Two diverse pubs today! But both deal with 'species'.
1) Does the Endangered Species Act Preempt State Water Law? by Robin Kundis Craig, S.J. Quinney of Law, University of Utah
In March 2013, in The Aransas Project v. Shaw, the U.S. District Court for the Southern District of Texas announced, almost in passing, that the federal Endangered Species Act (“ESA”) preempts state water law and the exercise of state water rights. As a result, the court concluded that the Texas Commission on Environmental Quality had effectuated a “taking” of ESA-listed whooping cranes as a result of state-permitted diversions of fresh water. This case is currently on review before the U.S. Court of Appeals for the Fifth Circuit, but it raises a question likely to be increasingly important for both aquatic species and water users: When, and to what extent, does the federal ESA preempt state water law, including the exercise of state-created water rights?This Article examines that question in much more detail than the Southern District of Texas did. It begins by examining the plethora of water systems in the United States that are already subject to ESA controversies as a result, at least in part, of water management decisions and water rights. For a variety of reasons, including both population dynamics and climate change, the number of such systems is increasing, and conflicts between the ESA and state water law are only likely to escalate in the future. In Part II, this Article reviews the basic jurisprudence of federal preemption, outlining the three ways in which federal law can preempt state law — express, implied, and conflict preemption. Finally, Part III examines how these three types of preemption play out through the ESA. The Article concludes that the ESA is unlikely to either expressly or implicitly preempt state water law in most circumstances, but that conflict preemption is likely to play an increasingly bigger role in ESA-water law jurisprudence, making The Aransas Project v. Shaw a harbinger of water rights litigation to come.
Great stuff! Thanks to John Orr for this item.
The GLMRIS Report has just been released by the USACE. Here is the summary:
The GLMRIS Report presents the results of a multi-year study regarding the range of options and technologies available to prevent aquatic nuisance species (ANS) movement between the Great Lakes and Mississippi River basins through aquatic connections. Through a structured study process, USACE identified thirteen ANS of Concern established in one basin that posed a high or medium risk of adverse impacts by transfer and establishment in the opposite basin. USACE analyzed and evaluated available controls to address these ANS, and formulated alternatives specifically for the Chicago Area Waterway System (CAWS) with the goal of preventing ANS transfer between the two basins.
The report contains eight alternatives, each with concept-level design and cost information, and evaluates the potential of these alternatives to control the transfer of a variety of ANS. The options concentrate on the Chicago Area Waterway System (CAWS) and include a wide spectrum of alternatives ranging from the continuation of current activities to the complete separation of the Great Lakes and Mississippi River basins. The GLMRIS Report also includes an analysis of potential impacts to uses and users of the CAWS, and corresponding mitigation requirements for adverse impacts to functions such as flood-risk management, natural resources, water quality, and navigation.
The alternatives presented in the report include:
- Continuing current efforts (i.e., the electric barriers) with “No New Federal Action — Sustained Activities.”
- Nonstructural control technologies (i.e., education, monitoring, herbicides, ballast water management).
- A technology concept involving a specialized lock, lock channel, electric barriers and ANS treatment plants at two mid-system locations in the CAWS.
- A technology concept (CAWS buffer zone) using the same technologies as number 3, preventing downstream passage from Lake Michigan at five points and preventing upstream passage at a single point at Brandon Road Lock and Dam.
- Lakefront hydrologic separation with physical barriers separating the basins at four locations along the lakefront of Lake Michigan.
- Mid-system hydrologic separation with physical barriers separating the basins at two mid-system locations.
- A hybrid of technology and physical barriers at four mid-system locations, leaving the Cal-Sag channel open.
- A hybrid of technology and physical barriers at four mid-system locations, leaving the Chicago Sanitary and Ship Canal open.
The GLMRIS Report presents evaluation criteria to help readers distinguish among the alternatives. Evaluation criteria include design elements unique to each alternative such as initial or long-term operational costs and duration for implementation, as well as related qualitative features for each alternative, such as the magnitude of impact for existing waterway uses or relative effectiveness of preventing interbasin transfer.
Start with the Summary of the GLMRIS Report (see above) for an overview of these alternatives.
You can download the entire report and appendices here
Suggestion: the Corps should have used the acronym 'GLAMRIS' and pronounced it 'glamorous'. You always need a good APE - 'Acronym Producing Expression'.
Thanks to Lisa Engelman and Ken Reid for sending this to me.
"If you cannot convince them, confuse them." -- Harry S Truman