A. Dan Tarlock

Zoned not planned

There is a long and active tradition of land use planning in the United States, and planners have tried to subordinate regulation, primarily zoning, to prior planning. However, this project has met with only limited success. Americans prefer to make small-scale, ad hoc land use decisions. The reasons include the tradition of plans as blueprints for unlimited growth, the legal ability of local governments to ignore the regional impacts of their decisions, America’s preference for sprawling suburbia, the marginal status of plans in zoning law, and the chilling impact of the Supreme Court’s takings jurisprudence.

New water transfer restrictions: The West returns to riparianism

Fundamental shifts in water allocation and management are occurring throughout the West. Changing public values have reversed our historic preference for supply augmentation through the construction of new storage systems and replaced it with one for the reallocation of existing supplies. The emerging reallocation era will be characterized by the better management of existing supplies to serve both traditional and new user communities. Reallocation can be accomplished in three ways: (1) the rededication of unallocated or unused blocks of stored water on federal and state reservoirs, (2) the voluntary transfer of existing water rights, and (3) the redefinition of existing rights by judicial decisions and legislation which trim consumptive entitlements. We currently lack a coherent water allocation principle to replace the equation of conservation with storage and maximum consumption, but we are simultaneously trying to reduce the transaction costs of transfers and to impose a number of ad hoc state and federal restraints on water transfers to accommodate the previously neglected claims of nontraditional water users and other interested parties. These new laws can greatly increase the costs of transfers and make them politically unattractive. The expanded recognition of traditional and new third party rights could produce a new riparianism in the West. This would overturn the law of prior appropriation which has thrived because it was premised on the severance of the right to use water from its source and allowed water to be allocated to new demands. In contrast, the common law of riparian rights confines water rights to landowners in the watershed of a stream. From the beginning, western courts rejected the watershed limitation, but many recent transfer restraints modify the law of prior appropriation and reintroduce the principle of watershed protection rule in the form of a premise that river systems should be managed on an ecosystem basis. Emerging new watershed rules could make all transfers presumptively suspect.

Connecting Land, Water, and Growth

Abstract Sustainable water use seeks to achieve a balance between the capability of a system to meet social needs and its biological capacity.

Water and Western Growth

Abstract The Wests population is growing at the same time that water supplies face continued and new stresses. Western states benefit both from the continued population shift toward the sunshine and mountains and from immigrants who fuel the countrys absolute population growth. Contrary to any concerns about limited water supplies, people want to live in the West. It is beautiful; large parts of it enjoy mild or bearable winters; it offers a full range of “lifestyle” and outdoor recreation choices; and settlement is much less constrained than it was when the West was an eastern and European colony. The modern service economy, combined with extensive (and federally subsidized) highway, air route, and electronic infrastructures, facilitate a greater range of location choices for individuals and business than did the “old” cowboy-commodity production economy, which remains politically powerful but economically less important. Air conditioning has made year-round desert living feasible for many who otherwis...Abstract The Wests population is growing at the same time that water supplies face continued and new stresses. Western states benefit both from the continued population shift toward the sunshine and mountains and from immigrants who fuel the countrys absolute population growth. Contrary to any concerns about limited water supplies, people want to live in the West. It is beautiful; large parts of it enjoy mild or bearable winters; it offers a full range of “lifestyle” and outdoor recreation choices; and settlement is much less constrained than it was when the West was an eastern and European colony. The modern service economy, combined with extensive (and federally subsidized) highway, air route, and electronic infrastructures, facilitate a greater range of location choices for individuals and business than did the “old” cowboy-commodity production economy, which remains politically powerful but economically less important. Air conditioning has made year-round desert living feasible for many who otherwise would not bear the discomfort of the Southwests summer.

The Creation of New Risk Sharing Water Entitlement Regimes: The Case of the Truckee-Carson Basin

Introduction .......................................................................... 674 I. The Truckee-Carson Basin as an Example of the New Politics and Law of Western Water ................................ 677 II. The Necessary Conditions for Place-Based Consensus: Federal Clout Light ....................................................... 681 III. Truckee River Operating Agreement: A Model Physical Solution for the Next Century ....................................... 685 IV. Property Rights as Risk Allocation ................................ 688 C onclu sion ............................................................................ 69 1

INTEGRATED WATER RESOURCES MANAGEMENT: THEORY AND PRACTICE

Water resource planning and management are undergoing a paradigm shift. Historically, rivers have been viewed as communities to be exploited to the maximum extent possible for economic development. Water resource planning has primarily been an engineering exercise to achieve the optimum development of river basins for hydropower, flood control and consumptive use. Throughout the world, countries have constructed large-scale multiplepurpose dams and irrigation systems. Both international and domestic water law has supported optimum development by (1) creating semi-exclusive national rights to divert and store water and (2) and encouraging unilateral national water resources development. Water management meant the enforcement of existing entitlements and adherence to the original project purposes. The traditional vision of a river system of a commodity to be put to the optimum or maximum use remains the dominant paradigm in many parts of the world such as China, Central Asia, India and other areas as a matter of choice or necessity. However, the traditional paradigm is slowly being replaced by the alternative paradigm of ecologically sustainable development (ESD). The basic reason for the paradigm shift is that multiple-purpose development has imposed substantial environmental costs and increased social inequity in many river basins. In recent years, there have been many efforts to measure the historically ignored costs of intensive river basin development.1 The process of environmental accounting has led to a more radical ecological ideal of managing river systems to maintain some measure of a river’s historic ecological services,2 such as those provided by floods and seasonable flow variations, as well as to support a wide range of consumptive uses in a more efficient, sustainable manner.

Water Supply as New Growth Management Tool

Abstract Some rapidly growing western states are reevaluating the traditional dogma that water availability should never be a limitation on urban growth. This reevaluation is reflected in new statutes that mandate increased coordination between available water supplies and new growth and in scattered judicial decisions that give local units of government more control over the allocation of water. Coordination of water supply and growth is a major issue in the West because urban growth places new demands on a scare resource and exacerbates the intense competition among agricultural, municipal, industrial, and environmental claimants for these supplies. However, the coordination issues can arise in other places where rapid growth is occurring and there are competing demands for available water supplies.

Local Government Protection of Biodiversity: What is its Niche?

Abstract Environmental law is dividing into two branches: pollution minimizationandbiodiversity protection. Local governments have been regulated to a minor role in the formulation and implementation of pollution control policy. In contrast, local governments have a major role to play in biodiversity protection. Federal and state endangered species protection and other statutes require that critical habitats be preserved on both public and private land. Despite various “revolutions” in land-use controls, local governments have the primary authority to regulate private land use, and their actions can influence the choices made by state and federal public land managers. This article discusses local governments authority to protect biodiversity and some of its legal constraints in exercising this authority.

Rediscovering the new Deal’s Environmental Legacy

Deal that can be characterized as environmental once one substitutes the word “environmental” for “conservation.” It helps correct a widely held view that the New Deal is virtually a blank space in the history of modern environmentalism. The New Deal carried forward and greatly extended the work of the Progressive Conservation era. But the work represented here and at the stimulating conference from which it was drawn raises a more difficult question: what is the New Deal’s legacy for modern environmentalism? This problem becomes all the more acute when one considers that the gap between the social and political conditions and the culture of the New Deal, and the beginning of the twenty-first century seems almost unbridgeable. To be sure, the New Deal was a glorious era, and one can only dream of a president with Franklin D. Roosevelt’s (FDR) commitment to the cause of resource conservation and such a deep knowledge of the subject.1 But we must recognize that the political, scientific, and cultural conditions of America today are very different from what they were during the 1930s and 1940s. Some of the New Deal conservation/environmental experience, such as the fights to dedicate public lands to park and related purposes, continue to resonate today. But many issues in contemporary environmental policy are the consequences of problems that were not as serious then as they are now. Hence, it will be necessary to reinterpret the conservation/environmental policies of the New Deal if we wish to apply them to the complex pollution and biodiversity conservation problems that we face today. This chapter attempts to both recover and reinterpret a legacy that both informs as well as inspires us.

Private Land Use Controls: What is the Public Interest?

Abstract In the 1920s, zoning was promoted as a superior form of land use control. Private controls were expected to expire over time, but developers continued to use private controls in exclusive developments. After World War II, private land use controls began to be democratized as townhouses and condominiums were built for low- and moderate-income families. This trend continues today with the market conditions in many areas mandating the construction of developments governed by a Residential Community Association (RCA). RCAs1 now have a long history with increasing implications for public land use controls.