July 16, 2009 by Yee Huang

Water Resources & the Public Trust Doctrine: A Primer

This is the first of four posts on the application of the public trust doctrine to water resources, based on a forthcoming CPR publication, Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, which will be released this summer.  If you are interested in attending a free web-based seminar on Thursday, July 30, at 3:00 pm EDT, please contact CPR Policy Analyst Yee Huang, or register here

While the United States has a strong private property system, that system is a product of common property ownership of certain resources.  Doubtful?  For centuries, people have enjoyed public access to resources such as the ocean, certain bodies of water, tidewaters and tidal lands, shorelines, and most sensibly the air.  Much of the commerce during the foundational years of the United States depended on common, public access to rivers for transportation of goods.  Imagine the hassles if a ship had to negotiate passage through each privately owned section of a river!

In legal terms, this idea of common property ownership is captured in the public trust doctrine, a legal doctrine imported from ancient Roman and English law and common to many cultures around the world.  The doctrine …

July 13, 2009 by Yee Huang

Perhaps – as a byproduct of a recent, revealing report by the Government Accountability Office and the economic downturn – the bubble of market growth for the bottled water industry may finally deflate, if not outright burst.  Pop!  The report, released last Wednesday, further debunks the myth that the quality of bottled water is better than tap water (see also CPR Member Scholar Christine Klein's exploration of this myth).

According to the GAO, regulation of bottled water is generally weaker than regulation of municipal drinking water (tap water).  The two types of water are regulated under different agencies: the Environmental Protection Agency regulates tap water under the Safe Drinking Water Act (SDWA) while the Food and Drug Administration regulates bottled water as a food product under the Federal Food, Drug, and Cosmetic Act (FFDCA).  The EPA sets national maximum contaminant levels for tap water according to the use …

June 15, 2009 by Yee Huang

It’s a frackin’ mess out there in the world of natural gas extraction – exploding houses and water wells, dying cattle, and curious rashes.  The Subcommittee on Energy and Mineral Resources of the House Natural Resources Committee recently held a hearing to explore the risks of hydraulic fracturing, or fracing (sometimes spelled, “fracking”), which is currently exempt from regulation under the Safe Drinking Water Act.  Representatives Diana DeGette (D-CO), Maurice Hinchey (D-NY), and Jared Polis (D-CO) introduced a bill to close the exemption, known as the “Halliburton Loophole,” secured by the eponymous company under the Bush-Cheney Administration in 2005.  The proposed bill would also require the industry – the only industry exempt from the nation’s Safe Drinking Water Act – to disclose the chemicals used in fracing.

The hydraulic fracturing process is used in most natural gas wells.  A highly pressurized solution of water, sand, and chemicals are …

June 5, 2009 by Yee Huang

Last month, the Obama Administration urged Congress to resolve the uncertainty in the protection of the nation’s waters and wetlands under the Clean Water Act (CWA).  In a letter signed by the heads of several agencies, the Administration noted the confusion, delay, and even neglect in protecting the nation’s waters in the aftermath of two Supreme Court decisions: SWANCC and Rapanos.  Reports from the EPA and the EPA Inspector General have documented the impacts – 20 million acres of wetlands and isolated waters are no longer protected (subscription required).

At issue is the reach of the Clean Water Act, passed in 1972 with the lofty mandate of restoring the integrity of the nation’s waters and eliminating pollution by 1985.  Although the latter goal is still out of sight, significant progress has been made in restoring the quality of the nation’s water.  Under separate provisions …

April 24, 2009 by Yee Huang

Never mind the unusual wave of intersex fish or the mutant frogs appearing in a waterway near you.

Earlier this week the Associated Press published the results of an investigation of pharmaceuticals in the nation’s waters.  The reporters found that U.S. drug companies have legally released at least 271 million pounds of pharmaceuticals into waterways, including compounds such as: lithium, used to treat bipolar disorder; warfarin, a blood thinner also used as a rodenticide and pesticide; and tetracycline hydrochloride, an antibiotic.  This investigation follows an equally disquieting finding published last year that trace amounts of pharmaceuticals were found in the drinking water of 24 major metropolitan areas.

Pharmaceuticals enter the nation’s waters primarily from health care facilities or consumers, who either excrete unabsorbed drugs or who adhere to the old (and debunked) advice to flush drugs down the toilet.  However, pharmaceuticals can also enter …

April 13, 2009 by Yee Huang

A recent article in the Los Angeles Times described the latest absurdity in the never-ending search to quench the thirst for water: ownership of rainwater and, more precisely, the illegality of rainwater harvesting.  Residents and communities in parts of Colorado are turning to this ancient practice of collecting and storing rain to fulfill their domestic water needs, including flushing toilets and watering lawns.  Using this “grey” water, as it is called, relieves pressure on water resources and can be extremely efficient.

Many long-time water users, however, object to the practice.

These so-called water buffaloes argue that people who collect rainwater are taking away from their water by collecting the water before it has a chance to flow into a river from which they obtain water.  Effectively, they argue, the rainwater belongs to them – they own the rain that falls from the sky as part of their water …

March 30, 2009 by Yee Huang

Rivers, lakes, and other water bodies across the country – including those that provide our drinking water – are contaminated with an eclectic cocktail of pharmaceuticals, fertilizers, and nutrientsGenetic mutations thought to exist only in the realm of science fiction are now readily observed in fish and other aquatic species.  Overall, the EPA estimates that only 12 percent of the nation’s waters have been surveyed, and of that small percentage more than half can no longer be used for at least one designated use.

A recent article in Inside EPA (subscription required) details plans inside the Environmental Protection Agency to strengthen the protection of water by reviving a much-discussed but ill-fated rule to regulate water pollution from non-point sources. 

The Clean Water Act differentiates between point source (PS) pollution, which enters water through a discrete point of discharge, and non-point source (NPS) pollution, which enters water as …

March 18, 2009 by Yee Huang

Florida’s beaches draw millions of tourists each year, and coastal towns like Palm Beach have a great interest in protecting the beaches against erosion and sea-level rise.  They have experimented with various adaptation and reinforcement techniques, some more successful than others, but none is a permanent solution. 

In an administrative hearing on March 2, Judge Robert Meale rejected a beach renourishment project proposed by Palm Beach, criticizing both its harmful environmental impacts and the “worthless” engineering models that supported the project.  The suit was brought by an alliance of surfers and anglers, united in their interest to protect the dynamic beach ecosystem, offshore reefs, and sea turtle nesting habitat.  The judge’s ruling was notable not only for its harsh criticism of the project but also the clear environmental basis of his decision.

Beach renourishment is one of several techniques to address beach erosion, a naturally …

March 9, 2009 by Yee Huang


In the decade between 1994 and 2004, the bottled water industry enjoyed a meteoric rise as consumers flocked to their product, paying more per gallon than gasoline and neglecting a virtually free source of water – the tap.  Bottled water drinkers formed fierce allegiances to their favorite brands, elevating bottled water beyond a beverage to a symbol of refinement.


More recently, opposition to bottled water has grown, built around an eclectic mix of advocates including activists, restaurateurs, and religious leaders.  Proposals for bottled water operations evoke vocal protests in local communities.  Production of bottled water requires large quantities of energy and generates tons of waste with long-term environmental impacts.  Some cities have responded by taxing bottled water, as in Chicago, and by banning bottled water from official city functions, as in San FranciscoToronto not only banned the sale and distribution of bottled water on city premises but …

Feb. 24, 2009 by Yee Huang

Walk into any grocery store and you’ll find a barrage of labels on every product that proudly and loudly proclaims its ecofriendly pedigree: Organic!  Fair trade and shade-grown!  Local!  An article last week in the Wall Street Journal posits two of the latest entries into the fray: virtual water and water footprint.   


Relatively new additions to the enviro-lexicon, “virtual water” is the volume of water required for producing a commodity, and “water footprint” measures “the total volume of freshwater that is used to produce the goods and services consumed by the individual or community.”  The water is “virtual” because it is often not part of the final product.  For a cotton t-shirt, for example, the virtual water accounts for the water needed to grow and irrigate the cotton and the water used during the manufacturing process.  The average water footprint of a country depends on four …

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