Water Law Commons^™

Allocating Electricity, Alexandra Klass, Dave Owen

Articles

The U.S. electricity system is premised on the ideas that utilities have a duty to serve all customers in their service territories and that electricity supply should always meet demand. Until recently, there has been little reason to question these foundational premises. U.S. electricity demand has remained flat for over a decade, and during earlier periods of growth, new energy generation plants were relatively easy to build. Now, however, electricity experts predict massive load growth—most notably from data centers to power artificial intelligence and cryptocurrency—and building new power plants is no longer easy.

Major efforts are underway to increase electricity …

Environmental Geography And Law: Toward A Synthesis, Michaela Anang-Hadjicostandi, Sophia Borgias, Karrigan Börk, Ann M. Eisenberg, Guadalupe M. Franco, Cinnamon Carlarne Hirokawa, Keith H. Hirokawa, Jonathan London, Melinda Morgan, Jessica Owley, Shannon Roesler, Sonya Ziaja

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This Article introduces the new interdisciplinary field of Environmental Geography and Law, which has deep roots in ecology, social science, and law. Environmental and natural resources laws are situated in specific times and places where the climate, ecosystems, history and political economy influence both the land and the law. These places drive and constrain the way law develops. In turn, the law shapes places, from the dispossession and forced migration of indigenous groups, to land development via railroad land grants, to patterns of resource extraction and infrastructure development. Past efforts to integrate law and geography have focused more on critical …

Water Management And Conservation In India Fostering Water Justice: Arguing For Adopting Just Sustainability In Water Governance, Gayathri D Naik Dr, Sanjay Shenoi P

Articles

The water sector is characterised by everyday water injustices where factors like social discrimination, economic disparities, and political preferences influence the determination of water resource access, allocation, and management. The increasing anthropogenic impacts on water resources and consequent threats to sustainability add to the water injustices, often impacting the poorer, socially downtrodden communities that bear the brunt of water scarcity and cannot afford alternatives. The current water governance patterns, prioritising equality over equity, fail to address the issues of water injustices created by social, political, and economic factors in water management and sideline the ecological impacts on water resources. Moving …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

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No abstract provided.

Adapting To 4 Degrees C World, Karrigan Bork, Karen Bradshaw, Cinnamon P. Carlarne, Robin Kundis Craig, Sarah Fox, Josh Galperin, Keith Hirokawa, Shi-Ling Hsu, Katrina Kuh, Kevin Lynch, Michele Okoh, Jessica Owley, Melissa Powers, Shannon Roesler, J.B. Ruhl, James Salzman, David Takacs, Clifford J. Villa

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The Paris Agreement's goal to hold warming to 1.50-2 0 C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 40 C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 40 C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

Free Justice: A History Of The Public Defender In Twentieth-Century America, Kate Levine

Articles

Levine reviews Free justice: A history of the public defender in twentieth-century America. By Sara Mayeux. Chapel Hill, NC: University of North Carolina Press, 2020. 286 pp. $26.95 paperback.

A Housing Crisis: The Story Of The Syringa Mobile Home Park And The Law Clinic's Quest For Water, Jessica M. Long

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No abstract provided.

There Will Be Floods: Armoring The People Of Florida To Make Informed Decisions On Flood Risk, Natalie N. Barefoot, Daniela Tagtachian, Abigail L. Fleming, Gabriela Falla, Bethany Blakeman, Natalie Cavellier

Articles

In Florida, a peninsula surrounded by water with the second-lowest mean elevation in the country, there will be floods.[1] A global study ranking cities most vulnerable to losses from flooding lists Miami first in the United States and sixth globally; Tampa-St. Petersburg is listed as 16th globally.[2] Yet there are no state statutes or regulations in Florida that require a seller or landlord to make flood-related disclosures to homebuyers and renters. In contrast, while varying in scope, 29 states require flood-risk disclosures in real estate transactions.[3] Though Florida should be leading in this arena, in an evaluation of nationwide flood …

The Historical Evolution Of The Methodology For Quantifying Federal Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely

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From the earliest days of their relationship with the United States, the tribes from the region today referred to as the Northwestern United States have been steadfast in their effort to protect the land, waters, plants, and animals of their traditional homelands. That effort is not coincidental; North America's indigenous people have a singular relationship to the environment they have been a part of for millennia. In particular, they have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual sustenance. As a result, through litigation, restoration, and conservation management, tribes have focused on maintaining …

Indigenous Rights And Climate Change: The Influence Of Climate Change On The Quantification Of Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely

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The people indigenous to the Western portion of the lands now referred to as North America have relied on aquatic species for physical, cultural, and spiritual sustenance for millennia. Such indigenous peoples, referred to in the American legal system as Indian tribes, are entitled to water rights for fish habitat pursuant to the Winters Doctrine, which holds that the federal government impliedly reserved water rights for tribes when reservations were created. Recently, the methodology for quantifying these rights has been the Instream Flow Incremental Methodology (IFIM) and/or one of its major components, the Physical Habitat Simulation Model (PHABSIM). These models …

The Contemporary Methodology For Quantifying Reserved Instream Flow Water Rights To Support Aquatic Habitat, Dylan R. Hedden-Nicely

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Since time immemorial, indigenous people have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual needs. Accordingly, tribal people-particularly those in the region now called the Northwestern United States-placed singular emphasis on preserving their traditional subsistence culture when negotiating with the United States during the reservation era. Although rarely expressed in these treaties, the tribes are nonetheless entitled to water rights sufficient to fulfill these traditional subsistence treaty rights. Of the suite of water rights to maintain traditional uses of water, likely the most commonly claimed is for water to maintain fish habitat. A …

The New Agriculture: From Food Farms To Solar Farms, Jessica Owley, Amy Wilson Morris

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Across the United States, government agencies and energy developers are looking to agricultural land for development of renewable energy. One attraction of agricultural lands is that they are already relatively ecologically impaired compared with the previous solar development sites in the California and Arizona desert that have been a major source of concern for many environmental groups-and subject to expensive mitigation requirements under the Endangered Species Act. Renewable energy development pressures are accelerating the existing loss of agricultural land, heightening concerns about food security and the economic viability of agricultural communities. California farmland is at the center of this conflict. …

Indigenous Water Justice, Barbara Cosens

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Indigenous Peoples are struggling for water justice across the globe. These struggles stem from centuries-long, ongoing colonial legacies and hold profound significance for Indigenous Peoples’ socioeconomic development, cultural identity, and political autonomy and external relations within nation-states. Ultimately, Indigenous Peoples’ right to self- determination is implicated. Growing out of a symposium hosted by the University of Colorado Law School and the Native American Rights Fund in June 2016, this Article expounds the concept of “indigenous water justice” and advocates for its realization in three major trans- boundary river basins: the Colorado (U.S./Mexico), Columbia (Canada/U.S.), and Murray-Darling (Australia). The Article begins …

Introduction To The Special Feature Practicing Panarchy: Assessing Legal Flexibility, Ecological Resilience, And Adaptive Governance In Regional Water Systems Experiencing Rapid Environmental Change, Barbara Cosens

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This special feature presents articles on the cross-scale interactions among law, ecosystem dynamics, and governance to address the adaptive capacity of six watersheds in the United States as they respond to rapid environmental change. We build on work that assesses resilience and transformation in riverine and wetland social-ecological systems across the United States at a variety of scales, levels of development, and degrees of degradation, focusing specifically on the Anacostia River, Central Platte River, Klamath River, Columbia River, Middle Rio Grand River, and the Everglades wetlands. All of these cases involve complex institutional systems, histories involving ecological and social regime …

Reconciliation Of Development And Ecosystems: The Ecology Of Governance In The International Columbia River Basin, Barbara Cosens

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This article explores the emergence of formal and informal bridging organizations to facilitate solutions to water conflict at the scale of the water resource. This new approach to governance is of particular importance on rivers within or shared by countries in which water management is fragmented among national and sub-national levels of government as well as among governmental sectors. This article focuses on the Columbia River Basin, in the United States and Canada. Review of the Columbia River Treaty governing shared management of the river has opened a public dialogue on river governance. Treaty review coincides with change in both …

Incorporating Social System Dynamics In The Columbia River Basin: Food-Energy-Water Resilience And Sustainability Modeling In The Yakima River Basin, Barbara Cosens

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In the face of climate change, achieving resilience of desirable aspects of food-energy-water (FEW) systems already strained by competing multi-scalar social objectives requires interdisciplinary approaches. This study is part of a larger effort exploring “Innovations in the Food-Energy-Water Nexus (INFEWS)” in the Columbia River Basin (CRB) through coordinated modeling and simulated management scenarios. Here, we focus on a case study and conceptual mapping of the Yakima River Basin (YRB), a sub-basin of the CRB. Previous research on FEW system management and resilience includes some attention to social dynamics (e.g., economic and governance systems); however, more attention to social drivers and …

Indigenous Rights To Water & Environmental Protection, Robert T. Anderson

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This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part …

Modernization Of The Columbia River Treaty: An Opportunity For Idaho, Barbara Cosens

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No abstract provided.

Chile, The Biobio, And The Future Of The Columbia River Basin, Jerrold A. Long

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No abstract provided.

Regime Shifts And Panarchies In Regional Scale Social-Ecological Water Systems, Barbara Cosens

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In this article we summarize histories of nonlinear, complex interactions among societal, legal, and ecosystem dynamics in six North American water basins, as they respond to changing climate. These case studies were chosen to explore the conditions for emergence of adaptive governance in heavily regulated and developed social-ecological systems nested within a hierarchical governmental system. We summarize resilience assessments conducted in each system to provide a synthesis and reference by the other articles in this special feature. We also present a general framework used to evaluate the interactions between society and ecosystem regimes and the governance regimes chosen to mediate …

Challenges And Opportunities Of The Expiring Columbia River Treaty, Barbara Cosens

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No abstract provided.

The Legislative History Of The Mccarran Amendment: An Effort To Determine Whether Congress Intended For State Court Jurisdiction To Extend To Indian Reserved Water Rights, Dylan R. Hedden-Nicely

Articles

The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications "where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise." The Supreme Court, in what has …

The Columbia River Treaty: An Opportunity For Modernization Of Basin Governance, Barbara Cosens

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No abstract provided.

Water Law Reform In The Face Of Climate Change: Learning From Drought In Australia And The Western United States, Barbara Cosens

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Western societies have developed three approaches to governance of common pool resources such as water: 1) The division of the resource into private property; (2) government regulation; and 3) local self-organization. This article asserts that all three are needed in varying combinations to rise to the challenge presented by the impact of climate change on water supply and demand. Drought presents a preview of potential future climate scenarios and Australia and the western United States are both responding to its harshness through innovation in water governance. These experiments present an opportunity to compare the approaches of Australia and the western …

Adaptive Governance Of Water Resources Shared With Indigenous Peoples: The Role Of Law, Barbara Cosens

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Adaptive governance is an emergent phenomenon resulting from the interaction of locally driven collaborative efforts with a hierarchy of governmental regulation and management and is thought to be capable of navigating social-ecological change as society responds to the effects of climate change. The assertion of Native American water rights on highly developed water systems in North America has triggered governance innovations that resemble certain aspects of adaptive governance, and have emerged to accommodate the need for Indigenous water development and restoration of cultural and ecological resources. Similar innovations are observed in the assertion of Indigenous voices in Australia. This presents …

Traveling To Chile To Learn About Idaho's Water Resource Issues, Jerrold A. Long

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No abstract provided.

Water Rights, Water Quality, And Regulatory Jurisdiction In Indian Country, Robert T. Anderson

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In the seminal Indian water rights case, Winters v. United Slates (1908), the Court posed this question: "The Indians had command of the lands and the waters-command of all their beneficial use, whether kept for hunting, 'and grazing roving herds of stock,' or turned to agriculture and the arts of civilization. Did they give up all this?" The Court's answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to …

Coeur D'Alene Tribe's Enduring Relation To Water -- A Legal History, Dylan R. Hedden-Nicely

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No abstract provided.

Coeur D'Alene Tribe's Claims In The Coeur D'Alene-Spokane River Basin Adjudication, Dylan R. Hedden-Nicely

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No abstract provided.

Examining The Practice Of Developing Human Rights Indicators To Facilitate Accountability For The Human Right To Water And Sanitation, Benjamin Mason Meier, Jocelyn Getgen Kestenbaum, Georgia Lyn Kayser, Urooj Quezon Amjad, Jamie Bartram

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Flowing from the evolution of international legal obligations for water and sanitation, human rights practice has shifted to address state accountability for a human right to water and sanitation through the development of human rights indicators. This policy note focuses on efforts to develop indicators for state reporting to human rights treaty bodies, with human rights norms framing national reports and treaty bodies employing indicators to monitor the progressive realization of the human right to water and sanitation. In supporting evidence-based treaty monitoring through the United Nations (UN), both the UN High Commissioner for Human Rights and the UN Special …