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.     

INSTITUTIONALIZED INEFFICIENCY: THE UNFORTUNATE STRUCTURE OF COLORADO'S WATER RESOURCE MANAGEMENT SYSTEM1

ABSTRACT: This analysis identifies two basic structural features of Colorado's water management system which inhibit constructive reform and perpetuate inefficiencies in water use and distribution patterns. These features are: (1) the fragmentation of authority and influence over water, and (2) the estrangement of interest in reform from formal control over water policy. These interrelated features have continued to produce: sporadic, high conflict battles over proposed changes in the status quo; decision making which tends to exaggerate the importance of narrow, special interests while virtually ignoring legitimate interests of major sectors of the public; an inertia which discourages innovation; and an agglomeration of rules and water rights that are predicated on obsolete social and economic needs. Two radical proposals for reforming the state's water resource management system in order to overcome these problems and to enhance the probability that wise water policy will result are offered. These proposals are: (1) the abolition of the present system of water rights founded on the doctrine of prior appropriation, and (2) the consolidation of authority over water allocation in a single board of governors.     

What are the implications of human rights for minerals taxation?

This article examines the relationship between a state's taxation of mineral revenues and the human rights obligation to use ‘maximum available resources’ to further citizens' welfare. These both have implications for understanding the other but there has been little attention to their interaction.Contemporary (economic and policy) approaches to mineral taxation revolve around economic rent and providing a ‘neutral’ economic environment that does not influence investment decisions. There is no reference to human rights obligations—these are just part of the state's general responsibilities for which it can legitimately raise taxes. Taxation analysis largely ignores whether the state wants money to ensure there is adequate food for the population, or instead to stage the Miss Universe pageant.Human rights has relevance for the state's management of resources. The requirement for states to apply ‘maximum available resources’ to fulfil human rights suggests that mineral extraction (and taxation) should occur as fast as possible to be applied for the human rights of the current population A more considered analysis weighs against such a literal interpretation. Nevertheless, the requirement of using ‘maximum available resources’ to fulfil human rights has important implications for mineral taxation.     

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.     

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.     

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.     

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.     

Social Acceptability of Water Resource Management: A Conceptual Approach and Empirical Findings from Portland,Oregon1

Abstract: Surface water resources in urban areas serve multiple functions ranging from recreation to wildlife habitat. As a result, diverse values influence people’s views about resource protection, potentially leading to conflicting interests. In metropolitan Portland, Oregon, natural resource planning has recently focused on habitat restoration as well as stormwater and pollution mitigation, especially through the protection of riparian areas. Due to opposition over proposed regulations in the study region, this research examines public attitudes about an array of resource management efforts. The primary research question is: what is the extent of positive–negative attitudes about water resource protection, and what theoretical dimensions underlie diverse judgments? After empirical survey results are presented, I outline a conceptual approach for future assessments of environmental attitudes while highlighting important value‐based dimensions of judgments. Although flexible, the framework allows broad comparisons to advance knowledge about the social acceptability of varied water resource management approaches across diverse places and contexts.     

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.     

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.     

ECONOMIC INCENTIVES FOR WATER CONSERVATION ON THE MONTEREY PENINSULA: THE MARKET PROPOSAL1

ABSTRACT: Literatures on price‐based urban water conservation and on market‐based mechanisms to manage natural resources suggest that market‐based management of urban/suburban water use may be feasible. A market‐based proposal that emerged from a water shortage on California's Monterey Peninsula is presented. In the proposal, conservation incentives arise both from an ability among end‐users of water to reduce consumption and sell use‐rights to water, and from a penalty price for consumption in excess of one's use rights. The amount of water associated with use rights is capped and varies according to hydrological, meteorological, ecological, and other criteria. Requirements for further study of the proposal are listed, and the role that similar market‐based mechanisms could play in urban water management is discussed.     

International rivers and national security: The Euphrates,Ganges–Brahmaputra,Indus, Tigris,and Yarmouk rivers1

To understand a state's incentives to invest in conflict or cooperation over their international rivers, this paper argues that it is necessary to appreciate the relationships a river can create and the national security threat riparians may confront. Rivers impose interdependent and vulnerable relationships, which can compromise a state's ability to respond effectively to floods and droughts, meet its domestic food and energy needs, dredge the river, maintain its drainage systems, and allocate its domestic water budget. The inability to accomplish these tasks can contribute to social, economic, and political losses that may threaten a state's territorial integrity. Regardless of whether a state is upstream or downstream, from these relationships it acquires leverage to manipulate the interdependence and vulnerability to inflict losses on its riparian neighbour. This argument challenges several assumptions within the existing literature, including the belief that a shortage of freshwater is the initial force producing a national security threat and that an upstream–downstream river bequeaths all advantages on the upstream state and leaves the downstream state purely dependent. As the paper shows, riparians confront a more complex relationship than captured by the existing literature.     

环境行政公益诉讼中检察机关与公众的合作机制研究

《中华人民共和国行政诉讼法》的最新修改增加了检察机关提起行政公益诉讼的规定。从此前试点情况看,生态环境和资源保护案件在行政公益诉讼案件中占比最大,加之"生态文明"入宪,此类案件在今后一段时间依然会是行政公益诉讼的重点。制度虽已建立但落实千头万绪,检察机关面临诸多困境。在党的十九大提出的构建"全民共治"的环境治理体系框架下,基于此类诉讼的公益性,寻找公众与检察机关之间的合作空间,可以实现多赢。     

THE POTENTIAL FOR INCREASING STREAMFLOW FROM SIERRA NEVADA WATERSHEDS1

The Sierra Nevada produces over 50 percent of California's water. Improvement of water yields from the Sierra Nevada through watershed management has long been suggested as a means of augmenting the state's water supply. Vegetation and snowpack management can increase runoff from small watersheds by reducing losses due to evapotranspiration, snow interception by canopy, and snow evaporation. Small clearcuts or group selection cuts creating openings less than half a hectare, with the narrow dimension from south to north, appear to be ideal for both increasing and delaying water delivery in the red fir-lodgepole pine and mixed-conifer types of the Sierra west slope. Such openings can have up to 40 percent more snow-water equivalent than does uncut forest. However, the water yield increase drops to 1/2-2 percent of current yield for an entire management unit, due to the small number of openings that can be cut at one time, physical and management constraints, and multiple use/sustained yield guidelines. As a rough forecast, water production from National Forest land in the Sierra Nevada can probably be increased by about 1 percent (0.6 cm) under intensive forest watershed management. Given the state of reservoir storage and water use in California, delaying streamflow is perhaps the greatest contribution watershed management can make to meeting future water demands.     

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.”     

我国水资源管理的经济政策耦合效果仿真研究

水资源管理的经济政策效果模拟是从政策理论到政策实践的关键步骤，让决策者感知政策效果的方向和影响程度，才能更好地促进政策实践转化。本研究引入系统动力学方法，构建水资源经济政策耦合机制下水资源系统动力学（SD）模型，将我国划分为三种类型区域（干旱地区、丰水地区和过渡地区），进行三类四种水资源管理经济政策（水资源有偿使用，水价政策和水权政策；水污染收费，排污收费政策；水生态保护，水生态保护补偿政策）的耦合仿真实证研究。以我国水资源管理政策设计为目标，进行不同水管理政策耦合的生态经济效果仿真和效果定量评价，结果发现：干旱地区有偿使用的经济政策是目前经济水平下效果最好的；过渡地区有偿使用结合污水排放收费政策效果是最好的；而丰水地区必须同时实施水资源有偿使用和水污染收费两类经济政策。     

INTERSTATE WATER ALLOCATION COMPACTS IN THE WESTERN UNITED STATES - SOME SUGGESTIONS1

ABSTRACT: Agreements between states, or compacts, provide a mechanism for resolving transboundary resource issues. The twenty-two compacts allocating the water of rivers among states in the western United States are examined to provide guidance for drafters of future compacts. The method of allocation selected for a compact reflects the state's allocation of the risk of dry years. Allocations based on models have been unsuccessful. Percentage allocations are good for fairly apportioning risk, but conflict with principles of prior appropriation. Guarantees of minimum flows should be used with great care, to avoid any state becoming a guarantor of natural phenomena over which it has no control. Disputes should be anticipated, and a dispute resolution mechanism agreed upon. Arbitration or litigation are likely to prove the most politically acceptable. Compacts should be comprehensive in scope, encompassing groundwater as well as surface use. Federal claims should also be addressed, and some form of protection from subsequent changes of federal policy should be incorporated in the agreement and its ratifying legislation.     

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.     

AN IMPLICIT APPROACH TO PRICING AGRICULTURAL WATER TRANSFERS TO URBAN USES1

ABSTRACT: The increased agricultural efficiency of the American farmer has been a substantial impetus to this nation's rapid urbanization. In many western regions where total water supplies are limited, urbanization has required the transfer of heretofore agricultural water rights to the urban use. A major problem in such transfers has been the value or price of the water. A management level model of a typical urban water system was developed to optimize water supply, distribution, and wastewater treatment alternatives. The values of agricultural transfers were determined as the cost advantages of increasing allowable reuse levels of urban effluents which imply the use of a downstream right. This procedure is justified by the economic theory of alternative cost. Results for a test application to the Denver, Colorado area indicate values on the order of $1,000 per acre-foot of transferable water depending on effluent water quality restrictions and operational policies.