November 01, 2016

Vantage Point

Erin Flannery Keith, Issue Editor

In 1842, New York City celebrated the opening of the Croton Aqueduct. After decades of population growth combined with inadequate sewerage, contaminated drinking water that caused cholera epidemics, and an insufficient municipal water supply system that was no match for ravaging city fires, New York was jubilant at the aqueduct’s opening. The 41-mile system delivered fresh Croton Reservoir water to Manhattan. George Pope Morris, a newspaper editor of the time, wrote “The Croton Ode” for the festivities. In one verse, Morris proclaimed, “Water leaps as if delighted / While her conquered foes retire! / Pale Contagion flies affrighted / With the baffled demon Fire! / Safety dwells in her dominions, / Health and Beauty with her move, / And entwine their circling pinions / In a sisterhood of love.”

Morris projected New Yorkers’ jubilation that a reliable, abundant, and modern source of fresh water would “conquer” their “foes”—waterborne diseases, fire, water shortages—and allow city life to flourish. He envisioned water bringing health, safety, and an end to conflict. As New York’s population ballooned, the city required a bigger water supply infrastructure. Engineers connected the Croton Aqueduct to manipulated streams and newly created dams, tunnels, and reservoirs to bring Catskill Mountain water into the city. Much of that infrastructure remains today. Although the original Croton Aqueduct has been replaced, that early system’s remnants still tell the story of a city’s insatiable need for water and the appurtenant environmental and human conflicts. Indeed, one of this issue’s feature articles provides an update on long-standing litigation about the water supply system’s environmental impacts.

Water is an indispensable natural resource for cities, tribes, suburbs, farms, threatened and endangered species, and public lands. Water is also a perennial source of conflict. The feature articles in this issue span the United States, from Maine’s Penobscot River to the Sacramento River Delta. We encounter disputes over tribal rights to a river, the “addition of a pollutant” under the Clean Water Act (CWA), and the application of water quality standards to mining discharges. Authors address emerging Supreme Court jurisprudence on interstate surface and groundwater allocation. One article highlights the nexus between CWA jurisdiction, the Endangered Species Act, and agricultural uncertainty. We examine how historical legal and policy constructs for Great Lakes water use and the diversion of California water hold up in the face of population growth and climate change, and how alternative dispute resolution tactics could help resolve conflicts. Finally, looking abroad, one author hypothesizes how the law of armed conflict could affect water security and infrastructure.

From the water-rich Northeast to the arid West, environmental law practitioners face increasingly urgent water conflicts with deep cultural and historical roots. In his introduction to The Sound of Mountain Water, Wallace Stegner wrote, “Say of the quintessential West that it is extravagantly endowed, but that it has one critical deficiency, water, and that therefore its soils, its watersheds, its timber, and its grass are all vulnerable.” Our nation’s citizens are also acutely vulnerable to water deficiencies. As this issue demonstrates, environmental law practitioners across the country are devising new solutions to address water vulnerabilities, protect human health and environmental resources, and resolve conflicts.

Erin Flannery Keith

Issue Editor

Erin Flannery Keith, Issue Editor