Water Law Commons^™

Natural Resources Defense Council V. United States Environmental Protection Agency, Erick A. Valencia

Public Land & Resources Law Review

In Natural Resources Defense Council v. United States Environmental Protection Agency, the court was asked to review the EPA’s Vessel General Permit that set limits on the discharge of pollutants in a ship’s ballast water. Ballast water discharge has become one of the major contributors to the spread of invasive species, especially in the Great Lakes where short voyages allow organisms to easily survive in ballast water. The EPA’s lack of information was a problem of its own making because it prohibited the Science Advisory Board and National Academy of Sciences from adequately exploring available technology before setting the effluent …

Indigenous Women, Water Justice And Zaagidowin (Love), Deborah Mcgregor

Articles & Book Chapters

I would like to open by saying Chi-miigwech (a big thank-you) to those Elders/Grandmothers who have shared their stories and teachings with me over the years. Some have since passed on and I hope that through my words, their love and generosity will continue the process of healing the people and waters upon which they so integrally depend.

The paper which follows contains many references to notions of love, mutual respect, and responsibility towards the natural world, and water in particular. These ideas may seem a little tenuous for a serious paper on a critical environmental justice issue, but concepts …

Endangered Species, Endangered Treaties: Protecting Treaty Rights, Economic Development, And Tribal Consultation Under Secretarial Order 3206, Jeremy Wood

American Indian Law Journal

No abstract provided.

The Protection Of Water Resources As A Justification For Self-Defense In International Humanitarian Law, Mark Tyler

Brigham Young University Journal of Public Law

No abstract provided.

Changing Course: Revisiting Instream Flow Rulemaking In Washington State Following Swinomish V. Ecology, Haylee J. Hurst

Washington Law Review

Since the adoption of Washington’s Water Resources Act in 1971, legal recognition of instream water uses to preserve fish, wildlife, and other environmental values have become firmly entrenched in Washington water law. By establishing “instream flow rules,” rules that require a certain amount of water to be left in streams before water may be withdrawn for any new uses, the Washington State Department of Ecology (Ecology) must protect the environment while also managing water to achieve “maximum net benefits” for the people of Washington State. Ecology may only allow new withdrawals of water that will impair established instream flows if …

A New Must Of The Public Trust: Modifying Wisconsin’S Public Trust Doctrine To Accommodate Modern Development While Still Serving The Doctrine’S Essential Goals, Evann D.S. Derus

Marquette Law Review

“It is not the law, as we view it, that the state, represented by its Legislature, must forever be quiescent in the administration of the trust doctrine, to the extent of leaving the shores of Lake Michigan in all instances in the same condition and contour as they existed prior to the advent of the white civilization in the territorial area of Wisconsin.”

Dealing With Ocean Acidification: The Problem, The Clean Water Act, And State And Regional Approaches, Robin Kundis Craig

Washington Law Review

Ocean acidification is often referred to as climate change’s “evil twin.” As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its pH is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture; over the long term, they pose the risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a worldwide reduction in carbon dioxide emissions. In the interim, however, environmental groups such as the Center for Biological Diversity …

Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley

Michigan Journal of Environmental & Administrative Law

By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …

The Water Cycle Boogie: Clean Water Act Jurisdiction, Home Rule, And Water Law, Colin W. Maguire

Et Cetera

The EPA and US Army Corps of Engineers’ agency rule regarding the definition of “Waters of the United States” under the Clean Water Act increased jurisdictional assertions by as much as 5%. What’s the big deal? This violates the Home Rule of state and local governments. This violation also creates concerns where many property owners are not sure if they need federal permits to develop land under the Clean Water Act. With issues like this new Clean Water Act rule, the drought conditions in the Western U.S., and international concerns regarding fresh water, water law is a critical area which …

Governing Water In Canada: The Legislative Experiments In New Governance, Patricia Hania

PhD Dissertations

Governing water in Canada is in transition. Since 2000, episodes of drought, unsafe drinking water, and polluted watersheds have affected local and First Nations communities. In reaction to these crises, provincial regulators entered a new governance phase. This regulatory turn profoundly transforms the traditional environmental regulatory approach by introducing a collaborative new governance arrangement. The legal scholarship is generally supportive of this trend, however, a dearth of empirical research exists to understand how decisions are made under this new regulatory approach.

This dissertation presents an eco-resiliency framework to examine the responsiveness of this new governance mode to environmental change. The …

Sierra Club V. United States Army Corps Of Engineers, 803 F.3d 31 (D.C. Cir. 2015), Ariel E. Overstreet-Adkins

Public Land & Resources Law Review

Despite the majority’s “needlessly circuitous” route, as described by concurring Judge Brown, Sierra Club v. U.S. Army Corps of Engineers stands as a limit of the application of NEPA to a private pipeline constructed largely on private land. While the main issue identified by the District of Columbia Circuit Court was the scope of environmental review required under NEPA, the court also addressed issues dealing with the ESA and the CWA relating to the construction and operation of a pipeline in the Midwest. The court held that under these circumstances, NEPA review was mandated only for those small stretches where …

Criminal Ambiguity: Redefining The Clean Water Act’S Mens Rea Requirements, Bobby Yu

Seton Hall Circuit Review

No abstract provided.

Virginia's Water Resource Law: A System Of Exemptions And Preferences Challenging The Future Of Public Health, The Environment, And Economic Development, Jefferson D. Reynolds

University of Richmond Law Review

No abstract provided.

Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan

Nevada Supreme Court Summaries

For the State Engineer to grant water rights applications, there must be evidence to support the decision and the new rights must not substantially conflict with existing rights. On appeal from the District Court, the Court found no evidence to support the granted application, and held the use of Respondent’s rights would severely impact the water table. The Court reversed and remanded the case for proceedings consistent with the opinion.

Factors Influencing The Choice Of A Safe Haven For Offloading Illegally Caught Fish: A Comparative Analysis Of Developed And Developing Economies, Nerea Marteache, Julie S. Viollaz, Gohar A. Petrossian

Publications and Research

Using data from 72 countries, this study focuses on factors that affect illegal, unreported, and unregulated (IUU) fishing vessels’ choice of country to offload their catch, with a specific emphasis on the differences between developed and developing economies. The concept of choice-structuring properties is applied to analyze whether the following factors influence the selection of a country: concealability of vessels and illegally caught fish; convenience of the ports; strength of fisheries monitoring, control, and surveillance measures; effectiveness of country governance; and commitment to wildlife protection regulations. Results indicate that, rather than a country’s level of development, situational factors play a …

The Safe Drinking Water / Food Law Nexus, Margot J. Pollans

Pace Environmental Law Review

At 2 AM on August 2, 2014, the Ohio Environmental Protection Agency issued the following warning to the citizens of Toledo: “Do Not Drink.” The Ohio City's tap water was contaminated with microcystin, a toxin that can cause diarrhea, vomiting, and abnormal liver function. The source was an algal bloom in Lake Erie resulting from high levels of agricultural fertilizers and animal waste. For three days, Toledo residents drank only bottled water.

This is just one of many similar examples of agricultural contamination of urban drinking water supplies. Creating a physical connection between urban and rural communities, this pollution highlights …

Getches-Wilkinson Center Newsletter, Fall 2015, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.

You Gotta Fight For The Right To Vote: Enfranchising Native American Voters, Jeanette Wolfley

Faculty Scholarship

Five decades ago, the Congress passed the Voting Rights Act of 1965. Since its passage, the Voting Right Act has created the opportunity to vote for many racial and language minorities across the country, and has survived many challenges until 2013. The U.S. Supreme Court issued two decisions involving voting rights in its 2012-2013 term. On June 25, 2013, in Shelby County v. Holder, a divided Supreme Court struck down Section 4 - a key provision of the 1965 Voting Right Act (VRA) - as unconstitutional. On June 17, 2013, one week before the Shelby County decision, the Court decided …

Constitutional Law—Fourth Amendment—State V. Allen: An Effective Alternative To Unconstitutional "Safety Checks" On The State’S Waters, Christian Harrod

University of Arkansas at Little Rock Law Review

No abstract provided.

The Use, Impact, And Ban Of Coal Tar- Based Sealants, Hannah Needleman

Virginia Coastal Policy Center

No abstract provided.

Benson V. State Engineer, 131 Nev. Adv. Op. 409 (Sep. 24, 2015), Cassandra Ramey

Nevada Supreme Court Summaries

The Court held that NRS § 533.395 requires a party seeking relief from the cancellation of a water permit to exhaust all available administrative remedies before seeking judicial review, even if the State Engineer is not authorized to provide the particular remedy that the party seeks. If the State Engineer is authorized by NRS § 533.395 to provide a party with a remedy, then the doctrine of futility does not apply to excuse the NRS § 533.394(4) exhaustion requirement. Therefore, the party must first show that the administrative process would afford him or her “no relief at all” before seeking …

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, …

Research On The Prospect Analysis And Countermeasures If China Joins The Bwm Convention, Qinghua Gu

Maritime Safety & Environment Management Dissertations (Dalian)

No abstract provided.

Ballast Water Treatment Systems And Retrofitting Them On Container Ships, Hrishikesh Chatterjee

Maritime Safety & Environment Management Dissertations (Dalian)

No abstract provided.

Ksfr Interviews Clifford Villa On The Animas River Spill, Clifford J. Villa

Faculty Scholarship

Professor Clifford Villas offers perspective on the Animas River spill in segment entitled, "First News: N.M. Governor, Senators Seek Answers From EPA Over Mine Spill".

Animas River Spill: 0:01-2:40 Professor Villa's quotes appear at 1:27-1:51 and 2:06-2:31; KSFR First News

Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes

Akron Law Review

With the courts increasingly being the forum for legal disputes between those who demand change in the superstructure and those who represent (or are) the structure, a rather unfortunate by-product has evolved: a feeling that the courts can no longer adequately dispense justice.8 This manifests itself in beliefs that if one is prosecuted for activities that were designed to advance social change, either in violation of the law or not, that the individual will not be afforded a fair trial; 9 a reflection that the social or political activist will not be judged by an impartial jury….For the purposes of …

Protecting Ecosystems, Culture, And Human Rights In Chile Through Indigenous And Community-Conserved Territories And Areas, William G. Crowley

Capstone Collection

In environmental conservation circles around the world, the contributions of indigenous peoples and local communities to the sustainable maintenance of ecosystems and natural resources are being given increased attention. Whether for cultural, spiritual, economic, or other purposes, the use of traditional and local knowledge of habitat and resource management is slowly making its way into the modern environmental movement, and is being incorporated into the dominant conservation paradigms. These managed areas, known as Indigenous and Community-Conserved Territories and Areas, or ICCAs, are defined by the International Union for Conservation of Nature as “natural and/or modified ecosystems containing significant biodiversity …

Clearing Up Questions On River Spill, Clifford J. Villa

Faculty Scholarship

What-are the impacts of mine contamination, and who is responsible for cleaning it up?

Dean Rusk Award: "Double Jeopardy" On The High Seas: International Narcotics Traffickers Beware, Richard Lee

Georgia Journal of International & Comparative Law

No abstract provided.

Crow Tribe Of Indians – Montana Compact, Ariel E. Overstreet-Adkins

Public Land & Resources Law Review

This order from the Montana Water Court approved the Crow Water Compact over objections by non-tribal water users in Montana. Although the Objectors have appealed the decision to the Montana Supreme Court, this order represents the next-to-last step in a process, started in 1979, to define and quantify the reserved water rights for current and future uses of the Crow Nation in Montana. The order provides a clear roadmap for other Montana tribes still seeking to achieve approval of a water compact by the Montana Water Court, and for objectors who would attempt to invalidate a compact in future proceedings.