical fiction of "Spanish" absolute water control, and intentionally disregarded actual law and custom dictating water apportionment. The resulting doctrines of pueblo water rights …

Protection Of Biodiversity Under The Public Trust Doctrine, Ralph W. Johnson, William C. Galloway

Articles

The public trust doctrine is an ancient Roman legal doctrine that has been applied in both England and the United States. The doctrine traditionally addressed questions of public access to and use of commercially navigable waters for navigation, fisheries and various other uses of the underlying seabeds, lake bottoms, and riverbeds. In recent years, the public trust doctrine has been invoked to protect birds and other wildlife, water quality, ecological and environmental values, and different types of recreation. Although no public trust case has applied the doctrine to protect biodiversity per se, it seems clear by analogy to existing case …

From Quantification To Qualification: A State Court's Distortion Of The Law In In Re General Adjudication Of All Rights To Use Water In The Big Horn River System, Berrie Martinis

Washington Law Review

The Wyoming Supreme Court applied state law to Indian reserved water rights in its recent decision in In re General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn III). Prior to Big Horn III, courts never applied state law to such rights. This Note argues that the Wyoming decision contradicts federal reserved water rights law and federal Indian law, and concludes that Congress should enact legislation overturning the Big Horn III decision.

Oil And The Public Trust Doctrine In Washington, Ralph W. Johnson

Articles

The tragic spill of millions of gallons of oil into Alaska's Prince William Sound alerted the people of Washington to the danger of spills in Puget Sound. In Washington, the danger heightens as the amount of oil transported through the Sound increases. Indeed, Coast Guard figures show about 1,500 tanker movements in Puget Sound in 1988, a 50 percent increase over 1974.2 Moreover, the spill from the Exxon Valdez taught us that, because very little can be done after a spill, the only truly effective means of preventing damage from oil spills is to prevent them in the first place. …

Not On Claims Alone: Determining Indian Title To Intertidal Lands—United States V. Aam, 887 F.2d 190 (9th Cir. 1989), Andrea Geiger Oakley

Washington Law Review

The equal footing doctrine creates a presumption against conveyance of the beds of navigable waters by the United States prior to statehood. Where submerged lands lie within the boundaries of an Indian reservation, the presumption may conflict with the canons of construction applicable in Indian law. In United States v. Aam, the Ninth Circuit attempted to resolve this conflict by establishing a per se test to determine when the presumption is rebutted. This Note examines the Ninth Circuit's opinion and concludes that in light of the respective policies underlying the conflicting doctrines, the court's test gives insufficient weight to the …

Protecting Puget Sound: An Experiment In Regional Governance, Katherine Fletcher

Washington Law Review

The 1985 Puget Sound Water Quality Act set in motion an ambitious experiment in regional problem-solving: a comprehensive and coordinated approach to protecting Puget Sound from pollution and degradation. This Article summarizes the challenges of regional governance, reviews the background and implementation of the 1985 Act, and discusses some of the controversies and challenges associated with the effort to protect Puget Sound. Dedication: This Article is dedicated to my father, who raised me with a sense of place.

The Clean Water Act: When Dumping Dead Fish Is Not The Discharge Of A Pollutant—National Wildlife Federation V. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988), Cheri Y. Cornell

Washington Law Review

The Clean Water Act defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from a point source." This Note examines National Wildlife Federation v. Consumers Power Co., in which the court held that an addition occurs only when a pollutant is introduced into water from the outside world. The Note argues that legislative history and the structure of the Clean Water Act demand an interpretation of "addition" which includes causing a pollutant to appear in water.

Water Pollution And The Public Trust Doctrine, Ralph W. Johnson

Articles

Nonpoint pollution from irrigation return flows has become a serious national problem. Even the extraction of water for irrigation and other purposes causes pollution by reducing the assimilative capacity of the source stream or lake. Such pollution can be regulated either by the courts or the legislatures under the public trust doctrine, which antedates the prior appropriation system, and which protects fisheries and water quality. Alternatively, this pollution can be controlled under the state's police powers. The "takings" issue should not be troublesome because no one, not even prior appropriators, has or can acquire a legal right to pollute public …

The Public Trust Doctrine: Accommodating The Public Need Within Constitutional Bounds—Orion Corp. V. State, 109 Wash. 2d 621, 747 P.2d 1062 (1987), Cert. Denied, 108 S. Ct. 1996 (1988), Steven W. Turnbull

Washington Law Review

Following decades of neglecting its public trust duties, Washington now accepts the public trust doctrine as a permanent fixture in its law. In Orion Corp. v. State, the Washington Supreme Court reaffirmed the state's sovereign interest as the public's trustee in its tidelands, marshes, and shorelands. The court declared that private use of protected trust lands must conform to the public's interest in navigation, fishing, and recreation, and must not be harmful to the land's dependent wildlife. The court, however, declined to define the public trust's reach, stating only that it is coextensive with the public need. This standard suggests …

The Public Trust Doctrine: Accommodating The Public Need Within Constitutional Bounds—Orion Corp. V. State, 109 Wash. 2d 621, 747 P.2d 1062 (1987), Cert. Denied, 108 S. Ct. 1996 (1988), Steven W. Turnbull

Washington Law Review

Following decades of neglecting its public trust duties, Washington now accepts the public trust doctrine as a permanent fixture in its law. In Orion Corp. v. State, the Washington Supreme Court reaffirmed the state's sovereign interest as the public's trustee in its tidelands, marshes, and shorelands. The court declared that private use of protected trust lands must conform to the public's interest in navigation, fishing, and recreation, and must not be harmful to the land's dependent wildlife. The court, however, declined to define the public trust's reach, stating only that it is coextensive with the public need. This standard suggests …

The Determination Of Title To Submerged Lands On Indian Reservation, Rick Best

Washington Law Review

The treatment of submerged lands within Indian reservations provides a classic example of the Indian rights gap. Two possible owners may claim such lands under navigable water: the tribe or one of the several states. Substantial legal and economic significance attaches to ownership. The title may determine fishing rights as well as potentially lucrative mineral rights to gas and oil deposits. When a river is rerouted, the uncovered land may become a valuable recreational or commercial waterfront. Title can also determine criminal jurisdiction for acts taking place on the water. States rely on the equal footing doctrine to claim title …

Unused Riparian Water Rights In Washington—Department Of Ecology V. Abbott, 103 Wn. 2d 686, 694 P.2d 1071 (1985), Lynn B. Squires

Washington Law Review

In Department of Ecology v. Abbott, the Washington Supreme Court addressed the long-standing question of whether landowners who failed to exercise consumptive riparian rights3 within a reasonable period after the adoption of the Water Code of 1917 (1917 Code) lost those rights. The question arose when a riparian landowner, who had registered consumptive water rights as required by statute in 1971, was denied those rights in a 1982 stream adjudication. The basis for the denial was that the landowner's riparian rights had not been continuously exercised since 1917. The Water Rights Registration Act, with which the landowner complied in 1971, …