Water Law Commons^™

Sackett V. Epa And The Future Of Wetland Protections, Dulaney Marsh

William & Mary Law Review

This Note will analyze prior CWA [Clean Water Act] jurisprudence to formulate a test that remains steadfast to Congress’s purpose in originally including “adjacent” wetlands and acknowledges the scientific understanding of wetlands’ relation to and impact on waters. Part I will provide an overview of the CWA legislation and its application in courts. Part II will specifically analyze the Sackett v. EPA decision in order to find a balance between the “significant nexus” and “continuous surface connection” tests. Part III will address criticisms surrounding the overreach of the CWA. Part IV will conversely address criticism concerning the Court’s decision to …

Fights Over Continuity - In Life And Law, Jamison E. Colburn

William & Mary Environmental Law and Policy Review

What is the whole: a river or that river and its tributaries? There is no “natural” answer to the question, only so many answers as there are reasons for asking. Lately, the Clean Water Act has been the captive of such diversions in our Supreme Court’s agenda. Changing it will not free it from that captivity. For whatever reforms we choose could still provide boundless opportunities for frustration in questions like the above. If the Court is as eager to cause that frustration as it has appeared lately, maybe we should help the Court to its fight with this iconic …

Tribes And Water In The Wake Of Navajo Nation And Sackett: Treaties, Winters, Montana, And Rights Of Nature, Robin Kundis Craig

William & Mary Environmental Law and Policy Review

Freshwater resources in the United States face a variety of stressors, including drought, flooding, and climate change–driven shifts in precipitation, that exacerbate both water quality problems and drinking water crises. In the midst of these increasing issues regarding both water quality and quantity (allocation), Tribes are playing an ever more active role in U.S. water management. This Article provides an overview of the complex contemporary legal landscape governing tribal authority over water. After reviewing the current state of inherent tribal sovereignty with respect to water, treaty rights and reservations, the federal Winters doctrine, and Treatment-as-a-State (“TAS”) status, this Article explores …

Water Quality: Successes, Shortcomings, And The Future, Jaley F. Adkins

The Cardinal Edge

No abstract provided.

Charting A Course To Conserve 30% Of Freshwaters By 2030, Sandra B. Zellmer

William & Mary Law Review

One of President Biden’s earliest executive orders established an ambitious national goal to conserve at least 30 percent of U.S. lands, waters, and oceans by 2030. The Biden administration is not alone; over 100 countries support this goal as a means of combating climate change and slowing the pace of species extinction, both of which are accelerating at a rate that is unprecedented in history.

Despite its vow to pursue a wide-sweeping, all-of-government approach, Biden’s 30 by 30 initiative overlooks a critical component of the conservation goal—it pays virtually no attention to freshwater. Freshwater ecosystems are among the most endangered …

Upper Missouri Waterkeeper V. Epa, Clare Ols

Public Land & Resources Law Review

State water quality standards developed under the Clean Water Act play a key role in curtailing the negative environmental, economic, and human health impacts of water pollution. Under the state water quality regulatory framework, EPA may grant variances to state standards should the state demonstrate the compliance with its standards is infeasible for a certain pollutant discharger or waterbody. Montana DEQ developed a variance for nutrients based on evidence that compliance with those standards would cause economic harm. EPA approved Montana's nutrient pollutant variance, and Upper Missouri Waterkeeper challenged EPA's approval on the grounds that the variance violates the Clean …

Quality Control: Potomac Riverkeeper V. Wheeler & Standards For Qualitative Citizen Water Quality Data In Virginia, Jacqueline Goodrum

William & Mary Environmental Law and Policy Review

This Article explores the issue of quality of citizen data through the lens of Potomac Riverkeeper v. Wheeler, a recent impaired waters listing case concerning the Shenandoah River in Virginia. Part I of this Article provides a brief overview of citizen science data in regulation and policymaking under the CWA. Part II discusses Potomac Riverkeeper v. Wheeler, examining Virginia’s water quality-related data standards and DEQ’s use (and non-use) of citizen water quality-related data and information in that case. Finally, Part III argues that Virginia should establish clear, reasonable, and specific data quality standards for qualitative citizen data so …

Same As It Ever Was : The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Faculty Scholarship

Sewage—a scary mixture of human waste and industrial toxins—flows into the Tijuana River Valley, an environmentally sensitive watershed that straddles the United Mexican States ("Mexico") and the United States of America. Treatment plants, a deteriorating one in Punta Bandera with limited capacity south of the border, and another in San Diego County completed in 1997, are inadequate to process the volume of sewage. So much sewage made its way into the Tijuana River that CBS 60 Minutes broadcast a special report on the binational environmental disaster in 2020.

Border factories and a population spike contribute to the sewage. Maquiladoras, …

The Clean Water Act At 50: Is The Act Obsolete?, Jonathan H. Adler

Faculty Publications

As an introduction to “The Clean Water Act at 50” symposium, this Article explores the question of statutory obsolescence in the particular context of the CWA. Part I considers the phenomenon of statutory obsolescence and what it means to say that a given statute is “obsolete.” Part II then evaluates the CWA, identifying the reasons one might conclude that the Act is (or is not) obsolete. Part III then considers what could be done about the CWA’s obsolescence if, in fact, one concludes it is obsolete.

This abstract has been taken from the author's introduction.

Meic V. Deq, Kirsten D. Gerbatsch

Public Land & Resources Law Review

Hecla Mining Company and its subsidiaries want to develop two industrial silver and copper mines­­––the Montanore and Rock Creek projects––beneath northwest Montana’s Cabinet Mountains Wilderness. Environmental organizations, in just one of a series of legal challenges to protect high-quality designated resource waters and unique bull trout and grizzly bear habitat, brought an action seeking a declaration that Montana Department of Environmental Quality’s issuance of a permit for the Montanore Project was unlawful. The Montana Supreme Court, in a four-member majority, affirmed the district court’s vacatur and remanded the case to the state agency for further proceedings. The decision is celebrated …

Anem: A Simple Web-Based Platform To Build Stakeholder Understanding Of Groundwater Behavior, Bruce Huber

Journal Articles

Groundwater supports essential societal and ecological functions by acting as a reservoir that buffers against natural variability. Increasing water scarcity and climate variability have resulted in more intensive management of groundwater resources, but groundwater often remains difficult to understand and manage. With this in mind, we develop a simple platform that provides a straightforward, web-based user interface applicable to a wide variety of end-user scenarios. Groundwater behavior is modeled using the method of images in a new R package, anem, which serves as the engine for the web platform, anem-app, produced using R Shiny. Both tools allow users to define …

Ohio's Avoidance Of Total Maximum Daily Load And The Continued Relevance Of The Constructive Submission Doctrine, Ashley Kirk

Global Business Law Review

This Note examines several provisions of the Clean Water Act (CWA)—in particular, Total Maximum Daily Loads (TMDLs)—in the context of recent litigation over the State of Ohio’s plan to address Lake Erie water quality. It looks at the role of TMDLs in CWA implementation and explains Ohio’s response to Lake Erie water quality, asserting that Ohio’s ranking of Lake Erie as a "low priority," in conjunction with its plan to follow a non-binding international agreement, the Great Lakes Water Quality Agreement, is simply an attempt to create another CWA loophole and avoid TMDL obligations. This Note also considers federal courts' …

Red Mining: Mining And The Right To Water In Porgera, Papua New Guinea, Human Rights Institute, Earth Institute

Human Rights Institute

An interdisciplinary study of the human right to water in the villages near the Porgera Joint Venture (PJV) gold mine in Papua New Guinea (PNG) finds that local residents do not have consistent access to sufficient, acceptable, and safe water, or adequate information about their water resources. It concludes that the PNG government and the mining companies Barrick Gold and Zijin Mining, as well as their jointly controlled operator of the mine, Barrick (Niugini) Limited (BNL), can do more to meet their human rights obligations and responsibilities.

Calming Troubled Waters: Local Solutions, Part I, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In 1861, the Ohio Supreme Court adopted the Absolute Use Rule to govern groundwater, essentially allowing landowners its unencumbered use. The opinion noted that the behavior of subterranean water was “occult and mysterious” and that it was beyond the competence of judges to determine its appropriate use. The Ohio court reversed course in 1984 and adopted the Reasonable Use Rule. By then, scientific knowledge had advanced to the point that the interconnected movement of water was more readily discoverable. The court noted that a primary goal of water law should be to conform to hydrologic fact. This Article explores the …

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

The Semicommons And Wisconsin Water Quality, David A. Strifling

Marquette Intellectual Property Law Review

From the Great Lakes to pristine northern streams, Wisconsin boasts a plentiful and valuable array of water resources. Yet water stress analyses show that this natural capital is deeply threatened in a variety of ways. The pressure results primarily from human activity, ranging from general overuse to colonization by anthropogenically introduced non-native species. Some of the greatest water quality problems, however, are caused by land use practices that lead to polluted runoff from farm fields and urban settings. The onset of climate change has the potential to further exacerbate all of this. These issues, coupled with the failure of existing …

Safe Drinking Water In The U.S.: A Prediction Of When The Entire U.S. Population Will Have Access To Safe Drinking Water, Blossom Hamika, Haley Merrill, Zoyla Orellana

Math 365 Class Projects

This research is to show when all of the U.S. will have access to safe drinking water.

Slides: Data Sharing And River Basin Modelling: From The Colorado To The Nile, Kevin Wheeler

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Kevin Wheeler, University of Oxford

29 slides

Slides: Environmental Flows In The Era Of 'River Anthropology', Rebecca Tharme

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Rebecca Tharme, Riverfutures Ltd.

18 slides

Slides: Environmental Flow Case Studies: Southern And Eastern Africa, Rebecca Tharme, Kelly Fouchy, Susan Graas, John Conallin, Michael Mcclain, Unesco-Ihe, Felister Mombo, Sokoine University Of Agriculture

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Rebecca Tharme, Riverfutures Ltd.

17 slides

Enhancing Watershed Planning In Implementation Of The Colorado Water Plan: An Overview Of Implementation Challenges And Opportunities, Douglas S. Kenney

Books, Reports, and Studies

25 pages.

Introduction -- Review of existing efforts -- Summary of interviews -- The salience of funding -- Recommendations -- Attachment A: Summary of reviewed watershed plans.

Slides: Water Planning In California: Past, Present, Future, Ellen Hanak

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Ellen Hanak, Senior Fellow and Director, PPIC Water Policy Center, Public Policy Institute of California

13 slides

Slides: Perspectives On Water Management In Arizona, Kathy Jacobs

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Kathy Jacobs, Director, Center for Climate Adaptation Science and Solutions (CCASS), Department of Soil, Water and Environmental Science, University of Arizona

25 slides

Slides: Colorado's Water Plan, Lauren Ris

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Lauren Ris, Assistant Director for Water, Colorado Department of Natural Resources

23 slides

Slides: What We Know (And Don’T Know) About The Effects Of Oil And Gas Development On Water Quality, Joseph N. Ryan

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Prof. Joe Ryan, University of Colorado Boulder, Environmental Engineering, AirWaterGas Sustainability Research Network, www.airwatergas.org

28 slides

Slides: Oil, Gas And Water: Addressing Water Quantity And Quality Concerns, Laura Belanger

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Laura Belanger, P.E., Water Resources Engineer, Western Resource Advocates

14 slides

Slides: Produced Water – Beneficial Reuse, Cabell Hodge

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Cabell Hodge, Policy, Regulation, and Emerging Markets Manager, Colorado Energy Office

12 slides

Agenda: Fracking, Water Quality And Public Health: Examining Current Laws And Regulations, Network For Public Health Law, American Society Of Law, Medicine & Ethics, Public Health Law Research Program

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Improved technology developments in directional drilling and hydraulic fracturing, more commonly known as "fracking," have resulted in an oil and gas production boom nationwide. Fracking involves pumping pressurized water, sand, and chemicals down wells to crack bedrock, freeing petroleum and natural gas. Wastewater discharges, hydraulic fracturing fluid releases, and other accidental spills pose potential water quality risks, sparking concern for public health.

This webinar will examine the laws and regulations governing water quality issues related to fracking, recent state court decisions affecting regulations, and implications for public health.

Slides: Best Management Practices For Oil And Gas Development And Comparative Water Quality Database Of Regulations Relating To Shale Oil And Gas, Matt Samelson, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Presenter: Matt Samelson, J.D., Attorney, Consultant for Intermountain Oil and Gas Best Management Practices (BMP) Project, Getches-Wilkinson Center for Natural Resources, Energy and the Environment, University of Colorado Law School

34 slides

Charting A New Course For The Colorado River: A Summary Of Guiding Principles, Colorado River Research Group

Books, Reports, and Studies

[4] p. : color illustrations ; 28 cm.