Water Law Commons^™

Chapter 215: Clarifying The Roles Of Water Providers In Southern California, Michelle Chester

McGeorge Law Review

No abstract provided.

Local Flood Control: Using Idaho's Flood Control District Statute To Enable Place-Based Stream Restoration, Jerrold A. Long

Articles

No abstract provided.

Gauging The Success Of The Coeur D'Alene Lake Management Plan: An Example Of Tribal-State Cooperation, Dylan R. Hedden-Nicely

Articles

No abstract provided.

Interstate Water Compacts: A License To Hoard?, Linda Christie

Texas A&M Journal of Property Law

The purpose of this essay is to familiarize readers with the facts and background of these issues in this important case, and to lay out the policy implications inherent in its resolution. This Article begins by providing some background and history regarding management of, and disputes over, water in the United States, with an emphasis on the value of interstate compacts in resolving and preventing disputes. The path of the current dispute between Texas and Oklahoma requires the Article to trace three things: (1) describing the creation of the Red River Compact as well as its terms; (2) detailing TRWD’s …

Hard, Soft & Uncertain: The Guarani Aquifer And The Challenges Of Transboundary Groundwater, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

This Article begins with an overview of the ecology of the Guarani Aquifer region before turning to the legal and ecological problems it faces. Because the majority of the Guarani Aquifer underlies Brazil (with the rest residing below Argentina, Paraguay, and Uruguay), the laws and policies of Brazil have a significant managerial impact. Consequently, the Brazilian legal regime forms the focus of the first Part of the Article. The Article then analyzes the international transboundary framework before turning to the recently enacted Agreement on the Guarani Aquifer. This Agreement, signed but not yet ratified by four countries, represents a major …

Plugging The Democracy Drain In The Struggle For Universal Access To Safe Drinking Water, Tara Paul

Indiana Journal of Global Legal Studies

Privatization of water delivery services has become a global trend as states seek ways to shift both political and economic costs to private actors. The advantage of privatization is that it relieves governments of the daunting expense of repairing and expanding water infrastructure in order to improve quality and reach marginalized communities. But water privatization has also been deeply criticized for corrupt practices, increasing prices to the poor, undermining human rights objectives, and dodging accountability. This note aims to find middle ground, acknowledging that privatization is an important tool to increase freshwater access, but that treating water as a human …

Resilience In Transboundary Water Governance: The Okavango River Basin, Barbara Cosens

Articles

When the availability of a vital resource varies between times of overabundance and extreme scarcity, management regimes must manifest flexibility and authority to adapt while maintaining legitimacy. Unfortunately, the need for adaptability often conflicts with the desire for certainty in legal and regulatory regimes, and laws that fail to account for variability often result in conflict when the inevitable disturbance occurs. Additional keys to resilience are collaboration among physical scientists, political actors, local leaders, and other stakeholders, and, when the commons is shared among sovereign states, collaboration between and among institutions with authority to act at different scales or with …

Frameworks For Amending Reservoir Water Management, Ethan Mower, Leandro E. Miranda

Publications

Managing water storage and withdrawals in many reservoirs requires establishing seasonal targets for water levels (i.e., rule curves) that are influenced by regional precipitation and diverse water demands. Rule curves are established as an attempt to balance various water needs such as flood control, irrigation, and environmental benefits such as fish and wildlife management. The processes and challenges associated with amending rule curves to balance multiuse needs are complicated and mostly unfamiliar to non-US Army Corps of Engineers (USACE) natural resource managers and to the public. To inform natural resource managers and the public we describe the policies and process …

Winter 2013 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law

Publications

No abstract provided.

Fracking The Oil And Gas Trade Secrets Of The Marcellus Shale Natural Gas Play, Jeremy I. Maynard

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Investment Risks For Water Projects, Sharlene Leurig

Texas A&M Journal of Property Law

Unlike most of the developed world, where investor-owned water systems serve the majority of the population, the United States relies mostly on water provided by public systems. To a great extent, these systems were financed through the taxation authority of the federal government—the iconic Hoover Dam only one of the many hundreds of pipelines and reservoirs built by agencies such as the Bureau of Reclamation and Army Corps of Engineers for the benefit of local economic development. Similarly, many of the drinking and waste- water treatment facilities in operation today were built to help com- munities comply with the federal …

State Water Planning: Theory V. Practice In Texas, Mary E. Kelly

Texas A&M Journal of Property Law

The essay shows that while the Texas water planning process is valu- able and important, its execution in practice is often flawed, resulting in over-estimates of the gap between projected demand and supply; new supply costs; lost opportunities for resolving real near-term needs through cost-effective solutions; and a limited ability to deal with criti- cal policy issues that will have significant effect on the state’s ability to sustainably manage its water resources for future generations.

The Shape Of Illusion: Water Law And Policy In The Fourth Dimension, George William Sherk

Texas A&M Journal of Property Law

With these words, Colonel Nathan R. Jessep, played by Jack Nicholson in the movie A Few Good Men, expressed his outrage at being caught in a lie. The lie is not relevant to our purposes today. What is relevant is the fact that the truth eventually became known.

As we look to secure water supplies for the future, it is essential that decisions regarding the allocation and management of water resources be based as much as possible on truth, not on illusions created and perpetrated in the name of political expediency. As Col. Jessep could not stand being caught in …

Unique Coverage Issues In Flood Losses, Wayne D. Taylor, Arthur J. Park, Sean O'Brien

Faculty Works

No abstract provided.

Coping With Water Scarcity, Risk & Uncertainty: Resilience & Hope, G. Tracy Mehan Iii

Texas A&M Journal of Property Law

It is most appropriate that we gather here in Texas, a state blessed with a vibrant economy and robust population growth, but still coming to terms with a searing drought. Here we get a glimpse of the daunting circumstances impacting water supply and security throughout the United States. This is a good time and place to consider how we often undervalue a resource and commodity that is so important in our lives. In this way we can secure our future water supplies while coping with all the risks, challenges and opportunities this entails.

"Dropping" The Migratory Bird Treaty Act: The Negative Effects Of The Mbta On Property Rights And Human Health, Sabita Maharaj

Texas A&M Journal of Property Law

Federal law essentially handcuffs residents from protecting their health and their children’s health and severely restricts what they can do to protect their property from MBTA-protected birds. The usefulness of these laws is no longer justifiable. While it is necessary for human enjoyment and the balance of the ecosystem to protect animals, protection should not come at the expense of human health and property use and enjoyment.

The Clean Water Act And Evolving Due Process: The Emergence Of Contemporary Enforcement Procedures, Alexandria A. Polk

Oklahoma Law Review

No abstract provided.

The New Red River Rivalry: Oklahoma's Unconstitutional Attempt To Calm The Waters By Restricting The Sale Of Water Across State Lines, Scott M. Delaney

Oklahoma Law Review

No abstract provided.

Investment Impact Of Water Reliability—Recent Dow Experience, Paul Bork

Texas A&M Journal of Property Law

Rather than repeat the work of others in this area, this paper merely cites with approval the recent paper of Michael Booth3 for its presentation of the background and current status of the law, including TCEQ’s regulations and the ongoing case4 challenging the existing TCEQ water call regulations and their application. The Author ex- presses no view regarding the paper’s presentation of Mr. Booth’s views with respect to the legality or appropriateness of these regula- tions or his views on this case. The Author notes in passing that the second sentence in Section D of this paper should read in …

The Potential Impact Of Federal Laws On State Water Supplies, Brad B. Castleberry, Sara R. Thornton

Texas A&M Journal of Property Law

States have long held the exclusive right to allocate their surface and groundwater supplies absent some express federal authority, usually via a contract with a federal agency for stored water in a federally sponsored and funded project. Over time, however, an emphasis on federal involvement has led to scrutiny of projects where there are no federal dollars being expended—only federal permits needed to implement projects by the states. This federal involvement can sometimes have extremely costly impacts to states, effectively creating an invisible dam of laws and regulations under the guise of protecting the environment. This paper will explore a …

Hydraulic Fracturing And Water Management In The Great Lakes, Nicholas Schroeck, Stephanie Karisny

Law Faculty Research Publications

No abstract provided.

Interstate Groundwater Law In The Snake Valley: Equitable Apportionment And A New Model For Transboundary Aquifer Management, Noah D. Hall, Benjamin L. Cavataro

Law Faculty Research Publications

No abstract provided.

The Increasing Privatization Of Environmental Permitting, Jessica Owley

Articles

No abstract provided.

The Rise And Demise Of The Absolute Dominion Doctrine For Groundwater, Joseph W. Dellapenna

University of Arkansas at Little Rock Law Review

Increased human populations, together with increased per capita water usage and climate changes, have resulted in our planet coping with greater water shortages than ever before. Groundwater has played, and will continue to play, a critical role in dealing with water shortages. Consequently, more and more attention, legal and otherwise, is being given to groundwater across the United States.

Much legal confusion about groundwater exists. For starters, there is no single legal definition for groundwater. Moreover, the law has developed legal categories such as percolating water and underground streams which, while contradictory to scientific hydrology, remain embedded in the law. …

Compartmentalized Thinking And The Clean Water Act, Christine A. Klein

UF Law Faculty Publications

Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In …

The Supreme Court And The Ppl Montana Case: Examining The Relationship Between Navigability And State Ownership Of Submerged Lands, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court held in PPL Montana v. Montana held that the State of Montana did not own the beds beneath certain rivers and, therefore, rejected the State's claim that the power company owed it millions of dollars in "back rent" for the use of the riverbeds as sites for ten of its hydroelectric power plants. The Montana Supreme Court, which had ruled in favor of the State, declared that even if portions of a river were not navigable for commercial purposes because of physical conditions, the entire river would be treated as navigable if commercial traffic could …

Hitching Our Wagon To A Dim Star: Why Outmoded Water Codes And "Public Interest" Review Cannot Protect The Public Trust In Western Water Law, Michelle Bryan Mudd

Faculty Law Review Articles

This article examines the interrelationship between the public trust and water rights as it is emerging in western states.

Part I of this article describes the traditional public trust principles that apply to waters, as well as the modern judicial trend of extending those principles to water use permitting in the West.

Focusing on an area of particular concern in water codes, Part II analyzes the risky implications of supplanting the public trust doctrine with existing public interest review provisions.

Finally, Part III advances a water use permitting framework that better fulfills the states' public trust responsibilities. Drawing on the …

Reviving The Public Ownership, Antispeculation, And Beneficial Use Moorings Of Prior Appropriation Water Law, Gregory J. Hobbs, Jr.

University of Colorado Law Review

This article addresses originating principles of Colorado prior appropriation water law and demonstrates how the Colorado Supreme Court has applied them in significant cases decided during the first decade of the twenty-first century, a sustained period of drought. These principles include public ownership of the water resource wherever it may be found within the state, allocation of available unappropriated surface water and tributary groundwater for appropriation by private and public entities in order of their adjudicated priorities, and the antispeculation and beneficial use limitations that circumscribe the amount and manner of use each water right is subject to. Demonstrating that …

Powering The Tap Dry: Regulatory Alternatives For The Energy-Water Nexus, Amy Hardberger

University of Colorado Law Review

In 2008, while Atlanta residents freely watered their lawns, several nuclear power plants in Georgia almost shut down due to drought-induced water scarcity. This absurd reality stemmed from the misunderstood and almost wholly unregulated relationship between energy and water. Water and energy are indivisibly linked and interwoven into every aspect of our culture and lifestyle. Large quantities of water are required to generate energy, and energy is required at all stages of the water supply process including pumping, treating, and end uses. While much has been written recently on the numeric relationship between these sectors, little has been proposed from …

No Seat At The Water Table: Colorado's New Groundwater Basin Statute Leaves Senior Surface Rights In The Lurch, Ari J. Stiller-Shulman

University of Colorado Law Review

Wells that pump water from underground aquifers deplete water flowing in nearby rivers and streams. Colorado farmers in certain parts of the state use wells to pump large quantities of underground water for irrigation. However, other users who had pre-existing surface-water rights on nearby streams have complained that these wells drain the river and injure their prior vested water rights. Normally, surface water users with prior rights can require more junior users to stop appropriating until the senior user has diverted her full right. However, Colorado presumes that wells in certain districts-called designated basins-do not injure nearby surface streams. Still, …