Water Law Commons^™

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 …

Hydraulic Fracturing And Water Management In The Great Lakes, Nicholas Schroeck, Stephanie Karisny

Law Faculty Research Publications

No abstract provided.

Interstate Groundwater Law In The Snake Valley: Equitable Apportionment And A New Model For Transboundary Aquifer Management, Noah D. Hall, Benjamin L. Cavataro

Law Faculty Research Publications

No abstract provided.

The Increasing Privatization Of Environmental Permitting, Jessica Owley

Articles

No abstract provided.

The Rise And Demise Of The Absolute Dominion Doctrine For Groundwater, Joseph W. Dellapenna

University of Arkansas at Little Rock Law Review

Increased human populations, together with increased per capita water usage and climate changes, have resulted in our planet coping with greater water shortages than ever before. Groundwater has played, and will continue to play, a critical role in dealing with water shortages. Consequently, more and more attention, legal and otherwise, is being given to groundwater across the United States.

Much legal confusion about groundwater exists. For starters, there is no single legal definition for groundwater. Moreover, the law has developed legal categories such as percolating water and underground streams which, while contradictory to scientific hydrology, remain embedded in the law. …

Compartmentalized Thinking And The Clean Water Act, Christine A. Klein

UF Law Faculty Publications

Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In …

The Supreme Court And The Ppl Montana Case: Examining The Relationship Between Navigability And State Ownership Of Submerged Lands, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court held in PPL Montana v. Montana held that the State of Montana did not own the beds beneath certain rivers and, therefore, rejected the State's claim that the power company owed it millions of dollars in "back rent" for the use of the riverbeds as sites for ten of its hydroelectric power plants. The Montana Supreme Court, which had ruled in favor of the State, declared that even if portions of a river were not navigable for commercial purposes because of physical conditions, the entire river would be treated as navigable if commercial traffic could …

Hitching Our Wagon To A Dim Star: Why Outmoded Water Codes And "Public Interest" Review Cannot Protect The Public Trust In Western Water Law, Michelle Bryan Mudd

Faculty Law Review Articles

This article examines the interrelationship between the public trust and water rights as it is emerging in western states.

Part I of this article describes the traditional public trust principles that apply to waters, as well as the modern judicial trend of extending those principles to water use permitting in the West.

Focusing on an area of particular concern in water codes, Part II analyzes the risky implications of supplanting the public trust doctrine with existing public interest review provisions.

Finally, Part III advances a water use permitting framework that better fulfills the states' public trust responsibilities. Drawing on the …

Reviving The Public Ownership, Antispeculation, And Beneficial Use Moorings Of Prior Appropriation Water Law, Gregory J. Hobbs, Jr.

University of Colorado Law Review

This article addresses originating principles of Colorado prior appropriation water law and demonstrates how the Colorado Supreme Court has applied them in significant cases decided during the first decade of the twenty-first century, a sustained period of drought. These principles include public ownership of the water resource wherever it may be found within the state, allocation of available unappropriated surface water and tributary groundwater for appropriation by private and public entities in order of their adjudicated priorities, and the antispeculation and beneficial use limitations that circumscribe the amount and manner of use each water right is subject to. Demonstrating that …

Powering The Tap Dry: Regulatory Alternatives For The Energy-Water Nexus, Amy Hardberger

University of Colorado Law Review

In 2008, while Atlanta residents freely watered their lawns, several nuclear power plants in Georgia almost shut down due to drought-induced water scarcity. This absurd reality stemmed from the misunderstood and almost wholly unregulated relationship between energy and water. Water and energy are indivisibly linked and interwoven into every aspect of our culture and lifestyle. Large quantities of water are required to generate energy, and energy is required at all stages of the water supply process including pumping, treating, and end uses. While much has been written recently on the numeric relationship between these sectors, little has been proposed from …

No Seat At The Water Table: Colorado's New Groundwater Basin Statute Leaves Senior Surface Rights In The Lurch, Ari J. Stiller-Shulman

University of Colorado Law Review

Wells that pump water from underground aquifers deplete water flowing in nearby rivers and streams. Colorado farmers in certain parts of the state use wells to pump large quantities of underground water for irrigation. However, other users who had pre-existing surface-water rights on nearby streams have complained that these wells drain the river and injure their prior vested water rights. Normally, surface water users with prior rights can require more junior users to stop appropriating until the senior user has diverted her full right. However, Colorado presumes that wells in certain districts-called designated basins-do not injure nearby surface streams. Still, …

The Public Trust Doctrine: Does It Provide The Public With Access To The Beaches Of Lake Michigan In Illinois? , Henry Rose

Public Interest Law Reporter

No abstract provided.

Grab For Water Could Spark Conflict In Pakistan And India, Nicole Livanos

Public Interest Law Reporter

No abstract provided.

Red River Shoot-Out: Can Texas Divert Its Compact Authorized Share Of A River From An Oklahoma Location In Violation Of An Oklahoma Statute?, Robert Abrams

Journal Publications

Texas has rights to Red River water pursuant to the Red River Compact, approved by all basin states and Congress. Texas wants to divert a portion of its allocation in Oklahoma, which has passed a statute banning the export of water. This case will decide (1) whether Texas’s compact rights include the right to divert water in Oklahoma, and (2) whether Oklahoma’s effort to prohibit that diversion violates the Dormant Commerce Clause.

Avoiding Jeopardy, Without The Questions: Recovery Implementation Plans For Endangered Species In Western River Basins, Reed D. Benson

Faculty Scholarship

This article addresses Recovery Implementation Programs (RIPs) for endangered species in the context of four western river basins where the U.S. Bureau of Reclamation (USBR) is a key water supplier and manager. Rather than focus in detail on any particular program, this article addresses these RIPs as a group, representing an alternative approach to Endangered Species Act (ESA) compliance that has taken root in the western water context. Part I of this article provides context, outlining federal and state roles regarding water resources in the West. Part II explains the requirements of the ESA, focusing on federal agency obligations under …

Archival: A Water Rights Manual For Mutual Domestic Water Consumers Associations, Utton Center, University Of New Mexico - School Of Law, Zackeriah Carpenter, Gregory Chakalian, Darcy S. Bushnell

Publications

The Utton Center prepared this Water Rights Manual to assist Mutual Domestic Water Consumers Associations (MDWCAs) with the development, protection and management of their water rights.

This manual provides an introduction to and defines Water Rights in New Mexico, as well as to acquire and have recognized Water Rights. This document also covers water management and planning, and provides additional resources.

Acequias, Brigette Buynak, Jerold Widdison, Darcy S. Bushnell

Water Matters!

Acequias are community irrigation systems in the villages and pueblos of New Mexico. They have deep roots in two ancient traditions—Pueblo Indian and Spanish. The Pueblos collected and shared water for centuries before the arrival of Spanish colonists in 1598. The Spanish settlers brought technical knowledge and institutional frameworks for governing irrigation systems, which originated in the Moors’ seven-century occupation of Spain. Both traditions remain important to an understanding of New Mexico’s acequia heritage and the continuing relevance of these “water democracies.”Today, these traditions must meld with state law as the legislature has provided that acequias are “political subdivisions” or …

American Indian Water Rights, Michael Osborn, Darcy S. Bushnell

Water Matters!

Pueblos and tribal reservations are located within most of the larger stream systems in New Mexico. Each has claims to rights to use the water in its stream. In New Mexico, Indian rights are significant because of their early priority dates, because of the large amounts of water rights claimed, or both. In some instances, such claims have the potential to displace a significant number of junior water rights.

Common law theories or doctrines pertaining to Indians continue to be judicially refined and to evolve so that discussing the nature and extent of “Indian water rights” is a complex topic.

Groundwater, Darcy S. Bushnell, Diego Urbina

Water Matters!

Since the late nineteenth century, New Mexicans have been developing the state’s groundwater resources. From hand-dug wells to proposed wells that could penetrate to 12,000 feet, residents have sought sources to supplement and replace surface water. The state relies upon groundwater to supply almost 50 percent of its needs.

As the population grows and drought intensifies, groundwater sources are tapped with increasing urgency. Limited steps are being taken to preserve groundwater through conservation, groundwater recharge, and regulation.

State And Regional Water Planning, Brigette Buynak, Susan Kelly, Sarah Armstrong

Water Matters!

A statewide water planning effort was initiated by the New Mexico legislature in the 2003 session. The Interstate Stream Commission (ISC),in collaboration with the Office of the State Engineer (OSE) and the Water Trust Board, was tasked with preparing and implementing a comprehensive state water plan. Regional water planning had begun much earlier, prompted by a lawsuit that El Paso filed against New Mexico in 1983, El Paso v. Reynolds.

The State Water Plan Act of 2003 (Act) was intended to promote stewardship of the state’s water resources and to establish clear policies and strategies for management of the state’s …

Community Water Systems, Joanne Hilton, Susan Kelly, Sarah Armstrong

Water Matters!

Apart from the major cities along the Rio Grande corridor, much of New Mexico remains relatively rural. Recent studies estimate a 2013population of around 2,085,500 statewide. In the state fiscal year 2011,about 1,836,000 people, or 88 percent of New Mexico’s population obtain their water from community water systems. Approximately 284,000 people, or about14 percent of the population, receive their drinking water from community water systems serving fewer than 5,000 people. As of 2012, there are 1,148 public water systems that provide drinking water in New Mexico. Of these systems, 593are community water systems; of these, 546 serve fewer than 5,000 …

Deep Water Regulation, Paul Bossert, Kari Olson

Water Matters!

With most of the surface water in New Mexico fully appropriated and with groundwater sources being drawn down and becoming less reliable, the search for new sources of water is reaching further and further afield of traditional sources and methods. Water wells deeper than 2,000 feet have been rare due to the expense of deep drilling and the uncertainty of finding potable water. Yet the combined circumstances of advances in hydrology and the escalating demand for new water have driven the search for water deeper than was previously considered practical.

Water Marketing, Jeremy Oat, Laura Paskus

Water Matters!

Water doesn’t just flow around New Mexico in streams and rivers: it also moves around on paper. Since all of the state’s surface-water and most of its groundwater have already been allocated, the only way for cities, developers, or conservation organizations to find new water supplies is to buy and transfer water rights from old uses and places to new uses and places. The N.M. Office of the State Engineer (OSE) approves each of these transfers, most of which are relatively small, but the numbers can add up over time. Between 1982 and 2011, for instance, 21,000 acre-feet of Middle …

Water Quality Regulation, Joanne Hilton, Susan Kelly, James Hogan, Kimberly Kirby, Jerry Schoeppner

Water Matters!

While many of the water issues in New Mexico center around having an adequate supply of water, the quality of the water is just as important as the quantity in supplying water for drinking and other uses that rely on clean water. Protecting water quality is financially more feasible than conducting expensive cleanup programs. New Mexico has a strong interest in water quality regulation to protect public health and the environment and to minimize expenditures for mitigation of contaminated supplies. Water quality is a difficult subject to navigate; there is a complex web of statutes and agency involvement. This paper …

Water Litigation In The Lower Rio Grande, Darcy S. Bushnell

Water Matters!

The water allocation issues are hotly contested in south-central New Mexico and the surrounding area. Today, the river and those who depend on it face more administrative challenges in the face of shrinking water supplies and increased population. These challenges have given rise to two ongoing lawsuits: the Lower Rio Grande Adjudication,New Mexico v. EBID, et al., 96-CV-888 (1996) (N.M. v. EBID) in the New Mexico Third Judicial District Court (adjudication court) and the New Mexico v. United States,et al., D.N.M. 11-CV-691 (2011) (N.M. v.U.S.) in United States District Court of New Mexico (U.S. District Court).

Eastern New Mexico Rural Water System (Ute Pipeline Project), Jerold Widdison, Paul Van Gulick, Darcy S. Bushnell

Water Matters!

The Ute Pipeline Project (Project), officially known as the Eastern New Mexico Rural Water System (ENMRWS),is a 151-mile-long pipeline project to provide a sustainable municipal and industrial water supply for several eastern New Mexico communities and a military base. The Congress authorized major federal funding for the Ute Pipeline in the Omnibus Public Land Management Act of 2009. This important milestone for the project was reached after about 45 years of effort.Attention now shifts to myriad details involved in actually constructing, financing,and administering the project.

The Rio Grande As An International River, Margaret J. Vick

Water Matters!

The Rio Grande is divided into two major river reaches and has different legal regimes for each. New Mexico is primarily concerned with the Rio Grande from the headwaters in Colorado to Ft. Quitman in Texas, a distance of approximately 670 miles. This section of the river is the subject of the1906 Rio Grande Convention (Treaty) between the United States and Mexico. The lower section of the Rio Grande from Ft. Quitman to the Gulf of Mexico is the subject of the 1944 Rivers Treaty between the United States and Mexico; the 1944 Rivers Treaty also includes the Colorado and …

World’S Worst Game Of Telephone: Attempting To Understand The Conversation Between Texas’S Legislature And Courts On Groundwater, Amy Hardberger

Faculty Articles

Texas has flourished in recent years, and its continued growth is predicated on access to groundwater resources. Texans have a long-standing dependence on groundwater, which accounts for 60% of all water withdrawn in the state. The State’s ability to provide sufficient groundwater resources depends on effective groundwater management.

Texas groundwater management has a long history of intertwined court decisions and legislation. The common law of groundwater was established by the Texas Supreme Court in accordance with the English common law right of capture. This rule was subsequently modified by the Legislature through the Conservation Amendment to the Texas Constitution, which …

Improving Water Quality Antidegradation Policies, Sandra B. Zellmer, Robert L. Glicksman

Faculty Law Review Articles

No abstract provided.