The Water Law Review is excited to be publishing the following scholarly articles in Volume 16, Issue 2 (spring):

The Shallows Where Federal Reserved Water Rights Founder: State Court Derogation of the Winters Doctrine

By Justin Huber and Sandra Zellmer

The doctrine of implied federally reserved water rights, as established over a century ago by Winters v. U.S., 207 U.S. 564 (1908), is critical to the realization of federal land management goals.  Recently, the doctrine’s ability to protect those goals, particularly with respect to federal lands set aside for non-Indian purposes, has been greatly limited by several poorly reasoned and result-oriented state court decisions.  The primary factors that have led to the erosion of the Winters doctrine’s utility are: (1) the McCarran Amendment, 43 U.S.C. § 666, which allows states to force the U.S. to assert its federally reserved water rights claims in state court general stream adjudications; (2) state hostility to the assertion of Winters claims for political and economic reasons; (3) state court expansion of the poor reasoning utilized by the U.S. Supreme Court in its decision on non-Indian federal reserved water rights in U.S. v. New Mexico,438 U.S. 696 (1978); and (4) state court abuse of the inconsistent and sometimes ambiguous language included in the various executive and congressional public land reservations.

Because it is unlikely that the arid western states will become more amenable to the assertion of federally reserved water rights and almost as unlikely that the U.S. Supreme Court will issue a more enlightened opinion on the Winters doctrine anytime soon, the problem can only be fully and, and due to its political nature, appropriately resolved by Congress.  Ideally, Congress could undo some of the damage done to this important part of federal land management law and prevent its future derogation by repealing the McCarran Amendment.  This, too, may be unlikely, given the current political climate, which tends to prioritize states’ rights over federal interests and also tends to be antagonistic to environmental concerns. A second best congressional fix would be to amend certain discrete organic and enabling statutes under which federal reservations of land are made.  Less ideally, should Congress fail to respond to the problem, federal agencies may be able to circumvent future damage by proactively litigating their federally reserved water right claims in federal court.

Sustainable Development Along International Water Courses: Is Progress Being Made?

By Frank Lawson

Sustainable development (“SD”) may be the hero needed to protect life’s most essential natural resource – freshwater – from excessive human exploitation. This is especially true for international watercourses. However, SD is an ambiguous concept. A singular, consistent definition is elusive. It is unclear how its pillars – social equity, environmental integrity, and economic viability – should mesh, or even how their interaction should be perceived. Moreover, it is unclear whether customary international law fully embraces SD as a norm applicable to development of watercourses. Such a lack of (1) identity, (2) coordination of pillars, and (3) legal authority is a significant obstacle for this, or any, hero to overcome.

This article examines whether SD is impacting the development of international water law and its subsequent application to particular watercourse projects. To explore this theme, the paper is divided into five parts. Part I introduces the underlying problem: progress in economic development impacting environmental stability along international watercourses. Part II discusses SD as a proposed “solution” to this problem and analyzes whether this “solution” is being incorporated within guiding principles of international water law. Part III examines the legal framework of two case studies to illustrate the role of SD – or lack thereof – on the current development of two different international watercourses. Part IV offers a conclusion as to SD’s successes and failures when applied to international watercourses. Lastly, Part V offers an outlook for SD’s future, particularly as to how the concept will incorporate the emergence of a “cultural pillar,” and the movement toward “deep ecology.”

Planning for Drinking Water in the Great Lakes Basin After Terrorism, or: How I Stopped Worrying and Loved the Great Lakes Compact

By Caitlyn Lothian, Esq.

As the utmost necessity for life, it is imperative that public health officials begin to consider how water will be provided for in the event of an emergency. While current regulations on water sources and distribution systems protect the quality of water, public health authorities must demand water distributors develop plans that articulate alternative sources of water to rely on in the case of a water-focused terrorist attack or any emergency. Even natural disasters may have primary or secondary effects on a water source or distribution system, so it would be prudent of public health planners to consider the provision of suitable drinking water for those scenarios as well. This article presents a legal assessment of the avenues available to states within the Great Lakes Basin focused on the Great Lakes Compact of 2005, and specifically on § 4.13(2) of the Compact. It concludes that the provision is both broad enough and narrow enough to limit the use of water from the Great Lakes to a short-term use, non-commercial in purpose, for humanitarian or emergency response needs for drinking water. This analysis applies with equal force to other emergencies that impact water security or the provision of drinking water. The legal assessments presented in this article specifically apply to States within the Great Lakes Basin, but other areas of the United States should follow in developing their own plans for alternative sources of drinking water in the event of a terrorist attack.

Beyond Quantification:  Implementing and Sustaining Tribal Water Settlements

By Celene Hawkins

Over the past 40 years, there has been an increased effort to resolve Tribal claims for federal reserved water rights in the western United States through negotiated settlement.  As efforts to quantify Tribal water rights through negotiated settlement and litigation continue, there is a growing area of legal scholarship on the quantification of Tribal water rights (and the work leading up to the settlement agreements setting forth the Tribal rights), yet there is relatively little legal scholarship addressing the equally important consideration of post-agreement settlement implementation work.

This article takes an initial look into Tribal water settlement implementation work by analyzing the work and issues Tribes face while implementing settlement rights and evaluating how settlement implementation promotes Tribal governmental capacity, Tribal self-determination, and Tribal sovereignty.  The article includes major sections looking at the settlement process, describing common threads in Tribal water settlement agreements, and providing a broad overview of the work Tribes take on to implement and sustain the water and other rights obtained through settlement agreements.  The article concludes by analyzing the post-settlement implementation work not just as the work necessary to satisfy legal commitments in court decrees and settlement documents, but also as important—and in some cases necessary—work to build Tribal governmental capacity, to support Tribal economic development and self-determination efforts, and to foster relationships with local, state, and federal entities that promote continued strengthening and support for Tribal sovereignty.

Prior Appropriation and Water Quality: The Water Court’s Authority to Protect an Appropriator’s Right to Clean Water

By Ryan Jarvis

 Much of the Colorado water law community functions under the belief that water quantity and water quality are governed by two distinct legal regimes: water quantity is regulated under the Colorado prior appropriation system, whereas water quality is regulated by the Colorado Water Quality Control Act and various federal statutes.  However, this view ignores the fact that for over a century Colorado courts have recognized the Colorado prior appropriation system protects an appropriator’s right to receipt of water of sufficient quality to make continued beneficial use of that water.  In other words, the prior appropriation system provides the Water Court the authority to protect water quality.

The Water Court’s authority to protect water quality is not restricted to the express authority in the Water Right Determination and Administration Act of 1969 (e.g., water quality requirements for substitute water in augmentation plans and exchanges), but instead it permits the Water Court to condition and deny new water rights based solely on water quality concerns.  A failure by the Water Court to recognize this authority not only denies appropriators full protection of their water rights, but it exposes the Water Court to potential takings claims under recent US Supreme Court takings jurisprudence.  It is time for the Colorado water law community to fully understand and embrace the Water Court’s authority to protect water quality.