WATER AND WATER RIGHTS TRANSFERS: A NEW POLICY FOR NEBRASKA1

ABSTRACT: Nebraska has abundant supplies of high quality surface and ground water. The U.S. Supreme Court decision in 1982, declaring ground water to be an article of commerce, is widely perceived as giving neighboring states easier access to Nebraska water. Some neighboring states, particularly Colorado and Wyoming, are in water short situations. Additionally, current legal restrictions on certain types of transfers within the State could be inhibiting the “highest and best use” of Nebraska's water. Thus, in 1987 the Nebraska Legislature called for the development of a new water policy for Nebraska that would promote the economically efficient use of water, yet protect the environment as well as the rights of individuals (for example, third parties) and the public. Through an interagency study employing an extensive public involvement process, a policy to be recommended to the Legislature in 1989 emerged. The policy revises the basic definition of water rights and transfers and eliminates most of the inconsistencies in the water allocation system by treating most types of water resources, most types of water users, and most locations of use similarly in the permitting process. (The principal exception is the individual irrigator using ground water on the overlying land where overlying land is one government surveyed section; such use is not defined to be a transfer nor is a permit required.) An impact assessment would be required of most new water uses except on site uses of ground water. Compensation measures could be specified as a condition of the permit where appropriate. The permit would be issued only if the benefits of the proposed transfer clearly outweigh adverse effects that could not be avoided or effectively compensated. The policy allows for the sale or lease of “salvaged” water. It calls for the State to facilitate transfers by acting as a clearinghouse for potential buyers and sellers, and it allows the State to sponsor water projects. An annual fee to be paid by many water users, in order to provide a fund for compensation and for state sponsored water projects, was proposed. However, it met with extensive opposition. Thus, the policy recommends only that the Legislature examine potential funding programs and equitable user fees.     

THE BUREAU OF RECLAMATION'S ROLE IN AMERICA'S GROWTH1

ABSTRACT. The Bureau of Reclamation was created to implement the Reclamation Act of 1902 and subsequent legislation to conserve and develop the water resources of the western states for maximum efficient use. This has been accomplished by the planning and construction of major multiple use projects which now supply water to approximately eight million acres of land which annually produce 52 million tons of food and fiber with a gross crop value of approximately $2 billion. Fifteen million people are served with municipal and industrial water supplies and hydroelectric power from Bureau projects now returns $160 million annually to the Treasury. Flood control, recreation, and fish and wildlife enhancement are other major benefits. The Bureau of Reclamation is now undertaking a Westwide Survey of water resources and of the needs of the future which is more far-reaching than anything heretofore accomplished. The information accumulated during this ten-year survey will determine whether there is a necessity for consideration of major interbasin transfer of water supply.     

STATE WATER QUALITY CONTROL PROGRAM IN ARIZONA1

ABSTRACT: Arizona's water pollution control program is based on authorties of Arizona Revised Statutes and Public Law 92–500, the Federal Water Pollution Control Act Amendments of 1972. The primary areas of this program are monitoring, facility inspections, plan review, planning, discharge permits and grants for the construction of publicly-owned waste water treatment facilities. The discharge permit program deals with control of point-source discharges and is administered by the United States Environmental Protection Agency. The planning and construction grants programs are administered by the State Water Quality Control Council and are implemented by the Bureau of Water Quality Control, which serves as staff to the Council. There are several challenges that face the State in this program. First is the adaptation of the “eastern law” to deal with Arizona's water quality problems. Second is to address problems caused by a long history of “laissez-faire” environmental quality management. Third is a mutual cooperation and coordination among the many entities involved in water resources management. Areas of particular interest in the State's program is the process setting water quality standards and the involvement of people of diversified backgrounds in the field of areawide planning under Section 208 of the Federal Water Pollution Control Act, which is primarily concerned with non-point sources of water pollution.     

Avança Brasil: Environmental and Social Consequences of Brazil's Planned Infrastructure in Amazonia

“Avança Brasil” (Forward Brazil) is a package of 338 projects throughout Brazil; the portion of the plan to be carried out in Brazil's Legal Amazon region totals US$43 billion over 8 years, US$20 billion of which would be for infrastructure causing environmental damage. Brazil's environmental impact assessment system is not yet capable of coping with the challenge presented by Avança Brasil. Generic problems with the licensing process include stimulation of a lobby in favor of construction before decisions are made on the advisability of the projects, the “dragging effect” of third parties, whereby economic activity is attracted to the infrastructure but escapes the environmental impact assessment system, a tendency for consulting firms to produce favorable reports, a bureaucratic emphasis on the existence of steps without regard to the content of what is said, and the inability to take account of the chain of events unleashed when a given project is undertaken.The environmental and social costs of forest loss are high; among them is loss of opportunities for sustainable use of the forest, including loss of environmental services such as biodiversity maintenance, water cycling, and carbon storage. The benefits of export infrastructure are meager, especially from the point of view of generating employment. Much of the transportation infrastructure is for soybeans, while the hydroelectric dams contribute to processing aluminum. The example of Avança Brasil makes clear the need to rethink how major development decisions are made and to reconsider a number of the plan's component projects.     

INTEGRATED WATERSHED MANAGEMENT ON THE TRUCKEE RWER IN NEVADA1

ABSTRACT: The Truckee River is a vitally important water source for eastern California and western Nevada. It runs 100 miles from Lake Tahoe to Pyramid Lake in the Nevada desert and serves urban populations in greater Reno-Sparks and agricultural users in three Nevada counties. In the 1980s and 1990s, a number of state and local groups initiated projects which, taken collectively, have accomplished much to improve watershed management on the Truckee River. However, the task of writing a management plan for the entire watershed has not yet been undertaken. Key players in state, federal and local government agencies have instead chosen to focus specific improvement efforts on more manageable, achievable goals. The projects currently underway include a new agreement on reservoir operation, restoration of high priority sub-watersheds, public education and involvement, water conservation education, and water resource planning for the major urban population centers. The approach which has been adopted on the Truckee River continues to evolve as more and more people take an interest in the river's future. The many positive projects underway on the watershed are evaluated in terms of how well they meet the definition of the ambitious water resources strategy, “integrated watershed management.”     

DINOSAUR NATIONAL MONUMENT: THE EVOLUTION OF A FEDERAL RESERVED WATER RIGHT1

ABSTRACT: Dinosaur National Monument, in northwestern Colorado, has become a test case in the establishment of a federal reserved water right to instream flows. For the first time, the Interior Department was forced to rigorously defend its claims in a watershed where the federal government did not control the upstream reaches. Inadequate quantification of minimum flow requirements, court orders, and an apparent Congressional ban on the spending of Water Resources Program funds by the Park Service to quantify its water rights have already placed the Service in a difficult position to protect instream flows for maintaining the ecological integrity of the Monument. As late as 1983, administrators of the Park Service were divided over their legal strategy, many wanting to pursue a policy of claiming “natural, historic” flows rather than “minimum” flows. The conditional right to instream flows panted to the Park Service in 1978 was subject to quantification within five years. That deadline has been extended, but it is not likely that the case will reach final settlement this decade. Until the design and conduct of federal water rights quantifications better integrate public policy and law with science, the principle lesson from Dinosaur may have to be repeated.     

霍式理论下民法典环境权入法路径研究

环境权作为一项新兴权利,各科学者都投入大量的实证分析研究,然而环境权内涵模糊使得该权利难以正式列入民法典"权利家族"中。究其原因,主要是环境权相关理论阙如,而以往的代际公平理论、环境正义理论、公共信托理论、可持续发展理论过于宏观而难以解决权利私人化的困境,而人权理论对于环境权的法定化作用有限。因此,亟须新的理论为环境权入法提供相关支撑。霍菲尔德法律关系理论中对于"权利"一词的特殊解读和对权利、义务、责任、特权、权力等概念间的基本法律关系进行的严密论证可以为环境权的间接入法提供有益作用。本文认为,应该将环境权解释为一项具体对人权,而将人身权解释为一项宽泛意义上的对人权,以形式逻辑论证将其纳入其中,同时从法律概念间的相关关系、相反关系,从义务、责任、特权等路径论证环境权间接入法的可行性,从而实现环境权的早日入法。     

WATERSHED PLANNING FOR ACID MINE DRAINAGE ABATEMENT1

Acid drainage from abandoned mines is a widespread problem in old mining regions. Agencies seeking to abate it face the prospect of dealing with hundreds of potential abatement projects, stretching decades into the future. A systematic regional analysis is necessary to establish locations, objectives, priorities, and phasing of such projects. The U.S. Bureau of Mines developed a novel procedure for abatement planning in the 420 square mile Blacklick Creek Watershed in Pennsylvania. The plan sought to direct abatement projects toward pollution sources where degradation was worst and adverse effects greatest. It established abatement priorities by comparing the “supply” of sources to be reclaimed (the degrees of old mines' water quality degradation) with the “demand” for abatement to be done (the natural and cultural values represented by the region's demography, land use and other non-mining characteristics). Matrices were used to define the relationships among mining and non-mining factors; maps were developed to show the geographic distribution of the conclusions. The locations, priorities, and phasing of abatement objectives shown on the maps should provide guidance for any abatement effort, no matter what type of technology is applied to achieve the objectives. Over the many years in which abatement projects are to be performed in the Watershed, the plan can be used to define, coordinate, and establish priorities for the projects in a manner that can result in maximum abatement benefits from the application of limited funds.     

THE ROLE OF ADVISORY BOARDS IN A WATER MANAGEMENT AGENCY1

ABSTRACT: Since Saskatchewan assumed the responsibility for managing the Province's water resources in 1930, the importance of the Province's water resources has been recognized by assigning the responsibility for managing the resource to higher levels in the government structure. With such recognition, there tended to be an overlapping of responsibilities that resulted in undefined areas of jurisdiction and duplication of services. Also, there was no opportunity for direct public participation in the management structure. These deficiencies were recognized, and following a series of public hearings a “Cabinet Committee on Water Concerns” in 1983 concluded that the most appropriate government structure for managing the water resources of Saskatchewan would be a Crown corporation. As a result, in 1984 the Saskatchewan Water Corporation was formed and given the responsibility to manage, administer, develop, control, and protect the water and related land resources in Saskatchewan. An important aspect of this responsibility was that the corporation should initiate a process of public involvement. Thus, six “Regional Watershed Advisory Boards” were established. The Advisory Boards provide the Corporation with a linkage to the general public by providing advice, participating in policy revision and development, and assisting Corporation staff in other related water management activities.     

QUANTIFICATION OF INSTREAM FLOW NEEDS OF A WILD AND SCENIC RIVER FOR WATER RIGHTS LITIGATION1

ABSTRACT: The lower 4 miles of the Red River, a tributary of the Rio Grande in northern New Mexico, was designated as one of the “instant” components of the National Wild and Scenic River System in 1968. The Bureau of Land Management (BLM), as the managing agency of the wild and scenic river, was a participant in a general water rights adjudication of the Red River stream system. The BLM sought a federal reserved water right and asserted a claim to the instream flows necessary to protect and maintain the values of the river. Instream flows are not recognized under New Mexico water law. Instream flow requirements were determined by several methods to quantify the claims made by the United States for a federal reserved water right under the Wild and Scenic Rivers Act. The scenic (aesthetic), recreational, and fish and wildlife values are the purposes for which instream flow requirements were claimed. Since water quality is related to these values, instream flows for waste transport and protection of water quality were also included in the claim. The U.S. Fish and Wildlife Service's Instream Flow Incremental Methodology was used to quantify the relationship between various flow regimes and fish habitat. Experience in this litigation indicates the importance of using state-of-the-art methodologies in quantifying instream flow claims. The incremental methodology held up well under technical and legal scrutiny and is an example of the latest methodology that was applied successfully in an adjudication. On February 23, 1984, the parties involved in the adjudication entered a precedential stipulation recognizing a federal reserved right to instream flows for the Red River component of the National Wild and Scenic River System.     

OVERCOMING THE NATION'S BEST LANDSCAPED SEWER: RECREATORS' PERCEPTIONS OF THE CONNECTICUT RIVER1

ABSTRACT: Once referred to as America's “best landscaped sewer,” the Connecticut has undergone a dramatic transformation in the last three decades. During this time, a number of public agencies and private organizations have worked diligently to implement policies and measures aimed at improving the river's quality. Ample data collected over the years indicate that the actual water quality conditions of the Connecticut River, as measured by empirical parameters, have improved. However, prior to this study, no data existed regarding the public's perceptions of these changes. This paper will address this issue by presenting the results of a multiyear survey designed to assess the public's perceptions regarding the Connecticut's current quality, and its suitability in supporting various recreational activities. The results suggest that the majority of individuals perceive the Connecticut's water quality to be high enough to support a wide range of recreational activities including those involving physical contact with the water. Additionally, this research concludes that the vast majority of individuals who have recreated on the river for 20 years or more do perceive a significant improvement in the river's overall quality. Thus, it appears that policies and actions taken to improve the Connecticut's quality have been successful in the public's eye.     

WATER QUALITY MONITORING: WHERE'S THE BEEF?1

ABSTRACT: Water quality monitoring, as a function of society's efforts to manage the environment, is the contact mechanism that management and the public has with the actual water quality in the environment. Water quality monitoring has been studied extensively for many years to ensure that it produces information about water quality conditions. Current efforts to reduce government spending will have negative impacts on those government functions deemed to be non-responsive to the needs of the public. How well does water quality monitoring inform taxpayers about the status and trends in water quality conditions in the United States? This paper reviews a number of past efforts to “improve” water quality monitoring, discusses barriers to such improvement, and suggests ways that monitoring can be made more accountable for the information it should be producing for public understanding of water quality conditions. In particular, the need for standardization in data analysis and reporting of information to the public, is highlighted.     

AUBURN DAM: A CASE STUDY OF WATER POLICY AND ECONOMICS1

ABSTRACT: This paper provides a critical analysis of the Bureau of Reclamation's Auburn-Folsom South project in California. While this massive $1.5 billion project is temporarily halted for redesign for earthquake hazard, it is timely to examine its justification on economic grounds. The key finding is that several major benefit categories, irrigation and recreation, have been grossly overstated. In addition, the Bureau failed entirely to estimate the cost of use on the free-flowing American River, or a probability-weighted estimate of catastrophic loss. Revised estimates indicate that the project is not economically justified. In addition, the project has unattractive distributive effects. The implications of this case study for current revisions in U.S. water policy are explored. The Auburn study basically provides support for the U.S. Water Resource Council's draft manual of procedures for evaluating federal water resource projects.     

THE ENHANCED ROLE OF WATER CONSERVATION IN THE COST-BENEFIT ANALYSIS OF WATER PROJECTS1

The concept of water conservation has increased in importance because of revisions in the rules and procedures for performing cost-benefit analyses of federal water projects. These revisions include a requirement that nonstructural and water conservation measures be incorporated into economic assessments of projects. Project analyses will now proceed as if water supplies were allocated “most effectively,” that is, to their highest valued uses. A related requirement provides that the net benefits of any project should now be valued using willingness to pay measures. A specific cost-benefit methodology accommodating the revisions is constructed and discussed. Informational requirements for applying this methodology are identified. In addition to being consistent with federal mandates, this technique offers important advantages over the traditional “requirements” approach to water supply planning.     

VALIDATION OF POLITICAL SIMULATION MODELS -WATER RESOURCE PROJECTS1

ABSTRACT. The critical role of political processes in water resource projects has recently been placed in a new perspective [Hall, 1970]. The “political hassle” period of institutional interaction which serves to resolve political conflicts over such aspects as organizational growth and survival, responsibility for economic liabilities, and responsibility for economic benefits, requires systematic analysis in order to improve our capability to implement water projects. Failure to properly assess the political aspects of a proposed water project may result in extensive delays with significant economic losses. The complexities associated with water use and re-use have created the need for new institutional arrangements which can more effectively function to implement policies and programs. One tool which has recently become available for the research investigator concerned with institutional interactions and political processes associated with water resource projects is the technique of computer simulation of such institutional interaction. In theory, this new approach will enable the investigator to assess the political feasibility or political acceptability of a proposed water project given existing institutional structures. Furthermore, the investigator has the opportunity to experiment with new and innovative institutional arrangements which may in turn enhance the political acceptability of a proposed project. The specific material presented within this paper reports upon the validation of an existing computer simulation model designed to replicate political interactions in resource allocation problems-including water resource problems. This validation effort is done by taking an actual water problem and comparing what the political simulation models predicts in terms of political outcomes with what actually takes place. The case study in question is the formulation and legislative development of the Michigan Bond Issue for Water Pollution Control.     

ECONOMIC GROWTH THROUGH WATER RESOURCE DEVELOPMENT: INDIA1

ABSTRACT India's multidimensional water development programs have contributed significantly to the promotion of the country's economic growth. Rapid growth of irrigation has substantially increased agricultural production. Hydro power generation has doubled during the last two decades, and this has accelerated industrialization and extended rural electrification. Minor irrigation has taken on a new importance in the Fourth Five Year Plan, signifying a departure from the earlier Plans. “Green Revolution” owes a large measure of its success to the availability of assured water supplies. Water development projects have also generated tremendous employment opportunities. Despite its pronounced impact on the economy, India's water planning strategy has some glaring weaknesses: the failure to incorporate “indirect benefits” in cost-benefit calculations; the under-utilization of water potential; and, the progressive increase in the cost of irrigating an acre of land. The prevailing institutional structure in India constitutes a major deterrent to the diffusion of the benefits of water development. There are stubborn psychological factors which render the adoption of innovative irrigation practices difficult. There is thus an overwhelming need to revamp India's institutional framework. On balance, however, water development in India has made its impact felt on India's myriads of villages. And from the arid “dust bowls” of India new life has emerged.     

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.     

RIVERWARE: A GENERALIZED TOOL FOR COMPLEX RESERVOIR SYSTEM MODELING1

ABSTRACT: Water management agencies seek the next generation of modeling tools for planning and operating river basins. Previous site‐specific models such as U.S. Bureau of Reclamation's (USBR) Colorado River Simulation System and Tennessee Valley Authority's (TVA) Daily Scheduling Model have become obsolete; however, new models are difficult and expensive to develop and maintain. Previous generalized river basin modeling tools are limited in their ability to represent diverse physical system and operating policy details for a wide range of applications. RiverWare(tm), a new generalized river basin modeling tool, provides a construction kit for developing and running detailed, site‐specific models without the need to develop or maintain the supporting software within the water management agency. It includes an extensible library of modeling algorithms, several solvers, and a rich “language” for the expression of operating policy. Its point‐and‐click graphical interface facilitates model construction and execution, and communication of policies, assumptions and results to others. Applications developed and used by the TVA and the USBR demonstrate that a wide range of operational and planning problems on widely varying basins can be solved using this tool.     

PROBLEMS OF PUBLIC ACCESS TO WATER IN TEXAS LAKES AND STREAMS1

ABSTRACT: Rapidly increasing demand for recreational use of Texas' public waters is resulting in growing conflict between riparian landowners and the public. This paper examines the public access question, certainly one of the most poorly defined and understood areas of Texas water and property law. Since the appropriation acts of the late 1800's, most surface waters are owned by the state, and are held in trust for the benefit of the people. While there is no express statutory authority giving the general public the right to use these waters, there is extensive, if often conflicting, case law recognizing such rights on navigable streams. It is equally well established that the public may not gain access by crossing private property. Definition of public and private rights is complicated by the fact that Texas land grants (with their attendant property rights) have emanated from Spain, Mexico, the Republic of Texas, and the state. Obstacles imposed by riparian landowners to public entry, use and passage, as well as spatial aspects of access, are also considered. Because public access rights are based on the peculiar circumstances of each case, it is difficult to establish general legal principles, and there is almost no reliable information to aid the recreation-seeking public. A clear legislative enunciation of public rights appears politically infeasible at present, the most immediately attainable goal lying in the area of better public education.     

ENERGY,ENVIRONMENTAL, AND ECONOMIC IMPLICATIONS OF SOME RECENT ALBERTA WATER RESOURCES PROJECTS1

ABSTRACT: Most of us are aware, or feel we are aware, of the impacts of major water resources projects on our lives. “Dam-lovers” note the life-saving flood-risk reduction and recreational benefits of a proposed reservoir, while “dam-haters” bemoan the future drowning out of the wildlife habitat of its river valley, and the recreational disbenefits to stream (as opposed to lake) fishermen. Water supply projects can often be given such a revered status, assuming the “obvious” tenet that water, air, food, and shelter are basic requirements of decent living, that the economic viability of the project may not even be assessed. Water resources planners are supposed to impartially weigh the environmental and economic benefits, and especially now, the energy implications of all proposed water projects, but many times the partial views of political or public advocates may be hard to ignore. The assumptions used in the planning of four recent water projects in the Province of Alberta will be presented and some revisions suggested which materially affect their Benefit/Cost ratios. In one project that is still in the public hearing stage, the economic analysis will be revealed, indicating that the original B/C ratio of about 1.6:1 might be more realistically placed at 0.6:1. In another project just completed, the apparent lack of an economic or energy analysis that has resulted in a perpetual and unnecessary energy load on the province, will be described.