RIVER RECREATION: PUBLIC ACCESS VS. RIPARIAN RIGHTS1

ABSTRACT: The issues involved in the conflict between the rights of the public and those of riparian landowners are examined by reviewing the public access situation with regard to inland streams in the State of Virginia. Consideration is given to the legal framework defining access rights and to the attitudes of riparian landowners regarding the access question. Existing provisions of law suggest only limited recognition of public rights, but this law is incompletely developed. A considerably broader concept of public rights could be developed within the existing framework due to the existence of unresolved questions. The analysis of landowner attitudes is based on a survey of a sample of riparian owners chosen from throughout the state. The questionnaire used in the survey contained 123 questions in a variety of areas, including landowners' perceptions of public rights, problems encountered as the result of recreational water use, attitudes toward state designation and protection of scenic rivers, and the acceptability of alternatives for increasing public access. Although the survey results indicate substantial acceptance of the concept of public use, the landowners expressed concern over governmental control of land use and did not indicate a generally acceptable means for increasing public use.     

NEW HAMPSHIRE WATER LAW: AN INTERPRETIVE OVERVIEW1

ABSTRACT: New Hampshire's riparian water law, first modified judicially, has been more drastically changed by recent legislative and administrative action. As it stands, however, the judicially enforced doctrine of reasonable use appears to be utterly inadequate to handle increasing water demands. The protection of the public interest has imposed substantial limitations on the use of riparian water rights, all under the guise of the exercise of the police power, i.e., the protection of the public health, safety, and welfare. The efficient use of the state's water resources has been further crippled by the widespread and indiscriminate exercise of eminent domain. As a result, the state is now considering the imposition of a permit system that has the potential to streamline the allocation of water. Such a system should take into consideration the public interest factors that have recently frustrated the exercise of riparian rights and the effective use of the state's water resources.     

BENEFITS OF TRANSFERRING STREAMFLOW PRIORITY FROM AGRICULTURAL TO NON-AGRICULTURAL USE1

ABSTRACT: In Virginia, as in many states, priority to streamflow is held by riparian landowners who are predominantly agricultural users. The streamfiow may also have a high potential value to non-agricultural users who do not have riparian rights. The potential benefits of transferring streamfiow priority rights from agricultural to non-agricultural use were evaluated using simulation for an eastern Virginia watershed. Lowering irrigators' priority to streamflow reduced crop yields and irrigated returns in some years because of inadequate water supplies. However, the transfer of priorities increased the likelihood that the urban reservoir would be able to withdraw water from the stream without interruption. As a result, priority trades reduced the size of reservoir needed to meet a given water requirement by municipal users. The resulting savings in reservoir construction and maintenance costs more than offset the losses to irrigators. Net savings could be achieved even if the reservoir were required to release water periodically to maintain a minimum level of instream flow. The conclusion is that the state should encourage trading of access to streamflow in order to increase the use efficiency of streamfiows. Alternative means by which the state can facilitate water exchanges are discussed.     

Modeling rural landowners' hunter access policies in East Texas,USA

Private landowners in East Texas, USA, were aggregated into one of four policy categories according to the degree of access allowed to their lands for hunting. Based on these categories, a logistic regression model of possible determinants of access policy was developed and probabilities of policy adoption were calculated. Overwhelmingly, attitudes toward hunting as a sport, incentives, and control over the actions of hunters were most predictive of landowners' policies. Additionally, the availability of deer was found to be negatively correlated with access, thereby suggesting management efforts to increase deer populations may be counter to increasing access. Further, probabilities derived from the model indicated that there was almost a 7 in 10 chance (0.66) that landowners would adopt policies commensurate with allowing family and personal acquaintances to hunt on their property. However, the probability of increasing access beyond this level, where access was provided for the general public, dropped off drastically to less than 5% (0.04).     

CONJUNCTIVE MANAGEMENT OF WATER RESOURCES IN THE CONTEXT OF TEXAS WATER LAW1

ABSTRACT: This paper examines the critical interaction between existing Texas water law and the state's water resources. Conjunctive use and management of interrelated water resources, though seldom practiced, is generally considered desirable. However, a significant barrier to the coordinated, efficient use and management of water resources is the legal division of water in the various phases of the hydrologic cycle into different classes and recognition of well-defined water rights in the separate phases. Several examples of the problems which relate to, or result from, present Texas water law and which prevent correlated water resource management are discussed. Any substantive revision of Texas law, particularly ground water law, will apparently be difficult to achieve in the immediate future, primarily because of the large number of recognized private water rights and the political power inherent in them. Data necessary for operation of conjunctive management systems are gradually being acquired, and perhaps someday other hydrologic phases can be integrated with surface and ground water. Nevertheless, Texas courts and the legislature have sufficient information on the interrelated hydrologic cycle so that prospective water conflicts should be anticipated and avoided. Great care must be exercised in the recognition of new types of private water rights or extension of existing rights, because this institutional structure, once established, presents a formidable obstacle to desirable revisions of the law.     

Walking in the Irish countryside: landowner preferences and attitudes to improved public access provision

This paper explores the attitudes of landowners across Ireland to the wider provision of public access for recreational walking using a multinomial logit model. The study also investigates the level of compensation required to improve the supply of this public good. Results indicate that 51% of landowners are not willing to provide access (non-providers), 21% are willing to provide access free of charge (free providers) and 28% seek compensation (willing providers). The findings indicate that participation by landowners in a proposed public access scheme is influenced by landowners' experience with walkers, farm type, farm insurance costs, household demographics, regional variations, opportunity cost of land and participation in other agri-environment schemes. Mean willingness-to-accept for landowners willing to facilitate improved public access for walking was found to be €0.27 per metre of walkway.     

Injustice and organisation in Anchicayá, Colombia: an environmental legal case in a hydropower watershed

The paper looks at Colombia's first major environmental justice legal case involving a riparian Afro-Colombian community and the Pacific Energy Company (EPSA). Riverine Afro-Colombian communities gained political recognition as a culturally distinct group largely based on their conservation practices in riparian environments. The work contrasts the complexities of the case with the vulnerable reality of the people of Anchicayá who largely live in conditions of poverty, violence and political isolation. It also describes the institutions that frame watershed management, the ethnic rights to collective land and self-governance and the property rights of energy companies in the backdrop of decentralisation reforms that clarified different types of property rights and refounded Colombia as a multicultural nation. The legal suit, however, demonstrates that the government failed to offer equal protection to collective versus private cultural and socio-economic uses of land and water in order to protect energy investments. The Constitutional Court's jurisprudence ultimately privileged technical and legal know-how and overlooked the limits community intermediaries face offering similar evidence. By doing so, the court not only disregarded the constitutional rights of Afro-Colombians, but it also failed to mitigate a socio-environmental conflict.     

PRIVATIZING THE GROUND WATER RESOURCE: INDIVIDUAL USE AND ALTERNATIVE SPECIFICATIONS1

ABSTRACT: While most inquiries into improving the efficiency of ground water allocation have focused upon various schemes involving centralized management, recently the focus has shifted towards exploring private property solutions to these problems. However, most of these studies, when modeling ground water use, have equated behavior under private property to that under common property conditions. This leads to the possibly mistaken conclusion that private property rights do not promote more efficient ground water use, because these models assume that producers ignore the future effects of current pumping. This paper attempts to correct this deficiency by formally modeling ground water use under common property, central management, and private property scenarios. Moreover, there are many ways that property rights can be defined over ground water, some establishing more exclusivity over the resource than others. Four specifications of property rights are analyzed for their likely effects on allocative efficiency: full stock-flow, partial stock-flow, limited stock-flow, and pure flow rights.     

THE EVOLUTION OF TEXAS WATER LAW AND THE IMPACT OF ADJUDICATION1

Texas' surface water law began its evolution during the Hispanic period of occupance. Later, the English riparian doctrine was adopted, and finally, in the late 1800's, the prior appropriation doctrine was superimposed, resulting in an exceedingly complex dual system. Though the judiciary, legislature, and state water agencies have wrestled with the problem of coordinating these diverse water rights and more accurately delineating and measuring riparian rights and water use since early in this century, until recently all attempts were unsuccessful. The unknown riparian element, in particular, made coordinated and efficient management and administration of the state's surface water resources impossible. Finally, measurable progress toward solution of these problems began in 1967 with passage of the Water Rights Adjudication Act, aimed at identifying all unrecorded surface water rights claims and eventually merging all claims into the permit system. This paper examines the gradual evolution of Texas' curious blend of Hispanic-English riparian rights and later appropriate rights; discusses the resultant problems of water resource administration; and traces the progress of the ongoing water rights adjudication, a lengthy, expensive, and complex procedure, which should eventually make possible more efficient administration of all surface water rights.     

WATER RIGHTS,EMINENT DOMAIN,AND THE PUBLIC TRUST1

ABSTRACT: Faced with the necessity of meeting growing municipal water requirements in areas where available supplies are completely allocated, numerous cities throughout the West are turning to their eminent domain powers to affect a reallocation of water from less preferred uses to municipal uses, thus bringing about a sharp conflict with agricultural interests. As a basis for discussing these eminent domain powers, this paper begins with a brief review of the development of property rights. The existence of both private and public (social) rights in the “bundle of rights” is noted. In recent years the Public Trust Doctrine has been used to limit private rights in property, and to protect and strengthen social rights. A case study which focuses on a conflict between individual and social interests in water rights is discussed. This case involves the City of Thorton, Colorado which initiated municipal condemnation proceedings to acquire the water rights and structures of two nearby irrigation companies. The case represents an attempt to incorporate the spirit of the Public Trust Doctrine into legislation which sets forth procedures for resolution of similar water rights conflicts that will inevitably become more numerous throughout the West in the future.     

ADAPTING THE LAW OF WATER MANAGEMENT TO GLOBAL CLIMATE CHANGE AND OTHER HYDROPOLITICAL STRESSES1

ABSTRACT: Existing legal regimes for the management of water resources are already stressed by changing technologies and growing populations. There is little reason for doubt that today the planet is undergoing significant and even alarming climate change. In the past such global climatic changes had dramatic effects on water resource availability with disastrous consequences for many human communities. Today's climate changes can be managed without such disastrous consequences for present day communities only if there are major reforms to existing water law regimes at the local, national, and international levels. In particular, at the local and national levels, water resources must be treated as public property rather than as common or private property. At the international level, water must be managed at the drainage basin level rather than according to national boundaries that largely ignore rational water management criteria. At all levels, care must be given to decentralizing decision making and to use economic incentives insofar as possible, without, however, mistaking economic incentives for markets. The public nature of water resources precludes true markets as a significant management tool.     

Cross-Boundary Cooperation in a Watershed Context: The Sentiments of Private Forest Landowners

Ecosystem management and sustainable forestry on mixed ownership landscapes will require some level of cross-boundary coordination or management. Oregon's experiment with local, voluntary, collaborative forums, called watershed councils, is one mechanism to foster cross-boundary management. Fifty qualitative, in-depth interviews in three study areas were conducted with nonindustrial private forest (NIPF) landowners, watershed council members, and agency employees to learn how and why landowners participate (or not) on watershed councils. Study areas were located in three different areas of the state to reflect different ecological and organizational settings. Our case study identified three themes—stewardship ethic, property rights amid uncertainty, and action orientation—that were most salient among landowners when deciding to participate in their local watershed council. Other factors related to competing opportunities were also identified. Our results relate to the social psychological antecedents to cooperation of perceived consensus, group identity, and legitimacy of authority as well as to applied situations where cross-boundary coordination and management are goals.     

PLANNING UNDEVELOPED LAKESHORE1

ABSTRACT: Private lakeshore development usually precedes establishment of public lake access. As a result, the best access areas are often occupied before public access is provided. The public then has a problem to provide access for nonriparian citizens. This problem can be anticipated and prevented by classifying undeveloped lakeshore areas according to suitability for both private and public uses, and incorporating appropriate recommendations into the municipal, comprehensive land use plan. To accomplish this, a site evaluation system has been developed which numerically rates the lakeshore for each of four public uses: public beaches, picnic areas, boat access areas, and public marinas; and two private uses: private marinas and vacation homes. Ratings are developed for: slope, soil suitability, shoreland type, water quality, site location, scenery, and road access. These ratings are combined with a statement of public goals developed from attitude surveys to produce a lakeshore land use plan. The plan recommends that lakeshore areas best suited for private development are so used, and areas best suited for public use are reserved for that purpose. This site evaluation system is demonstrated by a case study on Lake Champlain in Ferrisburg, Vermont.     

COORDINATION OF PUBLIC AND PRIVATE AC A CASE STUDY OF LAKE RESTORATION1

ABSTRACT: The potential for joint public and private action for lake restoration is examined using Lake Apopka, Florida, as a case study. Initial calculations indicate that private incentives alone are inadequate to attract investment in a facility to grow and harvest water hyacinths for conversion to methane gas. However, the private externality of water quality improvement associated with harvesting water hyacinths provides a key linkage between the public's water quality objectives and the private gas producer's actions. In order to establish the potential basis for negotiation, the public's willingness-to-pay for environmental services associated with improved water quality is estimated and compared with the estimated subsidy required to induce private action. A conceptual framework is then presented for coordinating actions between private firms and public water management agencies in order to internalize the private externality of water quality improvement while simultaneously achieving the public and private objectives. Results indicate that the subsidization of water hyacinth production and harvesting compares favorably with alternative means of enhancing the water quality of Lake Apopka.     

Carrots and Sticks: New Brunswick and Maine Forest Landowner Perceptions Toward Incentives and Regulations

The governments of countries that allow private land ownership have two main tools to motivate landowner behavior: regulations and incentives. This research examines landowner preferences toward these policy tools and asks specifically: Do private forest landowners in New Brunswick and Maine believe that regulations and/or incentives are effective means to motivate responsible stewardship? Can landowners identify explicit regulations and policies that restrict property rights? Also, we were interested to see if any discernible differences existed between these adjacent jurisdictions from different countries, but that share similar forests and a similar settlement history. We identified and interviewed diverse landowners, recorded and transcribed our discussions, and analyzed the results using a grounded theory approach. Findings suggest that both New Brunswick and Maine participants are fairly comfortable with most regulations and many agreed that a combination of incentives and regulations are in fact useful. Furthermore, landowners in New Brunswick discussed non-monetary incentives as a mechanism to reward “good” stewardship; while Maine respondents articulated a degree of responsible stewardship that transcends a need to incentivize landowners. This study demonstrates that diverse landowners may be more comfortable with environmental regulations than previously understood and may be interested in non-monetary incentives.     

Household willingness to pay for stream restoration on private and public land: Evidence from the Baltimore metropolitan region

Stream restoration is one of the most widely used interventions to mitigate urban stormwater impacts and improve water quality. Government agencies have typically focused urban stream restoration efforts on public lands that they already own, even though a substantial portion of stream miles in highly urbanized areas occur on privately owned land. Yet, limited research exists to distinguish household willingness to pay (WTP) for stream restoration occurring on private versus public land. In this study, we use a choice experiment to analyze how household WTP for stream restoration attributes vary by land ownership and distance to the restoration project. Our empirical results indicate that streambank stabilization approaches have positive WTP estimates that are substantially larger in magnitude than those related to riparian vegetation management for clearing or planting trees. In general, estimated total household WTP for each of the four restoration design scenarios on public land is higher than when the same restoration design is located on private land. Nonetheless, estimated household WTP for each restoration design scenario on private land is substantial, retaining the majority of the value found on public land in all cases.     

What’s a Stream Without Water? Disproportionality in Headwater Regions Impacting Water Quality

Headwater streams are critical components of the stream network, yet landowner perceptions, attitudes, and property management behaviors surrounding these intermittent and ephemeral streams are not well understood. Our research uses the concept of watershed disproportionality, where coupled social-biophysical conditions bear a disproportionate responsibility for harmful water quality outcomes, to analyze the potential influence of riparian landowner perceptions and attitudes on water quality in headwater regions. We combine social science survey data, aerial imagery, and an analysis of spatial point processes to assess the relationship between riparian landowner perceptions and attitudes in relation to stream flow regularity. Stream flow regularity directly and positively shapes landowners’ water quality concerns, and also positively influences landowners’ attitudes of stream importance—a key determinant of water quality concern as identified in a path analysis. Similarly, riparian landowners who do not notice or perceive a stream on their property are likely located in headwater regions. Our findings indicate that landowners of headwater streams, which are critical areas for watershed-scale water quality, are less likely to manage for water quality than landowners with perennial streams in an obvious, natural channel. We discuss the relationships between streamflow and how landowners develop understandings of their stream, and relate this to the broader water quality implications of headwater stream mismanagement.     

Private Property Rights and Selective Private Forest Conservation: Could a Nordic Hybrid Policy Address a United States Problem?

Political and legal conflicts between the need for targeted private forest conservation and the continued assurance of private property rights in the U.S. presents a seemingly intractable resource management problem. Scandinavian use of habitat protection areas on private forests offers an additional tool that may be suitable for solving the historical and on-going tension found within U.S. efforts to reconcile desires to maintain lands in a forested condition while also respecting private property rights. This article presents a comparative cross-sectional policy analysis of Sweden, Finland, and the U.S., supported with a supplemental case example from the Commonwealth of Virginia. Similarities in all three countries among forest ownership patterns, use of public subsidies, and changing attitudes towards conservation are generally encouraging. Additionally, Virginia’s current consideration and development of state-wide forest policies focused on forestland and open space conservation suggests both a need and an opportunity to systematically assess the applicability of the Nordic forest reserve approach to local private forest conservation. Future research at a high-resolution, and specifically at the state level, should focus on the social and political factors that would ultimately determine the viability of a forest reserve program.     

Tradable planning permits versus auctioned tradable development rights: different trading agents,different policy outcomes

The tradable planning permit (TPP) policy seeks to limit the land take by development. It can be used in countries where development rights are vested by land-use planning to certain landowners only. TPPs are traded among public authorities. We introduce here a new policy, called the auctioned tradable development rights (ATDR) policy, which takes advantage of unvested rights of development and of trading among private actors. We compare the TPP, the ATDR policy and our baseline land-use planning model using a set of criteria. There are trade-offs within compared models. Both trading policies extend opportunities for land protection from development in exchange for higher transaction costs (highest in the ATDR policy). Trading policies seek also to recapture a part of development rent, decrease rent-seeking, and locate new development more effectively from the investors' perspective. However, trading among public authorities in the TPP model may hinder attaining these effects.     

WATERLAW AND THE HYDROLOGIC CYCLE: A TEXAS EXAMPLE1

ABSTRACT Scientists usually regard all water as merely passing through, but in different phases of, the endless hydrologic cycle. The law divides water in the cycle into several different classes. Each is treated separately and generally without consideration of interconnections existing within the cycle. Different rules of law have arisen concerning the ownership and use of each legal class. Under Texas law several classes of surface and ground water are recognized, and weather modification efforts bring yet another class, atmospheric moisture, under consideration. It is instructive to follow water moving through the hydrologic cycle in the Nueces River basin, Texas, as a framework for discussing the substantial interconnections between the various legal classes of water and the difficulties that arise from attempts to apply different rules of law to each class. Strictures imposed by Texas water law can seriously interfer with coordinated, efficient use and management of water resources, as evidenced by the Nueces River basin. Well-recognized, existing water rights in the several phases of the hydrologic cycle make change of these institutional constraints difficult to achieve.