Forthcoming Articles for Volume 16, Issue 1

The Water Law Review is excited to be publishing the following scholarly articles in Volume 16, Issue 1 (fall).

Opening the Floodgates and Draining the Great Lakes One Bottle at a Time: How Privatizing Water Resources Threatens the Great Lakes
Rhonda L. Ross

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.”