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.