Water Law Commons^™

Got Guts? The Iconic Streams Of The U.S. Virgin Islands And The Law’S Ephemeral Edge, Jesse Reiblich, Thomas T. Ankersen

UF Law Faculty Publications

The legal status of “guts” — the ephemeral streams of the U.S. Virgin Islands that typically flow only after rainfall — is uncertain. Furthermore, it is unclear what, if any, property interest the Government of the Virgin Islands, and the public, have in these watercourses. This uncertainty stems from the non-navigable nature of guts, and is compounded by the Virgin Islands’ unique legal system, a legal system that recognizes at least some Danish law from its colonial past, and has seemingly inconsistent provisions purporting to confer legal and regulatory interests in these guts to the Government of the Virgin Islands. …

The Human Right To Water: A False Promise?, Stephen C. Mccaffrey

University of the Pacific Law Review

No abstract provided.

Using International Property Law As A Lever To Evolve Toward Integrative Ocean Governance, Rachael E. Salcido

University of the Pacific Law Review

No abstract provided.

Lines In The Sand: Interstate Groundwater Disputes In The Supreme Court, Noah D. Hall, Joseph Regalia

Law Faculty Research Publications

No abstract provided.

Interstate Groundwater Law Revisited: Mississippi V. Tennessee, Noah D. Hall, Joseph Regalia

Law Faculty Research Publications

No abstract provided.

The Role Of Creative Language In Addressing Political Asymmetries: The Israeli-Arab Water Agreements, Itay Fischhendler, Aaron T. Wolf, Gabriel E. Eckstein

Faculty Scholarship

International water agreements are often used as mechanisms for fostering and institutionalizing political cooperation. Yet, since water resources in many places are being driven to the edge of their natural limits, a number of international organizations have formulated legal principles and norms aimed at helping states resolve water disputes. While states have been urged to adopt these principles, it seems that they often embrace other less-traditional alternatives that may better address their own political needs. The aim of this study is to examine why states fail or decline to adopt several of the general principles of customary law formulated by …

Reclaiming The Right Of Beneficial Use, Abby Harder

University of Colorado Law Review

Under the doctrine of prior appropriation, those that divert and apply water resources to a beneficial use gain a future right of use. Further, individuals may contract with the federal Bureau of Reclamation (BOR) for the delivery of federal project water. Under either method, individuals are required to use their water appropriation for a beneficial purpose to acquire and maintain their rights of use. What constitutes a beneficial purpose or a beneficial use of water resources has traditionally been defined by state law. Following some states’ legalization of marijuana, the BOR announced a new policy with regard to water use, …

To Have Our Water And Use It Too : Why Colorado Water Law Needs A Public Interest Standard, Larry Myers

University of Colorado Law Review

This Comment proposes constitutional and statutory amendments that would allow water courts to consider the public interest in water allocations. It offers a model public interest standard and argues that this public interest standard is an economic necessity given the shifting contributions of water-reliant industries and the nature of their water needs. Assuming the purpose of Colorado water law is to promote growth and the economic health of the state, then Colorado must adjust the guiding laws to reflect the current economic reality. Where facilitating economic growth formerly required consumptive diversions from streams to subsidize homesteads, ranches, and mines, now …

Lines In The Sand: Interstate Groundwater Disputes In The Supreme Court, Noah D. Hall, Joseph Regalia

Scholarly Works

As states increasingly rely on groundwater to meet their freshwater demands, interstate conflicts have emerged across the country. This article discusses the two most prominent interstate groundwater disputes, one from the east and one from the west. The eastern case, Mississippi v. Tennessee, is the first interstate groundwater case before the Supreme Court and will set important precedent for future litigation. The western case, a dispute between Utah and Nevada, provides a promising alternative to litigation—an interstate compact that could serve as a model for cooperative management and protection of shared interstate aquifers.

Bridging The Confluence Of Water And Immigration Law, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Front Matter, Natural Resources Journal

Natural Resources Journal

No abstract provided.

It’S Rooted In The Land: How Managing Natural Resources Leads Native American Tribes To Sovereignty, Nicky Ouellet

Graduate Student Theses, Dissertations, & Professional Papers

Tribal management of land and natural resources within the boundaries of Native American reservations is often superseded by state and federal policy. But control of land and resources is, ultimately, what makes a nation a nation. The three stories in this portfolio depict tribes establishing control of natural resources to various degrees of success. Chapter one is a narrative outlining the stories, my reportage and plans for publication. Chapter two: Members of the Northern Cheyenne seek to establish a medical marijuana program after the federal government relaxed enforcement of cannabis bans. Chapter three: An activist on the Fort Berthold reservation …

Using International Property Law As A Lever To Evolve Toward Integrative Ocean Governance, Rachael E. Salcido

McGeorge School of Law Scholarly Articles

TABLE OF CONTENTS I. INTRODUCTION .............................................................................................. 254 II. BACKGROUND ............................................................................................... 255 A. Brief Primer on Ocean Jurisdiction ...................................................... 256 B. Dispute Resolution and International Governance ............................... 257 C. The Power of Property .......................................................................... 259 D. Ocean Governance Support for an International Property Law Thesis ..................................................................................................... 260 III. STATE OF OCEAN HEALTH ........................................................................... 261 A. Overfishing ............................................................................................ 262 B. Climate Change ..................................................................................... 263 C. Pollution ................................................................................................ 264 1. Traditional Pollution ...................................................................... 264 2. Special Growing Plastic Pollution Problem ................................... 265 D. Industrialization .................................................................................... 265 1. Marine Renewable Energy .............................................................. 266 2. Aquaculture ..................................................................................... 268 3. Offshore Oil and Gas ...................................................................... 268 …

Ditching Our Innocence: The Clean Water Act In The Age Of The Anthropocene, Rachael Salcido, Karrigan Bork

McGeorge School of Law Scholarly Articles

Humanity has entered the Age of the Anthropocene, a geologic era marked by the emergence of human activity as the single most dominant influence on Earth’s environment. Every ecosystem shows

signs of anthropogenic influence, and the environments we experience everyday are often shaped almost entirely by human actions and decisions. The new discipline of reconciliation ecology recognizes this

reality and suggests that we must manage the new habitats we create in order to protect species diversity and ecosystem services. But the 2015 rule defining the jurisdiction of the Clean Water Act explicitly excludes

many manmade environments, including many artificial lakes, …

Unlimited Rights In A Water-Scarce World? Quantification Of Dormant Rights To Common Pool Groundwater, Jennifer L. Harder

McGeorge School of Law Scholarly Articles

No abstract provided.

The Human Right To Water: A False Promise?, Stephen C. Mccaffrey

McGeorge School of Law Scholarly Articles

No abstract provided.

A Comparison Between Shale Gas In China And Unconventional Fuel Development In The United States: Water, Environmental Protection, And Sustainable Development, Paolo D. Farah, Riccardo Tremolada

Brooklyn Journal of International Law

China is believed to have the world's largest exploitable reserves of shale gas, although several legal, regulatory, environmental, and investment-related issues will likely restrain its exploitation. China's capacity to face these hurdles successfully and produce commercial shale gas will have a crucial impact on the regional gas market and on China’s energy mix, as Beijing strives to decrease reliance on imported oil and coal, and, at the same time, tries to meet growing energy demand and maintain a certain level of resource autonomy. The development of the unconventional natural gas extractive industry will also provide China with further negotiating power …

The Dawning Of Disaster Law, Clifford J. Villa

Faculty Scholarship

What really matters, what unites disasters of all stripes, including earthquakes in Japan, tornadoes in Oklahoma, oil spills in the Gulf of Mexico, and the terrorist attacks on 9/11, is how you respond during the disaster, how you recover from it afterwards, and how you prepare - or better, prevent - the next disaster from happening. This is what disaster theorists, including Professor Dan Farber at Berkeley Law, term the "disaster cycle." In simplest terms: readiness, response, and recovery.

Marketing Conserved Water, Mark Squillace, Anthony Mcleod

Publications

Water law scholars have long supported water markets for addressing critical water needs, especially in arid regions like the western United States, and that support seems to be growing among policymakers as well. But translating academic theories about water markets to the field has proved challenging. To be sure, water can be transferred from one use to another use in all western states, but water markets in those states are not presently capable of providing prospective buyers with a reliable source of water when and where they need it. The reasons are myriad, but are primarily related to the high …

A Next, Big Step For The West (Part Ii): Model Water-Climate Enabling Legislation With Commentary, Michelle Bryan, Zach Coccoli, Graham Coppes, Dylan Desrosier

Faculty Law Review Articles

This model legislation is the culmination of an earlier work, A Next, Big Step for the West: Using Model Legislation to Create a Water- Climate Element in Local Comprehensive Plans.' That articleargues that local governments, as the primary regulators of land use and population planning, are integral to our climate and drought response in the West. That article then calls for a new, freestanding "waterclimate element" in local government comprehensive plans that integrates the often disparate realms of land use, water use, and climate planning and better prepares communities for "managing water in wise, resilient, and collaborative ways."2 This approach …

Interstate Groundwater Law Revisited: Mississippi V. Tennessee, Noah D. Hall, Joseph Regalia

Scholarly Works

In June 2015, the United States Supreme Court granted the State of Mississippi leave to file a bill of complaint against the State of Tennessee, the City of Memphis, and Memphis Light, Gas & Water Division for wrongfully converting groundwater from the interstate Sparta-Memphis Aquifer. The dispute arises from Memphis and its municipal utility pumping groundwater within Tennessee, which Mississippi alleges has lowered the water tables within its territory. The Supreme Court's grant of leave raises for the first time the question of what legal doctrine applies to transboundary interstate groundwater resources. Tennessee and lower courts would subject interstate groundwater …

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 …