Water Law Commons^™

Preparing For Climatic Change: The Water, Salmon, And Forests Of The Pacific Northwest, Philip W. Mote, Edward A. Parson, Alan F. Hamlet, William S. Keeton, Dennis Lettenmaier, Nathan Mantua, Edward L. Miles, David W. Peterson, David L. Peterson, Richard Slaughter, Amy K. Snover

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The impacts of year-to-year and decade-to-decade climatic variations on some of the Pacific Northwest’s key natural resources can be quantified to estimate sensitivity to regional climatic changes expected as part of anthropogenic global climatic change. Warmer, drier years, often associated with El Niño events and/or the warm phase of the Pacific Decadal Oscillation, tend to be associated with below-average snowpack, streamflow, and flood risk, below-average salmon survival, below-average forest growth, and above-average risk of forest fire. During the 20th century, the region experienced a warming of 0.8 ◦C. Using output from eight climate models, we project a further warming of …

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

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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, …

The Measure Of Indian Water Rights: The Arizona Homeland Standard, Gila River Adjudication, Barbara Cosens

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On November 26, 2001, the Arizona Supreme Court concluded that Indian reservations were established as homelands. By articulating a homeland standard for the measure of reserved water rights based on tribal economic development plans, cultural needs, and historic water uses, the Arizona Supreme Court has eliminated many of the blatant inequities plaguing the current approach to Indian water rights quantification. Nevertheless, there are concerns with wholesale adoption of the Arizona standard, including the effect on those who have devoted resources in reliance on the previous standard, the introduction of uncertainty in the method of quantification, and the impact on federal …

Rulemaking, Michael Herz

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No abstract provided.

"Irrigated Eden:" Tales Of The Many Snake Rivers, Dale Goble

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No abstract provided.

Judicial Termination Of Treaty Water Rights: The Snake River Case, Dale Goble

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No abstract provided.

The 1997 Water Rights Settlement Between The State Of Montana And The Chippewa Cree Tribe Of The Rocky Boy's Reservation: The Role Of Community And Of The Trustee, Barbara Cosens

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No abstract provided.

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

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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 …

The New Law Of The Sea, Bernard H. Oxman

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No abstract provided.

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

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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. …

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

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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 …

Pollution Control By Effluent Charges: It Works In The Federal Republic Of Germany, Why Not In The U.S., Gardner M. Brown Jr., Ralph W. Johnson

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This article describes the recent Federal Republic of Germany effluent charge law and the political and legal background that permitted this law to be enacted. The impact of that law is assessed, although the assessment is necessarily tentative in view of the short experience with the law to date. The economic and legal implications of enacting an effluent charge law in the United States also are analyzed. Included in this discussion are the advantages and disadvantages of state vs. federal enactment, the constitutional objections that might be raised to such a law, and how it might be coordinated with existing …

Public Trust Protection For Stream Flows And Lake Levels, Ralph W. Johnson

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The public trust doctrine and the appropriative water rights system are headed on a collision course in the West. Appropriators claim vested property rights to extract water for irrigation, mining, manufacturing and other uses. They further assert that under the appropriation doctrine such extractions can continue in perpetuity regardless of the consequences to navigation, fishery and other public values. The public, however, increasingly insists on more protection for environmental and ecological values, aesthetic quality and recreational opportunities, which on lakes and streams usually means leaving waters in place. As a result, the courts are being asked to apply legal doctrines …

Our Salty Rivers: Legal And Institutional Approaches To Salinity Management, Ralph W. Johnson

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The salinity problem in United States rivers becomes worse each year, and no water law system to date has been developed that adequately addresses salinity management. Professor Johnson discusses the salinity problem and its scope as well as remedial and preventative measures that have been taken in the past. He suggests combating the salinity problem by use of systems analysis, i.e., a comprehensive basinwide or regional management plan that analyzes the entire hydrological, economic, political, and agricultural system.

Problems In Attempting To Translate Statuory Standards Into Emission Limitations Under Air And Water Pollution Control Legislation, Jonathan L.F. Silver

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No abstract provided.

The Area Of Origin And A Columbia River Diversion, Ralph W. Johnson

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In 1968 Congress declared a ten-year moratorium on any study of diversion of Columbia River water to the Southwest. One of the reasons for the moratorium was to give residents of the Pacific Northwest time to analyze their region's water needs to determine if "surplus" waters are available for export, and to establish, in a broader sense, a regional policy towards diversion proposals.

This article assumes a neutral stance towards the ultimate issue of diversion and attempts only to analyze the problem of protecting the area of origin in the event of a Columbia River to Southwest interbasin water transfer.

The Area Of Origin And A Columbia River Diversion, Ralph W. Johnson

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In 1968 Congress declared a ten-year moratorium on any study of diversion of Columbia River water to the Southwest. One of the reasons for the moratorium was to give residents of the Pacific Northwest time to analyze their region's water needs to determine if "surplus" waters are available for export, and to establish, in a broader sense, a regional policy towards diversion proposals. This article assumes a neutral stance towards the ultimate issue of diversion and attempts only to analyze the problem of protecting the area of origin in the event of a Columbia River to Southwest interbasin water transfer. …

Water Law, Ralph W. Johnson

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Reviewing Water Law and Administration—The Florida Experience, by Frank E. Maloney, Sheldon J. Plager, and Flether N. Baldwin, Jr. (1968).

Recreational Rights And Titles To Beds On Western Lakes And Streams, Ralph W. Johnson, Russell A. Austin Jr.

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What rights do riparians, their licensees, and the public have to use the small lakes and streams of the West when the beds are privately owned? This is the question which this Article attempts to answer. However, to do this, an analysis had to be made of which lake and stream beds were privately owned. Thus, the Article covers both the questions of title to beds and rights of surface use. This Article represents the first time that an effort has been made to systematically and comprehensively survey the lake and stream surface use cases of the Western part of …

The Canada-United States Controversy Over The Columbia River, Ralph W. Johnson

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In a comprehensive study of the recent dispute between Canada and the United States over the Columbia River, Professor Johnson traces its history through the birth of the Harmon doctrine in 1898, the signing of the Boundary Waters Treaty in 1909, and the first Canadian claim to downstream benefits in the early 1950's. Against this background, he analyzes the negotiations and events—particularly the Canadian proposals to divert the Columbia into the Fraser, and to develop the Peace River instead of the Columbia—that culminated in the Columbia River Treaty in 1961. Before Canadian ratification of the Treaty, however, additional problems presented …

Riparian And Public Rights To Lakes And Streams, Ralph W. Johnson

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The purpose of this article is to assist in the re-examination of Washington water law by looking at the parts of that law encompassed within the labels "riparian" and "appropriation." The first few pages will sketch some of the current trends in water use, showing some of the remarkable differences in use between the first part of the century and today, and between the eastern and western parts of the state. The balance of the article will examine the two systems to see where they are meeting current needs of the state and where they are not. Several questions will …

The Columbia River System, Ralph W. Johnson

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In March, 1959; the International Columbia River Engineering Board submitted its report on the co-operative development of the river to the International Joint Commission. In December, 1959, that Commission submitted to the governments of Canada and the United States its recommendations for apportionment of benefits if co-operative development is undertaken. And thirdly, in the last two years there has been much attention directed at the Peace River development, which is considered by some as competitive with the Columbia. Let us examine the effects of these events on the Columbia River problem. A presentation for Panel II, Current Legal Problems Connected …

Effect Of Existing Uses On The Equitable Apportionment Of International Rivers I: An American View, Ralph W. Johnson

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The dispute between the United States and Canada regarding the apportionment of the Columbia River is not settled. In March 1959, pursuant to the 1944 reference, the International Joint Conimission submitted to the governments of Canada and the United States a comprehensive engineering report on "Water Resources of the Columbia River Basin" prepared by the International Columbia River Engineering Board. This report contains three plans for utilizing the resources of the Columbia. Two of these plans include diversion of part or all of the Kootenay River into the Columbia at Columbia Lakes. All three plans would develop about the same …

Effect Of Existing Uses On The Equitable Apportionment Of International Rivers I: An American View, Ralph W. Johnson

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In spite of the Boundary Waters Treaty of 1909, however, there are at least two reasons why our present topic is pertinent to the Columbia River question; first, there may be a question whether the 1909 treaty really does apply to this situation, and secondly, even if applicable the two countries may for a number of reasons desire not to rely upon its limited provisions for settlement. If the treaty is deemed not to be controlling, then other principles of international law become germane to the dispute, such as the question now before us.

Waters And Water Courses - No Riparian Right In Montana, Evans Holbrook

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Plaintiff owned lands through which a stream flowed; defendant, by virtue of an appropriation duly made, diverted all the water in the stream and used it for irrigation purposes. Plaintiff, claiming only as a riparian owner, sued to enjoin defendant's diversion of the stream on the ground that it was an invasion of riparian rights. Held, that the common law doctrine of riparian rights does not prevail in Montana, and that plaintiff's complaint does not state a cause of action.

Waters And Water Courses - The Effect Of The Desert Land Act Of 1877, Evans Holbrook

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The Act of March 3, 1877, generally known as the Desert Land Act, provides for the sale of desert lands to persons who agree to irrigate and cultivate such lands. The act defines desert lands as lands which will not, without some irrigation, produce crops, and provides that the Commissioner of the General Land Office shall determine what may be considered as such lands; it provides also that the right to the use of water on such lands shall depend upon appropriation, and continues as follows: "and all surplus water over and above such actual appropriation and use, together with …

Rights In Percolating Waters, Ralph W. Aigler

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Almost without exception the courts approve of Acton v. Blundell, 12 M. & W. 324, to the extent of its actual decision,-that where as a result of improvement or enjoyment of one's own land one conducts operations which draw off percolating waters from a neighbor's land, even to the extent of drying up a well or spring, such inconvenience is to be deemed damnum absque injuria. The doctrine of the court "that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure," if intended …

Rights In Percolating Waters, Ralph W. Aigler

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Almost without exception the courts approve of Acton v. Blundell, 12 M. & W. 324, to the extent of its actual decision,-that where as a result of improvement or enjoyment of one's own land one conducts operations which draw off percolating waters from a neighbor's land, even to the extent of drying up a well or spring, such inconvenience is to be deemed damnum absque injuria. The doctrine of the court "that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure," if intended …

The Right To Divert Water To Non-Riparian Land, Ralph W. Aigler

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Though at one time in England there may have been some doubt as to the character of a riparian owner's rights in the waters of the stream, it must be considered as definitely settled by a series of cases that the doctrine of reasonable use by all the proprietors on the stream is the rule of the common law, and that the matter of priority of use or appropriation is, under that system, immaterial, unless, of course, a question of prescriptive right is involved. Wright v. Howard, 1 Sim. & S. 190; Mason v. Hill, 3 B. & Ad. 304, …