Journals
Fall 2005, Vol. 45, No. 4
Essay - The Circle and the Cross: Reflections on the Holy Wells of Ireland
Walter L. Brenneman, Jr.
The Sacredness of Water and Its Symbolism: Mary Mary, quite contrary, how does your garden grow? With cockle shells, and silver bells, and pretty maids in a row. If we take seriously the question asked in this familiar nursery rhyme, that is, how does Mary’s garden grow, what makes it grow, through what means does it grow, it seems clear that Mary’s garden is not enabled to grow by the presence or absence of cockle shells, silver bells, or pretty maids in a row. Rather, Mary’s garden is able to grow because it has fertile earth in which it is planted, but also, and most importantly, because that earth is watered. If we were to plant seeds in the most fertile of soils, and if those seeds were not watered, they would fail to germinate, to emerge as living plants. Thus, it is this last element, water, that is crucial to the growth of Mary’s or anyone else's garden.
But water is crucial to the life of not only Mary’s garden, but of virtually all life in varying degrees. It is certainly central for human life, as well as the life of all mammals and reptiles. Because of this fact, which is true always and everywhere, water has come to symbolize, for all times and places, life itself, and complimenting water’s symbolism of life is its importance in all fertility.
Hydrology and Administration of Domestic Wells in New Mexico
Peter Balleau & Steven Silver
Domestic wells in New Mexico are the subject of proposed policy on permitting and water planning. Using hydrologic models, this article examines the impact on water resources due to alternative policies. The authors orient the hydrological discussion by outlining the operation of domestic wells in providing water service because problems with domestic well-water service are often related to well construction. A properly-constructed well has allowance for future changes in aquifer water levels. A standard protocol for showing domestic well-water availability is not yet established; however, such a standard would involve testing, recovery observation, and computation. Domestic wells in general do not interfere with one another regardless of whether the aquifer is of poor or good productivity because in the former, the area of influence is small, and in the latter the magnitude of influence is small. Model calculations can quantify the foreseeable hydrologic results of several proposed policy interventions aimed at limiting or curtailing growth of domestic wells. We conclude that no area of New Mexico appears to have a systematic problem with resource depletion from domestic wells. Among the policy alternatives, requiring properly-constructed wells when drilled or sold would best reduce problems with water-service to residents of households who rely on domestic wells.
On Regulating New Mexico’s Domestic Wells
Frank B. Titus, Ph.D.
Hydrologic impacts and equitable water management dictate that the state engineer should require water rights for new domestic wells in Critical Management Areas and on water-short interstate streams. A domestic well permit in New Mexico allows homeowners to acquire water but creates no water right. Balleau and Silver estimate that in 2000 the cumulative effect of 136,800 wells reduced flows in interstate streams by 11,780 acre-feet, and future wells will come in increasing numbers. The problem is that on water-short interstate streams and in critical management areas, owners of valid water rights, not domestic well owners, cover water shortages. Therefore, a water-right-ownership requirement for new domestic wells in these areas is proposed here to offset their consumption. Moreover, New Mexico should outlaw double dipping (that is, domestic wells for housing developments on land from which water rights have been severed), require annual domestic permit renewal, and take other corrective actions. This author does not suggest universal metering or granting the State Engineer unconstrained authority to deny domestic permits.
Global Climate Change and the Use of Economic Approaches: The Ideal Design Features of Domestic Greenhouse Gas Emissions Trading with an Analysis of the European Union’s CO2 Emissions Trading Directive and the Climate Stewardship Act
Inho Choi
This Article discusses the ideal design features of a domestic greenhouse gas (GHG) emissions trading program that are critical to the cost-effective implementation of future U.S. climate change policy. The discussion of a properly designed domestic GHG trading program is coupled with an analysis of both the European Union’s (EU) Carbon Dioxide (CO2) Emissions Trading Directive and the Climate Stewardship Act of 2003, proposed by Senators John McCain and Joseph Lieberman.
The Article begins with the argument that climate change policy does not necessarily entail huge compliance costs. Rather, implementation of well-designed domestic climate change policy will have the effect of aligning energy development and environmental protection goals, while minimizing its short-term economic impacts. By encouraging reduced fossil fuel usage, climate change policy has the potential to integrate sustainability concerns into all levels of economic decision making, thereby producing ancillary societal benefits such as improvements in existing air quality and public health.
In light of the large number of pollution sources and relative ease in measuring CO2 emissions, this Article argues that emissions trading or a carbon tax system should be an essential part of any successful climate stabilization strategy. However, it is unlikely that a carbon tax will be politically acceptable in the United States despite the tax’s theoretical appeal. Based on prior experiments with emissions trading programs in the United States, the Article discusses the ideal design features of domestic GHG emissions trading. These features include: early reduction credits, banking and borrowing, opt-in, offset trading, international emissions trading, and effective monitoring and verification. During the course of discussion, the Article examines the program elements of both EU’s CO2 Emissions Trading Directive and the Climate Stewardship Act.
Lastly, this Article briefly introduces several studies that have estimated the economic effects of the Climate Stewardship Act. The Article concludes that domestic climate change policy can be implemented in a cost-effective manner and stresses the need for the United States to take domestic action on climate change.
Water Availability and Economic Development: Signs of the Invisible Hand? An Empirical Look at the Falkenmark Index and Macroeconomic Development
Jeffrey Edwards, Benhua Yang & Rashid B. Al-Hmoud
It is widely believed that critically low levels of water availability will hinder economic growth and development. To the contrary, we find that countries with available water resources below 500 m3 actually outperform countries with levels between 500 and 1600 m3 in terms of growth, per capita Gross Domestic Product, and investment. We show descriptive evidence indicating that much of the reason for this seemingly unintuitive result lies in the natural pressures faced by critically water-scarce countries to move from water intensive agriculture to less water intensive services and industry, with an emphasis on the services sector. We believe governmental policy should focus less on water resource attainment in support of agriculture and more on transitioning to services.
The Forest Service and Western Water Rights: An Intimate Portrait of United States v. New Mexico
G. Emlen Hall
Lawsuits offer an arcane and fundamental way of making basic water law and policy. The tortured course of litigation turns out to set the course of natural resource policy for years to come. Mimbres Irrigation District v. Salopek et al., which reached the U.S. Supreme Court in 1978 under the more glamorous moniker of United States v. New Mexico, dealt for the first time with the important issue of U.S. Forest Service water rights on Forest Service lands. The decision both resolved the history of Forest Reservations with respect to water and narrowed and shaped Forest Service options with respect to future management. This article provides the intimate details of the Forest Service litigation. The portrait reveals how the case struggled to define the Forest Service’s past and unwittingly set the course for its future. The details—the incomplete understandings of history, the legal posturing in an adversary system, the quirks of personality in a complex process—combine in this story to show how time and chance influence our eternal rules about our most basic resources. The article weaves materials from personal interviews and various state and federal archives to develop the tale.
Transboundary Water Law in Africa: Development, Nature, and Geography
Jonathan Lautze
This article documents and analyzes the largest collection of transboundary water agreements related to Africa. Collection contents are categorized to provide insights into the evolution and geography of transboundary water law in Africa, and—when possible—to situate that law within a global context. The findings reveal that both historic and geographic factors have influenced African agreements. Historically, there is a trend toward increasing robustness generally consistent with global trends. Geographically, agreements vary by the degree and type of water scarcity in associated basins. The findings help answer questions related to current transboundary water management in Africa and provide guidance for future institutional development.
State ex rel. Martinez v. City of Las Vegas: The Misuse of History and Precedent in the Abolition of the Pueblo Water Rights Doctrine in New Mexico
Martha E. Mulvaney
The pueblo water rights doctrine permits a municipality that was originally founded as either a Spanish or Mexican colonization pueblo to appropriate unlimited water from adjacent watercourses in order to meet the needs of a growing population. Of uncertain historical validity, the doctrine was first recognized by the New Mexico Supreme Court in 1958 and then repudiated in the 2004 case of State ex. rel Martinez v. City of Las Vegas. That opinion, while purporting to base its rejection of the doctrine on prior New Mexico water law, is founded on conflicting views of history and an inconsistent application of the doctrine of stare decisis. In a state like New Mexico, where water is scarce and rights to water are valuable, the abrogation of such an important property right called for a clear and consistent rationale. Instead State ex. rel Martinez v. City of Las Vegas shies away from the court’s responsibility to evaluate historical fact, makes unprincipled use of prior case law, and rests upon the authority of the genre of the judicial opinion and the power of the state rather than on sound reasoning.
