Volume 27, Issue 1
Spring 1997
ARTICLES
Beyond the Parity Promise: Struggling to Save Columbia
Basin Salmon in the Mid-1990s
Michael C. Blumm, Michael A. Schoessler, & R.
Christopher Beckwith
The alarming decline of Columbia
River Basin salmon and judicial rejection of salmon restoration plans resulted
in the development of three competing restoration plans in the mid-1990s.
Professor Blumm, Mr. Schoessler, and Mr. Beckwith analyze and critique these
three plans in light of the Northwest Power Act's requirement of parity between
hydropower and salmon in the operation of the Columbia dams. The authors
conclude that lowering the burden of scientific proof demanded of mainstem
passage measures and implementing adaptive management policies would offer a
greater potential for restoring the signature species of the Pacific Northwest
and ensuring that the right to take fish promised to the Columbia River Indain
tribes 140 years ago is fulfilled.
Water for Growing Communities: Refining Tradition in the
Pacific Northwest
Janis E. Carpenter
Ms. Carpenter highlights some of
the major water supply issues arising in Pacific Northwest communities as they
increase in population and change their economic focus. The author identifies
legal and policy questions related to the traditional "growing communities
doctrine" and proposes legislative review of municipal water rights and
responsibilities in light of progressively competitive demands for water rights
throughout the region.
Wasting Water in the Northwest: ELiminating Waste as a
Way of Restoring Streamflows
Karen A. Russell
Ms. Russell examines the failure
of the Columbia Basin states to stop wasteful water use despite beneficial-use
requirements mandated by state water allocation laws. She concludes that this
failure reflects lax enforcement, which in turn reflects uncertainty in the
definition of waste and the political influences that shape water policy. Ms.
Russell describes legal changes that could stem waste by adding certainty and
rigor to enforcement, thereby providing additional water for both consumptive
uses and instream flows.
Instream Rights & Invisible Hands: Prospects for
Private Instream Water Rights in the Northwest
Jack Sterne
Mr. Sterne surveys the state
programs available in the Northwest to protect instream flows. He concludes
that those programs are of little value as they are currently used, and
advocates statutory changes to allow private parties to hold and enforce
instream water rights.
COMMENTS
Slowing the Net Loss of Wetlands: Citizen Suit
Enforcement of Clean Water Act § 404 Permit Violations
Phillip M. Bender
With effective Army Corps of
Engineers enforcement of the Clean Water Act's section 404 permits lacking, Mr.
Bender advances the proposition that a remedy - citizen suit authority -
currently exists. Mr. Bender finds this authority through a careful reading of
the Clean Water Act, in conjunction with the Clean Water Act's legislative
history, prior case law, and the general policy behind wetlands protection.
The R.S. 2477 Right of Way Dispute: Constructing a
Solution
Mitchell R. Olson
Mr. Olson examines the
controversy surrounding proposed Department of the Interior regulations that
establish standards and processes for validating R.S. 2477 rights of way at the
federal level. Western states oppose these regulations because historically
state law has determined R.S. 2477 validity. Mr. Olson concludes that state law
determinations of validity must be included in the federal regulations.
NOTE
Current Trends in Judicial Review of Environmental
Agency Action
The Honorable Diarmuid F. O'Scannlain
Judge O'Scannlain, Circuit Judge,
United States Court of Appeals for the Ninth Circuit, argues that Chevron
deference is ultimately a function of Congress's intent and, a fiori, a judge's
approach to statutory interpretation. Judge O'Scannlain presents a sample of
Supreme Court and Ninth Circuit cases to illustrate why he suggests that the environmental
bar should monitor not just specific interpretations of environmental statutes
but the underlying methods of statutory interpretation and faithfulness to the Chevron
doctrine.
BOOK REVIEW
An Update on Pleadings, Sanctions and Civil Justice
Reform
Carl Tobias
Professor Tobias concludes that the heightened pleading requirements of FRCP Rules 8 and 11 are having little impact on plaintiffs filing environmental lawsuits.