Water Law Commons^™

Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib

Michigan Law Review

In 2015, a federal court held for the first time that the Environmental Protection Agency (“EPA”) may regulate runoff manure as a “solid waste” under the Resource Conservation and Recovery Act (“RCRA”). The holding of Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation’s primary toxic waste statute. This Comment argues that, once classified as a “solid waste,” runoff manure fits RCRA’s definition of “hazardous waste” as well. This reclassification would expand EPA’s authority to monitor and respond to the nation’s tragically common groundwater-contamination emergencies.

Swancc'S Clear Statement: A Delimitation Of Congress's Commerce Clause Authority To Regulate Water Pollution, Matthew B. Baumgartner

Michigan Law Review

Perhaps the most controversial aspect of federal water pollution law is wetland regulation. Wetlands are typically marshy or swampy areas with hydrologic soils and vegetation. Their ecological value is widely recognized, but wetlands often stand in the way of lucrative commercial development projects. Thus, the battle over the validity of federal wetland regulation is a classic fight between environmentalists and industry. The wetlands controversy is also paradigmatic of the perpetual struggle to define the constitutional limits to federal regulation. The country's main water pollution control law, the Clean Water Act (CWA), purports to regulate all "navigable waters," which it defines …

The Unsettling Of The West: How Indians Got The Best Water Rights, David H. Getches

Michigan Law Review

A single, century-old court decision affects the water rights of nearly everyone in the West. The Supreme Court's two-page opinion in Winters v. United States sent out shock waves that reverberate today. By formulating the doctrine of reserved water rights, the Court put Indian tribes first in line for water in an arid region. Priority is everything where water law typically dictates that the senior water rights holder is satisfied first, even if it means taking all the water and leaving none for anyone else. In the West, water rights belong to "prior appropriators." The earliest users of water secure …

Hydraulic Empire, Joseph L. Sax

Michigan Law Review

A Review of The Great Thirst: Californians and Water, 1170s-1990s by Norris Hundley, Jr.

Limitations Of Sovereign Immunity Under The Clean Water Act: Empowering States To Confront Federal Polluters, Corinne Beckwith Yates

Michigan Law Review

This Note considers whether civil penalties that states impose on federal agencies for violations of NPDES permits arise under federal law and thus are covered by the Clean Water Act's waiver of sovereign immunity - an issue the Supreme Court is scheduled to address during the 1991 term. Part I outlines the history of the Clean Water Act, discussing Supreme Court decisions and statutory amendments that affect the sovereign immunity provision. Part II explains the mechanics of the NPDES state permit process and examines, through analysis of statutory provisions, the degree of control retained by the EPA over individual states …

State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review

Michigan Law Review

This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …

The Evolution Of The Enforcement Provisions Of The Federal Water Pollution Control Act: A Study Of The Difficulty In Developing Effective Legislation, Frank J. Barry

Michigan Law Review

The Federal Water Pollution Control Act,1 which was originally enacted in 1948 and which has been amended five times from 1956 to 1970, has been the primary federal response to the problem of water pollution. The development of that Act in the past twenty-two years has been a story of delayed and inadequate response to the increasing problems of water pollution. The development of the Act's enforcement provisions is particularly representative of those problems. It is the purpose of this Article to examine that development, to point out the shortcomings in the Act, and to analyze the effort that has …

Legal Aspects Of A Federal Water Quality Surveillance System, Jon T. Brown, Wallace L. Duncan

Michigan Law Review

Collection of water quality data is also important for the purpose of determining the present and future needs for water resources and for the purpose of determining the proper allocation of limited financial resources among those needs. In addition, such data are necessary in order to conduct research studies and in order to determine water quality trends for the purposes of long-range planning.

Perhaps the best way to collect such data would be to establish a national surveillance system designed to monitor the quality of the nation's water resources. Such a national system is currently under consideration by the Federal …

Sax: Water Law, Planning And Policy: Cases And Materials, Lynton K. Caldwell

Michigan Law Review

A Review of Water Law, Planning and Policy: Cases and Materials by Joseph L. Sax

Selling Reclamation Water Rights: A Case Study In Federal Subsidy Policy, Joseph L. Sax

Michigan Law Review

This situation raises some interesting questions about federal reclamation policy and about subsidy policy in general. Why should a program designed to give a needed service at reasonable rates evolve into one where the original recipients, at the end of their time of need, are also rewarded by the gift of a large capital asset? Moreover, why should that reward be given at the expense of their successors on the project, who, one would think, are equally the concern of the reclamation program? These are the questions ·with which this article will be concerned.

Acquisition And Protection Of Water Supplies By Municipalities, Wilbert L. Ziegler

Michigan Law Review

Among the prime functions of a municipal government is the furnishing of a potable supply of water for its inhabitants. In view of the increasing demand for water and the shortage of available supply, a number of problems have been or will be encountered by municipalities in fulfilling that function, apart from the problem of financing.

International Law - Treaties - Inclusion Of Purely Domestic Matters In Reservations, Peter H. Hay S.Ed.

Michigan Law Review

In consenting to the ratification of the treaty between the United States and Canada concerning uses of the waters of the Niagara River, the Senate attached a reservation which stated that "no project for redevelopment of the United States' share of such waters shall be undertaken until it be specifically authorized by Act of Congress." On the basis of this reservation, the Federal Power Commission denied the application of the Power Authority of the State of New York for a license under the Federal Power Act covering the new flow of water made available under the treaty. On appeal to …

Constitutional Law - Eminent Domain - Condemnation Of Riparian Lands Under The Commerce Power, George F. Lynch S.Ed.

Michigan Law Review

The power of the United States to regulate commerce comprehends a right to control navigation and the means of navigation. To the extent necessary for the enjoyment of this power the government may condemn riparian property. The federal power of eminent domain is limited by the mandate of the Fifth Amendment which requires just compensation for private property taken for a public use. Usually, the standard of just compensation is the market value of the property, taking into consideration the most profitable uses for which the property is suited and likely to be used at the time of the taking, …

Real Property - Water Rights - Liability For Discharge Of Surface Water, Robert E. Hammell

Michigan Law Review

In 1950 the corporate defendants purchased a forty acre tract of farm land lying north of plaintiffs' golf course and restaurant. Drainage from this tract had always flowed in a natural course southerly through plaintiffs' land. The defendant corporations constructed a subdivision of 169 homes on the tract. This change aggravated the discharge of surface water onto the land of the plaintiffs, increasing the run-off some 350 percent and, in times of heavy rains, producing flood conditions. Plaintiffs were awarded damages and an injunction by the trial court. On appeal, held, reversed. In respect to 30 acres of defendants' …

Real Property - Easements - Right To Take Water From A Pond As Absolute, Exclusive Profit In Gross, Stephen J. Martin S.Ed.

Michigan Law Review

One Divine owned a small natural lake and a mill nearby. He dammed the lake, and ran a pipe from it to his mill. At times he sold water after it left the mill to defendant's assignor, who owned a hotel near the mill. In 1919 Divine sold the lake to plaintiff's assignor, reserving to himself the right to dam the lake and draw off water from it, so long as the level stayed between high and low water marks. Then Divine sold the mill lot to defendant's assignor, who closed it down, but continued to take water through the …

Waters And Watercourses - Diversion - Reciprocal Easements Implied In Grant, Anthony L. Dividio

Michigan Law Review

The village of Canastota, New York, by deed acquired title to land in which originated a stream, with the right "to take, use and divert all said springs, streams and waters . . . or so much thereof as shall be necessary for the use of Canastota Water Works." Prior to this, the village had acquired from the lower riparian owners on the stream "all their title and interest, in and to the waters from the springs . . . the same to be forever, or so long as second party may desire, diverted . . . . " In …

Waters And Watercourses - Extent Of Riparian Land -Compensation On Condemnation, G. M. Stevens

Michigan Law Review

In a recent case compensation was sought for the taking of riparian land for public use. The Supreme Court of Nebraska held that the award should be limited to damages to those sections of land {by the government plat) bordering on the stream. A decision note in this REVIEW criticized that ruling. It was there said that proximity to riparian land might add value even to non-riparian land. Later a rehearing of the case was granted and a new opinion filed. Held, "damages . . . are not limited to governmental sections a part of which is included in …

Waters And Watercourses - Navigable Waters - Dried-Up Lake - Reliction, Daniel Hodgman

Michigan Law Review

A meandered lake, during periods of normal rainfall covering 3000 acres, due to years of drought completely dried up. Plaintiff, the owner of land abutting on the lake, sued the defendant, a stranger, who entered on the dry bed and cut hay, plaintiff claiming ownership of that part of the dry bed where the hay was cut as relicted land. Held, that the lake which was deemed navigable before it dried up was still a navigable lake although no water was in it; that as a navigable lake the ownership of the bed was in the state in trust …

Waters And Watercourses - Extent Of Riparian Land - Compensation On Condemnation, Gerald M. Stevens

Michigan Law Review

Plaintiff owned a ranch comprising over 45,000 acres and fronting for six miles on the North Platte river. One and a half miles of the river frontage were taken by eminent domain proceedings for a dam and reservoir. Plaintiff claimed the value of his whole ranch was reduced by the loss of water rights, by the destruction of sheltering trees and brush, by the creation of a potential hazard to cattle, and by the threat of floods from breaking dam or dikes. He recovered damages on that basis. Reversing the judgment, the court held, riparian rights attached only to …

Waters And Watercourses - Riparian Rights In Streams Flowing Through Several States

Michigan Law Review

A special master appointed by the Court after the filing of a bill by the state of Washington praying an injunction against the state of Oregon found that inhabitants of Oregon had been diverting water from the Walla Walla River, a non-navigable stream, by means of a dam for over fifty years for use in irrigating their lands which would otherwise be arid and had been for a long time pumping some nine thousand acre feet of water per annum from wells bored on their lands. The state of Washington claimed this diversion materially injured an irrigation project known as …

Municipal Corporations - Liability To Riparian Owners For Pollution Of Stream

Michigan Law Review

A stream into which the plaintiff in error dumped its sewage flowed through the lands of defendant in error. Odors from the stream, deposits of foreign substances on the banks, and the pollution of the waters about the farm of the defendant in error constituted a nuisance. Held, the city is liable to one suffering from the nuisance, irrespective of whether it is exercising a governmental function in the installation of the sewer system. Oklahoma City v. Tyetenicz, 175 Okla. 228, 52 P. (2d) 849 (1935).

Constitutional Law-National Power Over Navigable Streams - Property Clause - Corporations - Stockholders' Suit

Michigan Law Review

The recent decision of the Supreme Court in the TVA case raises issues of extreme importance not only in regard to the interpretation of the property clause of the federal Constitution, but also in regard to the requisites for a suit by minority stockholders of a corporation questioning the actions of the corporate management.

Constitutional Law-Conservation Of Waters-Validity Of Statute Limiting Riparian Rights

Michigan Law Review

By the common law a riparian owner on a non-navigable stream has a vested right in the continuous natural flow of the stream on or bordering his land. An Oregon statute undertakes to cut down this right; it provides that a riparian owner's vested right to the continuous flow of the stream is limited to such flow as is necessary to preserve to him the beneficial uses to which he is already putting the water. Inasmuch as the right to the full continuous flow as against non-riparian appropriators is really a right to insist upon the availability of the stream …

Waters And Watercourses - Diversion - Prescriptive Rights Of Servient Riparian Owner

Michigan Law Review

When new waters, formed by seepage and waste from an upper irrigation ditch, began to flow as a stream, they were intercepted by a canal of the defendant irrigation company. At the point of interception a needle gate and spillway were constructed. This gate was kept closed, however, and the waters were diverted along the canal for more than the prescriptive period. The plaintiff sought an injunction restraining the defendant from opening the gate, allowing the intercepted waters to pass through into the plaintiff's drainage district. The theories of the plaintiff were: (a) the defendant's irrigation canal had become the …

Easements - Extinguishment By Adverse Possession Of Servient Owner - Character Of Acts Necessary

Michigan Law Review

In I 902, Y, the owner of riparian land, granted to W, by deed then recorded, the flowage rights over such land. Some years later by general warranty deed containing no reference to the easement, the servient land was conveyed to L, from whom by similar successive conveyances it came to the plaintiff. In the interval the flowage rights had passed to the defendant, and in 1931 the latter erected a dam across the river and flooded the plaintiff's land. Thereupon the plaintiff brought this action for damages. The trial court held that, though all the owners …

Waters And Watercourses - Percolating Waters - Pollution

Michigan Law Review

Defendant operated an oil refinery and deposited waste therefrom on his land. The percolating waters under his land were a part of the supply for the plaintiff's well on adjoining land. These waters were contaminated and rendered plaintiff's well water unfit for human or livestock consumption. Held, that in the absence of negligence this was not a nuisance, but was damnum absque injuria. Rose v. Socony-Vacuum Corp., (R. I. 1934) 173 Atl. 627.

Constitutional Law - Due Process - Fishing Rights In The Public Waters Of Michigan

Michigan Law Review

The Ne-Bo-Shone Association, Inc., is an Ohio corporation which owns property on both banks of the Pine River for some distance. Following the decision of the Michigan Supreme Court in Collins V. Gerhardt that the stream is navigable and public, the complainant association was ordered to remove obstructions in the stream which hampered the free use of the stream by the public for fishing purposes. Thereupon complainant sought an in junction against certain public officials from taking action to remove these obstructions, claiming that it has the right to exclude the public from this portion of the Pine River, and …

Constitutional Law -Interstate Commerce -Navigable Waters -Validity Of Federal Water Power Act

Michigan Law Review

The Federal Power Commission found that the plaintiff's proposed hydroelectric development on the non-navigable New river in Virginia would affect interstate commerce on the navigable Kanawha river to which the New river was tributary. The Commission thereupon tendered the plaintiff a standard or major form license for the project. Such a license, had it been accepted by the plaintiff, would have subjected it to all the provisions of the Federal Water Power Act of 1920, including those concerning the regulation of rates, issuance of securities, expropriation of excess profits, amortization reserves, and recapture at the end of fifty years on …

Waters And Watercourses-Right Of Public Passage Along Great Lakes Beaches

Michigan Law Review

May the littoral owner whose summer cottage abuts on one of the Great Lakes bring actions of trespass quare clausum against pedestrians who traverse the sand beach which lies at the aquatic terminus of his property? To state the same problem in different form, may he build a lateral line fence designed to exclude the public from that segment of the lake-side beach which he claims as his? The question has never been directly decided by the supreme court of any State, yet it is a source of constant strife between littoral owners who desire privacy and seclusion, and strolling …

Waters And Watercourses - Extent Of Riparian Land

Michigan Law Review

The plaintiff, a lower riparian owner, sued the defendant municipality for taking water from a stream in such quantity as to cause serious damage. The complaint alleged. that the defendant purchased land extending to the stream bank in 1927 and 1928, which it later took into its corporate limits, and that thereupon it diverted water to points within its corporate limits but beyond the watershed of the stream. Held, the defendant's demurrer to the complaint was properly overruled. Sayles v. City of Mitchell, (S. D. 1932) 245 N. W. 390.