Land Use Law Commons^™

Why (And How) Conservatives Should Support Smart Growth, Michael Lewyn

Scholarly Works

Conservatives have generally been critical of the smart growth movement, because they often fear that smart growth is synonymous with overregulation of land use. This article explains why sprawl threatens conservative values, and suggests conservative-friendly smart growth policies that can both make government less intrusive and make America more walkable.

The Rebirth Of The Neighborhood, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This essay argues that new urban residents primarily seek a type of community properly called a neighborhood. “Neighborhood” refers to a legible, pedestrian-scale area that has an identity apart from the corporate and bureaucratic structures that dominate the larger society. Such a neighborhood fosters repeated, casual contacts with neighbors and merchants, such as while one pursues Saturday errands or takes children to activities. Dealing with independent local merchants and artisans face-to-face provides a sense of liberation from large power structures, where most such residents work. Having easy access to places of sociability like coffee shops and bars permits spontaneous “meet-ups,” …

Plans Are Not Enough, Michael Lewyn

Scholarly Works

Some commentators see comprehensive municipal plans as a remedy for suburban sprawl. But in fact, a plan can be used to promote sprawl as well as to prevent sprawl.

What Every Land Use Lawyer Should Know About The Emerging Use Of Health Impact Assessment And Land Use Decision Making, Patricia E. Salkin, Pamela Ko

Scholarly Works

The field of Health Impact Assessment is relatively new to the United States, but already a number of state and local governments are incorporating these assessments into land use planning and decision making. In five years, the use of HIA in the U.S. has increased dramatically with more than 100 HIAs completed or in progress in the U.S. from 2007 to 2010. This article provides a brief overview of HIA in the United States, describes how it is being used in other states with respect to land use decision making, and examines how HIA is starting to be incorporated into …

The Problem With The Bureau Of Land Management's Delegation Of Wildlife Management In Wilderness, Lindsay S. Jones

Georgia Law Review

Congress passed the Wilderness Act of 1964 "to secure for
the American people of present and future generations the
benefits of an enduring resource of wilderness." When it
passed the Act, Congress preserved over 9 million acres of
federal lands; and since then, the National Wilderness
Preservation System has been expanded by more than 100
million acres. The Act requires the federal agencies to
manage the wilderness areas to preserve their wilderness
character and to leave the lands unimpaired for future
generations.
Wildlife is an integral part of what makes wilderness
worth preserving. Despite the vital role wildlife plays in …

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 …

Archival: A Water Rights Manual For Mutual Domestic Water Consumers Associations, Utton Center, University Of New Mexico - School Of Law, Zackeriah Carpenter, Gregory Chakalian, Darcy S. Bushnell

Publications

The Utton Center prepared this Water Rights Manual to assist Mutual Domestic Water Consumers Associations (MDWCAs) with the development, protection and management of their water rights.

This manual provides an introduction to and defines Water Rights in New Mexico, as well as to acquire and have recognized Water Rights. This document also covers water management and planning, and provides additional resources.

Acequias, Brigette Buynak, Jerold Widdison, Darcy S. Bushnell

Water Matters!

Acequias are community irrigation systems in the villages and pueblos of New Mexico. They have deep roots in two ancient traditions—Pueblo Indian and Spanish. The Pueblos collected and shared water for centuries before the arrival of Spanish colonists in 1598. The Spanish settlers brought technical knowledge and institutional frameworks for governing irrigation systems, which originated in the Moors’ seven-century occupation of Spain. Both traditions remain important to an understanding of New Mexico’s acequia heritage and the continuing relevance of these “water democracies.”Today, these traditions must meld with state law as the legislature has provided that acequias are “political subdivisions” or …

American Indian Water Rights, Michael Osborn, Darcy S. Bushnell

Water Matters!

Pueblos and tribal reservations are located within most of the larger stream systems in New Mexico. Each has claims to rights to use the water in its stream. In New Mexico, Indian rights are significant because of their early priority dates, because of the large amounts of water rights claimed, or both. In some instances, such claims have the potential to displace a significant number of junior water rights.

Common law theories or doctrines pertaining to Indians continue to be judicially refined and to evolve so that discussing the nature and extent of “Indian water rights” is a complex topic.

State And Regional Water Planning, Brigette Buynak, Susan Kelly, Sarah Armstrong

Water Matters!

A statewide water planning effort was initiated by the New Mexico legislature in the 2003 session. The Interstate Stream Commission (ISC),in collaboration with the Office of the State Engineer (OSE) and the Water Trust Board, was tasked with preparing and implementing a comprehensive state water plan. Regional water planning had begun much earlier, prompted by a lawsuit that El Paso filed against New Mexico in 1983, El Paso v. Reynolds.

The State Water Plan Act of 2003 (Act) was intended to promote stewardship of the state’s water resources and to establish clear policies and strategies for management of the state’s …

Deep Water Regulation, Paul Bossert, Kari Olson

Water Matters!

With most of the surface water in New Mexico fully appropriated and with groundwater sources being drawn down and becoming less reliable, the search for new sources of water is reaching further and further afield of traditional sources and methods. Water wells deeper than 2,000 feet have been rare due to the expense of deep drilling and the uncertainty of finding potable water. Yet the combined circumstances of advances in hydrology and the escalating demand for new water have driven the search for water deeper than was previously considered practical.

Water Marketing, Jeremy Oat, Laura Paskus

Water Matters!

Water doesn’t just flow around New Mexico in streams and rivers: it also moves around on paper. Since all of the state’s surface-water and most of its groundwater have already been allocated, the only way for cities, developers, or conservation organizations to find new water supplies is to buy and transfer water rights from old uses and places to new uses and places. The N.M. Office of the State Engineer (OSE) approves each of these transfers, most of which are relatively small, but the numbers can add up over time. Between 1982 and 2011, for instance, 21,000 acre-feet of Middle …

Water Quality Regulation, Joanne Hilton, Susan Kelly, James Hogan, Kimberly Kirby, Jerry Schoeppner

Water Matters!

While many of the water issues in New Mexico center around having an adequate supply of water, the quality of the water is just as important as the quantity in supplying water for drinking and other uses that rely on clean water. Protecting water quality is financially more feasible than conducting expensive cleanup programs. New Mexico has a strong interest in water quality regulation to protect public health and the environment and to minimize expenditures for mitigation of contaminated supplies. Water quality is a difficult subject to navigate; there is a complex web of statutes and agency involvement. This paper …

Water Litigation In The Lower Rio Grande, Darcy S. Bushnell

Water Matters!

The water allocation issues are hotly contested in south-central New Mexico and the surrounding area. Today, the river and those who depend on it face more administrative challenges in the face of shrinking water supplies and increased population. These challenges have given rise to two ongoing lawsuits: the Lower Rio Grande Adjudication,New Mexico v. EBID, et al., 96-CV-888 (1996) (N.M. v. EBID) in the New Mexico Third Judicial District Court (adjudication court) and the New Mexico v. United States,et al., D.N.M. 11-CV-691 (2011) (N.M. v.U.S.) in United States District Court of New Mexico (U.S. District Court).

Eastern New Mexico Rural Water System (Ute Pipeline Project), Jerold Widdison, Paul Van Gulick, Darcy S. Bushnell

Water Matters!

The Ute Pipeline Project (Project), officially known as the Eastern New Mexico Rural Water System (ENMRWS),is a 151-mile-long pipeline project to provide a sustainable municipal and industrial water supply for several eastern New Mexico communities and a military base. The Congress authorized major federal funding for the Ute Pipeline in the Omnibus Public Land Management Act of 2009. This important milestone for the project was reached after about 45 years of effort.Attention now shifts to myriad details involved in actually constructing, financing,and administering the project.

Redeeming Transect Zoning?, Nicole Stelle Garnett

Journal Articles

Thanks to the growing influence of the new urbanists- a group of architects aid urban-planning professionals who promote the development of mixed-land-use neighborhoods- "transect zoning" is becoming the zoning reform du jour. Over the last few decades, the new urbanists have mounted a remarkably successful public-relations campaign against traditional zoning practices and the suburban land use patterns that they mandate. The new urbanists' case against zoning is part antisuburban polemic and part pro-urban philosophy. At heart, the new urbanists' claim is that cities are good for us-and suburbs are bad. Or, to put the claim into social-science terminology, the new …

The Tragic Story Of The Federal Coal Leasing Program, Mark Squillace

Publications

No abstract provided.

The Global Land Rush: Markets, Rights, And The Politics Of Food, Smita Narula

Elisabeth Haub School of Law Faculty Publications

In the past five years, interest in purchasing and leasing agricultural land in developing countries has skyrocketed. This trend, which was facilitated by the 2008 food crisis, is led by state and private investors, both domestic and foreign. Investors are responding to a variety of global forces: Some are securing their own food supply, while others are capitalizing on land as an increasingly promising source of financial returns. Proponents argue that these investments can support economic development in host states while boosting global food production. But critics charge that these “land grabs” disregard land users' rights and further marginalize already …

Land Use And Climate Change: Lawyers Negotiating Above Regulation, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Sea level rise requires a new paradigm for controlling the development of coastal lands that are in harm’s way, calling for adjustments in the law, legal practice, and legal education. This article discusses the historical tendency of the law to adjust to changes in society and the recent emergence of new legal institutions and strategies for mitigating and adapting to climate change, particularly sea level rise. It illustrates how the lack of certainty about the extent and pace of sea level rise collides with the total takings doctrine of the Lucas case to frustrate the application of traditional land use …

Shifting Paradigms Transform Environmental And Land Use Law: The Emergence Of The Law Of Sustainable Development, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.