Water Law Commons^™

Possible Solutions: Policy Tools To Achieve Flexibility To Meet New Conditions, Preliminary Thoughts For Coping With Future Droughts, Maria O'Brien

Faculty Scholarship

The following comments are premised on the author's experience with the Middle Rio Grande Conservancy District (Conservancy) in New Mexico and its endeavor to implement a water banking system. Background information about the Conservancy is helpful for an understanding of its efforts at water banking.

Developing A National Coastal Zone Management Program For Venezuela, Marisol Salazar

LLM Theses and Essays

The primary focus of this study is to develop a National Coastal Zone Management Program for Venezuela, a moderate, comprehensive, and an effective long-term program which allows the development and protection of the Venezuelan Coastal Zone now and in the future. This program must comply with the actual Venezuelan environmental laws and its administrative mechanisms. Also, it must help to control ecological, economic, commercial, social, and human pressures on the Venezuelan coastal area. The design of this project will be based on an analysis of the extensive experience of the U.S.A. coastal states under the Coastal Zone Management Act (CZMA); …

Still Dirty After Twenty-Five Years: Water Quality Standard Enforcement And The Availability Of Citizen Suits, Michael P. Healy

Law Faculty Scholarly Articles

When Congress enacted the Federal Water Pollution Control Act, commonly known as the Clean Water Act, it established a pollution control regime that imposed a baseline level of technology-based pollution control, and was designed to ensure that water quality would not fall below certain standards. Twenty-five years after the enactment of the Clean Water Act, success may be claimed with regard to technology-based controls. Achieving water quality standard (WQS) compliance has proved much more difficult. Indeed, evaluated from a variety of perspectives, the enforcement of the water quality-based system of pollution control must be viewed as a failure.

In light …

Regulatory Takings And Wetland Protection In The Post-Lucas Era, Richard C. Ausness

Law Faculty Scholarly Articles

In June 1992, the United States Supreme Court decided Lucas v. South Carolina Coastal Council. The case involved a claim for compensation against the State of South Carolina by a landowner who was prohibited from placing structures on two of his beachfront lots. The Court declared that the landowners must be compensated when government regulations deprive them of all economically beneficial or productive uses of their property unless the proscribed uses were not permitted as part of their original titles.

Although some legal commentators have praised the Lucas decision, others have strongly condemned it. A common criticism of Lucas …

Natural Resources Policy And Law: Trends And Directions, Lawrence J. Macdonnell, Sarah F. Bates

Books, Reports, and Studies

This digital resource contains only an abstract, cover image and table of contents information from the published book.

Print copy of book is available in the University of Colorado’s Wise Law Library: http://lawpac.colorado.edu/record=b143382~S0

Contents: Rethinking resources : reflections on a new generation of natural resources law and policy / Lawrence J. MacDonnell, Sarah F. Bates -- Natural resources law : an historical perspective / Clyde O. Martz -- Trends in public land law : (a title the inaccuracy of which should become manifest) / George Cameron Coggins -- Mineral law in the United States : a study in legal change …

Wild Dunes And Serbonian Bogs: The Impact Of The Lucas Decision On Shoreline Protection Programs, Richard C. Ausness

Law Faculty Scholarly Articles

In Lucas v. South Carolina Coastal Council, the United Supreme Court was forced once again to delve into the law of regulatory takings. This experience is seldom a pleasant one. Echoing the poet John Milton, an exasperated state court judge once described takings law as a “Serbonian Bog.” Unfortunately, the takings doctrine is only slightly more comprehensible after the Lucas decision than it was before. Nevertheless, progress in this area, however modest, deserves praise, and the Court is to be commended for clarifying one aspect of takings jurisprudence. As a result of Lucas a “categorical rule” has been announced …

Federal And State Water Quality Regulation And Law In Missouri, Peter N. Davis

Faculty Publications

This article discusses that law in two parts. The first part examines the federal and Missouri waste discharge regulatory system. The second part analyzes common law rights and remedies related to water pollution.

State Control Of Great Lakes Water Diversion, J. David Prince

Faculty Scholarship

This article focuses on the law relevant to the issue of interbasin diversion of Great Lakes water, the policies reflected in that law, and the limitations of the law on such diversions and on the ability of the Great Lakes states to control proposed diversions. It concludes with an argument for regional as opposed to national or state-by-state decision making on the issue of diversions and a suggested mechanism for facilitating such regional decision making.

Protecting Waste Assimilation Streamflows By The Law Of Water Allocation, Nuisance, And Public Trust, And By Environmental Statutes, Peter N. Davis

Faculty Publications

Both federal and state water pollution control statutes require dramatic reductions in waste discharges, but not their total elimination. Those statutes require establishing water quality standards for receiving waters and presume that they will be adequate to assimilate the residual post treatment wastes. But nothing is those statutes assures that minimum flows for waste assimilation in fact will remain in existence. Neither the common law nor eastern and western diversion permit statutes expressly provide direct means for establishing such minimum protected flows for residual waste assimilation. Those means include establishing minimum flows for fish and wildlife habitat and recreation purposes …

Agenda: Proceedings Of The Sino-American Conference On Environmental Law, University Of Colorado Boulder. Natural Resources Law Center

Proceedings of the Sino-American Conference on Environmental Law (August 16)

On August 16 through 18, 1987 a delegation of 10 Americans met with a 14-member Chinese delegation to compare the systems of environmental law in the two countries. The meetings were held on and near the campus of the University of Peking in Beijing, People's Republic of China. This program was the fruition of nearly three years of discussion, planning, and organization involving Dean Betsy Levin and the Natural Resources Law Center.

The keynote speaker was Qu Geping, Director of the Chinese National Environmental Protection Bureau (comparable to the Administrator of the U.S. Environmental Protection Agency). He spoke of the …

The Law Of The American West: A Critical Bibliography Of The Nonlegal Sources, Charles F. Wilkinson

Publications

No abstract provided.

Water Rights, The Public Trust Doctrine, And The Protection Of Instream Uses, Richard C. Ausness

Law Faculty Scholarly Articles

Our society uses water for a variety of productive purposes, including domestic, agricultural, mining, manufacturing, and energy development. Most of these uses require physical removal of water from watercourses or ground water aquifers. Water can also serve useful purposes, however, when it remains a lake or stream. Flowing water helps to maintain water quality and furthers other uses such as recreation, aesthetic values, and ecological interests—referred to as “instream uses.”

Large quantities of water must remain in place to safeguard instream uses. At the same time, the increasing demands of consumptive water users are significantly reducing streamflows and lake levels …

Substantive Decision-Making Under The Washington Shoreline Management Act, William H. Chapman

Seattle University Law Review

The specific purposes of this Article are twofold: first, an analysis of the SMA is set forth and then used in simple statistical comparisons to evaluate decisions rendered by local governments, superior courts, and the Shorelines Hearings Board (SHB) during the period 1974-1983; second, to present a numerical model that represents the verbal interpretation of the SMA with a simple arithmetical equation using weighted variables. These variables correspond to objectives identified in interpretations of the SMA. Decisions of the SHB and appellate courts during this period are explained in a statistical manner through use of the model. Neither computer7 nor …

Controlling Groundwater Use And Quality: A Fragmented System, David H. Getches

Publications

No abstract provided.

Federal Recent Developments

American Indian Law Review

No abstract provided.

The Riparian Right Of Streamflow Protection In The Eastern States, Peter N. Davis

Faculty Publications

This article analyzes the extent to which the riparian doctrine can be employed to protect minimum streamflows for purposes of maintaining fish and wildlife habitat, recreational use capacity and waste assimilative capacity of watercourses in the eastern states.

Eastern Water Diversion Permit Statutes: Precedents For Missouri, Peter N. Davis

Faculty Publications

This Article examines the need in Missouri for a water diversion permit statute and suggests the form such a statute should take.

In Order To Have Water: Legal, Economic And Institutional Barriers To Water Reuse In Northern New England, Michael S. Baram, J. Raymond Miyares

Faculty Scholarship

The maintenance of adequate water supplies to meet increasing demand upon residential and industrial users in New England is now an urgent concern. Encouragement of water reuse is one of the ways in which water conservation can be implemented. This Article, synthesized by the authors from their technical report, examines current legal and institutional methods of promoting water reuse and conservation. They analyze their effectiveness and argue that legal and political reform is needed to achieve the ends of water conservation. I

State Ownership Of Beds Of Inland Waters - A Summary And Reexamination, Peter N. Davis

Faculty Publications

This article will summarize the basic structure of bed title law and will examine its current status under the recent Supreme Court decisions. It will then analyze the cases to determine the location of title of beds of federally nonnavigable inland waters when a state created from a federal territory asserts such title.

Water Use Permits In A Riparian State: Problems And Proposals, Richard C. Ausness

Law Faculty Scholarly Articles

Although adequate supplies of water are generally available in Kentucky, the law governing its use and allocation is much less satisfactory. At present, Kentucky water law is a complex mixture of common law and statutory water rights. The purpose of this article is to evaluate these water rights and suggest a number of improvements. Part I will examine the common law rules as they relate to both surface water and ground water. Part II will focus upon Kentucky's present system of statutory water use regulation and will identify some of its more serious deficiencies. Part III will recommend some short-range …

Note: Federal Common Law Remedies For The Abatement Of Water Pollution, James D. Kakoullis

Fordham Urban Law Journal

As a result of the Supreme Court's landmark decision in Illinois v. City of Milwaukee, federal common law, a new and potentially effective remedy, has been made available to parties seeking relief in water pollution cases in the federal courts. However, the possibility of non-sovereign parties using federal common law remedies to protect the waterways may be severely diminished as several federal courts have restricted such remedies to suits involving interstate waterways. This Note will examine the effect of these decisions on the ability of parties to initiate waterway pollution suits based on the federal common law and consider whether …

Groundwater Pollution: Case Law Theories For Relief, Peter N. Davis

Faculty Publications

This article will describe how the courts have utilized the common law to deal with the groundwater pollution problem. I have attempted to examine every groundwater pollution case reported in the United States, England, Ireland, Scotland, Canada, Australia and New Zealand.10 All of them, a total of 203, are listed in the Appendices. The purpose of this article is to analyze those cases to determine what rule the courts tend to use in particular kinds of groundwater pollution cases.

Land Use Controls In Coastal Areas, Richard C. Ausness

Law Faculty Scholarly Articles

Prolonged exploitation of coastal resources has caused extensive ecological harm. The alarming decline in the condition of the marine environment has become a matter of serious public concern. This Article will examine some of the environmental problems of the coastal zone and the resulting institutional responses. The first part will delineate a number of problems in the nation's coastal areas. The second part will review the doctrines of property law associated with the ownership of littoral land and their relation to land-use control measures. The third part will evaluate recent coastal management legislation. The fourth part will consider constitutional restraints …

Wells And Streams: Relationship At Law, Peter N. Davis

Faculty Publications

Groundwater constitutes one of the major sources of water for municipalities, irrigators, and rural dwellers. Conflicts between groundwater users are bound to arise from time to time, as is evidenced by a recent Missouri case, Higday v. Nickolaus, discussed elsewhere in this issue.' Such conflicts may increase in frequency in the future as the demand for groundwater increases. Although a majority of cases will involve allocation of groundwater between users of that class of water, many groundwater diversion cases will involve adverse effects on the flow of water in streams. It is –to the latter situation that this article is …

The Tennessee Water Quality Control Act Of 1971: A Significant New Environmental Statute, Julian C. Juergensmeyer

Vanderbilt Law Review

Tennessee's new Water Quality Control Act' is one of the most significant pieces of environmental legislation to be produced in recent years. It is destined not only to revamp water pollution control in Tennessee but also to serve as a model for legislation in other states. The Act and commentary written by its drafter, Professor Frank E. Maloney, are printed following this article. Consequently, no attempt will be made to summarize the entire Act or to provide a detailed guide for its use. The purpose of this introductory article is to examine the salient, often innovative, features of the Act …

The Tennessee Water Quality Control Act Of 1971, Frank E. Maloney

Vanderbilt Law Review

The text of the Act and commentary that follows is the product of a larger study undertaken by Professor Maloney at the request of the 87th General Assembly of the State of Tennessee. This study was the subject of a seminar on environmental protection at the Vanderbilt University School of Law. Four of the participating students--Elbert E. Edwards, III, Thomas H. Graham, Robert D. McCutcheon, and Paul L. Sloan--drafted the proposed statute and commentary under Professor Maloney's supervision with the research assistance of the other members of the class. For many sections of the statute, the drafters drew heavily from …

Administering State Water Resources: The Need For Long-Range Planning, Richard C. Ausness, Frank E. Maloney

Law Faculty Scholarly Articles

Drastically increased demands upon the nation's water resources are predicted in the coming years as a result of population growth, increased per capita use of water, and the progressive concentration of the population in urban areas.

One solution to the water shortage problem is to obtain water from new sources. The boldest and most ambitious proposal is the North American Water and Power Alliance (NAWAPA). This project would result in the damming of various rivers in Alaska and the Canadian Yukon, and transporting the waters of these rivers into a largely man-made five hundred mile long reservoir along the Rocky …