Water Law Commons^™

Demand Offsets: Water Neutral Development In California, Jennifer L. Harder, Jennifer L. Harder

McGeorge Law Review

No abstract provided.

Assessing System Resilience And Ecosystem Services In Large River Basins, Barbara Cosens

Articles

No abstract provided.

Tribal Environmental Programs: Providing Meaningful Involvement And Fair Treatment, Jeanette Wolfley

Faculty Scholarship

Tribal governments are developing and implementing federally authorized and/or approved tribal environmental programs in the areas of water quality, air quality, and solid waste. As part of this federal delegation process there are federal requirements relating to due process and fair treatment of the public and stakeholders who may be affected by the tribal environmental laws and regulations. This article explores and examines public participation and due process within the tribal context and proposes tribal institutions are in the best position to articulate the tribal cultural and social norms of public participation and fair treatment. It is through this process …

Environmental Issues In The Allocation And Management Of Western Interstate Rivers, Reed D. Benson

Faculty Scholarship

No abstract provided.

Adjudications, Brigette Buynak, Darcy S. Bushnell

Water Matters!

Adjudications are lawsuits that take place in state or federal court to resolve all claims to water use in the state of New Mexico, including those of Pueblos, tribes and the federal government. These cases are required by statute to create a formal inventory of water uses and to facilitate administration of New Mexico’s surface and groundwater. The geographic scope of each case is generally described by a stream system and occasionally by a groundwater basin. By statute, the State is always the plaintiff. The mission is to formally identify and recognize all valid water rights in each area being …

Preface To Protecting The Environment Through Land Use Law: Standing Ground, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Protecting the Environment Through Land Use Law: Standing Ground takes a close look at the historical struggle of local governments to balance land development with natural resource conservation. This book updates and expands on his four previous books, which established a comprehensive framework for understanding the many ways that local land use authority can be used to preserve natural resources and environmental functions at the community level. Standing Ground describes in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This body of work emphasizes …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Addition” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable waters” to such an extent that it threatens to eviscerate half of the CWA’s regulatory strategies and programs: water quality standards and the § 404 program protecting wetlands. This Article examines the interpretation of “addition” …

Fracking As A Federalism Case Study, Amanda Leiter

Scholarly Articles in Law Reviews & Journals

No abstract provided.

A New Regulatory Framework For Low-Impact/High-Value Aquaculture In Nova Scotia, Meinhard Doelle, William Lahey

Reports & Public Policy Documents

The report is the result of a detailed assessment of aquaculture regulations in Nova Scotia. It proposes a new regulatory framework for the Nova Scotia aquaculture industry based on the principles of effectiveness, openness, transparency, accountability, proportionality, integration, and precaution. The report is based on a 18 months independent review of the industry and how it is regulated, as well as various forms of engagement with the public and key stakeholders. The report draws on regulatory practice in key jurisdictions around the world, including Scotland, Chile, the US, and other provinces in Canada.

Citizen Litigants Citizen Regulators: Four Cases Where Citizen Suits Drove Development Of Clean Water Law, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

One of the key innovations of the 1970s regulatory environmental revolution was the provision for citizen enforcement of regulatory standards. This innovation upset the previous bipolar regulatory model, which was a two-way negotiation between the regulated industries and the (often captive) regulatory agencies. By removing agency enforcement discretion as a means of underenforcing statutory norms, the citizens suit brought a new constituency to the regulatory bargaining table. The citizen suit had the intended effect of implementing a regime of full enforcement of the new environmental norms.

But the revolutionary effect of the newly minted citizen suit was not limited to …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Pollutant” Element Of The Federal Water Pollution Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the second in a series of five, examines the meaning of “pollutant” under the Clean Water Act. Congress and EPA have defined “pollutant” to mean a list of specific substances and broad categories of materials and wastes discharged into water, e.g., “biological materials” and “chemical wastes.” The definition is broad enough to encompass virtually all substances associated with human activity that are discharged to water, regardless of whether the substances cause pollution or are produced through human endeavor. Therefore, “pollutant” is rarely a limiting element. Instead, the issues with the definition of “pollutant” primarily address whether it includes …

Water Governance Challenges In New Mexico's Middle Rio Grande Valley: A Resilience Assessment, Melina Harm Benson, Dagmar Llewellyn, Ryan Morrison, Mark Stone

Publications

No abstract provided.

Jump In Before It's Too Late: Protecting And Increasing Streamflows In New Mexico, Sharon Wirth

Publications

Freshwater ecosystems need adequate streamflow to supply clean water for humans and maintain healthy habitat for wildlife. Over-appropriation, overuse, climate change, and drought plague New Mexico's rivers, taxing many rivers beyond sustainability. Despite the myriad of problems caused by little or no water in our rivers, policies and procedures to protect and increase streamflows in New Mexico are limited. While most Western states have made demonstrable progress in alleviating various legal and technical barriers to protecting and increasing streamflows, New Mexico has made only limited, recent progress towards solutions for our drying rivers. This article takes a critical look at …

Developing The Law Of The River: The Integration Of Law And Policy Into Hydrologic And Socio-Economic Modeling Efforts In The Willamette River Basin, Adell Louise Amos

Publications

A legal and policy infrastructure -- referred to as a "law of the river" -- exists for every river basin in the U.S. an can be as important as natural processes in terms of managing the future of the resource. Because of the way that water law and policy have evolved in the U.S., this infrastructure involves a matrix of state and federal law that governs the choices that policymakers, end users, and agencies make. This "law of the river" provides the context in which decisions are made and not made. It also draws the boundaries within which decision makers …

Shaping Interstate Water Compacts To Meet The Realities Of The Twenty-First Century, Connor B. Egan

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Florida Water Management Districts And The Florida Water Resources Act: The Challenges Of Basin-Level Management, Ryan B. Stoa

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Front Matter, Natural Resources Journal

Natural Resources Journal

No abstract provided.

Scientific, Legal, And Ethical Foundations For Texas Water Law., Gabriel Eckstein, Amy Hardberger

Faculty Articles

Water law is the field of law concerned with the ownership, control, and use of water resources, both surface and subsurface. Although most closely related to property law, recent developments in other legal fields, especially in environmental law, have heavily influenced the interpretation, application, and development of water law. As a result, water law today encompasses a broad perspective and often takes into account individual and community rights, environmental issues, commerce and economics, and other societal and legal concerns. Significantly, modern water law is also an interdisciplinary practice. In light of the continuously expanding body of knowledge of the hydrologic …

Takings And The Right To Fish And Float In Colorado, Aaron Pettis

Indiana Law Journal

No abstract provided.

Hydraulic Fracturing And Protection Of Freshwater Resources In The Great Lakes State, Nicholas J. Schroeck

Law Faculty Research Publications

No abstract provided.

The Right To Safe Water And Crown-Aboriginal Fiduciary Law: Litigating A Resolution To The Public Health Hazards Of On-Reserve Water Problems, Constance Macintosh

Articles, Book Chapters, & Popular Press

Canada is at a crossroads. The gap between our national self-image as a country that respects human rights and the reality of socio-economic inequality and exclusion demands a re-engagement with the international human rights project and a recommitment to the values of social justice and equality affirmed in the early years of the Canadian Charter of Rights and Freedoms. This book sketches a blueprint for reconceiving and retrieving social rights in diverse spheres of human rights practice in Canada, both political and legal. Leading academics and activists explore how the Charter and administrative decision making should protect social rights …

Egypt, Ethiopia, And The Nile: The Economics Of International Water Law, Daniel Abebe

Faculty Scholarship

As part of a Symposium on the book The Economic Foundations of International Law, this Article briefly compares and contrasts two distinct analytical approaches to international law — doctrinal versus economic — in the context of Egypt's and Ethiopia's dispute over the right to exploit the Nile River's water resources. The Article argues that the traditional doctrinal approach, one based solely on an examination of international water law, treaties, and customary international law is unlikely to result in a legal conclusion that either state is likely to respect because such an approach fails to consider the incentives, material capabilities, …

Water Is A Girl’S Best Friend: Examining The Water Valuation Dilemma, Amy Hardberger

Faculty Articles

Water allocation is currently controlled by policy that assigns a property right and hopes to protect the resource and its users. Markets can help fill this void and increase efficiency by assigning an accurate value to the good and dictating how the water is transferred and used.

Unfortunately, current markets lack the ability to send an accurate price signal that reflects the true value of water, leading to unintended consequences that could rapidly deplete resources rather than protect them. For the market to be accurate in pricing water, all costs must be included, allowing consumers to make an informed decision. …

Texas Groundwater And Tragically Stable “Crossovers”, Zachary A. Bray

Law Faculty Scholarly Articles

One recurring question in the academic literature on common-pool resources relates to the persistence of “tragic” commons regimes—systems that encourage, or at least tolerate, the inefficient, wasteful, hazardous, or unfair exploitation of a resource that is easily accessed for and diminished by individual use and consumption. Of course, not all commons are tragic: some common-pool resources invite individual access in efficient, fair, and durable ways. Yet many commonly held resources do lie under systems of governance that are not just tragic but persistently and stubbornly so. Often the tragic aspects of such commons regimes are well known; indeed, for some …

Sustainability Policy’S Inherent Dilemmas – Exemplified Via Critical Examination Of The Las Vegas Metropolitan Sustainability Campaign, Kathryn A. Zimmerman

All Master's Theses

In response to a dual problem of critical water scarcity and rapid population growth, leaders of metropolitan Las Vegas implemented a region-wide, internationally marketed sustainability campaign. Preliminary studies found that, while sustainability policy attains its rhetorical goals, solutions initiated not only perpetuate but also purposefully expand the original dual problem to justify continuous water resource acquisitions. To examine this sustainability conundrum constructed by leadership—problem-perpetuation rather than problem-resolution—a critical examination in resource management asked two basic questions: what is being sustained and by what means? Via this inquiry, specific processes by which leaders perpetuate problems can be identified; and, so-informed, new …

New Mexico Water Law Capsules, Stephanie Tsosie

Water Matters!

This article contains a list some of the key cases decided in the state and federal courts of New Mexico with very brief descriptions of the rulings. The finalized cases have been arranged by topic. This chapter is intended to be a quick and handy reference guide and not a thorough summary of the facts and law of each case. This year we have also included a list of water law statutes.

Water Conservation, Consuelo Bokum

Water Matters!

New Mexico always has had periods of water shortages, some far more long lasting and devastating than others. As warming temperature and changing weather patterns continue to develop, the likelihood that water shortages—like those felt throughout the state from 2010 through 2013—will occur with greater frequency. These changes can and have caused significant economic and environmental damage, and the risk of more harm will not improve unless we improve our water management significant.

Drought, Adrian Oglesby

Water Matters!

New Mexico is renowned for its high deserts, mild climate, and abundant sunshine. Incidentally, these physical attributes, which make New Mexico so unique and beautiful, are also characteristic of a naturally dry environment. The state has been subjected to severe drought conditions in the past, alternating with times of uncharacteristically high supplies of moisture upon which its population has at times over-relied.

This article will provide various definitions of drought and a short history of drought in New Mexico; discuss impacts of drought on the state’s human water user communities and environment; discuss in brief the priority call and water …

Priority Administration, Ed Merta

Water Matters!

Since the turn of the twenty first century, drought conditions have frequently stricken much of New Mexico. Such intervals of extreme dryness have been a permanent, recurring feature of the state’s climate for at least two thousand years, according to tree ring data and other scientific evidence. Some of these past droughts lasted for decades, exceeding in severity the Dust Bowl of the 1930sand the great New Mexico drought of the 1950s. Today, climate change models indicate that the Southwest will likely become even hotter, potentially making future droughts in New Mexico more extreme. Managing water shortages promises to become …

Active Water Resource Management, Paul Bossert, Gregory C. Ridgley

Water Matters!

For decades, most of the waters of the State of New Mexico have been the subject of water rights adjudications to establish all the water rights. Stream systems and sub-basins geographically define the adjudications. There are twelve active cases. However, complete adjudication of all New Mexico water rights is still many years away. Meanwhile, water use in the state has evolved.New water users increasingly look to acquire existing water rights rather than developing new rights. Decisions on administration, distribution, and redistribution of water have to be made.

It was widely held, though not unanimously, that the State Engineer needed greater …