Forthcoming Posts

Spring Issue

The Water Law Review is excited to be publishing the following scholarly articles in Volume 17, Issue 2 this spring.

The Problem of Nutrient Pollution: Lessons from Florida’s Fragmented Approach

Our food is far too commonly produced in an environmentally hazardous fashion. Nutrients are an inevitable by-product of modern agriculture and, in excess amounts, can devastate aquatic ecosystems. The need for state action on the problem of nutrient pollution is immediately necessary, as a federal solution seems increasingly unlikely. Florida is a perfect embodiment of the destructive effects of nutrient pollution but also serves as a testing ground for two conflicting state programs that address the longstanding issue. One program is largely incentive-based but requires some affirmative actions from farmlands through limited state oversight. The other consists of a complex regulatory scheme, with broad state oversight, that mandates extensive affirmative actions from farmlands. This article examines each program and compares its respective impact on reducing nutrient pollution. The article concludes with important lessons that other states should consider when seeking to implement similar programs.

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Limitations and Opportunities for Environmental Flow Implementation under Current Mexican Law and Policy

A new administration has recently assumed office in Mexico, which provides an excellent opportunity to review and improve the Mexican legislation governing water management, including the implementation of environmental flows. The Mexican National Water Law (Ley de Aguas Nacionales or “LAN”) states that integrated water resources management (“IWRM”) is the basis of national water policy. The purpose of IWRM as defined in the LAN is to maximize social and economic well-being equitably without compromising the sustainability of vital ecosystems. Thus, preserving the environmental integrity of the water systems is an essential aspect of IWRM, and for this purpose, the implementation of environmental flow regimes in river basins is considered a central element.

This article looks at how current law and policy in Mexico is facilitating or limiting the implementation of environmental flows in Mexico and makes recommendations for improvements in the legislation. The first section briefly describes Mexico’s water resources and the institutions managing them. The second section takes a close look at the current policy and law facilitating or limiting environmental flows implementation. The third section discusses other existing legal tools that could be useful without legislative reform. And the final section offers recommendations for reforms that would improve the likelihood of a successful implementation of environmental flows in Mexico.

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One Step Forward and Two Steps Back: The Prospects for Ditch-Wide Quantifications and Alternative Transfer Methods

Colorado’s population is expected to grow by roughly one million residents every decade from now until 2040. By then, the state’s population will be approaching eight million. If Colorado’s water supply continues to develop at this current rate, the projected rise in population will inevitably lead to a large transfer of water out of agriculture, resulting in significant loss of agricultural lands and potential harm to the environment. The greatest demand will likely be from municipal and industrial users, which, under moderate assumptions of future water demand and successful completion of identified supply projects, face a shortfall of 390,000 acre feet per year in 2050.

Some have called for greater use of market-based approaches to assist in reallocating water among different users and uses. Classical economic theory suggests that if optimal allocation of water is to be achieved through the use of markets, then such markets must be competitive. But competitiveness assumes certain market conditions are present. This article explores two of these conditions: well-defined property rights and transactions costs.

For water markets to work, property rights to water must be well-defined. The prior appropriation doctrine is adept at describing use-based rights in water. These proverbial “sticks” in the bundle that compose a water right specify a point of diversion, the beneficial use to which the water is applied, the place of use, and the rate of and the amount of the diversion. Yet, the most important stick in the bundle – the quantity of water that may be transferred to another use, i.e., the historical consumptive use – is often poorly defined. Two recent Colorado Supreme Court decisions, Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation Dist. (“Burlington Ditch”) and Cent. Colo. Water Conservancy Dist. v. Greeley (“Jones Ditch”), underscore the dramatic results of failing to properly quantify water rights.

Low transactions costs are another prerequisite for the operation of competitive markets. Colorado, perhaps more than any other Western state, scrutinizes transfers of water rights for the prevention of injury to other users. Satisfying the burden of proof tends to be a costly endeavor for an applicant, requiring engineers, lawyers, and other experts. The maintenance and protection of vested rights, while undoubtedly a necessary inquiry in a change in water rights case, can introduce transactions costs that inhibit additional market activity. In Burlington Ditch and Jones Ditch, the Supreme Court discussed ditch-wide quantification (also referred to as system-wide quantification) of historical consumptive use. The ditch-wide quantification method has the potential to reduce transactions costs vis-à-vis traditional parcel-specific quantification. But did the Court offer enough clarity for ditch-wide quantifications to become the favored method of quantification? What are the realities of such a quantification system?

Section I of this article offers a brief overview of the history and development of Colorado’s agricultural water rights, including a discussion of the Colorado Supreme Court’s holdings in the Burlington Ditch and Jones Ditch cases, two key cases from which to draw lessons related to property rights and transactions costs. Section II offers analysis of these concepts, with particular attention on the role of senior agricultural rights in meeting Colorado’s future water supply demands and the importance of ditch-wide quantification as a component of a broader strategy to develop functioning water markets. Section III examines practical issues associated with the implementation of the ditch-wide quantification method and provides preliminary suggestions on how these issues might be addressed.

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The Role of Temporary Changes of Water Rights in Colorado

“Buy and dry” has become a rallying cry in Colorado. For those not familiar with the phrase (usually used as a pejorative), it references the sale of irrigation water rights with the purpose of transferring the water from the originally irrigated lands to other purposes at other places of use. Many of the critics that malign “buy and dry” do so out of the impression that cities are out to “take” their water. However, for cities and other municipal water suppliers, the issue is not about trying to “take” water away from agricultural water users but instead their need to meet the expanding water demand of a growing population. The practical reality facing many municipal water suppliers is that transfers of existing water supply to new uses is the mechanism available to meet growing demands.

Thus, “buy and dry” is only half the story. The full story: Colorado anticipates a growing water demand, which necessitates the continued transfer of existing water rights to new uses. Considering that Colorado agriculture accounts for 86% of the state’s consumptive water use, the overwhelming likelihood is that Colorado’s agricultural water supply will be a source of supply to municipalities in some form. Outright purchase is the simplest method for effectuating these transfers. However, “buy and dry” is not the only solution — or perhaps even the best solution. Recently, the Colorado Water Conservation Board, under the auspices of the Statewide Water Supply Initiative 2010 (“SWSI 2010”), published a final report that outlines several alternative agricultural water transfer methods.

One of the alternative water transfer methods suggested in SWSI 2010 is the Interruptible Water Supply Agreement (“IWSA”), which, if approved by the Colorado State Engineer’s Office, allows temporary changes of absolute water rights for new uses. However, the IWSA statute, C.R.S. §37-92-309, has not been utilized in any significant fashion since its enactment in 2003.

Despite the failure of the IWSA statute to promote temporary water transfers over permanent water transfers, there is still a will, and a need, to make such temporary transfers a reliable mechanism to obtain temporary water supplies. First, there is value in developing an IWSA statute which Colorado water users will utilize because it is the currently available legal mechanism allowing temporary transfers. Second, other alternative water transfer methods will likely share common legal impediments, and developing a workable legal framework for IWSAs may further other forms of temporary transfers.

Because of the unique role IWSAs currently play, and the increasing interest in other alternative transfer mechanisms, this article (I) reviews the existing IWSA statute in order to understand the current legal framework for temporary changes of water rights in Colorado; (II) analyzes the lone example of an implemented IWSA, focusing on how and why the temporary transfer was used; and (III) discusses lessons and observations learned in the process of implementing that temporary transfer. This article seeks to provide practitioners with useful tips and considerations regarding temporary transfers of water rights, while commenting on the potential utility of temporary changes, and how temporary changes may become a more useful component of Colorado water use.

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Strengthening Binational Management of the Tijuana River

The Tijuana River at San Diego and Tijuana is an anomaly in U.S.-Mexico transboundary water management. Included in the landmark 1944 Water Treaty, the Tijuana River was never apportioned as the drafters of the treaty’s Article 16 envisioned, though the treaty has been used to justify flood control and sanitation measures. Today, the river is one of the most urbanized watersheds on the U.S.-Mexican border and beset by a suite of problems ranging from water supply and contamination to stormwater management, erosion, sedimentation, and adverse ecological impacts that require binational stewardship and cooperative management to solve. These stresses suggest the need for further binational agreement to justify and facilitate strengthened binational cooperation in managing the river and its watershed.

This article considers how the various bilateral instruments and collaborative initiatives that bear upon the present management situation in the Tijuana River watershed may contribute to a new bilateral agreement or set of agreements on the Tijuana River. It first reviews the management challenges on the river. It proceeds by pointing to the relevance and utility of existing agreements affecting the Tijuana River and follows with a review of the local and binational watershed management initiatives undertaken since 1993 that underscore the growing regional interest in Tijuana River management. The article concludes by arguing that existing agreements and recent cooperative initiatives point the way to a new riparian management agreement, linked to the Treaty’s neglected Article 16. Such an accord would fulfill the 1944 Treaty’s original promise and provide a framework for strengthened binational cooperation in managing the Tijuana River watershed.

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Fall issue

The Water Law Review is excited to be publishing the following scholarly articles in Volume 17, Issue 1 this fall.

You Can Lead Livestock to Water…A Survey of Exempt Livestock Wells in the West

Most western states require a person seeking to drill a well to obtain a permit from the State. To be granted, these permits frequently trigger an expensive and time-consuming process, including requiring the State to investigate and make specific findings with regard to availability of water for the requested use. Many statutory schemes, however, contain an exemption from this permitting process for wells used for livestock watering.

As the agricultural industry has changed and operations have grown over the decades since these statutes’ enactment, important questions regarding statutory interpretation have arisen. Do limitations exist, based either on the quantity of water appropriated or on the specific type of use? What qualifies as livestock watering? How much water can one appropriate for livestock purposes without requiring a permit? Understanding the existing limitations on exempt livestock wells is necessary and important, both for the State’s interest in conserving water and the producer’s interest in ensuring compliance before investing extensive capital in a new operation.

This article discusses each of the livestock watering exemptions in the West, and the litigation that surrounds these statutes. First, this article provides a basic overview of the prior appropriation doctrine and the concept of exempt wells. Next, the article looks specifically at statutory exemptions for livestock watering by state. Finally, the article reviews litigation surrounding livestock watering exemptions in the West.

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The “Four Great Waters” Case: An Important Expansion of Wai’hole Ditch and the Public Trust Doctrine

American legal regimes governing water face a pivotal moment in history. Just as water resources in this country confront unprecedented threats, states must decide between two fundamentally opposing paths for managing their increasingly scarce water resources in the future: privatization, under which water is treated as a commodity and marketed as such, or recognition of water as a public good under the public trust doctrine. Perhaps the clearest example of the clash between private and public interests in water can be seen in Hawaii, where conflicts between large land plantations and native Hawaiians over water within the state date back for centuries. In recent decades, community groups have sought to restore Hawaii’s water resources by fighting legal battles against private companies whose diversions have left many streams dry. In 2000, the Supreme Court of Hawaii’s In re Ground Water Mgmt. Area High-Level Source Water Use Permit Application (“Waiāhole Ditch”) decision held “all water resources” within the state are subject to the public trust. Twelve years after its celebrated decision in Waiāhole Ditch, Hawaii’s highest court again confirmed that the public trust doctrine is a valuable tool for reining in private water rights in order to promote public purposes in In re Iao Ground Water Management Area (the “Four Great Waters” case).

The Four Great Waters decision is a significant expansion of public trust principles and confirms that Hawaii is a leader among states in its protection of public rights in water. Part I of this article discusses the unique historical development of water resources in Hawaii. Part II dissects the Four Great Waters decision, separately addressing each of the court’s holdings pertaining to the public trust and discussing the impact on the evolving notion of the public trust. Part III argues that the Four Great Waters decision expands public trust principles by advocating for a more active role of the courts in reviewing decisions involving trust resources. Specifically, it focuses on the court’s exercise of jurisdiction and suggests that by emphasizing the importance of judicial review of actions impacting trust resources, the decision promotes public participation in public trust decision-making. The article also discusses the heightened standard of review applied by the court to decisions involving the state water resources trust. These developments solidify the public trust doctrine’s concrete ability to protect public interests in water by applying a precautionary approach to the protection of public trust resources.

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No Fictions Required: Assessing the Public Trust Doctrine in Pursuit of Balanced Water Management

Although the public trust doctrine is often embraced as a core principle of water law and policy, this article argues that state water management would benefit from abandoning the doctrine. The doctrine stems from a legal fiction of public “ownership” of natural water developed to ensure public access to navigable waters in a forgone era when the law was otherwise ill-equipped to afford such protections. In the modern legal environment, the doctrine affords no greater powers to manage water resources than are otherwise available pursuant to state police powers.

Others have argued that continued application of the public trust doctrine to natural resource management is neither necessary nor sound policy. For example, Harvard Law Professor Richard Lazarus has argued that: (i) the public trust doctrine is no longer a necessary legal fiction because it has been eclipsed by developments in the law—both statutory and common law—that afford equal or greater public interest protections respecting natural resources; and (ii) perpetuation of the doctrine threatens to undermine these important legal developments. This article builds upon this analysis with a focus on water management law, specifically critiquing legislative efforts to declare state water resources subject to the public trust. The article argues that the “proprietary logic” inherent in the public trust doctrine is devoid of substance and does not provide helpful guidance to address contemporary water management problems. Rather, substantive laws and regulations must be developed to achieve a balancing of complex and often countervailing objectives including: protection of reasonable public and private interests respecting water use, water supply for consumptive and instream water demands, and maintenance of an appropriate degree of legal certainty and adaptable management. The article reviews strategies for developing substantive water management laws to balance these divided interests in a legally-defensible manner. It also explores grounds for the judiciary to protect the public interests in water management without perpetuation of the public trust doctrine’s attenuated legal fiction.

The article further reveals the adverse consequences that may stem from continued embrace of the public trust doctrine. These include: (i) the doctrine’s inherent ambiguity, which impairs transparent water management and frustrates beneficial planning and investment; (ii) the dearth of policy development that results where decision makers espouse the public trust doctrine instead of undertaking the sophisticated analysis necessary to formulate substantive law; and (iii) the potential for misapplication of the doctrine to demand categorical favoritism for water uses deemed “public trust values” without reasoned examination of competing societal interests. Overall, the article presents a straightforward approach to achieve balanced water management without the detrimental consequences of continued reliance on the public trust doctrine.

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Renewable Energy on Tribal Land & Water Resources: Jemez Pueblo

Through a discussion of tribal renewable energy potential for native nations and the U.S., an evaluation of federal Indian reserved water rights, and a study of Jemez Pueblo’s project, this article addresses just one facet of the many legal complexities facing native nations in one of their most significant development endeavors. Briefly, tribal renewable energy bestows benefits upon native communities, including a reduction of man’s footprint on the environment and greater independence through community development. Despite the potential benefits of renewable energy, each native nation must secure access to an already scarce supply of water. A nation’s best chance to obtain its needed water supply is through a federal reservation doctrine. Native nations then must physically obtain and deliver the water for their renewable projects. They resolve their water rights through adjudication, litigation, and water compacts. While natural resources, like the sun, can impart upon a nation a promising future, other natural resources, like water, possess the means.

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