Water Law Commons^™

Exhausted Of Concurrent Jurisdiction: A Reexamination Of National Audubon V. Superior Court Of Alpine County, Zoe A. Wong

Washington Journal of Environmental Law & Policy

California maintains a complex system of water rights, with the State Water Resources Control Board as the premiere administrative agency overseeing it. The State Water Resources Control Board has the ability, for example, to investigate water usage and implement regulations. However, when it comes to adjudicating water rights disputes, the agency’s power is not absolute. Under the California Supreme Court’s holding in National Audubon v. Superior Court of Alpine County, the trial court shares concurrent jurisdiction with the State Water Resources Control Board over water rights disputes. As California faces extreme drought conditions and climate change, legal battles over …

Water Rights Table, Jesse Richardson, Iris Aloi

Law Faculty Scholarship

This publication consists of two tables with information regarding water rights among the states. Table 1 summarizes each state’s common law water rights for both surface and percolating ground water, as well as whether the state has statutory rules that modify the common law rule. Table 2 briefly summarizes the type of regulated riparian requirements, the threshold at which the requirements apply, grandfathered water withdrawals and exemptions for those states that have regulated riparian rules.

Governing The Gradient: Clarity And Discretion At The Water's Edge, Jamison E. Colburn

Villanova Law Review (1956 - )

No abstract provided.

Atole De Maíz Azul: Building Climate-Change Resilience With Local Knowledge/Food Sovereignty In Northern New Mexico, Katherine C.R. Dixon

Sustainability and Social Justice

The impacts of climate change in Northern New Mexico will cause a variation in seasonal precipitation and increased drought conditions. Northern New Mexico is home to numerous indigenous and rural-agricultural communities who rely on these water resources for subsistence and cultural practices. They are among the most vulnerable to the impacts of climate change.

This paper investigates the impacts of climate change to Northern New Mexico. It examines the role of participatory methods and local knowledge in building community resilience. This paper is informed primarily through secondary research, and also draws upon a series of personalized interviews from Northern New …

Catskill Mountains Chapter Of Trout Unlimited, Inc. V. United States Environmental Protection Agency, Benjamin W. Almy

Public Land & Resources Law Review

Trout Unlimited’s effort to overturn the EPA’s Water Transfers Rule was stifled by the Second Circuit. The court’s comprehensive Chevron analysis determined that while the NPDES Water Transfers Rule may be at odds with the Clean Water Act’s mission, it was based on a reasonable interpretation of the statute’s ambiguous language, and therefore it did not violate the Administrative Procedures Act.

State Regulation Of Oil And Gas Pools On State, Federal, Indian And Fee Lands, C. Gene Samberson

Natural Resources Journal

No abstract provided.

Richardson, Elmo R., The Politics Of Conservation: Crusades And Controversies, 1897-1913, Ernest A. Engelbert

Natural Resources Journal

No abstract provided.

Milner, J. B., Community Planning: A Casebook On Law And Administration, Ira Michael Heyman

Natural Resources Journal

No abstract provided.

Choosing Your Ground On The Endangered Species Act: How Do The Ninth, Tenth, And District Of Columbia Circuit Courts Of Appeal Evaluate Water Management Decisions Made By Federal Water Agencies?, Michael Kinsey

Pace Environmental Law Review

The purpose of this article is twofold. First, federal agencies are responsible for the development and implementation of ESA documents, and knowing what a court will look for and at when that document is challenged can help the agencies to develop a document that can better survive court review. Second, a plaintiff who challenges such a document can benefit from that same knowledge, by knowing which elements of the document to best challenge. The intent of this article is to provide practitioners, both agency and non-, with an introduction to that knowledge, to identify some of those difficulties, dangers, and …

Migratory Waterbird Conservation At The Flyway Level: Distilling The Added Value Of Aewa In Relation To The Ramsar Convention, Melissa Lewis

Pace Environmental Law Review

In June 1995, the Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEWA) was adopted, and this instrument remains the only legally binding waterbird Agreement in the CMS Family. However, while AEWA has been lauded as a very promising instrument, the concern has also been raised that the Agreement “has a large potential scope for the duplication of obligations, especially with regard to the protection of wetland habitats, given the operation of the Ramsar Convention”. The existing literature thus recognizes that overlap between AEWA and the Ramsar Convention is potentially problematic. It fails, however, to provide a detailed analysis of …

Alternatives For Recovery Of Attorney's Fees In Environmental Litigation, Fritz Ledbetter

Natural Resources Journal

No abstract provided.

Res Judicata: Will It Stop Instream Flows From Being The Wave Of The Future?, Harold A. Ranquist

Natural Resources Journal

No abstract provided.

Statecraft, Domestic Politics, And Foreign Policymaking: The El Chamizal Dispute, Albert E. Utton

Natural Resources Journal

No abstract provided.

Public Participation And Natural Resource Decision-Making: The Case Of The Rare Ii Decisions, Paul Mohai

Natural Resources Journal

No abstract provided.

United States V. Barthelmess Ranch Corp., Jonah P. Brown

Public Land & Resources Law Review

Application of water to a beneficial use is the decisive element of a perfected water right in Montana. The BLM claimed rights to five reservoirs and one natural pothole under Montana law. The agency did not own livestock, but instead made the water available to grazing permittees. In United States v. Barthelmess Ranch Corp., the Montana Supreme Court affirmed the Montana Water Court’s holding that the BLM’s practice of making water available to others constituted a beneficial use and a perfected water right.

Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno

Public Land & Resources Law Review

A peat mining company will not be required to obtain a permit under the Clean Water Act to discharge dredged and fill material into wetlands. The United States District Court for the District of Minnesota held that the United States Army Corps of Engineers fell short in its attempts to establish jurisdiction over the wetlands by twice failing to show a significant nexus existed between the wetlands and navigable waters. Further, the district court enjoined the Corps from asserting jurisdiction a third time because it would force the mining company through a “never ending loop” of administrative law.

Drought By Fifth Amendment: Debunking Water Rights As Real Property Comments, Jacqueline Carlton

Brigham Young University Journal of Public Law

No abstract provided.

Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti

Michigan Journal of Environmental & Administrative Law

This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between …

Regulating The Packaged Water Industry In Africa: Challenges And Recommendations, Jessica Vapnek, Ashley R. Williams

Faculty Scholarship

No abstract provided.

Nutrient Water Quality Trading: A Market-Based Solution To Water Pollution In The Natural State*, Nathan R. Finch

Arkansas Law Review

In the decades since the passage of the Clean Water Act (CWA), our nation’s waters remain impaired by dangerous levels of nutrients such as phosphorous and nitrogen, which can cause serious health impacts. Excess nutrients also have a substantial environmental impact on waterbodies, which in turn diminishes the recreational value of these resources. Efforts to control these nutrient levels place a substantial economic burden on local governments in both providing clean drinking water as well as treating wastewater. The CWA’s cooperative federalism approach divides sources of nutrient pollution into two categories: (1) point sources, and (2) nonpoint sources. Point sources …

Defining Fair Notice: Logical Outgrowth Doctrine Applied To The Waters Of The United States, Henry L. Lifton

Notre Dame Law Review

In 2014, the Corps of Engineers and Environmental Protection Agency sought to bring clarity to the scope of “waters of the United States” through notice-and-comment rulemaking. On June 29, 2015, the agencies published a joint final rule that immediately prompted lawsuits across the entire country.

This current legal controversy provides a convenient backdrop to propose a new method to analyze logical outgrowth. This Note will use the Proposed and Final Rule as an administrative law case study. It argues that the Final Rule is substantively within the authority Congress delegated to the Corps of Engineers and the EPA.

Going Down To The Water, John Fleck

Natural Resources Journal

Foreword

Rethinking Water Governance: Moving Beyond Water-Centric Perspectives In A Connected And Changing World, Rob C. De Loë, James J. Patterson

Natural Resources Journal

From the “water-centric” perspective that is common within the world’s large and diverse water community, water is of central importance, and improving water governance is self-evidently essential. Some water problems can be addressed using watercentric approaches such as watershed management. Unfortunately, evidence is mounting that suggests that many other water problems cannot because their causes and drivers, at scales from local to global, are partly or wholly external to those traditionally considered within the water sector. Water governance in these cases needs to better account for a range of external connections that strongly influence water-related outcomes of concern and contribute …

The Political Cultures Of Irrigation And The Proxy Battles Of Interstate Water Litigation, Burke W. Griggs

Natural Resources Journal

Groundwater depletion ignores the political boundaries of western states, the legal boundaries of western water codes, and the jurisdictional boundaries of western water federalism. In the wake of the groundwater revolution, it is becoming apparent that certain interstate lawsuits derive essentially from deeper conflicts rooted in the clash between surface-water and groundwater irrigation communities—and their respective political cultures. The interstate divide may be yielding to the hydrological divide. This article attends to that deeper relationship between irrigation agriculture and political culture across the Great Plains. Part I provides a brief history of its surface-water irrigation communities, to compose a recognizable …

Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan

Natural Resources Journal

Throughout the world water plays a central role in the spirituality of indigenous peoples. Focusing on the American West, this article first describes how tribal water needs touch upon the sacred and then explains how both federal law and state prior appropriation doctrine fail to adequately protect these important sacred views of water. Pivoting away from the classic federal law arguments, the article then advocates for an evolution in state water law regimes to provide yet unrecognized protections for tribal sacred waters. Because international law plays an increasing role in this issue, the article also explores case studies from Ireland, …

California Water Reallocation: Where'd You Get That?, Damian Park

Natural Resources Journal

When thirsty, Californians often avoid going to the market for more water. Instead, they might borrow some from their rich neighbors, they might sue them or more commonly, they simply take more from users without much of a voice (e.g. the fish or future generations). These alternatives are often superior to using markets. Within markets, a surprising detail emerges – it is uncommon for farmers to fallow fields in order to sell water to another user. Rather, many water transfers are structured so sellers can have their cake and eat it too. While some of these transfers rightly bring about …

Trial And Error: How Courts Have Shaped Prior Appropriation In New Mexico, Matthew G. Reynolds

Natural Resources Journal

This systematic review of New Mexico prior appropriation case law from 1883 to the present employs a thematic chronology in four parts spanning approximately three decades each, including the following topics. Part One covers the initial conflict between prior appropriation and riparian common law and early interpretations of the 1907 Water Act. In Part Two, courts contrast the 1907 Act with the old arid region doctrine and justify the integration of groundwater into prior appropriation. Diminishing supplies and increasing usage drive Part Three’s concentration on proceedings to change places of use and points of diversion, at times deferring issues of …

Mythical River: Chasing The Mirage Of New Water In The American Southwest, By Melissa Sevigny, Logan Glasenapp

Natural Resources Journal

Book Review

Plastic Water: The Social And Material Life Of Bottled Water, By Gay Hawkins, Emily Potter, And Kane Race, James Johnson

Natural Resources Journal

Book Review

Water Is For Fighting Over: And Other Myths About Water In The West, By John Fleck, Selena Sauer

Natural Resources Journal

Book Review