Spring IssueThe 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
Tiffany E. Dowell
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.
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.
No Fictions Required: Assessing the Public Trust Doctrine in Pursuit of Balanced Water Management
Russell M. McGlothlin
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.
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.