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BY TITLES, IN CHRONOLOGY

By Stuart Foster 21 Sep, 2019
Fish closures have impacts that are beneficial, at least that is the hope.
By Alexandra Tressler 26 Nov, 2018
ATMs, not the cash withdrawing machines we all think of.
By Kate Mailliard 19 Nov, 2018
In a state where every drop counts, the pressure on Colorado to regulate and maintain a stable water-supply system is intense. Water administrators must constantly be vigilant to ensure there is enough water to meet the needs of the state and to fulfill downstream obligations. As the challenges presented by climate change and increased demand become more visceral, the State will need to start cracking down on something that—on first look—might seem quite innocuous: illegal ponds. However, ponds pose more than a few challenges to make enforcement worthwhile, and the State’s Division of Water Resources (“DWR”) is looking into how they could regulate them efficiently and fairly. Looking to the future, Colorado’s State Water Plan anticipates a gap between the supply and demand for water in municipalities that get their water from the Arkansas Basin. Staff in the State’s Division of Water Resources has begun mulling whether more strict enforcement of illegal ponds would be helpful in filling this gap. While there are some problems associated with the logistics of the stricter enforcement of ponds, the potential for saving necessary water is there. According to Assistant Division Engineer for Division 2 Bill Tyner, there are well over 15,000 pond-like structures that do not have decreed water rights or do not fall into another category of legal water storage. Of these 15,000, though, some structures are natural occurring areas, like wetlands, that would not be subject to the water administrative process. Tyner said, “the inventory of unknown ponds consists of approximately 10,000 surface acres” depending on hydrologic conditions and the level of current storage, and “an average rate of evaporation would suggest that the loss to evaporation could be as high as 30,000 acre-feet per year.” The typical pond holds between 0.5 and 1 acre-feet of water. For context, the State’s 2015 Water Plan predicts the Arkansas River Basin will face a water-demand gap in coming years. The Plan suggests that future needs in the basin, otherwise known as Colorado’s Water Division 2, are expected to increase by 110,000 to 170,000 acre-feet in 2050, while currently planned projects in the Basin leave a supply gap of between 45,000 and 94,000 acre-feet for the same period. Sustained gaps in water supply pose a risk to Division 2 and to the State as a whole. Colorado’s water sources must supply the State’s municipalities, agriculture, and industry but still comply with any interstate compacts, such as the Arkansas River Compact executed between Kansas and Colorado. Failure to comply with the Compact has previously resulted in Colorado paying millions of dollars of damages to Kansas. One way to help fill the gap in Division 2 might be for regulators in the State Engineer’s Office to crack down on the large number of illegal ponds peppering the Basin. But closing the gap in Division 2 is not something that DWR is tasked with. While illegal pond enforcement could potentially help close the gap, DWR's priority is fulfilling their duty to administer water rights regardless of any effect on a predicted gap. As Tyner explained, "[DWR] has been given no direction to find water to fill the gap, certainly not through enforcement actions, and discussing enforcement in the context of the water supply gap could lead to the wrong conclusion. . . . [W]e actively seek opportunities to discourage and prevent new un-exempted and un-augmented ponds from being developed.” Tyner also cautioned against linking the potential savings from pond enforcement to the size of the gap too closely: any comparison between the two, he said, is really just to highlight the scope of the problem. "Our past comparisons relating to the amount of water evaporating from the ponds or stored out-of-priority may indeed show an amount that could be as much as the Arkansas basin gap, however that contrast of data was intended to demonstrate the magnitude of the losses from ponds, not to suggest a solution to the demand gap," he added. This article will address first, the current enforcement process; next, the complications involved with the current process; and finally, a new approach to pond enforcement that could take effect in the near future. Current Enforcement So far, Division 2 has had some success working with the owners of ponds who, usually without knowledge that what they are doing is illegal, are diverting water out of priority. Typically, when the Division locates a pond that is diverting water out of priority, an enforcement order informs the pond owners that a change must be made. This could mean draining the illegal pond or halting diversions from a nearby water source. During drought years, the Division typically receives complaints from senior water rights holders who know they are losing water to ponds belonging to residents who don’t have water rights or who are junior in time. The Division then notifies the owners of the ponds, explaining they either need to apply for an augmentation plan or stop diverting water to their pond. Tyner said that once notified, pond owners usually comply with any enforcement orders. If successful enforcement like this were to become more frequent, the closure of more illegal ponds could aid Division 2 in obtaining more water to solve the projected gap and to help comply with the Arkansas River Compact. When there is a gap in water supply, one place to look for more water are wells that are pumping out of priority. Before the 1969 Act, which codified Colorado’s system of prior appropriation, there were no requirements for wells to be adjudicated in the priority system. Now, the state recognizes two classes of wells : those that are exempt from the water rights administration and those that are non-exempt and are governed by the priority system. Regulation of non-exempt wells ensures senior water rights holders are getting the water they are entitled to. But according to Tyner, unintended consequences arise from state exemption statutes. Tyner said there are tens of thousands of exempt wells that statute treats as not having an impact on the priority system, even though they may. In more recent water court cases, the state has cracked down on exempt wells in recognition of their effect on the priority system, like in Well Augmentation Subdistrict of Central. Colorado Water Conservancy District v. City of Aurora. Tyner said that there is no strong emphasis on closing ponds like there is on closing wells. Under Colorado law, storing water in a pond requires a storage right unless the pond is included in a plan for augmentation or substitute water supply plan (But even then, Tyner said owners are encouraged to obtain a storage right). One exception to the storage right requirement is when the Division Engineer determines that no senior call exists below the pond; however, this has only happened a few times in the last thirty years. Another exception is when, as determined by the Water Commissioner and the Division Engineer, the curtailment of the storage would not serve to fulfill a downstream call. So, unless a pond has a storage right (or is part of an augmentation plan) or there is an exception, the Division Engineer can curtail use of the pond. The problem, however, is the large number of small ponds dotting the Basin, making enforcement complicated. One uncertainty, according to Bill Tyner, is how much water is actually lost to these rogue ponds. In some ways, this uncertainty provides an advantage for Colorado because Kansas, for example, would have a tough time arguing that ponds are an issue under the Arkansas River Compact simply because ponds do not have as strong of ties to the system as say wells—although wells used to be less strictly enforced as well. But it is clear to Tyner that ponds are diminishing the supply in some way. Enforcement Complications Why haven’t enforcement orders been issued to every illegal pond in hopes of saving Division 2 as much water as possible? The idea is not as simple as it may sound. First, locating illegal ponds is difficult. While Division 2 contains some populous cities like Pueblo and Colorado Springs, it also comprises a lot of rural area. Tyner said water commissioners can use aerial photos to identify ponds, but typically enforcement orders arise as responses to specific injury concerns from senior water right holders. When a senior water right holder makes a call on the river, junior water right holders must stop diverting water from the system. When pond owners are unaware that they are continuing to divert water out of priority, this still injures those senior right holders. Also, there are various ponds that have legitimate reasons to exist and are in compliance with the Division of Water Resources. Some examples of these types of ponds are livestock water storage ponds and exposed gravel pit ponds, both of which may be permitted by the State Engineer. This makes it difficult to determine which ponds are noncompliant unless there has been a specific complaint. Second, increased enforcement of ponds would require more Division staff and resources focused on this issue. Tyner said the Division has not made pond enforcement a high enough priority yet, but he previously saw the Division “staff up” when Kansas sued the state under the Arkansas River Compact. The Compact was made in 1948 to settle disputes over the waters of the Arkansas River, which runs through both Kansas and Colorado. In the past, when Kansas sued Colorado for failing to provide enough water under the Compact, the Division of Water Resources was forced to administer more personnel to enforce post-Compact wells under the threat of paying damages. If Kansas sues Colorado again, a similar “staff up” for pond enforcement could be required. Additional factors complicating pond enforcement include the time it takes to ensure property owners remove illegal ponds, as well as the hardship enforcement might have on the pond owners themselves. Tyner said when the water commissioner first contacts the owners of illegal ponds, the owners are often surprised and unsure what to do. Considering the complicated nature of Colorado water law, the commissioner gives owners a few months to comply with enforcement orders. Remedies vary depending on whether the pond is “on-channel” or “off-channel.” An on-channel pond is one that a natural stream runs through. If a pond owner is storing water out-of-priority or they do not have a storage right, the owner may be asked to release any water stored in their on-channel pond. This may require the dam for the pond to be breached. An off-channel pond diverts water from the stream. The remedy for illegal off-channel ponds is the cessation of all diversions to the pond. Pond owners can request an extension of time to comply with the enforcement order, which the Division typically grants. Tyner said in very few situations do people refuse to comply with the order; and in even fewer instances, a fine is imposed. On the rare occasions owners simply refuse to comply with the Division’s requests, the Attorney General's Office must file a complaint on behalf of the Division Engineers with the court. Most owners who initially refuse to comply end up signing a Consent Decree that identifies how they will comply with the order and by what date. Tyner said if the Division gets to this point, the owner must pay penalties. Ultimately, given the time and resources needed, it is unrealistic to expect that a swift wave of enforcement against illegal ponds will have an immediate impact on the water system. At the same time, any solution should be considered given that Colorado will face continue to face challenges in complying with the Arkansas River Compact. In 2005, Colorado paid Kansas more than $34 million in damages for Compact violations caused by years of well pumping that depleted river flows at the state line—a situation that no one would like to see repeated. "Although enforcement is not a tool intended to close the gap, we recognize that additional out-of-priority uses, particularly in an over appropriated basin, only make it more difficult to protect existing senior water rights and address legitimate future needs and so, through education and interdiction we actively seek opportunities to discourage and prevent new un-exempted and un-augmented ponds from being developed," Tyner said. Proposed New Approach In preparation for the September Orders Committee Meeting, Tyner drafted a memo to the Division of Water Resources Orders Committee in April 2018. In the memo, Tyner proposed a new approach to pond enforcement orders. The approach embraces a strict timeline for the emptying of ponds, as well as strict conditions for the refilling of ponds with approved augmentation plans. The harsher approach comes with time saving benefits for the water commissioner, and it seeks to rid of interim compliance problems when ponds are lowered properly but later refilled by rain. Tyner’s memo explained that “it takes and inordinate amount of time to make monthly site visits to confirm compliance or non-compliance with the orders.” The memo outlined an improved process for pond enforcement. Tyner suggested that the Division first order an owner to remove unnecessary obstruction by breaching the dam or, if the pond has adequate operable outlet works, by releasing stored water. Tyner’s memo said orders should include “a show cause statement as to why the water in the pond has been legally stored and, if water can be shown to be legally stored, show how inflows will be passed to prevent injury to downstream water rights when in-priority storage cannot be conducted.” The ideas Tyner suggested also include orders that refer pond owners to dam safety requirements and orders that identify a timeframe for owners to comply with in emptying their ponds. For dam safety, breaching or draining of off-channel ponds should contain a reference to dam safety provisions to avoid “a train wreck” with water being discharged to the stream. And for timeframes, Tyner suggested that for orders issued after September 1, compliance be met by the following April 1; and for orders issued after February 1 and before September 1, he recommended that the owner be required to empty the pond within 45-60 days from receipt of order. Then, an order should apprise the owner of options for obtaining a substitute water supply plan or an augmentation plan for their pond to be refilled. According to Tyner, this should not be given as an option for compliance with the order, but “if someone was able to get approval for a plan over the winter with a provision to handle the initial fill, [the Division] could treat that as compliance with the order.” Further, any substitute water supply plan or augmentation plan approved for refill and fill maintenance on a pond should have strict conditions about operable outlet works. For off-channel ponds, an order should be issued in a similar manner; however, the diversion to the pond should be immediately curtailed. The same considerations in any substitute water supply plan approval should be considered similarly to on-channel ponds, but with added conditions related to proper control and measuring devices on the diverted supply to the pond to allow control by the Water Commissioner. This approach has the potential to simplify the process of pond enforcement, which could aid Division 2 in gaining more water. But even if this approach helps save more water, according to Tyner, “making water available through pond enforcement may not result in water being available at a proper location to solve the problem.” Also, “some landowners with ponds will choose to try to keep their ponds by working to develop augmentation plans to replace out-of-priority depletions”, so figuring out the overall impact of a new enforcement plan would “be a dynamic process” for DWR, Tyner said. While dealing with illegal ponds is not easy, there is potential for Colorado to save a lot of water through stricter enforcement. Much like the way the state revamped its system to regulate wells to comply with the Arkansas River Compact, a stricter regulation of illegal ponds could prove very beneficial to the state. Sources Arkansas River Compact of 1949, Colo. Rev. Stat. Ann. § 37-69-101. Bill Vogrin, A pond farewell: State cracks down on water rights violations , Gazette (Sept. 4, 2009) http://gazette.com/a-pond-farewell-state-cracks-down-on-water-rights-violations/article/61473. Citizen’s Guide to Colorado’s Interstate Compacts , Colorado Foundation for Water Education Colorado 16-17 (2 nd ed. 2016), https://agriculture.ks.gov/docs/default-source/iwi---kansas-colorado-arkansas-river-compact/arkcompactfactsheetaug2009.pdf?sfvrsn=2. Colorado Water Plan 6-21 (2015), http://cwcbweblink.state.co.us/WebLink/ElectronicFile.aspx?docid=199504&searchid=80d50cb3-95bf-405c-bfa5-587c633c7136&&dbid=0. Guide to Colorado Well Permits, Water Rights, and Water Administration , State of Colorado Department of Natural Resources Division of Water Resources 2 (Sept. 2012), https://www.colorado.gov/pacific/sites/default/files/wellpermitguide1.pdf. Telephone Interview with Bill Tyner, Assistant Division Engineer for Division 2, Colorado Division of Water Resources (Feb. 22, 2018). Email correspondence with Bill Tyner, Assistant Division Engineer for Division 2, Colorado Division of Water Resources (Apr. 22, 2018). Kansas Department of Agriculture, Fact Sheet (Aug. 2009), https://agriculture.ks.gov/docs/default-source/iwi---kansas-colorado-arkansas-river-compact/arkcompactfactsheetaug2009.pdf?sfvrsn=2.
By Haley McCullough 11 Oct, 2018
T housands of abandoned and orphaned mines dot the American West. They pose a danger to both public and environmental health, and responsible parties are difficult to find, differentiate, or hold accountable. Why do inactive mines continue to pose safety hazards and pollute our waterways? The laws in place simply don’t have teeth. The Gold King Mine wastewater spill in southwestern Colorado in 2015 was a good reminder of the scope of the problem of abandoned and orphaned mines and how our current regulatory framework falls short. There are three laws that generally govern mining law in the United States: the 1872 Mining Law , the Clean Water Act , and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). These laws lack concrete measures to prevent mine spills from occurring as well as reliable methods to ensure that all mines receive the necessary attention in the case of a spill (or better yet, to prevent one). In addition, these laws can create liabilities and disincentives on parties who might otherwise be willing to come in and remediate the mine on their own. However, some states are turning towards a non-traditional form of legislation: Good Samaritan laws, in which citizens, companies, and organizations would be not liable in the case they decide to take on the task of cleaning up acid mine drainage. The abandoned mine problem in the United States is striking. Specifically, hard rock mines (including metals like gold, silver, iron, copper, and zinc) are predominant in the West as a result of the discovery of gold and silver during the era of western expansion. Up until the 1970s, the federal government engaged in little oversight on mining across much of the West. During the mining era, there were few expectations about environmental safeguards, and as a result, historic mining operations often went largely unregulated. Before the 1970s, it was common for mining companies to abandon mine sites after mineral extraction was completed or no longer profitable. The land was often left exposed, with waste materials in piles or dumped into mine cavities and pits. At the time, mining companies had no requirement to restore mine lands to their original condition. Today, it is almost impossible to hold these mine owners financially responsible because records of original ownership have been lost and accountable individuals have long passed away. There are over 500,000 abandoned hardrock mine sites across the nation, and the cost for cleaning up these inactive mines is estimated to be between $33 and 72 billion dollars. Today, these abandoned mines are capable of polluting adjacent streams, lakes, and groundwater with high volumes of toxic waste . In doing so, contamination from spills has the potential to—and often does—harm marine ecosystems, poison local drinking water, and pose serious health risks to local communities.  What Laws Are in Place? The Mining Law of 1872, or the General Mining Law, governs the transfer of rights to mine gold, silver, copper, uranium and other hardrock minerals from federal lands. Under the law, citizens may enter and explore the public domain, and if they find valuable mineral deposits, they may obtain title to the land through the Department of the Interior. The law has jurisdictional coverage over 270 million acres of publicly owned land , which is almost one-fourth of all land in the United States. In essence, mining companies are able to search for minerals without any authorization from any government agency. The law contains little to no environmental protections for using use of the land and it does not include any royalty or bonding provisions (to help fund cleanup in case of an accident). As a result, many have criticized the law for giving away public land to private companies practically for free, leaving the public to bear the burden for cleaning up the spills. Since there is no requirement to pay royalties or report extraction volume, the government does not keep track of the volume of hardrock minerals being extracted from federal public lands each year. Consequently, this aspect of mines is largely unchecked and has disparate effects. But the issue of abandoned mines has not entirely been overlooked. In September 2017, Senator Tom Udall (Arizona) introduced legislation to reform the General Mining Law and address many of the above-mention criticisms. If passed, the legislation would help fund clean-up activities through fees and royalties. In March 2018, the House Committee on Natural Resources held a hearing on the issue of abandoned mines . The Clean Water Act (CWA) is aimed at restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. The Act splits the responsibility to state agencies and some responsibility to the EPA to carry out the regulatory purposes. The Act requires would-be polluters to obtain a permit for any kind of discharge of a pollutant from a point source (such as mine waste) into the navigable waters of the United States. While the structure of the Act enforces a basic foundation for protecting water resources, one consequence of the permitting system is that parties who own or attempt to clean up mines will likely become subject to its extensive permitting requirements and face liability. This being said, when parties do attempt to clean up mines, their actions could still constitute a violation of the CWA. Under the Act, a party seeking to engage in cleanup activity would need a permit regardless of whether their actions aggravate or improve the water quality . CERCLA allows for the cleanup of sites that are already contaminated with hazardous substances and pollutants. It is also referred to as the “Superfund,” due to the large fund that it created for cleanup of contaminated sites. CERCLA is intended to spread the cost of cleanup among responsible parties, and allows the government to undertake cleanup of contaminated property or compel private parties to undertake the cleanup themselves. Like the CWA, CERCLA creates potential liability for parties that might attempt to clean up abandoned mines, which usually takes form of lawsuits. Under 107(a)(4)(B), private parties can recover from a potential responsible party (PRP) for the cleanup costs they “directly incur.” Under this broad liability scheme, people who own property containing hazardous substances can be held liable for enormous cleanup costs even though they were not involved in any hazardous waste disposal activities . Even with some liability defense for certain types of innocent landowners and bonafide prospective purchaser, CERCLA has in effect discouraged the purchase and reuse of properties that may be contaminated. As a result, the overwhelming costs of cleanups (and potential liability) have been the primary restraining factors for people otherwise interested in reusing and restoring contaminated properties. Good Samaritan Legislation There has been no shortage of offered fixes to the problem of abandoned and orphaned mines, but one solution that has seemed to be getting more traction recently is the idea of Good Samaritan legislation. While potential liability under the CWA and CERCLA has discouraged parties from cleaning up abandoned mines or reusing and restoring contaminated properties, Good Samaritan legislation may provide new hope for parties who want to attempt to clean up mines but do not have the resources to take on the liability that might accompany cleanup efforts. These parties may include citizens, government agencies, nongovernmental organizations, and mining companies. Pennsylvania implemented the Environmental Good Samaritan Act in 1999 and has completed fifty projects since . Those protected by this legislation include individuals, corporations, nonprofit organizations, and government entities. The Act protects them if they meet several requirements , including they that did not cause/create the abandoned mineral extraction land or water pollution, and that they provide equipment and/or materials for the project. The Pennsylvania Department of Environmental Protection (DEP) administers and reviews project proposals to determine project eligibility. While the Act has been used for mine reclamation in the past, DEP has also applied it to other environmental remediation projects, achieving success so far. In 2017, the Act has been applied to two oil and gas well projects , which are estimated to have saved DEP $60,000 to $85,000, in addition to administrative cost savings related to contract development and management. Three more projects are currently under review. Recently, members of Congress have made efforts to enact something similar at the federal level. In 2016, three members of the Colorado delegation to Congress proposed the Good Samaritan Cleanup of Orphan Mines Act of 2016 with the help of environmental groups Trout Unlimited and Earthworks. The bill, ultimately, was not successful. The practical reality of Good Samaritan legislation is that most parties who are interested in cleaning up the spills will not have the funds to effectuate a successful cleanup. While Good Samaritan laws appear to be a reasonable way to encourage cleanups, they are not enough to solve the multifaceted abandoned mine issue that has a variety of stakeholders- including the mining companies who are often let off the hook. This is why most environmental advocates tend to reject Good Samaritan proposals, as they distract from the bigger picture that the mining companies are causing the spills and are not taking responsibility to clean them up. While the EPA has issued guidance on Good Samaritan laws, few parties are willing to proceed with cleanup projects because the EPA has failed to engage in regulatory rulemaking and enforce law on the subject. This being said, Good Samaritan legislation alone will not solve the abandoned and orphaned mine issue. Conservation groups have proposed increased liability for mining companies. At the state level, conservation groups like San Juan Citizens Alliance and Conservation Colorado have supported the Thus, what seems to be the closest thing to an answer to the abandoned and orphaned mine problem is some sort of combination of many proposed solutions : Good Samaritan laws, imposition of royalties, creation of a hardrock reclamation fund, etc. At this point, the main question is where resources should be allocated and at what cost, especially amidst federal laws and agencies that often disagree on how and to what extent...” to protect the environment. Sources Jeffrey M. Gaba, Private Causes of Action under CERCLA: Navigating the Intersection of Sections 107(a) and 113(f) , 5 Mich. J. Envtl. & Admin. L. 117 (2015). Kelly Roberts, A Legacy That No One Can Afford to Inherit: The Gold King Disaster and the Threat of Abandoned Hardrock Legacy Mines , 36 J. Nat’l Ass’n Admin. L. Judiciary 361 (2016). Jeffrey A. Kodish, Restoring Inactive and Abandoned Mine Sites: A Guide to Managing Environmental Liabilities , 16 J. Envtl. L. & Litig. 381, 381(2001). Bart Lounsbury, Out of the Holes We’ve Made: Hardrock Mining, Good Samaritans, and the Need for Comprehensive Action , 32 Harv. Envtl. L. Rev. 149 (2008). United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013). American Mining Congress v. United States Envtl. Protection Agency, 965 F.2d 759 (9th Cir. 1992). Committee to Save Mokelumne River v. East Bay Municipal Utility Dist., 13 F.3d 305 (9th Cir. 1993). Hardrock Mining , The National Wildlife Federation, https://www.nwf.org/Our-Work/Waters/Hardrock-Mining (last visited Apr. 5, 2018). U.S. Gov’t Accountability Office, Mineral Resources: Mineral Volume, Value, and Revenue, (2012), https://www.gao.gov/assets/660/650122.pdf (last visited Apr. 5, 2018). Matthew Brown, EPA drops rule requiring mining companies to have money to clean up pollution , Chi. Tribune (Dec. 1, 2017), http://www.chicagotribune.com/news /nationworld/ct-epa-mining-pollution-20171201-story.html (last visited Apr. 5, 2018). Brian Handwerk, Why Tens of Thousands of Toxic Mines Litter the U.S. West , Smithsonian.com, (Aug. 13, 2015), https://www.smithsonianmag.com/science-nature/why-tens-thousands-toxic-mines-litter-us-west-180956265/ (last visited Apr. 5, 2018). Van Zyl, D., Sassoon, et. al., Mining for the Future: Main Report (2000). Claudia Copeland, Cleanup at Inactive and Abandoned Mines: Issues in “Good Samaritan” Legislation in the 114th Congress , (Nov. 25, 2015) https://fas.org/sgp/crs/misc/R44285.pdf (last visited Apr. 6, 2018). Dep launches program to cap abandoned wells , The Bradford Era (Jan. 31, 2018), http://www.bradfordera.com/news/dep-launches-program-to-cap-abandoned-wells/article_8310642a-061b-11e8-ad41-cb2aff000d41.html (last visited Apr. 15, 2018).
By Jeremy Frankel 28 Sep, 2018
Introduction Fifty years ago, the tide was turning in the war in Vietnam, the civil rights movement was in full swing, and the cold war was raging—but American industry was booming. The United States Congress and the Lyndon B. Johnson administration, however, recognized the danger that industry and development posed, particularly to America’s rivers. Responding to that threat, President Johnson signed the Wild & Scenic Rivers Act (“the Act”) into law on October 2, 1968. Now, fifty years later, it is possible see where the Act has been successful, where it has met challenges, and where it has developed along the way. The end of the 1960’s marked a point of awakening for American conservationism. The scale of industry was coming to a point where industrial effects on the environment were impossible to ignore. America’s rivers were particularly suffering from decades of damming, development, and diversion. Congress turned to address these issues at the end of the 1960s, beginning America’s modern history of environmental law and setting up the 1970s as the environmental decade. The Wild & Scenic Rivers Act was one of the first pieces of legislation passed during this surge of environmental protectionism. To this day, it remains one of the strongest protections available for American rivers as it preserves the essential character of rivers in their natural, free-flowing state. How it Works The Act gives Congress—and in some circumstances, the Secretary of the Interior—the power to designate rivers for protection that “possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values.” This range of possible reasons for designation gives Congress a fairly broad grant of authority. Congress may also designate smaller sections of a river under the Act, including tributaries, instead of the entire river. The ultimate purpose of the Act is to ensure that protected rivers will be preserved in free-flowing condition for the enjoyment of future generations. The Act also requires that future development in non-protected areas implement policies that ensure designated rivers remain protected. Congress can classify rivers as “wild,” “scenic,” or “recreational.” The classification does not prescribe how an area is managed; it simply denotes the relative degree to which the area has been preserved. Regardless of the classification, each area is afforded the same protections. “Wild” river areas are those that are representative of “primitive America.” These are defined in the Act as areas with pristine waters, undeveloped shorelines, and trail-only access. A “scenic” area is still relatively undeveloped, but parts are accessible by car. A “recreational” area may have some development and is readily accessible by car. The typical means of designating rivers under the Act is through Congress. Congress first instructs that the agency with authority over a River—such as the National Park Service, National Forrest Service, or Bureau of Land Management—study a river area and determine if it is suitable for designation. The president or a state can also suggest areas for designation. After receiving the agency’s report, Congress can then choose whether to designate the river or not, regardless of the agency’s findings. In designating the river, Congress must classify the area as wild, scenic, or recreational and determine which outstandingly remarkable values (“ORVs”) are worth preserving. A “wild and scenic” river is primarily protected through federally coordinated actions set out in the Act. First, the Act directs agencies to take action necessary to preserve the river in its free-flowing condition and enhance its ORVs. The Act also prohibits the Federal Power Commission from licensing the construction of a hydroelectric dam or other project that would affect a designation. Additionally, the Act prohibits any federal agency from loaning, granting, or licensing a water resources project that would have an adverse effect on the designated area’s ORVs. Once Congress has designated an area as a Wild and Scenic River, a federal or state agency becomes responsible for administering the area. As the Act does not stipulate a specific agency to administer, the agency that normally oversees the area will typically be given responsibility. Regardless of the classification, the primary responsibility of the administrator of the area is to protect and enhance the “outstandingly remarkable” value or values under which Congress made the designation. Private property in the area and existing state-allocated water rights are subject to condemnation to achieve the purposes of the Act. The federal government, however, is limited in how much land can be condemned in any one designated area. Unfortunately, recourse for holding an administrator accountable is somewhat limited, as the Act does not authorize citizen suits. This means that in order to hold an agency accountable for not properly administering a Wild and Scenic River, a plaintiff must sue that agency under the Administrative Procedure Act. The court will review agency actions under an arbitrary and capricious standard, which provides the agency with broad discretion as to how a designated river is managed, making it unlikely that most challenges would be successful. The Evolution of the Act Throughout its fifty-year history, Congress substantively amended the Act nearly thirty times , but the most significant changes to the Act occurred about ten years after the Act was originally passed. By 1978, the Wild and Scenic Rivers system was expanding quickly; Congress, reacting to growing pains of the system, amended the act with the intent to assist in the expansion of the system. The National Parks and Recreation Act of 1978 (“NPRA”) brought about some of the most sweeping changes to the Wild and Scenic Rivers Act, amending six separate sections of the original Act. First, the NPRA amended Section 2 of the Act—the section guiding state-administered components—to allow federal funding for designated areas on federally owned land that are state-administered. This amendment specifically responded to an issue with the Department of the Interior objecting to designations where a significant amount of federal land bordered a designated area. Because the original 1968 Act lacked this provision, the Department of the Interior could object to such designations on the grounds that the federal lands could not be funded and managed properly. The NPRA also amended Section 6 of the Act—the section regulating acquisitions—by changing the definition of “improved property.” The amendment is significant because the owner of an improved property that is acquired under the Act is limited to using and occupying the property for twenty-five years. The original Act only included dwellings constructed before 1967, and this amendment removed that limitation. Now, all those affected by acquisitions under the Act are entitled to this twenty-five year grace period. Another significant amendment changed Section 14 of the Act—the section on leasing federal lands—also aimed to help those whose property was acquired under the Act. The amendment gives the administering agency the power to lease acquired lands if the lease is restricted to private uses compatible with the Act. In passing the amendment, Congress specifically contemplated that these leases would be offered first to the person who owned the land before the United States acquired it. Nearly a decade after the NPRA became law, Congress scrutinized the Act again to address growing pains of the system and amended it another seven times. One of the most notable amendments from this wave of changes is to Section 6 (acquisitions), and continued a pattern of expanding federal power under the Act. The amendment gave the administering agency the power to acquire land that lies partially within and partially outside the boundary of a Wild and Scenic River. If the state owns the land, the amendment allows the federal government to acquire the land by exchanging federally owned land. Notable Designations When the Act was passed, Congress designated eight rivers as National Wild and Scenic Rivers: the Clearwater and Salmon Rivers in Idaho, Eleven Point River in Missouri, the Feather River in California, the Rogue River in Oregon, the Wolf and St. Croix Rivers in Wisconsin, and the Rio Grande in New Mexico. Today, fifty years after the Act was passed, there are now more than 12,500 miles in forty states and Puerto Rico. However, given the sheer size of the United States, the amount of area protected under the Act represents a mere 0.33 percent of America’s rivers. In comparison, damming alone has modified at least 17 percent of our rivers. One of the original eight designations when the Act passed in 1968 protects sixty-eight miles of the Rio Grande in New Mexico . The protected area spans from the Colorado border through the eastern part of Rio Grande del Norte National Monument. The designation is based on a number of outstandingly remarkable values, including cultural and geologic value in addition to the typical scenic and recreational value. In 1981, Congress protected 286 miles of the Klamath River under the Act on the coast of California. Congress designated the area of the river from the central part of the Oregon border all the way to the Pacific Ocean. The Klamath was specifically protected for its fisheries, which support a number of endangered species. Congress designated eighty-six miles of the Allegheny River in Pennsylvania in 1992. The protected area begins at Buckaloons Recreation Area and continues downstream to Acorn Island. The designation is largely based on recreational opportunities, specifically canoeing and fishing. The Act Today In the last ten years, Congress has designated nearly forty new river areas as National Wild and Scenic Rivers. One of the largest years for new designations in the history of the Act was 2009, with thirty-two new areas gaining protection all across the country. Prior to 2009, Congress made new designations under the Act virtually every year. Since then, however, there have been only six new designations, all in 2014. Among the new designations were rivers in Washington, Arizona, and Vermont—and one existing designation was added to White Clay Creek in Delaware. Significantly, Congress also designated fourteen new river areas to study in 2014. Four years later, and Congress has yet to approve any new designations, however bipartisan legislation has recently moved forward to designate East Rosebud Creek in Montana. Today, several areas of the Act are commonly litigated in federal court. Boundary designations are one of the most litigated areas, and have been throughout the history of the Act. Property owners challenge boundary designations to avoid acquisition or increased limitations affecting use of their property. Cities and counties also challenge designations if they feel prejudiced, as the Act can severely limit construction, irrigation, and discharge into a river. Designations typically face challenges on the grounds that the administering agency did not comply with the Act, usually by not identifying ORVs specifically enough. Boundaries must be consistent with protecting and enhancing a designation’s ORVs. However, objectors also challenge designations on the grounds that a certain area is not fit for designation. For example , in 2017 in Oregon, a group of ranchers challenged a designation on the Rogue River arguing that it had already been developed to such an extent that it was no longer fit for designation. Another area of the Act that is frequently litigated today is how to actually manage the Wild and Scenic River system. Specifically, agencies frequently face challenges because they did not prepare a comprehensive management plan (“CMP”) for a designated area. The courts have recognized that the Act does not actually mandate agencies to draft a CMP, yet courts have required agencies to do so in certain instances, including through injunctive relief. Another common management challenge is to an agency’s decision regarding balancing competing uses. This usually comes up in the context of preexisting uses of the river area before designation. As these agency decisions are reviewed under an arbitrary and capricious standard, these challenges typically find little success. In the next fifty years of the Act, we may see Wild and Scenic River designations being consciously used to combat climate change, as preserving America’s most important rivers could help mitigate some of the effects. As the changing climate continues to shrink and degrade critical habitat for aquatic species, America’s Wild and Scenic Rivers can provide essential repositories and corridors for certain species. Furthermore, as both drought and flooding have increased with the onset of climate change, Wild and Scenic Rivers can also help both preserve drinking water for a growing population and also maintain flood security. Conclusion By 1968 it was clear to Congress and the Johnson administration that America desperately needed to respond to increasing environmental degradation from industry and development. Recognizing the importance of our shared heritage, Congress gave Americans the gift of the Wild and Scenic Rivers Act. In the fifty years since the Act was passed, Congress has seen fit to designate and preserve over 12,000 miles of river for the benefit of future generations of Americans. While the amount of new designations has been steadily declining, the Act still offers some of the staunchest protections for America’s most beloved rivers. In every corner of the country, Americans likely have the Wild and Scenic Rivers Act to thank for the memories of lazy river days that we as Americans cherish as a part of our shared heritage. Sources 47 Fed. Reg. 39454, 39458. Allegheny River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/allegheny.php. Celebrating Fifty Years, Wild and Scenic Rivers Council, https://www.rivers.gov/wsr50/index.php. Federal Agency Roles, Wild and Scenic Rivers Council, https://www.rivers.gov/documents/federal-agency-roles.pdf. Interagency Wild and Scenic Rivers Coordinating Council, Evolution of the Wild and Scenic Rivers Act (2014), https://www.rivers.gov/documents/wsr-act-evolution.pdf. Jessianne Wright, Bipartisan Legislation Moves Forward for Montana Wild and Scenic Designation , Explore Big Sky (Jan. 7, 2018), http://www.explorebigsky.com/bipartisan-legislation-moves-forward-for-montana-wild-and-scenic-designation. Karina Brown, Oregon Cattlemen Fight Wild & Scenic River Designation, Courthouse News Service, (Mar. 16, 2017), https://www.courthousenews.com/oregon-cattlemen-fight-wild-scenic-river-designation. Klamath River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/klamath-ca.php. Max Greenberg, Get to Know These Amazing Rivers: A Celebration of the Wild & Scenic Rivers Act, The Wilderness Society (October 2, 2014), https://wilderness.org/blog/get-know-these-amazing-rivers-celebration-wild-scenic-rivers-act. Missouri River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/missouri-mt.php. Murray Feldman et al., Learning to Manage Our Wild and Scenic River System , 20 Nat. Resources & Env’t 10 (2005). Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271–1287 (2014). Wild and Scenic River Designation, Wild and Scenic Rivers Council, https://www.rivers.gov/designation.php.
By Mike Larrick 21 Sep, 2018
I n discussions about water shortage, the topic of the human right to water seems to be a key topic of debate. Different countries approach the question of whether individuals should have a right to access safe water differently, and much has been written comparing approaches . One aspect that is less well covered is how different countries approach water allocation for “non-essential” water uses in times of shortage.  The wines of South Africa’s Western Cape are world renowned. But the recent water crisis in this region has strained the industry , causing lower yields, increasing costs, and raising the question of priority for uses not considered essential to fulfilling a human right to water. Consecutive bad years threaten to bankrupt viticulturalists. Grape vines are perennials, taking years to mature, and death from stress or culling to save water can set grape growers back a decade or more. Combined with economic stress from lower yields, vineyards face tough choices in how to use meager water allocations. South Africa is an extreme and timely case study, but drought is increasingly endemic to the wine industry globally. From the South Africa to Australia, France to California, water shortage is becoming a reality for grape growers. In such situations, wine is shaped by law as much as the rains. These struggles faced by wine suppliers highlight a conundrum that is gaining attention across States and industries. States take a variety of legal positions when rationing water during shortage. With increasing frequency, water sources are so stressed the basic needs of individuals are threatened. In such a situation, can and should law and policy restrict access for non-essential industries that don’t directly relate to individual needs? Wine offers a look at how this tension plays out. While enjoyable, it does not provide essential sustenance. A comparison how different wine growing regions regulate viticulturalists during severe drought offers an interesting look at the different ways of apportioning water when there’s just not enough to go around: some let the market sort everything out, while others take a more active role in deciding who gets what. The Western Cape, Water Crisis, and Wine The Western Cape of South Africa is entering its third consecutive year of inadequate rainfall. Many reservoirs, both municipal and agricultural, have been exhausted to the point of collapse, without normal replenishment. Dam levels fell to an average 21.4 percent , while the bottom 15 percent is unusable due to siltation. This has led to extreme conservation measures. Cape Town limited individuals to fifty liters per person per day , rapidly approaching the statutory guaranteed minimum of twenty-five liters per day. While individuals have a constitutionally guaranteed right to water minimum, juridical persons like businesses share no such protection. Legally, water in South Africa is a common resource entrusted to state administration . Private parties may acquire authorizations to use water from a local state authority, a Catchment Management Agency. But there are significant limitations. The State can set temporal limits, assert guaranteed rights necessity to supersede rights, or implement pricing structures changing incentivize particular uses as more wasteful or beneficial. First, these licenses have an expiration date, whereupon licensees must reapply to state administrators. Second, basic human needs and environmental concerns have priority over other uses like agriculture during shortage, curtailing non-essential rights. Finally, the government charges a scalable tariff for any uses above the fifty-liter individual minimum, and for specific types of uses. Using these methods, the government exercises great control over water allocation. For example, the government can exercise legal priority and economic pricing during the current drought to incentivize municipal uses over grape growing. Agriculture’s ability to use non-potable sources and geographical/infrastructure challenges have spared many vineyards from pressure to yield to individual needs. Still, the average irrigation dam fill is also low—at 26 percent —and local rainfall is inadequate to make up for the shortage. Should they share water with more critical uses, the local Catchment Agency may set prices higher for vineyards to disincentivize their use. In extreme cases, the Catchment Agency may even invoke the higher priority of human and ecological rights to limit or refuse water to vineyards. Another challenge to giving a human right to water is a decrease in economic labor, leading to unemployment and unrest. Seasonal unskilled labor makes up 75 percent of South Africa’s agricultural sector. A decrease in vineyard yields means a decrease in jobs, increasing unemployment. This can have a cascading and catastrophic effect. In a country facing social unrest, water stress is another factor increasing social tensions. So while facially it might be prudent to conserve water for individual use, there could potentially be secondary effects impacting a broader population. The challenges this drought poses for viticulturalists create an interesting case study of South Africa’s water law at work. If the drought continues, grapes may increasingly struggle compared to more urgent social uses. The price may increase so drastically that operating at current sizes may not make sense, setting vineyards back decades if they are forced to fallow vines. Additionally, the government can and has invoked priority of human rights to shuttle water away from agricultural uses. The subjugated priority makes it legally difficult to justify against other consumers, like potable water or more essential foodstuffs. And resulting lost labor would hurt the economy and add to social unrest. Michael Fridjhon, a prominent South African wine judge, has no doubt 2018 will be a defining year for South Africa’s wine industry. Murray-Darling Basin, Australia, and Regulated Water Markets Australian vineyards have battled drought before—the Millennium Drought from 1997 to 2009 was the longest, deepest, and most severe on record. This coincided with a glut in the grape market. Reacting to rising demand in the early nineties, new vineyards matured just as the drought hit, flooding the market with competition. These two factors had devastating effects on individual vineyards. Both the government and industry had to change their relation to water conservation by adopting a market approach combined with government-regulated allocations. The Millennium Drought offers a retrospective of how industry and government adapted to water stress using a market-based approach. In Australia, rights are vested in the federal government, and managed by individual states. Complicating this, the Murray Darling Basin , the primary location for agriculture, overlaps three states , each with its own water allocation plan. In 2004, in response to drought, Australia developed an entitlement and allocation system—as well as a water market—to encourage best beneficial use. Entitlements are individual rights, granted in perpetuity and severed from the land. State agencies issue a yearly allocation plan dividing those entitlements, so they operate more like “shares” in a river allocation than a defined absolute volume. In response to the drought and interstate complications, in 2007 the states banded together to create the Murray-Darling Basin Authority to cover planning for the whole basin . A government-monitored market allows trading of both entitlements and yearly allocations, which steadily expanded as the drought intensified. At first, the drought caused high water prices for viticulturalists in the loosening market, coupled with lower individual yields. The maturation of vines planted a decade earlier resulted in rock bottom grape prices due to increased competition. The eventual result though was a boon for vineyard owners , who were able to supplement allocations that were lower than they expected and save their vines from irreparable harm and death. Creating statutory rights and a robust regulated market helped vineyards survive despite water shortage. Bordeaux, France: Old Ways, New Challenges A combination of drought and extreme weather events have stricken European grape harvests , leading to a 20-percent drop in harvest from 2013 to present. Last year marked the smallest vintage in over sixty years . Government and industry have taken steps to combat a changing climate, but change comes slowly to a region so steeped in tradition. The French government administers water in the public trust through planning and management. Irrigating vineyards has historically been illegal, with rainfall providing the sole source of water. This policy was strongly tied to keeping a ‘pure’ approach to viticulture. But on the heels of their own drought in 2005, regulations against irrigation have eased . Drip irrigation was allowed for the first time, to protect France’s number one agricultural export. This also means viticulture is now tied into the local water supply. Additionally, in 2016, France became the first European Union nation to adopt a human right to water. However, the exact scope of this right is unclear and untested. France has not faced choices like South Africa, between providing a human right to water and continuing economically important, but vitally unessential industries. Water scarcity increasingly impacts France’s wine regions, but it has not yet reached a critical juncture like in South Africa or Australia. French laws and regulations are adapting to react to this new threat, albeit slowly and cautiously. Because these laws and regulations are so new, it is not yet clear how a human right to water and loosening irrigation regulations will impact wine industry. Future severe droughts will test the French system, and since the set-up mirrors South Africa, it may play out in the same way. California and the Free Market of Prior Appropriation Balancing limited water resources with its position as a national agricultural epicenter is a well-trod discussion for the American West. California faced significant drought from 2012 to 2017, where reservoir totals dropped to as low as 8 percent. Much like the previous regions, this resulted in extreme stress on perennials like grape vines. Water law in the U.S. is highly state-specific, but all states west of the 100th meridian, where precipitation alone is insufficient to grow crops, generally follow some form of Prior Appropriation. In this system, users must divert water and apply it to a beneficial use. Unlike percentage allocations of total supply such as in Australia, maximum use in California is usually capped at a specific amount, and is subject to seniority rather than state allocation. Additionally, there is a “use it or lose it” approach—if a user doesn’t use their maximum allocation, they risk forfeiting it in the future. It has been argued this protecting of rights is in fact counter-productive, encouraging waste among users who fear forfeiting valuable rights in over-allocated streams. Trading full rights is allowed, but to transfer portions of a right puts the user at risk of forfeiting it permanently. Prior Appropriation states do not recognize or give special treatment to a human right to water, relying instead on free markets to provide for needs. California is the lone U.S. state to recognize a human right to water , codifying it in 2012. This guarantees a right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes. However, the scope of this right focuses on connecting rural and disadvantaged people to municipal water supplies. It does not address an individual’s relative priority in the Prior Appropriation system. The most senior rights, regardless of how they intend to use the water as long as it is beneficial, get priority. This more hands-off, free-market approach puts most of the onus to surviving the drought on vintners. This can be a blessing or a curse, depending on a farmer’s position in the priority scheme. A senior right assures at least some flow, while a junior right is subject to fulfillment of those before it. At least there is relative reliance on this system for users, with no fear of expropriation for domestic use like in South Africa. While some state constitutions like Colorado in text provide for priority for domestic uses over agricultural and industry, courts have been hesitant to interpret this to upset the priority system. In Town of Sterling v. Pawnee Ditch , the Colorado Supreme court held constitutional language that domestic water uses were preferred above all others did not supersede constitutional protections against taking private property without just compensation. During the California drought, farms adopted more efficient irrigation methods like drip irrigation, and used supplemental groundwater to weather the worst of it. Vines survived until the rains returned, but survive is very different from thrive. California vineyards are still in a precarious situation. While, for now the waters have returned easing the tension, but will the conservation lessons learned stick around or will fear of forfeiting rights return viticulturalists to the old ways? Putting It All Together: What Trends Emerge Around Non-Essential Industries and Their Relative Priority These four approaches to regulating water shortage fall on a spectrum. States with strong commitments to a human right to water like South Africa fall on one end. Here, states have decided that an individual human right to water eclipses rights that are not essential for vitality. The upside is there are protections for individuals so people do not face dehydration or death during water crises. The downside is uncertainty for those non-essential industries, and the fallout from diverting water away from these industries can have sever economic effects, rippling throughout a society. On the other end of the spectrum is a free-market priority system like in California. First in time, first in right provides certainty for rights holders, who know where they stand in line. It also allows a certain freedom to buy or sell rights to fulfill specific needs. While individuals claim no right to water, municipalities often have large bargaining power to ensure individual needs are met. Still, a tendency towards maximizing individual rights usage to preserve them conflicts with conservation. And less regulated markets combined with hesitance to enforce priority for specific types of uses like domestic over agricultural means no guarantee water will be put to societally advantageous use. Both France and Australian approaches fall in the middle. France’s relatively new regulatory changes and recognition of a human right to water put it more towards South Africa. But since this system has not faced a true test, a resolution to the tension between uses and needs remains unresolved. Australia’s market system leans more towards the California approach. But Australian markets are more regulated, and the government exercises more control by decreeing allocations in yearly basin plans. It is evident that as droughts become a more common phenomenon globally, the tension between vital needs and economic needs is increasing. While this spectrum by no means marks the only way to approach a water shortage, a clear trend is emerging that States are choosing between free economic choice to allocate water, and ensuring basic human needs are guaranteed. So which approach is right? Should there be a human right to water that supersedes non-essential industry rights, or should there be protections for freedom to own usufructuary rights? Approaches should be tailor-made to different cultures, geography, and legal traditions. After all, hydrological challenges are hyper-geographically specific, and the machinery of the law turns slowly. But evidence of increasing water stress globally makes this discussion far from theoretical. U.S. water lawyers would be wise to pay attention to how shortages play out in other countries in order to best advise their clients on which directions the tides may be turning. Sources Michael Fridjhon, Water Crisis Will Have a Significant Impact on Cape Wine Industry, Daily Maverick (Jan. 23, 2018, 12:26 PM), https://www.dailymaverick.co.za/opinionista/2018-01-23-water-crisis-will-have-a-significant-impact-on-cape-wine-industry/ . Petru Saal, Stellenbosch Imposes Stricter Water Restrictions, Times Live (Feb. 19, 2018, 14:49), https://www.timeslive.co.za/news/south-africa/2018-02-19-stellenbosch-imposes-stricter-water-restrictions/ . Peter Johnston, How Western Cape Farmers are being Hit by the Drought, Sunday Times (Feb. 26, 2018, 11:49 AM), https://www.timeslive.co.za/sunday-times/business/2018-02-26-how-western-cape-farmers-are-being-hit-by-the-drought/ . Tanisha Heiberg, Drought to hit South Africa’s 2018 Wine Harvest, Reuters (Dec. 19, 2017, 5:44 AM), https://www.reuters.com/article/us-safrica-wine/drought-to-hit-south-africas-2018-wine-harvest-idUSKBN1ED1HU . Brian Browdie, Cape Town’s Water Shortage Crisis is Threatening South Africa’s Wine Harvest, Quartz Africa (Jan. 26, 2018), https://qz.com/1189336/cape-town-water-crisis-south-african-wine-vineyard-harvest-will-be-hit-by-drought/ . Western Cape Gov., Latest Western Cape Dam Levels (Feb. 28, 2018), https://www.westerncape.gov.za/general-publication/latest-western-cape-dam-levels. Nidha Narrandes, Level 6B: Your Guide to 50 Litres a Day, Cape Town Etc (Feb. 1, 2018), http://www.capetownetc.com/water-crisis/cape-town-water-crisis-guide-50-litres/. Dept. of Water Aff. and Forestry, Water Supply and Sanitation Policy White Paper (Nov. 1994), available a t http://www.dwa.gov.za/Documents/Policies/WSSP.pdf. DD Tewari, A detailed analysis of evolution of water rights in South Africa: An account of three and a half centuries from 1652 AD to present, 35 Water SA 693, 703 (Oct. 2009), available at http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1816-79502009000500019. Maven, Lessons from Australia’s Millennium Drought, Maven’s Notebook (Jan. 27, 2015), https://mavensnotebook.com/2015/01/27/lessons-from-australias-millennium-drought/. Lee Godden, Water Law Reform In Australia and South Africa, 17 J. Envtl. L. 181, 189 (2005). Murray-Darling Basin Authority, Catchments, available at https://www.mdba.gov.au/discover-basin/catchments. Murray-Darling Basin Authority, About, available at https://www.mdba.gov.au/about-us . Murray-Darling Basin Authority, Water Markets and Trade, available at https://www.mdba.gov.au/managing-water/water-markets-and-trade. Quenten Grafton, et al., Water Markets: Australia’s Murray-Darling Basin and the US Southwest, Nat’l Bureau of Econ. Res., Working Paper 15797, available at http://www.nber.org/papers/w15797.pdf. Ivana Kottasová, Disastrous harvest means wine prices could be going up, CNN Money (Oct. 16, 2017, 8:34 AM), http://money.cnn.com/2017/10/13/news/wine-shortage-europe-weather-california-fire/index.html . Rudy Ruitenberg, France to Make Least Wine in 60 Years After Bad Weather Hits Grapes, Bloomberg (Oct. 6, 2017, 5:13 AM), https://www.bloomberg.com/news/articles/2017-10-06/france-to-make-least-wine-in-60-years-as-frost-rot-hit-grapes . Envtl. Protection Dept., Ref. SA 07-002 Review of the International Water Resources Management Policies and Actions and the Latest Practice in their Environmental Evaluation and Strategic Environmental Assessment (Nov. 2007), http://www.epd.gov.hk/epd/SEA/eng/file/water_index/france.pdf. Jancis Robinson, Irrigation now official in France , (Apr. 11, 2007), https://www.jancisrobinson.com/articles/irrigation-now-official-in-france. The Right To Water And Sanitation, France Adopts the Right to Water and Sanitation (June 16, 2016, 3:45 PM), http://www.righttowater.info/france-adopts-the-right-to-water-and-sanitation/. Alastair Bland, With Warming Climes, How Long Will A Bordeaux Be A Bordeaux? , NPR (May 8, 2013, 12:37 PM ET), https://www.npr.org/sections/thesalt/2013/05/06/181684846/with-warming-climes-how-long-will-a-bordeaux-be-a-bordeaux . All Thing s Considered, Cape Town Copes with Water Crisis , NPR (Feb. 4, 2018, 5:08 PM), https://www.npr.org/2018/02/04/583152356/cape-town-copes-with-water-crisis . All Things Considered, How a Historical Blunder Helped Create the Water Crisis In the West , NPR (June 25, 2015, 3:06 PM), https://www.npr.org/2015/06/25/417430662/how-a-historical-blunder-helped-create-the-water-crisis-in-the-west . Alicia Garcia, Responding to Drought: Calls for Change and Recent Reforms in California , Denver U. Water L. Rev. (Jan. 24, 2017), http://duwaterlawreview.com/responding-to-drought-calls-for-change-and-recent-reforms-in-california/ . Madilynne Clark, Use it or lose It – a counterproductive aspect of Washington’s water law that hurts conservation efforts , Wash. Pol’y Cent. (Mar . 23, 2017), https://www.washingtonpolicy.org/publications/detail/use-it-or-lose-it-a-counterproductive-aspect-of-washingtons-water-law-that-hurts-conservation-efforts. Timothy Wright, Putting Some over the Hill: The Disparate Impact of Drought in California , 32 J. Envt’l L. & Lit. 143 (2016). Cal. Water Code § 106.3 (West 2018). Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882) State ex rel. Cary v. Cochran, 292 N.W. 239, 246 (Neb. 1940). T own of Sterling v. Pawnee Ditch Extension Co., 94 P. 339 (Colo. 1908). Brian Palmer, Is Water a Human Right? , NRDC (Mar. 3, 2016), https://www.nrdc.org/onearth/water-human-right.
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