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Abstract:
One of the defining issues of the twenty-first century will be the allocation of fresh water supplies, both in the United States and abroad. Population growth, increased per capita consumption, water pollution, and climate change all conspire to challenge the water allocation systems of even the wettest states. Florida, for example, which enjoys an average annual precipitation of over fifty inches, currently experiences regional water shortages, with more predicted for the future. This Article takes a broad view of the modernization of water law, considering five of the most pressing and controversial modern challenges into a national and historical context: a) advancing the public interest while allocating water among competing users; b) retaining sufficient water in natural stream, lakes, and aquifers to maintain vibrant aquatic ecosystems; c) ensuring that adequate water supplies will be available for future needs; d) determining the extent to which managers should transfer water from places of relative abundance to places of relative scarcity; and e) determining the role, if any, of the free market in allocating water resources within states. The first part of this Article provides a general overview of the process of water law reform. As states attempt to improve water management, they have modified their common law water allocation systems with an overlay of statutory law. Often, the process occurs in piecemeal fashion, resulting in a patchwork of rules - common law and statutory, old and new. In rare cases - including that of Florida - the process may be more comprehensive, with states supplanting their entire body of common law with modern statutory codes. The second part examines the evolutionary path of Florida, a state that has adopted generally wholesale and comprehensive reform in modern times. Because this reform took place in 1972 - at the dawn of the modern environmental era - the reform reflects modern environmental and public interest sensibilities. The third part turns from process to substance, looking more closely at five problems that plague virtually every state.

water, water law, riparian, prior appropriation

Abstract:
Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council — the modern U.S. Supreme Court's seminal regulatory takings decision — this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own — forming what this Article calls the new nuisance doctrine. As this Article explains, nuisance is new in at least two important ways. First, it has taken on a new posture, evolving from defense, to offense, to catalyst for legislative change. Second, nuisance has taken on new substance, triggered in part by Lucas's explicit recognition that "changed circumstances or new knowledge may make what was previously permissible no longer so."

Climate change, Global Warming, Wetlands, Regulatory Takings

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.

Water law, integrity, Everglades, Miccosukee, Apalachicola, transbasin diversions

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.

Regulatory Takings, Flood Control, Water Resources, Land Use, Insurance, Disaster

Abstract:
Water policy in the western states consistently has embraced a nineteenth century, supply-side mentality, requiring cities and other water providers to satisfy an ever-growing demand for water at virtually any cost. As a result, the western states rely upon thousands of engineered water transfers-even siphoning water from one side of mountain ranges to the other-in an unsustainable attempt to support growth. This article challenges the conventional reliance upon transbasin diversions as a response to shortage. It argues that importing water from distant watersheds lulls growing communities into a false sense of security, subsidizes unsustainable growth, and exacts significant social, economic, and environmental costs. Although this article recognizes the infeasibility of reducing western reliance upon existing large-scale transfers, it offers an alternative paradigm for the eastern states, as many of them begin to face the limits of existing water supplies. This article argues that communities could achieve water independence by shifting to a demand-side model and by nourishing the living rivers essential to both human and natural ecosystems.

water, transbasin diversion, interbasin transfer, concurrency, wet growth

Abstract:
As a metaphor for the interaction of law and culture, bottled water is striking in its simplicity and clarity. Bottled water consumers form a surprisingly loyal subculture of beverage drinkers, united by the water truths and water myths that they embrace. More recently, an equally fervent subculture of bottled water protestors has begun to coalesce. Notably, the cultural norms associated with both supporters and detractors extend beyond mere hydration and encompass such fundamental and varied notions as health, taste, convenience, status, morality, anti-privatization, sustainability, and truth-telling. In contrast to the cultural story, the legal narrative is surprisingly sparse, overlooking an important opportunity to engage in a cultural legal dialogue on the evolving norms of water use. This Article argues that the states' law of water allocation - evolved over more than a century from the customs of water users - is uniquely suited to stimulate this unrealized dialectic and to translate social values into law. In particular, the Article identifies four discrete principles of water law that are especially relevant to the discourse, including reasonable use, beneficial use, preferred uses, and the public interest.

water, bottled water, riparian, prior appropriation

Abstract:
There is something in the human spirit that responds with great passion and outrage when outsiders - however defined - look beyond their own back yards for a useable source of water. Ironically, that same outrage is conspicuously absent when nearby neighbors use water wastefully, as by excessive lawn watering during rainstorms, neglect of leaky faucets, or failure to modernize outdated bathroom fixtures that use large amounts of water simply to transport waste. Curiously, the outsider-neighbor distinction seems to be rooted in artificial human boundaries (such as state lines), rather than in meaningful ecological boundaries (such as watershed limits). In a well publicized Michigan dispute, for example, residents were outraged by a proposal of Nestle Waters (a subsidiary of the Perrier Group of America) to construct groundwater withdrawal and water bottling facilities within the state. In that case, citizens responded with organized protests, blocking truckloads of bottled water by lying in the streets, and carrying banners with slogans, such as our water is not for sale. Presumably, the same response would not be triggered by the consumption of an equal amount of water by Michigan irrigators, or even by the incorporation of similar quantities of water into products sold outside the state as baby food or soft drinks.

Whatever its explanation, this protectionist response is powerful and widespread. The underlying energy can be harnessed for good, or allowed to express itself in ultimately unproductive ways. Residents of the Great Lakes basin, for example, have long feared that water users from other states will seek to acquire their lake water, exporting it to arid regions of the country. Basin residents have channeled that emotional energy into the development of the Law of the Lakes - a series of treaties, compacts, agreements, state and federal legislation, and common law designed to regulate and protect Great Lakes resources. To date, those documents have struck a precarious balance between the impulses of protectionism (regulating outsiders) and sustainability (regulating water use by basin residents, as well as by outsiders). Resolving the tension has taken on a new urgency, as the Great Lakes states and provinces recently agreed to develop a new and consistent series of state and provincial water laws.

This Article has a practical goal: to convince state lawmakers of the need to regulate in a comprehensive and evenhanded manner, avoiding short-sighted fixes or politically appealing shortcuts. To accomplish that goal, Part I focuses upon another region of the country - the Colorado River basin - where residents have also undertaken the task of managing a water system that includes two nations (the United States and Mexico) and numerous states. Learning from the successes and failures of the resultant Law of the River, this Article derives guiding principles for the emerging Law of the Lakes. Part II makes a crucial distinction between protectionism and true sustainability, examining the existing Lake documents for evidence of each. Part III offers a description of six essential components of any sustainable state water code, and provides references to a menu of draft legislative provisions available for adoption (with or without modification) by the Great Lakes states. This Article concludes with the hope that the Great Lakes states and provinces realize the tremendous opportunity now facing them, and take full advantage by developing a sustainable body of water law.

Water Law, Great Lakes, Sustainability, Export, Transbasin Diversion, Interbasin Transfers

Abstract:
In 2007, the nation entered a financial downturn unprecedented since the Great Depression of the 1930s. A period of national introspection followed, including memorable moments such as Federal Chairman Alan Greenspan's gut-wrenching admission that his "whole intellectual edifice" had collapsed during the summer of 2007. Although prescriptions for financial rescue varied widely in the details, a surprisingly-broad consensus began to emerge as to the underlying pathology of the crisis. This Essay focuses on three underlying errors: rejecting rules through deregulation, trivializing risk through overly-optimistic analyses, and recklessly borrowing and lending money.

Those powerful lessons, accepted by a stunned nation in the midst of financial collapse, apply with equal force to the growing environmental deficit - the unsustainable spending down of natural resource assets. I argue that the environment could benefit from a dose of the same medicine that has been prescribed for the economy: enforcing rules through re-regulation, abandoning inaccurate models of cost-benefit analysis that trivialize the risks of environmental degradation, and making a commitment to sustainable use of the country's natural capital.

This Essay tells two parallel stories of fiscal and environmental unraveling, seeking to capture the cultural moment by reporting the often-frank admissions of political and intellectual leaders as they confront the crisis. The Essay features a section (Part II.A) on the curious modern phenomenon of "midnight regulations," including an Appendix showing the most recent enactments in table format.

environmental deficit, recession, deregulation, risk, cost-benefit analysis, sustainability, midnight regulations, thrift

Abstract:
This book is about the future of environmental law. To understand our proposals for the next generation of environmental law, it is useful to look backward to the first two generations. Each stage grew out of quintessential American values, articulated at the founding of our nation, but equally applicable to subsequent generations. Drawing upon these durable values, this book charts a course forward, encapsulated in two proposed laws: The "National Environmental Legacy Act" and the "Environmental Competition Statute." Although path-breaking in orientation, the proposals are rooted firmly in core American values. As such, they fit comfortably within the tradition this chapter calls "environmental patriotism" - the belief that a healthy natural environment promotes the strength and safety of the nation. This linkage of environmental laws and patriotism suggests that the priority placed upon environmental protection deserves to be on a par with that of national security.

Historically, the most successful laws have codified shared values, rather than imposed the will of a few upon the many (such as the unsuccessful laws of the Prohibition era). That is, the most enduring legal traditions can be viewed as an expression of patriotism, emerging from a powerful love of country and from the fundamental values that bind us together. In this context, patriotism serves as a rich, fertile soil containing basic nutrients - liberty, equality, happiness, optimism, strength, frugality, efficiency, industriousness, and individualism, to name but a few. This soil nourishes a variety of cultural norms and social institutions, many of which ripen into law. Just as different species of trees may thrive in different soil types - river birch in alluvial soils, the giant sequoia in deep sandy loams, the black walnut in well-drained clays - so also vigorous legal regimes draw upon a mix of values well-suited to the context. This introduction surveys America's unique brand of patriotism, tracing its deep roots in the country's physical landscape. Next, this introductory chapter describes how environmental law incorporated patriotic values throughout its first and second generations. Finally, the discussion introduces this book's proposals for the next generation of environmental laws, noting how they continue the American tradition of environmental patriotism.

patriotism, environmental law, American values, sustainability

Abstract:
In 1995, the U.S. Supreme Court shocked the legal community when it constrained the scope of the affirmative commerce power of Congress in United States v. Lopez. The Court further narrowed the view of federal commerce authority in two subsequent opinions, which together require that when Congress seeks to regulate a wholly intrastate activity on the basis of its substantial effects upon interstate commerce, the activities themselves must be economic or commercial in nature. In contrast to the contracting scope of the affirmative commerce clause, the Court had begun to expand the dormant commerce clause. This article analyzes the relationship between the affirmative and dormant aspects of the commerce clause, and their effect on the federal regulation of natural resources-an inquiry this article labels the "environmental commerce clause." This study supports two principal conclusions. First, the modern Court has been consistently hostile to environmental regulation. Second, there exists a subtle inconsistency between the Court's affirmative and dormant clause analyses.

United States v. Lopez, commerce clause, affirmative commerce clause, dormant commerce clause, environmental commerce clause, environmental regulation

Abstract:
For the first time, on July 1, 1999, the federal government ordered the destruction of a dam over the objection of its owner. This marked a turning point in the environmental policy of the United States, reversing the national philosophy that had endured for much of the century. During the twentieth century, the United States demonstrated a dam-building obsession. Dams were undoubtedly vital to our political culture, serving as physical symbols our democratic society. Further, they promoted democracy by generating electricity, by supporting irrigation, water storage, flood-control, and recreational functions necessary to a vibrant society. However, by 1970, the dam-building movement began to dissipate. Concerns about negative environmental consequences or dismal cost-benefit ratios slowed dam approval. Demolitions of dams that could no longer justify their continued existence started occurring. This Article observes that there was a rough correlation between the rise of dams and the rise of the administrative state during the New Deal era, and argues that democratic values were sacrificed often at the altar of technology. Conversely, the demise of dam building correlates with the resurgence of democratic and environmental values, disenchantment with the administrative state, and an increasing distrust of big government insulated from citizen input. To guide the analysis of the extent to which federal dam policy has departed from democratic principles, this Article asks who made dam-related decisions, and on what basis those decisions were made.

dams, democracy, Army Corps of Engineers

Abstract:
The modern discourse concerning property rights has deep historical roots, for property has long been the object of heated passion war, and conquest. It is common knowledge that the United States acquired over two million square miles of territory from Native Americans. Not as common is the knowledge that the United States conquered Mexico in 1848 and took over half its then-existing territory. In both cases, the territorial acquisitions were sealed by solemn and idealistic treaties that belied the realities of conquest. In Treaty of Guadalupe Hidalgo, the United States promised that it would "inviolably respect" the established private property rights of Mexican citizens in the conquered territory and provide them with "guaranties equally ample as those that belonged to citizens of the United States." But this article will show that not all treaty promises are equal. In general, the treaty-based property rights of Native Americans have been given more protection than has been given to property in the former Mexican territory. This is in part because of Chief Justice Marshall's conception of Indian tribes as dependent sovereigns entitled to the guardianship of the United States. Hispanic lands, however, were not subject to any particular federal oversight, and the beneficiaries of the Treaty of Guadalupe Hidalgo were regarded as simply individual members of Hispanic communities rather than a collective unit to which sovereign status has been attributed. Although legal commentators have tended to study conquests in isolation from one another, this article seeks to study the conquests from a comparative perspective. Moreover, this article seeks to provide an extensive analysis of selected legal topics involving treaty-based land rights of former Mexican citizens and of Native Americans in the conquered territory. Finally, this comparison of treaty-based property rights is offered to illuminate the choices that were made by the Supreme Court and Congress by juxtaposing two sets of answers to a similar set of problems.

Treaty of Guadalupe Hidalgo, Native Americans, Mexico, property rights, treaties

Abstract:
A mural in the capitol of Denver reads "Here is a land is written with water." Water is sacred in the western United States, and this respect extends to the western legal system for water allocation, known as the prior appropriation doctrine. Under this doctrine, non-wasteful, beneficial uses of water are constitutionally protected on the basis of "first in time, first in right." This is a doctrine born of necessity. Courts have elevated the diversion element of the prior appropriation doctrine to constitutional status, creating the constitutional myth that all water uses must involve diversion in order to receive protection. However, the state courts have abandoned their rhetoric by allowing non-diversionary uses such as environmental preservation and recreation, but nonetheless the mythology persists.

This article argues that diversion has wrongfully replaced beneficial use as the central constitutional requirement of a water right, and suggests ways that this process may be reversed. In doing so, the article examines the core concepts of the prior appropriation doctrine to reveal the historical underpinnings of the constitutional myth, and also addresses diversion requirement of the myth. Moreover, it considers the clash between modern environmentalism and traditional concepts of water use, suggesting that the demise of the mythology has begun. Finally, this article evaluates the legacy of the myth, including the continued judicial discomfort with the diversion requirement which leads to confusing legal precedent and poorly-reasoned decisions.

prior appropriation doctrine, water use, Constitutional myth, water law

Abstract:
The public image of marshes has changed dramatically over the past century. First perceived as worthless swamps, wetlands are now considered to be priceless treasures. Congress, federal agencies, and the courts have struggled to keep up with this changing view, and the result has been confusion. Section 404 of the Clean Water Act authorizes the Corps to regulate wetland filling through a permit system and also allows the EPA to veto any of the Corps' permit decisions. Although the Clean Water Act creates a strong presumption against filling wetlands with soil and other materials, the Army Corps of Engineers and the Environmental Protection Agency have regularly allowed wetland filling. The inconsistency between the congressional mandate to preserve wetlands and the agencies' reluctance to implement that command is detrimental to both the natural and business environments of this country. In Bersani v. EPA, the EPA exercised its veto authority for only the sixth time in the history of the veto provision. In this article, the author argues that the Second Circuit correctly upheld the EPA's veto of a developer's permit application under section 404 of the Act.

Wetlands, marshes, EPA, Army Corps of Engineers, Bersani, Clean Water Act

Abstract:
Every year, over a million acres of crop land are lost to the sprawling growth of suburban areas in the United States. Open areas where there was once wildlife are now filled with subdivision houses and strip malls. An explanation of why this has happened is the rollover rule of former Section 1034 of the Internal Revenue Code (Code), which created a home sale preference, permitting home owners who sold their principal residences at a profit to defer tax liability. This tax benefit was limited to taxpayers who would buy up by purchasing another home of equal or greater value within two years of sale. Section 1034 was repealed in 1997, but for 46 years, in its goal of supporting homeownership it also unwittingly promoted the needless destruction of farmland and the unchecked proliferation of suburban housing developments. These unintended consequences came about because to buy up many homebuyers had to move away from cities into the counties where homes were more expensive. This Article contends that in the case of Section 1034, the detrimental effects of the rollover rule and its buy-up requirement overshadowed any benefits that he home sale preference created. Moreover, this Article focuses on a repealed law because a nation cannot have an informed, rational, and constructive tax policy on home sales without fully understanding the mistakes of the past. Through case studies of housing markets of Santa Clara County, California and Boulder, Colorado, the Article tests the unintended consequences of the rollover rule.

Internal Revenue Code Section 1034, subdivisions, crop land, rollover rule, farmland loss, unintended consequences