Water Law Commons^™

Drugs On Tap: Managing Pharmaceuticals In Our Nation’S Waters, Gabriel Eckstein

Faculty Scholarship

Pharmaceuticals in the environment and public water supplies are believed to have serious impacts on human and environmental health. Current research suggests that exposure to certain drugs and their residues may result in a variety of adverse human health effects. Other studies more conclusively show that even minute concentrations of pharmaceuticals in the environment can have detrimental effects on aquatic and terrestrial species. Unfortunately, the cost of removing these pernicious substances is out of the financial reach of most municipalities and wastewater and drinking water treatment operators.

Despite the concerns, little effort has been made to develop broad management, mitigatory, …

Missing Water Markets: A Cautionary Tale Of Governmental Failure, Vanessa Casado-Pérez

Faculty Scholarship

California is facing a water crisis. Water is managed through a variety of mechanisms, including government administration and market tools. This Article argues for a regulated market-based solution. When it comes to water markets, the invisible hand needs help from the visible hand of government to prove effective. Administrative systems and markets are usually portrayed in opposition to each other, as mutually exclusive solutions. Water market advocates suggest government's role is minimal. However, as this Article identifies, to establish and maintain a functioning water market, government needs to play a variety of roles. These include the uncontested role of defining …

Specially Invited Opinions And Research Report Of The International Water Law Project: Global Perspectives On The Entry Into Force Of The Un Watercourses Convention 2014: Part Two, Gabriel Eckstein, Patricia Wouters, Robyn Stein, Georgina Mackenzie, Maria Querol, Richard Paisley, Salman M.A. Salman

Faculty Scholarship

This is the second part of a research report on opinions of prominent international water lawyers from each continent on the potential impacts of the 1997 UN Convention on the Non-Navigational Uses of International Watercourses. The first part of the report was published in Water Policy 16(6).

The following compilation is reproduced and adapted from a series of essays that appeared in the blog of the International Water Law Project (www.internationalwaterlaw.org). The series was solicited in preparation for the coming into force of the 1997 UN Convention on the Non-navigational Uses of International Watercourses. The Convention had been pending for …

All Over The Map: The Diversity Of Western Water Plans, Vanessa Casado-Pérez, Bruce E. Cain, Iris Hui, Coral Abbott, Kaley Dodson, Shane Lebow

Faculty Scholarship

Water presents a complex challenge to western state governments. Water is scarcer in the West than in the East and western states face challenges unknown to eastern ones. The textual analysis of their state water planning summaries produced by the US Army Corps of Engineers between late 2008 and 2009 confirms the differences in their policy priorities. However, there is also a wide variance among western states’ policies as the diversity in their water plans show.

Water planning is a challenge not only because of the variability of the resource but also because water basins do not map our local, …

Specially Invited Opinions And Research Report Of The International Water Law Project: Global Perspectives On The Entry Into Force Of The Un Watercourses Convention 2014: Part One, Gabriel Eckstein, Salman M.A. Salman, Dinara Ziganshina, Kishor Uprety, Götz Reichert

Faculty Scholarship

This is the first part of a two-part research report on opinions of prominent international water lawyers from each continent on the potential impacts of the 1997 UN Convention on Non-Navigational Uses of International Watercourses. The second part of the report was published in Water Policy 17(1).

The following compilation is reproduced and adapted from a series of essays that appeared in the blog of the International Water Law Project (www.internationalwaterlaw.org). The series was solicited in preparation for the coming into force of the 1997 UN Convention on the Non-navigational Uses of International Watercourses. The Convention had been pending for …

Cooperative Transboundary Mechanism, Alena Drieschova, Gabriel Eckstein

Faculty Scholarship

Management of transboundary waters in increasingly becoming more challenging, and climate change is likely to exacerbate these pressures. Not least because climate change is a global issue, adaptation will require an international response. This book aims to identify issues, both theoretical and practical, that States face in establishing cooperative transboundary mechanisms to effectively adapt water management to climate change. Furthermore, it will address complex legal hurdles that existing transboundary water institutions face when attempting to adapt existing mechanisms to function in a changing climate. It will also provide an overview of best practices in transboundary adaptive water governance thus far, …

The Latest Red River Rivalry: The Supreme Court's Recent Decision Regarding The Red River Compact, Luke W. Davis, Gabriel Eckstein

Faculty Scholarship

On June 13, 2013, the United States Supreme Court issued a unanimous decision in a “Red River Rivalry” with much greater implications than the annual football game. In Tarrant Regional Water District v. Herrmann, the court sided entirely with Oklahoma in that state’s dispute with Texas over the allocation of Red River water. This decision will have considerable impact on Texas’ ability to meet its ever-growing water needs. Moreover, the decision could be consequential for other interstate water compacts and the states relying on the rivers and tributaries governed by those agreements.

Endangered Species In The Oil Patch: Challenges And Opportunities For The Oil And Gas Industry, Gabriel Eckstein, Jesse Snyder

Faculty Scholarship

Tension among competing interests is nothing new in environmental law. Even among the most tenacious adversaries, the ability to find common ground can serve as an impetus to further the aims of both industry and environmental proponents. Broadly speaking, advocates of the oil and gas industry prefer few restraints, if any, on exploration, development, and production. Comparatively, champions of biological and ecological preservation favor regulatory protections to conserve these interests. Cutting across these often disparate objectives, the Endangered Species Act (ESA) presents a not-so-obvious opportunity for both sides to receive a share of the pie through cooperation and forward planning. …

Interstate Water Compacts: A License To Hoard?, Linda Christie

Texas A&M Journal of Property Law

The purpose of this essay is to familiarize readers with the facts and background of these issues in this important case, and to lay out the policy implications inherent in its resolution. This Article begins by providing some background and history regarding management of, and disputes over, water in the United States, with an emphasis on the value of interstate compacts in resolving and preventing disputes. The path of the current dispute between Texas and Oklahoma requires the Article to trace three things: (1) describing the creation of the Red River Compact as well as its terms; (2) detailing TRWD’s …

Investment Risks For Water Projects, Sharlene Leurig

Texas A&M Journal of Property Law

Unlike most of the developed world, where investor-owned water systems serve the majority of the population, the United States relies mostly on water provided by public systems. To a great extent, these systems were financed through the taxation authority of the federal government—the iconic Hoover Dam only one of the many hundreds of pipelines and reservoirs built by agencies such as the Bureau of Reclamation and Army Corps of Engineers for the benefit of local economic development. Similarly, many of the drinking and waste- water treatment facilities in operation today were built to help com- munities comply with the federal …

State Water Planning: Theory V. Practice In Texas, Mary E. Kelly

Texas A&M Journal of Property Law

The essay shows that while the Texas water planning process is valu- able and important, its execution in practice is often flawed, resulting in over-estimates of the gap between projected demand and supply; new supply costs; lost opportunities for resolving real near-term needs through cost-effective solutions; and a limited ability to deal with criti- cal policy issues that will have significant effect on the state’s ability to sustainably manage its water resources for future generations.

The Shape Of Illusion: Water Law And Policy In The Fourth Dimension, George William Sherk

Texas A&M Journal of Property Law

With these words, Colonel Nathan R. Jessep, played by Jack Nicholson in the movie A Few Good Men, expressed his outrage at being caught in a lie. The lie is not relevant to our purposes today. What is relevant is the fact that the truth eventually became known.

As we look to secure water supplies for the future, it is essential that decisions regarding the allocation and management of water resources be based as much as possible on truth, not on illusions created and perpetrated in the name of political expediency. As Col. Jessep could not stand being caught in …

Coping With Water Scarcity, Risk & Uncertainty: Resilience & Hope, G. Tracy Mehan Iii

Texas A&M Journal of Property Law

It is most appropriate that we gather here in Texas, a state blessed with a vibrant economy and robust population growth, but still coming to terms with a searing drought. Here we get a glimpse of the daunting circumstances impacting water supply and security throughout the United States. This is a good time and place to consider how we often undervalue a resource and commodity that is so important in our lives. In this way we can secure our future water supplies while coping with all the risks, challenges and opportunities this entails.

"Dropping" The Migratory Bird Treaty Act: The Negative Effects Of The Mbta On Property Rights And Human Health, Sabita Maharaj

Texas A&M Journal of Property Law

Federal law essentially handcuffs residents from protecting their health and their children’s health and severely restricts what they can do to protect their property from MBTA-protected birds. The usefulness of these laws is no longer justifiable. While it is necessary for human enjoyment and the balance of the ecosystem to protect animals, protection should not come at the expense of human health and property use and enjoyment.

Investment Impact Of Water Reliability—Recent Dow Experience, Paul Bork

Texas A&M Journal of Property Law

Rather than repeat the work of others in this area, this paper merely cites with approval the recent paper of Michael Booth3 for its presentation of the background and current status of the law, including TCEQ’s regulations and the ongoing case4 challenging the existing TCEQ water call regulations and their application. The Author ex- presses no view regarding the paper’s presentation of Mr. Booth’s views with respect to the legality or appropriateness of these regula- tions or his views on this case. The Author notes in passing that the second sentence in Section D of this paper should read in …

The Potential Impact Of Federal Laws On State Water Supplies, Brad B. Castleberry, Sara R. Thornton

Texas A&M Journal of Property Law

States have long held the exclusive right to allocate their surface and groundwater supplies absent some express federal authority, usually via a contract with a federal agency for stored water in a federally sponsored and funded project. Over time, however, an emphasis on federal involvement has led to scrutiny of projects where there are no federal dollars being expended—only federal permits needed to implement projects by the states. This federal involvement can sometimes have extremely costly impacts to states, effectively creating an invisible dam of laws and regulations under the guise of protecting the environment. This paper will explore a …

Comment: Emerging Epa Regulation Of Pharmaceuticals In The Environment, Gabriel Eckstein

Faculty Scholarship

The May 25, 2012, report — entitled EPA Inaction in Identifying Hazardous Waste Pharmaceuticals May Result in Unsafe Disposal — disapproved of EPA’s lack of progress in determining whether certain pharmaceuticals found in surface, ground, and drinking water qualify as hazardous waste, as well as in establishing an evaluation and regulatory process for pharmaceutical wastes. As a result of the report, EPA is now considering mechanisms for assessing and regulating the presence of certain pharmaceutical products in the environment as hazardous wastes under the Resource Conservation and Recovery Act.

Rethinking Transboundary Ground Water Resources Management: A Local Approach Along The Mexico-U.S. Border, Gabriel E. Eckstein

Faculty Scholarship

Despite more than forty years of promises to the contrary, neither Mexico nor the United States have shown any inclination to pursue a border-wide pact to coordinate management of the border region’s transboundary ground water resources. As a result, these critical resources – which serve as the sole or primary source of fresh water for most border communities on both sides – are being overexploited and polluted, leaving the local population with little recourse. Imminently unsustainable, the situation portends a grim future for the region.

In the absence of national governmental interests and involvement on either side of the frontier, …

Alternative Strategies For Addressing The Presence And Effects Of Pharmaceutical And Personal Care Products In Fresh Water Resources, Gabriel Eckstein, George William Sherk

Faculty Scholarship

In recent years, new information has arisen to challenge this assumption. Chemicals from a wide variety of pharmaceutical and personal care products ("PPCPs"), their byproducts and endocrine disrupting compounds ("EDCs") have received growing attention from the water treatment and wastewater treatment community because of the ability of PPCPs to persist, or only partially degrade, in water and during wastewater treatment.

Several federal agencies, including the EnvironmentAl Protection Agency ("EPA"), the Food and Drug Administration ("FDA"), the U.S. Department of Agriculture ("USDA"), the U.S. Geological Survey ("USGS"), and the Centers for Disease Control and Prevention ("CDC"), have the potential to be …

Alternative Strategies For Managing Pharmaceutical And Personal Care Products In Water Resources, Gabriel Eckstein, George William Sherk

Faculty Scholarship

In recent decades, concern has grown over the presence of pharmaceutical and personal care products (PPCPs) in water. This concern stems from the possibility that the presence of PPCPs in water supplies may pose a threat to both human and environmental health. Such threats may be both direct (e.g., exposure to endocrine disrupting compounds) and indirect (e.g., emergence of antibiotic resistant bacteria). The water treatment and wastewater treatment community has been especially concerned over PPCPs because of PPCPs ubiquitous nature and their ability to persist or only partially degrade in water and during wastewater treatment. Studies done over the past …

Buried Treasure Or Buried Hope? The Status Of Mexico-U.S. Transboundary Aquifers Under International Law, Gabriel E. Eckstein

Faculty Scholarship

Transboundary aquifers found along the 2,000 mile-long border between Mexico and the United States are not governed by any treaty. Yet, these aquifers are the primary source of water for many of the twelve million people who live in this parched region. The region’s groundwater, however, is being over-exploited and contaminated, which is threatening the very life that it currently sustains. As populations continue to expand and current rates of haphazard development persist, the absence of an agreement for the management and allocation of this critical resource could lead to bi-national economic, social and environmental tragedies. This study reviews groundwater …

Scientific, Legal, And Ethical Foundations For Texas Water Law, Gabriel Eckstein, Amy Hardberger

Faculty Scholarship

Water law is the field of law concerned with the ownership, control, and use of water resources, both surface and subsurface. Although most closely related to property law, recent developments in other legal fields, especially in environmental law, have heavily influenced the interpretation, application, and development of water law. As a result, water law today encompasses a broad perspective and often takes into account individual and community rights, environmental issues, commerce and economics, and other societal and legal concerns.

Significantly, modern water law is also an interdisciplinary practice. In light of the continuously expanding body of knowledge of the hydrologic …

Water Scarcity, Conflict, And Security In A Climate Change World: Challenges And Opportunities For International Law And Policy, Gabriel Eckstein

Faculty Scholarship

Although climate change is expected to have major consequences that affect the global environment in its broadest sense, one of the earliest and most direct impacts will be on Earth’s fresh water systems. While some regions will experience increased precipitation, others will suffer serious scarcity. Among others, consequences are likely to include severe flooding, extreme droughts, and meandering border-rivers. This, in turn, will affect human migration patterns, population growths, agricultural activities, economic development, and the environment. This article explores the impact that climate change will have on regional and global freshwater resources and the resulting legal and policy implications that …

Common Grounds, Common Waters: Towards A Water Ethic - Roundtable Discussion, Gabriel Eckstein, Irene Klaver

Faculty Scholarship

The purpose of this roundtable discussion is to continue the dialogue but in a more informal setting, and to allow people to develop some of the ideas and concepts that they started earlier but could not finish because of the time limits.

It is also to get the audience and the panelists to ask questions of each other and to participate in more of a dialogue. To start this discussion I want to raise, at least to the panelists, this issue of wants versus needs, and I am actually going to add one more-versus rights-because I thought that was very …

Examples Of The Political Character Of International Water Law, Gabriel E. Eckstein

Faculty Scholarship

It is widely known that over a billion people lack access to potable water, and well over twice that number are without adequate sanitation'-the latter situation often being related to the former. It has been calculated that every eight seconds a child dies of water-related causes-a stunning statistic and an absolutely unacceptable state of affairs.

While much has been made of the prospect of global water shortages, what is perhaps not so well known is that most of the world's fresh water is shared by two or more states. There are more than 260 international drainage basins, which account for …

El Precia Del Agua [Pricing Water], Carlos Gómez-Ligüerre, Vanessa Casado-Pérez, Ignacio Marín-García

Faculty Scholarship

En España, como en otros muchos países, el agua es un recurso escaso que se asigna ineficientemente. El Estado es su propietario y la asigna a precios políticos e inadecuados. Mientras que la agricultura absorbe dos tercios de este preciado bien, los hogares y la industria consumen sólo el 18 y el 13 % respectivamente. Este trabajo propone la creación de un mercado de derechos sobre el agua controlado por una agencia estatal, pues los costes de transacción son tan elevados que el resultado alcanzado a través de la negociación libre entre las partes no sería eficiente.

In Spain, as …

State Practice In The Management And Allocation Of Transboundary Ground Water Resources In North America, Gabriel Eckstein, Amy Hardberger

Faculty Scholarship

Throughout the world, international and state political boundaries divide ground water resources into politically convenient jurisdictions. Subsurface water, however, does not recognize such borders and flows freely without regard to overlying politics. This disregard for the political dimension, coupled with the growing global importance of fresh water, has the potential for aggravating disputes and conflicts over the use, allocation, and preservation of such resources. To date, widely accepted norms of international law applicable to transboundary aquifers have yet to emerge. However, local and regional agreements, including both formal and unofficial arrangements, suggest the emergence of state practice that should be …

Commentary On The U.N. International Law Commission's Draft Articles On The Law Of Transboundary Aquifers, Gabriel E. Eckstein

Faculty Scholarship

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Despite our increasing reliance, ground water resources have long been the neglected stepchild of international water law; regulation and management of and information about ground water resources are sorely lacking, especially in the international context. Presently, there is no international agreement squarely addressing ground water resources that traverse an international boundary. Moreover, there is only one treaty in the entire world pertaining to the …

Precious, Worthless, Or Immeasurable: The Value And Ethic Of Water, Gabriel Eckstein

Faculty Scholarship

This Article introduces and briefly explores some of the topics related to the value and ethics of water that were considered at the symposium, Precious, Worthless, or Immeasurable: The Value and Ethic of Water, which took place November 2-4, 2006, at the Texas Tech University School of Law. The purpose of the Symposium was to consider how this precious liquid is valued, assessed, and perceived with regard to law and regulations, economics and commerce, people and communities, culture and religion, and others aspects of society that are impacted by water. While far from a comprehensive analysis of the subject matter, …

A Hydrogeological Perspective Of The Status Of Ground Water Resources Under The Un Watercourse Convention, Gabriel Eckstein

Faculty Scholarship

When the U.N. General Assembly adopted the Convention on the Non-Navigational Uses of International Watercourses in 1997, it took a decisive step in recognizing the important role that transboundary ground water resources play in human progress and development. In so doing, it also acknowledged the need to establish principles of law governing this "invisible" but valuable natural resource. Transboundary ground water historically has been neglected in treaties, ignored in projects with international implications, and cursorily misunderstood in much of legal discourse.

While the Convention provides substantial clarification on the status of ground water under international law, it also leaves considerable …