Clean, Wet, and Smart, Part VI
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
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
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
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.