Water Law Commons^™

Letter From The Editors

Public Land & Resources Law Review

No abstract provided.

Using Data To Discern Whether Nepa Causes Delay, And What Can Be Done About It, John C. Ruple, David E. Adelman, Jamie Pleune

Public Land & Resources Law Review

This article proceeds in three principal parts. Part I provides an overview of NEPA that is focused on the requirements contained in the Act itself, the Supreme Court’s recent opinion in Seven County Infrastructure Coalition v. Eagle County, Colorado, and developments involving agency NEPA regulations. Part II summarizes what we know about factors causing or contributing to delays in permitting in general and NEPA compliance in particular. The central question examined in Part II is the extent to which changes to NEPA respond to barriers to development and are therefore likely to be effective. Part III offers recommendations and is …

Testing Prior Appropriation As Drought And Climate Change Push States Toward Water Code Reform: Lessons From And For Oregon, Adell L. Amos

Public Land & Resources Law Review

Part I outlines approaches to addressing the challenges that have arisen in water management under state water codes that have been considered—some adopted, and some still under consideration—in Oregon. This section examines some historical material on Oregon water law and describes the current moment as a way for setting the stage for the work that is currently underway. The dynamics described for Oregon are replicated in many western states. So, while the details are Oregon-related, the storyline is a familiar one in the West.2 Part II describes the efforts of a working group of water law attorneys that the Oregon …

Salt In The Public Wound: The Public Trust Doctrine And The Great Salt Lake, Shoshana Grossman

Public Land & Resources Law Review

This paper analyzes how the Utah PTD applies to the non- navigable tributaries that affect the GSL, and whether Utah must consider the PTD in water rights management. Section I explains the GSL case, outlining the issues, the Physicians’ claims, and Judge Scott’s order. Section II outlines the PTD in Utah. Section III first compares the GSL to other decisions applying the PTD to non-navigable water resources and water rights. Section III then assesses whether Utah’s PTD applies to non-navigable tributaries that affect navigable resources like the GSL, and what that may mean for water allocation in Utah. The paper …

"In Keeping With The Constitution’S Original Design": History And Tradition In Federal Indian Law, Meghanlata Gupta

Public Land & Resources Law Review

This Article examines the Supreme Court’s use of history and tradition in federal Indian law. In recent years, the Court has increasingly relied on Founding-era practices and historical traditions to determine constitutional meaning in areas such as firearm regulation, substantive due process, and religious liberty. At the same time, while the Founding-era record contains substantial evidence that Native nations were understood and treated as independent, sovereign political communities, this evidence has not yet been fully incorporated into the Supreme Court’s Indian law jurisprudence. Examining decisions from Oliphant to Castro-Huerta, this Article describes the Court’s approaches to historical analysis in Indian …

U.S. V. Washington: Considering The Continuing Injunction Of The Boldt Decision, Nicholas Brown

Public Land & Resources Law Review

Judge George Hugo Boldt’s 1974 opinion in United States v. Washington was a landmark decision in the recognition of treaty fishing rights for tribes in western Washington. Not only did it recognize the entitlement to 50% of harvestable yields of fish within the tribes’ usual and accustomed fishing sites, but it also provided a permanent injunction to protect future fishing rights for generations to come. Now, over fifty years since the original “Boldt decision” was made, judges in the Ninth Circuit are debating whether the continued injunction to litigate intertribal disputes over treaty fishing rights is proper. This article considers …

Western Watersheds Project V. Schultz, Cv 22-149-M-Dlc-Kld, 2025 Lx 449507, 2025 Wl 2410283 (D. Mont. Mar. 27, 2025), Luke A. Zagar

Public Land & Resources Law Review

Western Watersheds Project v. Schultz delineates what the Forest Service is required to consider for revising Allotment Management Plans as prescribed by NEPA. Environmental plaintiffs sued, arguing that the Forest Service’s reliance on an older baseline assessment was arbitrary and capricious and that the revised AMP failed to consider major impacts on the grizzly bear population. The District of Montana held that the reliance on an older baseline assessment was acceptable but simultaneously found the AMP to be arbitrary and capricious under the “hard look” standard.

San Luis Obispo Coastkeeper V. Cnty. Of San Luis Obispo, 161 F.4th 590 (9th Cir. 2025), Erika C. Rader

Public Land & Resources Law Review

In San Luis Obispo Coastkeeper v. Cnty. of San Luis Obispo, the Ninth Circuit addressed how to consider a mandatory preliminary injunction for an Endangered Species Act claim when multiple listed species may be affected by the requested relief. The Plaintiffs brought ESA and state law claims to compel the County of San Luis Obispo to change its operation of the Lopez Dam on Arroyo Grande Creek, which they claimed adversely affected South-Central California Coast steelhead trout. The tidewater goby and California red-legged frog, both listed species, are also present in Arroyo Grande Creek. The Ninth Circuit determined the …

Unleashing Consultation: Tohono O’Odham Nation V. Department Of Interior And The Case For Reforming The National Historic Preservation Act, Elizabeth Tobey

Public Land & Resources Law Review

The Ninth Circuit’s 2025 decision in Tohono O’odham Nation v. Department of Interior highlights an ongoing failure by federal land management agencies to consult meaningfully with tribal nations as mandated by the 1966 National Historic Preservation Act. This article argues that the NHPA’s framework for tribal consultation enables federal land management agencies to sidestep meaningful engagement with tribes, undermining both cultural resource protection and the federal Indian trust responsibility. To address these deficiencies—particularly in the context of renewable energy development on federal public lands, directly at issue in Tohono O’odham Nation—this article proposes amendments to the NHPA informed by …

Wilderness Watch V. U.S. Forest Service, No. Cv 23-133-M-Dwm, 2025 Wl 2985292 (D. Mont. Oct. 23, 2025)., Gardner Dee

Public Land & Resources Law Review

This comment argues that the District of Montana’s decision in Wilderness Watch v. U.S. Forest Service correctly applied the Ninth Circuit’s Kofa framework to strike down a multi-agency native trout restoration project in the Absaroka-Beartooth Wilderness, holding that the Forest Service unlawfully prioritized Yellowstone cutthroat trout conservation over the Wilderness Act’s mandate to preserve wilderness character. Dee further contends that while large wilderness watersheds offer valuable climate refugia for native coldwater fish, watershed-scale restoration projects will continue to conflict with the Act’s prohibitions on motorized and mechanized intrusions so long as agencies rely on helicopter transport and rotenone application at …

Maroonage: A Framework For Environmental Justice And Racial Freedom, Ryan Whyte

Fordham Environmental Law Review

Environmental hazards cause significant harm across society, with certain communities bearing the brunt of these burdens. In response, environmental advocates formed the environmental justice movement to promote equal environmental treatment for all. Closely related to this concept of environmental justice is environmental racism, which focuses on how people of color are disproportionately affected by environmental risks. While efforts to address environmental justice and racism have led to some successes, they have not fully addressed the persistent challenges affecting communities of color.

This Note seeks to apply a maroonage framework to address environmental racism and achieve environmental and racial justice for …

Pooling Responsibility: Incentivizing Cable Owners To Safeguard The Global Undersea Network, Kevin Frazier

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Legal Framework For Direct Ocean Carbon Capture And Storage (Volume 2: The United States), Korey Silverman-Roati, Romany M. Webb

Sabin Center for Climate Change Law

This paper, the second in a series of two, focuses on the U.S. legal framework for the marine carbon dioxide removal (mCDR) approach of direct ocean carbon capture and storage (DOCCS). The first explores DOCCS governance under international law and is available here: https://scholarship.law.columbia.edu/sabin_climate_change/271/.

DOCCS aims to remove some of the carbon currently stored in the ocean and thereby enable it to uptake additional carbon dioxide from the atmosphere. DOCCS is still undergoing research, but early studies suggest it could have significant carbon dioxide removal potential. However, DOCCS could also present environmental and other risks, including from the construction …

Groundwater Laws And Regulations: Survey Of Twenty-One U.S. States, Rebekah Acosta-Hueston, Abigail Adkins, Khadija Alibhai, Olivia Alland, Matthew C. Allen, Dan Archibald, Jeffrey Berk, John Broussard, Justin Cias, Bradford Eckhart, Blakely Fahning, Jackson Field, Michael Flores, Ellen Earl Gillis, Emma Golightly, Merrick Hayashi, David Hernandez, Kate Keithley, Matthew Maslanka, Erin Milliken, Lucas Mylet, Abigail Nichols, James O’Donnell, James Osteen, Connor Pabich, Cheryl Patterson, Rhyan Phillips, Sarah Rathmell, Margaret Reed, Laura Smith, Kelsi Sorrells, Brooke Thoendel, Ani Tookoian, Sandhya Wagle, Margaret Ward, Mackenzie Watson, Carolyn Wheeler, Ashley Wilde

EENRS Program Reports & Publications

This report constitutes the third and final volume in an ongoing project designed to explore and articulate the groundwater quantity laws and regulations of all fifty U.S. states that could then be used for comparative research. This particular report presents surveys for twenty-one states from across the country. The first volume featured thirteen state surveys while the second volume contained sixteen additional state surveys. Both can be found on the project website at: https://www.law.tamu.edu/US-Groundwater-Laws.

Professor Gabriel Eckstein at Texas A&M University School of Law and Professor Amy Hardberger at Texas Tech University School of Law developed an analytical rubric …

Dammed If You Do, Dammed If You Don't: Texas's Water Crisis And The Need For Reform, Crafton Deal

Texas A&M Law Review

As Texas faces unprecedented population growth and intensifying climate challenges, the state is grappling with a growing water crisis. With the population projected to increase by over 70% in the next 50 years while existing water supplies decline by nearly 18%, the need for sustainable water solutions has never been more critical. Among the proposed strategies, reservoir construction stands out as a key component, offering large-scale, renewable water supplies to meet increasing demands. However, this solution is fraught with legal, environmental, and financial complexities.

This Comment explores these challenges through a detailed analysis of two proposed North Texas reservoirs: Lake …

Four Decades, No Progress: Time For A Columbia River Basin Compact, Liesl L. Bogaard

Michigan Journal of Environmental & Administrative Law

Since the Power Act’s passage in 1980, the government entities who develop and implement energy policy in the Pacific Northwest have operated under a congressional mandate to protect fish and wildlife in the Columbia River Basin. However, nearly half a century later, the number of wild salmon and steelhead returning to their native spawning grounds is still in decline, largely due to dam operations in the Columbia and its tributaries. This Note examines the history of hydroelectric power generation in the Columbia River Basin and its impact on fish populations, drawing parallels between the environmental crisis in the Columbia River …

Rethinking How The United States And Mexico Share The Colorado River, Eric Kuhn, Anne Castle, Carlos De La Parra, John Fleck, Jack Schmidt, Kathryn Sorensen, Katherine Tara

The Traveling Wilburys of the Colorado River

Since 1945, the United States and Mexico have managed common interests on their two largest shared rivers systems, the Colorado and the Rio Bravo/Rio Grande, under the terms of the 1944 international treaty that was designed from the beginning with tools to adapt to changing hydrologic and societal conditions. A recent emergency agreement on the Rio Bravo/Rio Grande illustrates what is possible, and with old river management rules on the Colorado both within the United States and between the United States and Mexico about to expire, we are at a moment of opportunity for meaningful change. The core problem on …

A Right Without A Remedy: The Court’S Failure To Quantify The Agua Caliente’S Federal Reserved Water Rights, Lauren Block

Washington Law Review

The Agua Caliente Band of Cahuilla Indians has inhabited the Coachella Valley region since time immemorial. Through a series of 1870s executive orders, the United States government reserved land for the Tribe to establish a permanent home within the bounds of their ancestral homeland. Underlying this permanent home is the Coachella Valley aquifer, a groundwater source that has been in a continuous state of overdraft for decades. Against the backdrop of climate change, water scarcity, and other concerns, the Tribe sued Coachella Valley’s water management agencies in 2013, alleging the Tribe owned a portion of the water in the aquifer …

Comments On The Draft Environmental Impact Statement On Post-2026 Operational Guidelines And Strategies For Lake Powell And Lake Mead, Anne Castle, John Fleck, Eric Kuhn, Jack Schmidt, Katherine Tara, Kathryn Sorensen

The Traveling Wilburys of the Colorado River

Thank you for the opportunity to submit comments on the Draft Environmental Impact Statement on Post-2026 Operational Guidelines and Strategies for Lake Powell and Lake Mead (DEIS). The undersigned colleagues with experience in Colorado River matters commend the Bureau of Reclamation and its consultants for the tremendous effort involved in preparing this environmental impact analysis. We are especially impressed by Reclamation’s effort to analyze policy alternatives within the context of the deep uncertainty about what future hydrology might be. Your work is novel in its effort to provide the public with a sense of what the performance, robustness, and vulnerability …

Egger Enter., Llc V. State Engineer, 142 Nev. Adv. Op. 18 (Feb. 26, 2026), Hunter Patterson

Nevada Supreme Court Summaries

The State Engineer needs only to address the relevant NRS 534.090(3) factors in a forfeiture proceeding, and retaining unused water rights while seeking new uses does not constitute good-faith diligence.