University of Colorado Law Review
Volume 82, Issue 2, Spring 2011
FOREWORD
Each year, the University of Colorado Law Review proudly dedicates one issue to Natural Resources and Environmental Law. After selecting the articles below and preparing them for publication, the Board of Editors noticed that, collectively, they emanate two themes—themes of pressing, national concern. The first theme is the desperate need to clearly delineate, and perhaps re-delineate, the relationship, powers, and responsibilities of the federal and state governments regarding the management of natural resources and the environment. The second theme is simpler: The scarcity of water is, at least in the American West, still the paramount concern.
The need for a legally binding treaty that includes global forest management is becoming increasingly acute. In his article, Climate Change, Forests, and Federalism: Seeing the Treaty for the Trees, Professor Blake Hudson addresses this need and poses an insightful question: If such a treaty were to arise, would federalism complicate the United States’ role in forest management treaty formation given that the federal government is granted authority under the Constitution to negotiate treaties, while state governments maintain primary land use regulatory authority for activities like private forest management? Professor Hudson explores the problems presented by the treaty power’s uncertain scope and federalism’s possible limitation on federal regulatory authority over land use activities like private forest management. He concludes that to avoid these problems, the United States should currently seek to negotiate a treaty that utilizes voluntary, market-based programs that allow its private forest owners to voluntarily participate in the federal program, thus avoiding federalism complications in domestic treaty implementation.
Professor Dave Owen, in his article, Urbanization, Water Quality, and the Regulated Landscape, analyzes the troubles of small, urban watersheds. He focuses on perhaps the key contributor to urban watershed pollution: stormwater runoff from impervious surfaces such as roads, parking lots, and roofs. Using Long Creek—a small, urban watershed in Maine—as a case study, Professor Owen introducesandevaluates several recent legal innovations piloted in the northeastern United States that aim to ameliorate urban watershed degradation. These innovations involve transferring regulatory focus from end-of-the-pipe to landscape-based controls. While Professor Owen concludes that these legal innovations represent a promising regulatory shift, he also confronts a number of important questions: What are the federalism implications of this shift? Is rehabilitation of urban watersheds really worth the costs? Even if it is, should some watersheds enjoy higher priority than others? Is prioritization legal?
In Like Water for Energy: The Water-Energy Nexus Through the Lens of Tax Policy, Professor Roberta F. Mann offers a keen insight: Despite potable water’s increasing scarcity, policy makers, in the rush to transition to a renewable energy economy, have paid little attention to the potential water consequences of renewable energy policies. Toward that end, Mann compares water use statistics for various renewable energy sources. She then analyzes the U.S. federal tax incentives for energy sources, paying particular attention to newer incentives for renewable sources, and she examines the impact that those incentives have on the water supply. Mann contends that if the government is going to designate certain energy technologies as worthy of tax incentives, it should consider the effect of those energy sources on water consumption as well as the potential for reducing CO2 emissions.
John C. Hoelle’s student comment, Re-Evaluating Tribal Customs of Land Use Rights, addresses the extent to which traditional tribal systems of land use rights may be both viable from an economic standpoint and a significant factor in the goal of cultural preservation. He illuminates the sustainable land tenure systemsthat American Indians developed over countless generations but that they barely use today. Hoelleargues that in the tribal context, use rights can potentially be just as economically efficient—perhaps more so—than the Anglo-American system of unqualified, absolute ownership in land. Additionally, Hoelle asserts that utilizing tribal customs of land use rights may help preserve Indian cultural identity by cultivating tribal people’s core, non-economic values.
In his student comment, Reimagining Western Water Law: Time-Limited Water Right Permits Based on a Comprehensive Beneficial Use Doctrine, Michael Toll compellingly argues for a modern reform to the prior appropriation doctrine—perhaps the most sacred tenet of western water law. To ensure more productive uses of scarce western water resources, Toll proposes modernizing prior appropriation’s beneficial use requirement. His “re-envisioned” beneficial use doctrine has two parts. First, the initial assessment as to whether water is being put to a beneficial use would be based upon a holistic, comparative assessment of the relative value of the use of that water. Second, western states would adopt a renewable water-rights permit system. When the permit expires, there is a reassessment as to whether the appropriated water is being put to beneficial use.
Derek L. Turner’s student comment, Pagosa Area Water & Sanitation District v. Trout Unlimited and an Anti-Speculation Doctrine for a New Era of Water Supply Planning, closes this issue. Turner ably discusses the development and evolution of Colorado’s modern anti-speculation doctrine as it applies to public water agencies. He first explores the constitutional and statutory foundation and the judicial enforcement of the anti-speculation doctrine in Colorado water law. Turner then discusses Pagosa I and Pagosa II. In Pagosa I, the Colorado Supreme Court defined the modern anti-speculation doctrine as applied to municipal water agencies planning for future growth. Pagosa II affirmed the anti-speculation principles of Pagosa I and provided clear guidance to public water supply agencies applying for new conditional rights. Turner concludes by examining the future implications of this modern anti-speculation doctrine for municipal water supply.
Kyle R. Blackmer
Editor-in-Chief