Craig Anthony (Tony) Arnold's blog

Ecosystem Services (Part II): Land Use and Ecosystem Services

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This is the 2nd posting in a 4-part series on ecosystem services.  Ecosystem services are the services that nature provides to humans, society, and the economy.  Today, I list below 5 articles that address various aspects of the relationship between ecosystem services and land use, ranging from the structural functions and processes of the land use regulatory system, recommendations for organizing land use powers around ecosystem service districts, wetlands and land development, forest watersheds and land use, and the economics of land use with respect to species’ habitat.  Please see yesterday’s posting for an overview of ecosystem services and future postings for scholarship on property law and ecosystem services and issues in valuing ecosystem services.                                           

 

1) Arnold, Craig Anthony (Tony), The Structure of the Land Use Regulatory System in the United States. Journal of Land Use and Environmental Law, Vol. 22, No. 2, p. 441, 2007. Available at SSRN: http://ssrn.com/abstract=1020305    

 

Abstract:    

 

The land use regulatory system has been criticized for causing or failing to solve social problems and for perceived inherent defects, such as inefficiency, inequality, and environmental harm. These criticisms fail to understand the land use regulatory system in the United States as a dynamic, functional, adaptive system.

This paper systematically analyzes the: 1) functions; 2) location and scale; 3) components; 4) processes; and 5) values of the land use regulatory system in the United States. If we are to improve our land use practices to be fairer, more efficient, and more ecologically responsible, we must understand how land use planning and regulation function and change over time.

Particular attention is given to the role of land use regulation as a mediator between people and places, between communities and power, and between freedom and boundaries. Additional attention is given to the broad array of forces shaping land use decisions, the
thinness of land use law as a set of rules and limits (contrasted with its role as a source of tools, authority, and discretion), and the patchiness of land use regulatory authority in the United States.

This paper also examines a specific issue of law and policy: the extent to which the land use regulatory system can value and conserve ecosystem services,
the humanly beneficial services that nature provides. The paper explores both barriers to and opportunities for accounting for ecosystem services in land use planning and regulation.    

 

2) Heal, Geoffrey M., Daily, Gretchen, Ehrlich, Paul, Salzman, James  E., Boggs, Carol, Hellman, Jessica, Hughes, Jennifer, Kremen, Claire and Ricketts, Taylor, Protecting Natural Capital through Ecosystem Service Districts. Available at SSRN: http://ssrn.com/abstract=279114    

 

Abstract:  

 

In this article, we focus on the potential of governmental authorities dedicated to management of ecosystem services. We argue that the creation of such Ecosystem Service Districts (ESDs) will improve the efficient provision of services necessary for human welfare. At the moment, when agencies manage for natural resources, they typically do so in a defined geographical area or district. Given the prevalence and importance of districts for soil conservation, resource conservation, flood control, and other local services, we explain how ESDs could provide a coherent and efficient governmental institution for monitoring and investing in natural capital. A focus on ESDs would create a mechanism to help ensure that natural capital is protected and maintained with the same care and concern as that given to built and human capital.

Establishing and managing ESDs will involve an exploration of the underlying ecological processes that provide the services, of the economic significance of the services, and of the legal issues involved in managing natural ecosystems for the good of a local or regional community. Central in all these analyses will be land use decisions. Land use determines which of the initial ecosystems and services are maintained intact. In addition, many of the key trade-offs between the continued functioning of natural ecosystems and the extension of economic activities arise naturally in the context of land-use choices, such as farming versus forestation, development versus conservation, etc.

In examining the geographical, economic, and legal obstacles in designing ESDs, we suggest an integrative framework for managing the patterns of land use in a district that can provide several different ecosystem services, and that also has the potential to support many different types of economic activity, some of which can conflict with the continued integrity of the natural ecosystems. Part I of the article explains the why ecosystem services are under threat and the potential benefits of managing their conservation through ESDs. Part II lays out the basic ecological-economic framework and principles for district design. Part III sets out the key legal issues and Part IV presents a tentative roadmap of how to put theory into practice. The importance of ecosystem services is no longer disputed. How to realize more fully their value, and hence their conservation, however, remains an active research area. ESDs, though fraught with challenges, provide a potentially powerful institutional mechanism to address the relative neglect of ecosystem services in public policy by bringing their crucial importance into focus and aiding in their preservation.
    

 

3) Ruhl, J.B. and Salzman, James  E., The Effects of Wetland Mitigation Banking on People(January 2006). FSU College of Law, Public Law Research Paper No. 179. Available at SSRN: http://ssrn.com/abstract=878331    

 

Abstract:    

 

In the decade since the Corps of Engineers (Corps) and Environmental Protection Agency (EPA) officially blessed wetland mitigation banking for purposes of satisfying mitigation requirements under Section 404 of the Clean Water Act (CWA), the practice has fueled an ongoing debate about its pros and cons. For the most part, however, the debate has focused on the relative advantages and disadvantages of banking programs in terms of administrative efficiency and ecological impact, with little attention being paid to the effects of wetland mitigation banking on people. This article presents the first comprehensive empirical study of the demographics of wetland mitigation banking, revealing what has long been suspected - that banking facilitates the redistribution of wetland resources from urban to rural areas, taking with them the important ecosystem service values wetlands provide to human communities.

After an overview of the economic service values wetlands provide, the structural biases inherent in the wetland mitigation banking program, and the lack of information about the effects of wetland banking in general, we present the results of an empirical study of 24 wetland mitigation banks in Florida accounting for over 95 percent of all bank activity. By comparing the demographic attributes of the area around each bank to the areas around the development projects that purchase mitigation bank credits to satisfy their mitigation requirements, we show that the loss of wetland resources is concentrated in urban areas, whereas the compensatory mitigation provided by wetland banks is concentrated in rural areas, and that the composition of the project area and bank area populations is significantly different. We examine the policy implications of this effect and suggest several steps that can be taken to better understand and respond to its impact on the distribution of ecosystem services associated with wetland resources.
    

 

4) Neuman, Janet C., Thinking Inside the Box: Looking for Ecosystem Services within a Forested Watershed. Journal of Land Use & Environmental Law, Vol. 22, No. 2, 2007. Available at SSRN: http://ssrn.com/abstract=1089536    

 

Abstract:    

 

This paper uses the Tillamook State Forest as a case study to explore the potential for applying an ecosystem services model to future management of a forested watershed with numerous interested constituencies. Part II describes the richness of the Tillomook regional ecosystem, its importance far beyond the immediate vicinity, and the many resulting demands on the forest. Part III discusses the current management model, based on multiple uses competing in the political arena for short-term gain, and then considers an alternative model based on managing the Tillamook with the goal of producing a steady stream of ecosystem services over the long-term. Part IV concludes with a call for "re-reforestation" of the Tillamook State Forest and other similar lands by managing for long-term watershed and forest health.    

 

5) Pethig, Rudiger and Eichner, Thomas , Economic Land Use, Ecosystem Services and Microfounded Species Dynamics(September 2004). CESifo Working Paper Series No. 1269. Available at SSRN: http://ssrn.com/abstract=601322    

 

Abstract:    

 

In an integrated economy-ecosystem model humans choose their land use and leave the residual land as habitat for three species forming a food chain. The size of habitat determines the diversity and abundance of species. That biodiversity generates, in turn, a flow of ecosystem services with public-good characteristics for human consumption. The ecosystem submodel yields (rather than assumes!) population growth functions with each species' growth depending on the size of habitat. First the relationship between habitat and species growth (sustenance, decline and extinction) is explored. The laissez-faire economy is shown to result in an underprovision of habitat, making the case for land use restrictions for nature protection. The optimal land use policy is characterized with full regard of ecosystem dynamics. Finally, labor-augmenting technical change is introduced to generate ever increasing pressure towards further habitat reductions. In the laissez-faire economy the habitat is consequently squeezed to zero in the long-run so that all species are doomed. Social optimality demands, however, to refrain from using all land for economic purposes despite ever-growing labor productivity.   

 

Ecosystem Services (Part I): What Are Ecosystem Services?

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Today I am starting a 4-part series on ecosystem services.  Ecosystem services are the services that nature provides to humans, society, and the economy.  Research by scientists, economists, and public policy specialists has demonstrated that ecosystems provide critical and extremely valuable services that not only support life generally but also contribute to the functioning of our society and economy.  However, market, public policies, and legal doctrines tend to under-value these ecosystem services.

The concept of ecosystem services raises a variety of interesting questions:  Should we be attaching monetary values to nature and treating nature’s functions and processes as market commodities?  Does the concept of ecosystem services allow for eco-centric (i.e., non-human) values and non-economic benefits to humans?   Is it even possible to assign economic values to ecosystem services in any meaningful or useful way?  How can legal, political, economic, and social institutions incorporate ecosystem services values into their decision making processes?

Nonetheless, a key concept raised by this emerging literature is that land development may be producing short-term economic returns (profits, land value, etc.) at the expense of long-term natural capital needed to sustain nature, society, and the economy in the future. Today, I list below 3 articles that will introduce readers to the concept of ecosystem services and its relevance to law and public policy.  Future installments will address land use and ecosystem services, property law and ecosystem services, and issues in valuing ecosystem services.  

 

1) Ruhl, J.B. and Salzman, James  E., The Law and Policy Beginnings of Ecosystem Services. FSU College of Law, Public Law Research Paper No. 290, Journal of Land Use & Environmental Law, Vol. 22, No. 2, 2007.  Available at SSRN: http://ssrn.com/abstract=1028759  

 

Abstract:  

 

Over the past decade, there has been an explosion of interest in ecosystem services from scientists, economists, government officials, entrepreneurs, and the media. This article traces the development of the ecosystem services concept in law and policy. We prepared it in connection with a symposium held at Florida State University in April 2006.

The presentations at the symposium, which then developed into the articles in a special issue of the Journal of Land Use and Environmental Law (volume 22, issue 2), approached the topic of ecosystem services and the law from two perspectives. One set of presentations focused on the law of specific natural resources, and the other set focused on different legal institutions as agents of integration of ecosystem services into law and policy. The resource presentations covered water and watershed resources, agricultural and rangeland resources, and coastal resources, while the institutional presentations addressed land use regulation, common law remedies, public law enforcement regimes, and second generation approaches in energy policy. This article provided the historical and conceptual anchor for the symposium.
  

 

2) Salzman, James  E., A Field of Green?  The Past and Future of Ecosystem Services. Duke Science, Technology & Innovation Paper No. 18, Journal of Land Use & Environmental Law, Vol. 21, p. 133, 2006.  Available at SSRN: http://ssrn.com/abstract=991668  

 

Abstract:   In recent years, interest in ecosystem services has exploded. From cover stories in the New York Times and The Economist, websites connecting buyers and sellers of ecosystem services, and the comprehensive UN-sponsored Millennium Assessment - a report on the state of the world's ecosystem services - to a statement by the U.S. Secretary of Agriculture calling for a future where credits for clean water, greenhouse gases, or wetlands can be traded as easily as corn or soybeans, the ecosystem services approach has firmly arrived in the environmental policy world. But what does this approach entail and where is it going?

This short article reviews the state of the field. Although critical to our well-being, ecosystem services are neither explicitly protected by the law nor traded in markets. The first section explains the three major obstacles to protection and commodification of ecosystem services. The second section proposes payments for services as an alternative policy approach to the more traditional instruments of prescriptive regulation and financial penalties. The third section briefly describes examples of service payments around the globe, demonstrating the wide range of approaches. The fourth section considers the difficult issues in structuring payments for services, including the challenges of moral hazard, the polluter pays principle, and norm shaping. The final section describes three exciting recent developments
– the growing interest of conservation and land trust organizations to integrate ecosystem services into their central missions, the launching of an ecosystem marketplace on the web, and negotiations to incorporate ecosystem service markets explicitly into the 2007 Farm Bill. This article was voted by law professors for inclusion in the 2006 issue of the Land Use and Environmental Law Review.  

 

3) Frischmann , Brett  M., Environmental Infrastructure. Ecology Law Quarterly, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1123732  

 

Abstract:  

 

This essay explores how my recent work on infrastructure and commons applies to environmental resources. Part I briefly describes the core idea, which is developed extensively elsewhere. Part II suggests how it might apply to the natural environment. Specifically, Part II (a) frames the difficult environmental valuation and management problems; (b) applies the infrastructure criteria and delineates environmental infrastructure; (c) offers a few insights regarding environmental management and regulation; and (d) considers how infrastructure theory relates to the literatures on ecosystem services and multiple use management. 

Brown on Conservation Easements, Public Trust Doctrine, and Takings

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Carol Brown, a law professor at the University of North Carolina Law School, is a young scholar of emerging importance in property law and the environment.  One of the themes of this blog is the reconceptualization of property rights and interests to address ecological sustainability and the environment’s carrying capacity.  Professor Brown has written several valuable articles in this area.  I have provided links and abstracts for two of these articles, below:

 

1) Carol Necole Brown, A Time to Preserve: A Call for Formal Private-Party Rights in Perpetual Conservation Easements. U of Alabama Public Law Research Paper No. 08-07, Available at SSRN: http://ssrn.com/abstract=881868 

Abstract:     

For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors' needs.  My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they are violated. More specifically, private parties should have standing to defend perpetual conservation easements. A common law property interest would be analogous to the third-party right of enforcement created by the Uniform Conservation Easement Act ("UCEA") and codified by many states in their state statutes.

It is not my contention that either grantors, holders, or society in general should be bound by a perpetual conservation easement restriction forever. Some degree of flexibility to reflect changing societal needs is prudent. When measuring the appropriate moment in time to modify or terminate a perpetual conservation easement because of changed conditions, the interests of the larger society should be represented in the calculus. Conferring private-party standing would allow these interests to be represented.

My Article provides an efficiency and social justice critique. First, in Part II, I briefly describe the history and rationales underlying the creation and perpetuation of conservation easements. I also discuss the close relationship between preservation and a strong private property regime. Second, in Part III, I discuss challenges to perpetual conservation easements, the doctrine of changed conditions, as well as the importance of private-party enforcement rights to the defense of conservation easements. Next, in Part IV, I consider efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions, concluding that private parties should have a recognized, common law property interest in the conservation easement. Then, in Part V, I broaden my analysis of conservation easements to demonstrate that decentralizing ownership interests in property by enforcing the decisions of property owners to burden their property with perpetual conservation easements is consistent with a democratic property system. Finally, in Part VI, I discuss objections to my proposal and alternatives to aggressively defending perpetual conservation easements against challenges pursuant to the doctrine of changed conditions. I conclude that my proposals articulated in Parts IV and V will result in efficient and appropriate levels of conservation while promoting decentralization of private property ownership.

 

2) Carol Necole Brown,Drinking from a Deep Well: The Public Trust Doctrine and Western Water Law. U of Alabama Public Law Research Paper No. 894088, Available at SSRN: http://ssrn.com/abstract=894088

Abstract:     

American water law reflects the diverse geography and population patterns of our country. The arid western states provide fertile ground to consider the burdens of a rapidly growing region on scarce water resources. This Article's thesis is that the public trust doctrine is being underutilized by those western states to address their water scarcity dilemma. I recommend extending the geographical scope of the public trust doctrine to encompass all bodies of water that serve the public welfare, even minimally.

In the Article, I compare an expanded public trust doctrine against a more aggressive application of the prior appropriation doctrine. I discuss why the prior appropriation doctrine and its commodification of water rights is a lesser alternative to rethinking the public trust doctrine. Additionally, I discuss the problem of vested rights and takings challenges that may arise in the wake of an expanded public trust concept. I use the recent United States Supreme Court case Kelo v. Town of New London to illustrate the similarities between the Court's "traditionally broad understanding of public purpose" in the context of takings jurisprudence and the historically dynamic nature of the public trust doctrine. My Article explores the proper role of the public trust doctrine in responding to historic mistakes in this country's approach to water use and conservation in the arid west.


 

Salkin on Smart Growth and Sustainable Land Use Planning

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Patty Salkin, a well known national expert in land use law, continues to come out with new publications on smart growth and land use.  Local communities everywhere are seeking new ideas about how to address climate change, natural disasters, barriers to healthy lifestyles, and the environments of low-income and minority communities (environmental justice).

 

The following are 4 valuable publications that address various aspects of the intersection between smart growth and land use planning and regulation. Incidentally, Salkin presented the paper on land use law and active living at the Children, Nature, and Land Use program at the University of Louisville’s first Symposium on Law, Ethics, and the Life Sciences in Fall 2007.  The program on children and the environment was sponsored by the University of Louisville’s Center for Land Use and Environmental Responsibility.

 

1) Patricia Salkin, Smart Growth and the Greening of Comprehensive Plans and Land Use Regulations (July 17, 2008).  Available at SSRN: http://ssrn.com/abstract=1162499 

 

Abstract: 

    
Global warming, climate change, reducing greenhouse gas emissions, reducing the carbon footprint, and going green are just some of the buzz words in the news over the last two years that have captured the attention of lawmakers and policymakers at all levels of government. In Congress, lawmakers have proposed, among other things, mandating standards to reduce greenhouse gas emissions, and governors across the country have announced myriad programs designed to encourage the use by governments of green products, the construction of green buildings, and the offering of a combination of tax incentives and grants for private developers and other members of the public who develop and install various renewable energy products.

 

However, it is initiatives at the local government level that have the greatest potential for most quickly and most efficiently slowing the pace of global warming. This is because local governments are the critical decision-makers in how communities use and conserve key resources. Municipalities serious about curbing emissions as well as energy and water usage within their communities, to both combat global warming and to preserve the immediate environment, have found many successful ways to implement plans that reduce the strain on environmental resources. Local governments have begun to incorporate principles and goals of sustainability and carbon reduction into comprehensive land use plans. This paper begins to examine the elements of a "green audit" for local comprehensive plans and land use regulations.

 

2) Patricia Salkin, Sustainability at the Edge: The Opportunity and Responsibility of Local Governments to Most Effectively Plan for Natural Disaster Mitigation (July, 08 2008). Environmental Law Report, Vol. 38, p. 10158, March 2008.  Available at SSRN: http://ssrn.com/abstract=1157153 

 

Abstract:

  
The traditional link between disaster mitigation and local land use planning was highlighted by the Disaster Mitigation Act (DMA) of 2000, which emphasizes the need for mitigation coordination among state and local entities. This article looks at the role of local governments in natural disaster mitigation, specifically, how local governments may use traditional land use powers, such as the police power, to protect against disasters. The paper cites DMA provisions that offer financial incentives to states that work with local governments to plan for growth and disasters; and sets forth case studies to illustrate how states can create vertical links among federal, state, and local entities to coordinate disaster mitigation strategies.


3) Patricia Salkin and Amy Lavine, Land Use Law and Active Living: Opportunities for States to Assume a Leadership Role in Promoting and Incentivizing Local Options (October 26, 2007). Rutgers Journal of Law and Urban, Policy Vol. 5, 2008.  Available at SSRN: http://ssrn.com/abstract=1025722 

 

Abstract: 

    
Obesity, asthma and nutrition are just three public health challenges facing children and adults that can be addressed through land use planning and zoning. States must take a leadership role in providing statutory authority and guidance for local governments to enact and implement laws and ordinances designed to promote active living. Land use policies, transportation policies, redevelopment policies and open space and recreation policies are key areas where reform is needed. This paper highlights exisiting examples from various states and offers lawmakers, policymakers and advocates options for reforming state laws to incentivize and influence local actions.

4) Patricia Salkin, Intersection Between Environmental Justice and Land Use Planning. Planning and Environmental Law, May 2006.  Available at SSRN: http://ssrn.com/abstract=1029861

 

Abstract:

 

Environmental justice goes to the core of traditional land use decisions: choosing sites for locally unwanted land uses (geographic equity); the process for deciding where to site these unwanted land uses, including the location and timing of public hearings (procedural equity); and sociological factors, including which groups hold the political power inherent in land use decisions (social equity). This articles discusses the various tools in land use planning and zoning that can used to promote and implement environmental justice principles.

 

Clean, Wet, and Smart, Part VI

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Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.

 

This blog posting is the sixth in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I am concluding this series with 3 excellent and thought-provoking articles about water rights, which have important implications for land development and growth:

 

1) Christine A. Klein, "On Integrity: Some Considerations for Water Law" . Alabama Law Review, Vol. 56, p. 1009, 2005 Available at SSRN: http://ssrn.com/abstract=805964 

 

Abstract:    


In 2003, the federal government issued a stark warning that parts of the nation are running out of water, due primarily to explosive population growth in arid areas. The report predicted a substantial likelihood that water supply crises would occur within the next twenty years in Denver, Los Angeles, Phoenix, Salt Lake, San Diego, and numerous other areas.

 

But, the problem is not confined to the west. Sprawling urban growth and significant pollution in some eastern areas are causing a simultaneous increase in demand and reduction in supply. The traditional response to shortage has been a quest for more water at all costs, leading to bitter and even violent conflict among competing water users. Even as the nation experiences this impending water crisis, we are also experiencing a crisis of a different kind. The corporate scandals and multi-billion dollar accounting frauds exposed in the 1990s have caused investors to lose faith in the integrity of financial institutions. Might there be a relationship between these two types of crisis, linked by the concept of integrity?

This article offers the notion of hydrologic integrity - basic principles of science, ecology, and social equity - as a touchstone for resolving intractable problems of water policy. Three case studies are presented, including the restoration of the Everglades wetland ecosystem (as considered by the United States Supreme Court in 2004 in South Florida Water Management District v. Miccosukee Tribe of Indians); the evolving fight over transbasin diversions from northern to southern Florida; and the stalled negotiations over the Apalachicola-Chattahoochee-Flint River Basin, which is likely to be presented to the Supreme Court for resolution. Applying principles of aquatic integrity to these case studies, this article suggests a new way for thinking about old water problems.
 

 

2) Sandra B. Zellmer and Jessica Harder, "Unbundling Property in Water" . Alabama Law Review, 2007 Available at SSRN: http://ssrn.com/abstract=1010617 

 

Abstract: 

    
The United Nations Intergovernmental Panel on Climate Change predicts that, in the foreseeable future, climate change will exacerbate water problems worldwide. In the United States, we are likely to see more severe flooding, more frequent droughts, and a rush to secure legal rights to water supplies. Sustainable management of water resources for present and future generations will become all the more imperative as we face increasing pressure on limited supplies.

The quest for sustainable management has stimulated a movement championing greater recognition of private property rights to attain efficient use and allocation of water. The World Bank and the International Monetary Fund have encouraged nations in the developing world to conform to a market paradigm by privatizing their water supplies. Affected communities are often less than enthusiastic about privatization. Throughout the world, attempts to privatize water resources have triggered a
“morality play of rights versus markets, human need versus corporate greed.”

The
controversy is not limited to developing countries. One of the most divisive issues in contemporary natural resources law in the United States is whether interests in water are property. Absent legally recognized property rights, water markets are unlikely to thrive. According to the Restatement of Property, the term “property” describes “legal relations between persons with respect to a thing.” Of course, not all economic relationships give rise to property rights. Judicial treatment of water is all over the map. The Court of Federal Claims awarded California irrigators millions of dollars as compensation for a taking of their property rights when flows were curtailed to protect endangered salmon, but a different panel of the very same court subsequently took that opinion to task for failing to consider whether interests in water are property under the Fifth Amendment. Likewise, other federal and state courts have reached contradictory results.

To unbundle the concept of property in water, this article critiques the conflicting approaches to water rights. It uses a web of interests as a strong yet flexible metaphor for property, complemented by a patterning definition representing elemental strands of the web. If the interest in question is not an irrevocable interest in the exclusive possession and use of a discrete, marketable asset, it is not takings property under the Fifth Amendment. Viewed through this lens, it becomes clear that interests in water in most jurisdictions are not takings property, although they may be a limited form of property for purposes of water transfers and due process or common law claims.

 

3) Robin Kundis Craig, "A Comparative Guide to the Eastern Public Trust Doctrine: Classifications of States, Property Rights, and State Summaries" . Penn State Environmental Law Review, Vol. 16, No. 1, pp. 1-113, Fall 2007 Available at SSRN: http://ssrn.com/abstract=1008161 

 

Abstract: 

    
Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation's public trust doctrines - emphasis on the plural - can reveal.

This Article seeks to begin to restore that sense of comparative complexity to the discussion of public trust principles. It focuses on the public trust doctrines of 31 eastern states - all of the states east of the Mississippi River, plus the five states - Minnesota, Iowa, Missouri, Arkansas, and Louisiana - bordering the western bank of the Mississippi River. Moreover, it includes in an Appendix state-by-state summaries of the public trust doctrines in each of the 31 eastern states examined.

These eastern states provide a particularly rich subset of states for public trust discussion purposes. At its most basic, a state's public trust doctrine outlines public and private rights in water by delineating five definitional components of those rights: (1) the waters subject to state/public ownership; (2) the line or lines dividing private from public title in those waters; (3) the waters subject to public use rights; (4) the line or lines in those waters that mark the limit of public use rights; and (5) the public uses that the doctrine will protect in the waters where the public has use rights. The history of the eastern states' public trust doctrines has led to multiple variations in how these states define and assemble these five components. In particular, far more often than is the case in the later-settled West, public trust use rights in the East intrude - and for practical purposes always have intruded - upon privately owned riparian and littoral property.

 

Clean, Wet, and Smart, Part V

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Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting is the fifth in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I refer to an excellent article by the University of Utah’s Lincoln Davies on “assured supply” laws that condition approvals of land use projects on developers showing that they have reliable supplies of water to support the new development.  Professor Davies explores the ways by which these laws can discourage or encourage sprawl, depending on the circumstances and how the laws are designed.

 

Lincoln Davies, "Just a Big, 'Hot Fuss'? Assessing the Value of Connecting Suburban Sprawl, Land Use, and Water Rights Through Assured Supply Laws," 34 Ecology Law Quarterly 1217 (2007): Available at SSRN: http://ssrn.com/abstract=1132512  

 

Abstract:

 

States and localities increasingly recognize the need to link land use and water supply planning. As the populace grows and sprawl continues, the strain on available natural resources, particularly water, makes this recognition all the more important. This Article addresses an increasingly common type of this planning link "assured supply" laws that require developers to prove they have secured adequate water stock before commencing construction. The Article performs a qualitative analysis of the potential benefits and costs of such laws and finds that, on balance, assured supply laws provide at least five significant benefits: consumer protection, greater holistic project- and agency-level planning, improved efficiencies in water rights allocation, and increased water conservation. Notably, however, these laws appear to do very little to diminish sprawl and, if designed incorrectly, may actually exacerbate it. The Article then extracts five dimensions around which localities might design their assured supply laws to maximize their benefits and minimize possible costs, concluding that such laws are most likely to deliver optimal benefits when they are (1) mandatory, (2) stringent, (3) statewide, (4) broadly applicable, applying to more than only large projects, and (5) interconnected with broader land-water and environmental planning mechanisms.

 

Clean, Wet, and Smart, Part IV

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Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting is the fourth in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I provide links and abstracts of articles that explore ways that federal law has been misused or unused to regulate land use and development as they relate to water resources.                 

 

1) Christine A. Klein and Sandra B. Zellmer, "Mississippi River Stories: Lessons from a Century of Unnatural Disasters" (August 20, 2007). Available at SSRN: http://ssrn.com/abstract=1010611 

 

Abstract:

 

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams; the perverse incentives created by the national flood insurance program; and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers.

Setting forth what we call the theory of “double takes,” this article argues that property owners in flood-prone areas “take” taxpayer dollars through two sometimes-overlapping mechanisms. First, a package of subsidies - including flood control structures, federal flood insurance, and after-the-fact disaster relief - enables and even encourages construction in high-risk areas. Second, landowners denied permits to develop floodplain and coastal property can “take” federal dollars in the form of compensation awarded under the Fifth Amendment. Such claims for compensation are fostered by the 1992 decision, Lucas v. South Carolina Coastal Council, in which the Supreme Court endorsed the view that coastal areas are “valueless” in their natural state - a dangerous misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.

 

2) Jess R. Phelps, "A Vision of the New Deal Unfulfilled? Soil and Water Conservation Districts and Land Use Regulation," 11 Drake Journal of Agricultural Law 353 (2006). Available at SSRN: http://ssrn.com/abstract=979108 

 

Abstract:

 

This Note evaluates the role of soil and water conservation districts as a part of the environmental component of New Deal era policymaking. This Note is specifically focused on exploring the nature of the regulatory authority that was granted to the conservation districts at the time most states passed the district enabling legislation and the role this authority play in addressing conservation problems on the local level. States granted districts two types of authority: projects and regulatory. Projects power - or the ability of the districts to promote conservation through demonstration stations, and educational efforts has been the dominant activity of the districts throughout their history. On the other hand, regulatory authority - the ability to pass local regulations governing land use - has rarely been utilized. This Note addresses the reasons this authority was not fully utilized and the forces that opposed the utilization of this district regulatory authority. In conclusion, this Note follows a modern use of district regulatory authority in Montana's Rosebud Conservation District and provides a framework for expanded use of regulatory authority in addressing local environmental problems.

 

Another Environmental & Land Use Blog Worth Reading

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Louisville Courier-Journal environmental reporter Jim Bruggers is a first-rate environmental reporter.  Moreover, he has a most informative and useful blog, which is http://www.courier-journal.com/blogs/bruggers/blog.html.  It’s a thoughtful source of environmental news not only in Louisville but also nationally and globally.

 

Here are some more details on Jim and his blogging activities, fromhis blog site: 

 

“As far as he knows, Courier-Journal reporter James Bruggers is about the only journalist covering the environment full time for a Kentucky newspaper, television station or radio station.  A native of Michigan, he lived in the West for more than two decades before coming to the C-J in 2000. He studied journalism, forestry and environmental studies at the University of Montana.

 

In this blog, Bruggers shares news items and observations from inside the environment beat locally, regionally and globally. He calls your attention to new studies, reports and events. And he goes behind the headlines to answer questions and explain some of his own coverage in the newspaper.”

 

Clean, Wet, and Smart, Part III

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Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting is the third in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I provide a link and the abstract to an article that addresses an often-overlooked topic: the importance of land trusts and government agencies acquiring water rights to accompany the conservation easements or conservation lands that they acquire. 

 

The article is: Mary Ann King and Sally K. Fairfax, "Beyond Bucks and Acres: Land Acquisition and Water," 83 Texas Law Review 1941 (June 2005).  Available at SSRN: http://ssrn.com/abstract=874789 

 

Abstract:       

 

This Article will use historical experience and current practice to do three things. First, we chronicle early acquisitions' tendency to overlook water. Second, we will offer a precise account of the confusion that can arise from combining conservation easements and water as property, most particularly in the western United States. Finally, we look at some tools that might minimize the confusion.

 

In Part II we first use a brief history of land acquisitions - from Niagara Falls in the 1880s to the Land and Water Conservation Fund Act of 1965 - to establish the context in which land-acquiring conservationists have long overlooked water. Perhaps the fact that land acquisition as a conservation tool, both full-fee and conservation-easement-based, first took hold in the eastern United States, where riparian doctrine prevails, explains the rather off-hand approach to water in these early acquisitions, what we call the riparian mindset. We also note some basic constraints on just buying it associated with these historic acquisitions of land-in-fee.

 

We briefly put water aside in Part III to introduce land trusts and conservation easements. First, we discuss state statutes that adjusted the common law of servitudes to accommodate conservation easements. Then we point to issues that would arise in any modern conservation easement, issues that intensify the concerns we raise regarding acquisition of land-in-fee.

 

In Part IV, the heart of our discussion, we ask what happens if conservation easements are used when water is a primary or necessary element of the conservation benefit. We begin by examining the easiest case: municipal and land trust programs that use conservation easements to protect water quality. In these programs, the basic features of the conservation easement are relatively unaltered by its connection to water, and problems seem no more onerous than with most other conservation easements. We address the harder issue of water quantity by examining experiences using less-than-fee interests to restrict water rights. Depression era flowage and post-World War II wetland easements acquired by the Bureau of Biological Survey (BBS) and the United States Fish and Wildlife Service (FWS) are instructive. The contemporary use of conservation easements that address water quality by restricting water rights is more problematic, particularly when the federal government's enormous advantages in litigation are taken into account.

 

Part V offers some starting points for future discussion. We look at water trusts' experience trying to integrate instream values and water rights into transactions. We then briefly discuss a recent Colorado statute aimed at strengthening conservation easements as a tool for protecting water on eased lands. We conclude that conservation easements that protect water quality by controlling land use are not obviously more vexed than the familiar conservation easement protecting open space, habitat, or historic sites. In fact, all of these goals frequently overlap handily. Trying to use conservation easements to address issues involving water rights - water as property - is more complicated. When easements attempt to tie water to land, particularly in ways that are not fully supported by state water, property, and easement law, the results can be disappointing. If the energetic - and still rapidly growing - land trust community is to play a positive role in water-related or water-dependent resource protection, practitioners must overcome the riparian mindset and directly address the interplay between land and water law.

 

We conclude that addressing water quantity goals with conservation easements is both complex and risky. But conservation easements are the current tool of choice for good reason, and not using them at this point in history may leave even worse problems. The task remains to choose tools that effectively integrate land and water conservation.

Clean, Wet, and Smart, Part II

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Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting is the second in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I provide links and abstracts to 2 similar articles manifesting the research and ideas of Professor William Andreen, University of Alabama Law School, on the subject: 

 

1) William L. Andreen, "The Evolving Contours of Water Law in the United States: Bridging the Gap between Water Rights, Land Use and the Protection of the Aquatic Environment," Environmental Planning and Law Journal, Vol. 23, 2006.  Available at SSRN: http://ssrn.com/abstract=889744 

 

Although Australia and the United States share a common law heritage, water law has developed in significantly different patterns in the two nations. Much of the credit for Australia's different course can be ascribed to Alfred Deakin, who after taking a study tour of the American West in 1885, wrote a report that rejected the doctrine of prior appropriation as used in the arid states of the American West and advocated a system in which the rights of the state were elevated over those of the individual.

Unfortunately, both countries have generally treated water, just like land and other natural resources, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the severe damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. Both countries, therefore, face the difficult challenge of trying at a late date to bring together two separate, but inextricably connected, disciplines, one focusing on water use and the other on water quality. The challenge is daunting, especially in light of both existing uses of water "giving rise to settled expectations in Australia and often confirmed as a matter of right in the United States" and anticipated growth in demand.

Complicating the situation in the United States is its fragmented approach to law and regulation dealing with watershed issues. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the notable exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government.

After exploring the three separate regimes governing water use, water quality and land use, the article discusses and evaluates a number of approaches for trying to integrate these regulatory schemes into a mechanism that can enhance and protect the integrity of our aquatic systems while also meeting many human needs in a sustainable and adaptive way. Perhaps the most important aspect of this analysis lies in its attempt to connect, in terms of law and institutions, the natural and symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river or other freshwater system as part of a larger interdependent ecosystem, one linking all land and aquatic features in a particular watershed. 
 

 

2) William L. Andreen, "Developing a More Holistic Approach to Water Management in the United States," Environmental Law Reporter, Vol. 36, No. 10277, 2006.  Available at SSRN: http://ssrn.com/abstract=894959 

 

Americans have generally treated water, just like land and other natural resources, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. The United States, therefore, faces the difficult challenge of trying at a late date to bring together three separate, but inextricably connected, disciplines, one focusing on water use, one on water quality, and yet another focusing on development and land use. The challenge is daunting, especially in light of both existing water uses and anticipated growth in the demand for water.  

Complicating the situation is a fragmented approach to law and regulation. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government.

After exploring the regimes that govern water use, water quality and land use, the article discusses a number of approaches for trying to integrate these regulatory schemes into a mechanism that can better protect the integrity of our aquatic systems, while also meeting most human needs. Perhaps the most important aspect of the analysis lies in its attempt to connect, in terms of law and institutions, the symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river and other freshwater systems as part of a larger interdependent ecosystem linking all land and aquatic features in a particular watershed.