The Water Law Review is pleased to announce the addition of a new Advisory Board Member, Mr. Jason Turner, Esq. of the Colorado River Water Conservation District.
Mr. Turner grew up in upstate New York and attended Westminster Choir College in Princeton N.J., a small music conservatory, for four years (1990-1994). He then received a Bachelor’s degree in History from Rutgers University (2000) and his law degree from the University of Denver College of Law in 2004. Prior to law school, Mr. Turner worked in the wine industry in New York, New Jersey, and Oregon. Prior to taking his position with the River District, he was with the law firm of White & Jankowski in Denver, where he represented public and private clients in all manner of water rights transactions and water court litigation. He became Associate Counsel for the Colorado River Water Conservation District in 2008.
Mr. Turner also served on the Water Law Review while attending DU Law. He recalls that his favorite part of serving on the Journal was his interactions with the other editors and staff, many of whom he remains close with today. The Water Law Review has changed since his graduation in 2004, and Mr. Turner believes that one of the most positive changes he has seen is the fact that the Editorial Board and staff of the Water Law Review are reaching out and better utilizing its Advisory Board members.
Mr. Turner said that he first became interested in water law from his experiences in the law school classroom. “We had a brief section in my first year Real Property class on water rights in Colorado which I found very interesting; after that it became my focus.” He said, “I also had the great pleasure of taking water law at DU with Professor Emeritus John A. Carver, Jr. which solidified my interest in the practice.”
Allison Altaras, Volume 16 Editor-in-Chief of the Water Law Review, remarked “We are very fortunate to have Jason on our Advisory Board. His personal familiarity with the Journal’s work combined with his West Slope perspective adds even greater depth to the expertise of our Advisory Board.”
Outside of work, Mr. Turner spends time with is wife Sonya and their two sons, Alden and Chapin. His favorite outdoor activities include trail running, mountain biking, back country skiing, and fly fishing in the Roaring Fork Valley.
Please join us in welcoming Jason Turner to the Water Law Review Advisory Board.
Water, Oil, and Gas: A Legal and Technical Framework
Kent Holsinger and Peter Lemke
Interpreting Water Conservation Standards in Waukesha, Wisconsin: A Local Internalization of International Norms?
Sarah E. Sharp
The diversion exception to the Great Lakes Compact—and its requisite conservation plan—is undergoing its first true test in the form of its inaugural diversion applicant: the city of Waukesha, Wisconsin. The purpose of this Article is twofold. First, to describe the process through which Waukesha committed to and devised a conservation plan in response to norms that were developed through the multi-lateral processes of state and province parties to the Great Lakes Compact. Second, to analyze how the process through which Waukesha developed its plan fits within the theory of transnational, or transboundary, legal process.
To achieve these aims, this Article will provide an overview of Waukesha’s proposed water conservation plan and briefly describe transnational legal process theory. Next, it will introduce alternative approaches to water conservation employed around the globe. Finally, it will analyze Waukesha’s proposed plan in light of the other conservation approaches to illustrate how this ostensibly domestic process transcends geographic boundaries and the role it plays in the international conversation about water conservation norms.
The Public Trust Doctrine: What it is, Where it Came From, and Why Colorado Doesn’t (and Shouldn’t) Have One
Stephen H. Leonhardt and Jessica J. Spuhler
A ballot initiative was proposed in 2012 that would have adopted, by constitutional amendment, a “public trust doctrine” for all water in Colorado. Since 1994, Richard Hamilton and others have proposed a series of similar initiatives to add a public trust doctrine to the state’s constitution. Several other states, building on common law and state constitutions, have recognized a public trust doctrine (at least in its limited traditional form), and some (most notably California) have extended it as a limitation on water rights. Colorado, however, has held that its constitutional provisions on water are inconsistent with such a doctrine.
This article reviews the roots and evolution of the public trust doctrine under common law, and the U.S. Supreme Court’s recognition of the doctrine as a question of state law (most recently in the 2012 PPL Montana decision). It discusses the Colorado Supreme Court’s rejection of the doctrine as inconsistent with legally established water appropriation rights, and the contrasting expansion of the doctrine in some other western states to encompass new elements and uses, including its application to limit water rights. The article concludes by examining the proposed Colorado public trust ballot initiatives in this framework, including the question of “takings” of water rights and riparian landowners’ rights when such a doctrine is newly applied.
Reconciling Water Law and Economic Efficiency in Colorado Water Administration
Charles W. Howe
SUMMARY: Colorado water law has proven to be adaptable over time as supply and demand conditions have changed. Still, administration of our appropriations (priority) doctrine can result in economically inefficient patterns of water use. The enforcement of priorities on the South Platte River in 2006 resulted in shutting down 400 highly productive (but junior)irrigation wells and curtailment of diversions by upstream urban areas. The economic costs of enforcing priorities clearly exceeded any benefits to the parties who put the call on the river. How could situations like this exist in the presence of active water markets that should be expected to shift the more senior rights into the more productive uses?
For active water markets to be economically efficient in reconciling such problems, at least two conditions must exist: (a) costs resulting from the transfer process (transaction costs)must be kept low and (b) the legal framework must allow a wide and imaginative range of transactions to take place, i.e the market must have sufficient “ scope”. In Colorado, transaction costs remain high because required water court review processes are costly and time consuming and because excessive and inconsistent application of the “anti-speculation” doctrine limits water market scope.
This article concentrates on problems with the anti-speculation doctrine and the closely-linked issue of “beneficial use.” The purchase of water rights to be packaged and held for future sale to large buyers has been found to be speculative and non-beneficial, resulting in a “chicken and egg” problem in which sellers can’t apply for change in use without a definite buyer but also in which buyers won’t commit without assurance of change in use. At the same time, some egregious types of speculation continue to be permitted under State water law.
Increased efficacy of the water court review process and consistent definition and monitoring of speculation are needed. In addition, increased flexibility in the allocation of supplies should be enhanced through the adoption of new forms of water transfer institutions such as water banks, land fallowing and quick “drought lease-outs.”
The Atlantic has this photo gallery of the year’s dry spell, which it describes as the country’s “worst drought in more than half a century.” The photos are beautiful, considering that what they capture is not a pretty picture. And they underscore the importance of water to our lives.
After much anticipation and hard work, we are excited to introduce the new online presence for the Denver Water Law Review! Now in our sixteenth successful year in print, the Review’s staff and advisors felt it was time to join the online and blogging communities.
The blog will feature many of our traditional print pieces like court reports, statutory updates, conference notes, and book notes, along with new features like breaking water news and interviews with notable persons in the natural resources field. You can also find information on this website about our annual spring symposium and forthcoming scholarly articles. It is our hope that, through the blog, the Review will be able to deliver new and noteworthy information more quickly to a wider audience, all in an effort to elevate the discourse on water in the West.
Bookmark us and check back often! Please also feel free to contact us at wlr@law.du.edu or via our online comment form if you are interested in publicizing events, guest-writing pieces for the blog, or providing feedback or suggestions. We look forward to a long an enriching future in print, online, and in our communities.