Water Law Commons^™

Expanding The Good Samaritan Program: Cleaning Up The Colorado River, One Mine At A Time, Jordan Carlson

Wyoming Law Review

The headwaters of the Colorado River Basin supply nearly 90% of the river’s flow and are among the most hydrologically sensitive areas in the U.S. During the nineteenth and early twentieth centuries, westward expansion and the allure of gold and other valuable minerals drove thousands of miners into the basin. When the mining boom ended, the mines were left behind. Today, thousands of abandoned hardrock mine sites continue to leach acidity and heavy metals into streams, leaving a lasting impact on water quality. For decades, strict environmental liability laws made cleanup nearly impossible, creating a chilling effect that discouraged even …

Water Flowing Down Wall Street, Vanessa Casado-Pérez

Faculty Scholarship

Water scarcity is a perennial problem with dire consequences for the United States and governments around the world. A lack of adequate water resources is a systematic cause of environmental harm, economic damage, and societal division. Climate change has exacerbated these problems making water even more valuable and essential.

Financial actors have turned water into the new oil. These large financial actors profiteer from buying and selling water without any interest in its actual use as an input of production. Instead, they typically seek to hold these rights until dire situations, like droughts and fires, cause temporary, but large, spikes …

Federal Evaluation Of Riparian Property: Section 111 Of The Rivers And Harbors Act Of 1970, Ronald C. Allen

Maine Law Review

Certain of our citizenry persist in their belief that the water resources of this nation are essentially a free good which necessitates very little, if any, governmental interference in the development or beneficial exploitation of these resources. Theirs is obviously a dream world which dangerously ignores evidence from much of our history as well as the obvious conditions of the present. The nation is confronted with too many people, and the promise of many more, making too many demands upon our existing and foreseeable supply of water to allow the perpetuation of a myth of rugged individualism. This attitude has …

Implications For "Adjacent" Waterbodies After Sackett V. Epa, John C. Colson

Texas A&M Law Review

The Supreme Court’s recent ruling in Sackett v. EPA has rolled back Clean Water Act (“CWA”) protections for many wetlands on private property. Justice Kavanaugh’s little-commented-on concurrence identifies a class of waterbodies now unprotected by the CWA that nonetheless serves vital roles in flood control, pollution management, and habitat conservation. These waterbodies are those that lack a continuous surface connection (the majority’s test) to navigable waterways but are nonetheless “adjacent” to them in that they are separated by a single barrier. Including borrow pits and swamps held behind dikes, as well as the thousands of oxbow lakes near America’s rivers, …

Bog-Ged Down By Sackett: Strategies For Wetland Protection In Texas, Caleb Cook

Texas A&M Law Review

The Clean Water Act (“CWA”) has been one of the most powerful tools for protecting the nation’s waterways since it was first passed in 1972. However, there has long been ambiguity over the scope of the authority it grants for the regulation of wetlands. In May 2023, the Supreme Court resolved this question in Sackett v. Environmental Protection Agency. The effect of Sackett will be to remove significant amounts of previously regulated wetlands from federal jurisdiction. Federal legislative responses are unlikely, and while there are federal programs that can help temporarily fill the gap and bring some wetlands back …

Science-Based Policy Recommendations For Managing Emerging Pollutants: Protecting Water Quality For The Health Of People And The Environment, Sarantuyaa Zandaryaa, Ali Fares, Gabriel Eckstein, Regina M. Buono, Mary Trudeau, James E. Nickum, Xingui Xia, Atikur Rahman, Marijn Korndewal, Cassiana C. Montagner, Piero R. Gardinali, Robert Michael Di Filippo, Anoop Veettil

Faculty Scholarship

Emerging water pollutants are a growing global concern due to their ubiquitous presence in water resources worldwide and their potential adverse effects on human health and ecosystems. Limited scientific understanding of sources of emerging pollutants’ emissions to water bodies and their pathways, behaviour, and fate in aquatic environments, as well as human health and ecological effects, is a significant hindrance in managing emerging water pollutants. With exceptions concerning PFAS/PFOS and microplastic beads, there are few regulations for emerging pollutants in national water and environmental policies, which results in a critical gap in safeguarding human health and aquatic ecosystems through effective …

Water Reallocation In The West: Government And Markets, Vanessa Casado Pérez

Faculty Scholarship

Water is multifaceted: it is a human right, a production input, a sacred element, an investment asset, public property, and a fugitive resource. Its reallocation is inherently difficult because of its natural characteristics and its hybrid nature that combines public ownership with private rights. The future of the U.S. West necessitates the reallocation of water resources, even with potential new water supplies. As climate change intensifies, reallocation will take various forms—all involving government intervention to some degree, from eminent domain to competitive markets. For water markets to function effectively, they require robust institutional infrastructure to prevent issues like imperfect information …

Ownership And Development Of Rare Earth Elements And Critical Minerals In Mine Drainage In West Virginia, Robert E. Akers

West Virginia Law Review

This Article argues in support of recent legislation which clarifies legal title to potentially valuable substances derived from the treatment of mine drainage in West Virginia’s waters. West Virginia University has been researching the commercial viability of extracting rare earth elements and other critical minerals from coal mine drainage and coal mine waste. If successful, the research may foster a new industry and provide citizens and wildlife with cleaner water flowing in West Virginia’s rivers and streams. The West Virginia Legislature was concerned that ownership disputes and litigation might harm the development of this potential resource and enacted statutory provisions …

A Bill Of Thirst: How Congress Can Support Interstate Water Markets, Jakob Haws

Dickinson Law Review (2017-Present)

Addressing modern-day water scarcity will likely require legal mechanisms to facilitate efficient water transfers between states. One such mechanism is a water market. Water markets promote more efficient water consumption and abound within states, but generally do not exist between states. This absence stems from protectionist state laws and from interstate water compact provisions which govern and allocate shared water sources. While useful in many regards, interstate water compacts often impose unnecessary legal obstacles against innovative drought-mitigating measures—including interstate water markets. The most serious of these obstacles is the fact that states cannot revise interstate water compacts without (1) obtaining …

Sackett V. Environmental Protection Agency, Meridian Wappett

Public Land & Resources Law Review

In 2007, the Sacketts began developing a property a few hundred feet from Priest Lake in Northern Idaho by filling their lot with gravel. The EPA determined the lot constituted a federally protected wetland under the WOTUS definition because the lot was near a ditch that fed into a creek flowing into Priest Lake, a navigable intrastate lake. The EPA halted the construction. The Sacketts sued the EPA, arguing the CWA did not apply to their property. The Supreme Court held that the CWA did not apply to the Sacketts property because the CWA only covers wetlands and streams that …

Water Challenges At The U.S.-Mexico Border: Learning From Community And Expert Voices, Kyle Haines, Owen Temby, Josiah Heyman, Mya J. Brown, Fonna Forman, Christopher Fuller, Dongkyu Kim, Alex S. Mayer, Alexis Racelis

Political Science Faculty Publications

We discuss the results of a multi-dimensional learning process (expert surveys, community workshops) addressing water challenges at the U.S.-Mexico border. The grand institutional and political framework of the international border, and the tensions and gaps in it, dominates the water literature and expert concerns. However, social inequality and spatial and temporal diversity on both sides of the border emerge as important considerations from community input. Our goal is to make planning for regional water sustainability more comprehensive, both spatially and temporally, and more community responsive in a context of important divisions and inequalities. This is because the “sustainability” frame, as …

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Uncharted Waters: Can Water Rights Principles Stem The Tide Of Ecosystem Services Loss?, Kalyani Robbins

Faculty Publications & Other Works

This article will explore the ways in which we might apply aspects of the conceptual framework developed through centuries of water law to the modern need for property interests in ecosystem services.

Water itself is a high-value ecosystem service, largely within the category of “provisioning” ecosystem services. We need access to water to survive, which has resulted in centuries of varying legal approaches to allocating rights to water. Although this right has traditionally been extractive, in the modern era we have developed increasing protections for in-stream benefits as well. While not uniform across jurisdictions, water law is now a highly …

Climate Gentrification: An Imminent Threat To Oceanfront Cities, Marcel Apple

Sustainable Development Law & Policy

Overview

Traditionally, gentrification occurs when real estate prices appreciate, leading to significant cultural change in low-income communities and involuntary displacement of low-income residents. In recent years, Miami, Florida is beginning to feel the impacts of “climate gentrification.” High-income buyers, who historically develop property close to the ocean, are affected by rising sea levels and increasingly look inland to develop areas on higher ground. The influx of real estate investments in these is expected to lead to spiking home prices and property taxes, forcing many longtime community members to abandon their homes.

Homeowners in these communities already report approaches from developers …

Addressing Interstate Ground Water Ownership: Mississippi V. Tennessee, Alec Sweet

Duke Journal of Constitutional Law & Public Policy Sidebar

Contemporaneous with significant climate change and heightened environmental concerns, the Supreme Court has seen an increasing number of water-related lawsuits between states. These lawsuits include disputes over water storage and water compacts as well as disputes over water usage affecting aquaculture. Scientists predict that in the future, the United States could face rising temperatures, droughts, and natural disasters. If states cannot cooperate to conserve the water they share, these catastrophes could cause immense suffering and numerous conflicts between states. The Supreme Court needs a consistent doctrine to apply in water disputes.

In prior disputes over surface water, the Court has …

Borders And Water Conflicts: Mitigating Conflicts With Love And Cooperation, Peter J. Longo, Anthony B. Schutz, James M. Scott

Natural Resources Journal

Borders are political constructs, not constructs derived from laws of nature. Borders carry more potential for conflict than any other matter in political relations. In international relations, wars have been fought over borders and territory. But, territory does not necessarily entail a dispute about the geographic location of a border. Trans-boundary natural resources disputes emerge because the laws of nature do not bend to this peculiar human construct. As much can be seen in international and intra-state water conflicts, where political boundaries provide individuals with a tribal identity that eclipses the power of natural resources to tie people together in …

A Housing Crisis: The Story Of The Syringa Mobile Home Park And The Law Clinic's Quest For Water, Jessica M. Long

Articles

No abstract provided.

Fish Don't Litter In Your House: Is International Law The Solution To The Plastic Pollution Problem?, Taylor G. Keselica

Pace International Law Review

This article addresses the complex issue of plastic pollution—focusing on ocean plastics. Specifically, this article examines the ocean plastics problem, critiques current binding and non-binding international environmental law surrounding ocean plastics, hazardous wastes, and pollution, and proposes a more effective solution to the ocean plastics problem. Section I provides a basic history of the creation of plastics and discusses plastics as they are used today. Section II considers the concerns surrounding ocean plastics, focusing on impacts of plastic on marine ecosystems as well as human health effects. Section III, IV, and V discuss the ongoing attempts to address the ocean …

North Carolina's Dueling Property Rights Interests: Water And Hydraulic Fracturing, Rupa Russe

NCCU Environmental Law Review

No abstract provided.

"Water Is Life!" (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

Indiana Law Journal

Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy "dissent," including blacklists, …

Unmuddying The Waters: Evaluating The Legal Basis Of The Human Right To Water Under Treaty Law, Customary International Law, And The General Principles Of Law, Ndjodi Ndeunyema

Michigan Journal of International Law

This article evaluates the existence of a freestanding, general human right to water under each of the three principal sources of international law: treaty, customary international law, and the general principles of law. To date, the right to water has been derived from treaty law, most prominently as part of the right to an adequate standard of living in article 11 of the International Covenant on Economic, Social and Cultural Rights (as implied by General Comment 15 to the ICESCR). The potential importance of a non-treaty based right to water––as a matter of customary international law or a general principle …

Property, Unbundled Water Entitlements, And Anticommons Tragedies: A Cautionary Tale From Australia, Paul Babie, Paul Leadbeter, Kyriaco Nikias

Michigan Journal of Environmental & Administrative Law

As water becomes an increasingly scarce resource, a lack of clarity in relation to its use can produce both conflict among and inefficient use by users. In order to encourage markets in water and to ensure the viability and functionality of those markets, governments in many jurisdictions have moved away from commons property as a means of water allocation, and towards systems of private property in water. In doing so, one policy and legal option is “unbundling”, which seeks carefully to define both the entitlement to water and its separation into constituent parts. Advocates claim that unbundling makes water rights …

Subsurface Tension: The Conflicting Laws Of Texas And New Mexico Over Shared Groundwater And New Mexico’S Desire For Regulation, Kameron B. Smith

Texas A&M Law Review

A recent oil boom in Southern New Mexico has resulted in increased hydraulic fracturing operations in the region and, as a result, a steady and reliable supply of water to fuel such operations is required. As New Mexico regulations make it difficult to acquire a steady supply of water within the state, oil and natural gas producers are turning to unregulated areas in Texas, which permit unlimited pumping of groundwater. However, this groundwater is being pumped from the Pecos Valley aquifer, which is the same source of water that New Mexico is regulating within its borders. This issue is only …

The Fragile Future Of Aquifer Storage And Recovery, Zachary A. Bray

Law Faculty Scholarly Articles

Buda, Texas-a small town that lies between Austin and San Antonio,

on the banks of Onion Creek and above the Edwards Aquifer-is perhaps

best known, though it is not particularly well known, as the "Wiener Dog

Capital of Texas." Buda's claim to this title is based upon its annual

dachshund races, which are opposed by the Dachshund Club of America

but lauded by locals, tourists, and the international press as an "event that

combines the pageantry of the Kentucky Derby and the excitement of

NASCAR with dachshunds, animals known for their small stature." Buda

is certainly unusual in relying so …

“Water Is A Human Right”: Exploring The Paradox Of Framing Water As A Human Right In A Hostile Political Climate, Sabrina Kozikis

Biennial Conference: The Social Practice of Human Rights

Many communities across the United States experience challenges in accessing clean and affordable water. In response, civil society and grassroots organizations are using a human rights framework to advocate for safe and affordable services for all. This is a curious trend, given that the United States is a country in which human rights, specifically socio-economic rights, are not recognized as relevant for domestic policy and even met with hostility. This study explores this tension: why do civil society actors, grassroots organizers, and national level advocates in the United States use a human rights framework to advocate for access to clean …

Water, Water, Anywhere?: Protecting Water Quantity In State Water Quality Standards, Julie F. Youngman

Indiana Law Journal

Although much of the earth’s surface is covered with water, less than one percent of water is available for human use. Water is becoming progressively scarcer worldwide, as demand increases and pollution, drought, and climate change jeopardize access to clean water. The United States is no exception to that trend. Effective regulation of water supplies can blunt the impacts of water scarcity. This Article suggests that states can—and should—regulate instream flows and lake levels in their federally-mandated water quality standards, with an eye toward conserving scarce water resources. Regulating water quantity as an element of water quality is not only …

Kloker V. Fort Peck Tribes, Hallee Kansman

Public Land & Resources Law Review

Kloker v. Fort Peck Tribes investigates and deciphers the application of the Indian canons of construction to the congressional formation and establishment of the Fort Peck reservation in Montana. In general, courts interpret congressional acts creating reservations through the lens of the tribal-federal government trust relationship. Although this case examines different substantive models of legal interpretation and theories of water law, the ultimate dispute is textual in nature—questioning the plain language of the establishment legislation itself.

"I Had A Lakehouse In Tahoe": The Legal Ramifications Of California Tapping Lake Tahoe And How It Affects Homeowners, Gregory Stratz

Marquette Law Review

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Evolution Of Water Institutions In The Indus River Basin: Reflections From The Law Of The Colorado River, Erum Sattar, Jason Robison, Daniel Mccool

University of Michigan Journal of Law Reform

Transboundary water institutions in the Indus River Basin can be fairly characterized as broken in key respects. International relations between India and Pakistan over the Indus Waters Treaty, as well as interprovincial relations within Pakistan over the 1991 Water Accord, speak to this sentiment. Stemming from research undertaken by the authors for the Harvard Water Federalism Project and the United States Agency for International Development (USAID), this Article seeks to spur the evolution of the Indus River Basin’s water institutions by offering a comparative perspective from North America’s most “institutionally encompassed” basin, the Colorado River Basin. Mindful of the importance …

Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta

Public Land & Resources Law Review

In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation lacked standing, …