Resolving conflict in non-ideal, complex systems: Solutions for the law-science breakdown in environmental and natural resource law

Natural Resources Journal

Volumn 48, Issue 2, 2008, Pages 257-301

  Cosens, Barbara ^a  

^a UNIVERSITY OF IDAHO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONFLICT MANAGEMENT; DREDGING; ENVIRONMENTAL LEGISLATION; INTEGRATED APPROACH; NATURAL RESOURCE; RESOURCE MANAGEMENT; WATER PLANNING; WETLAND;

NORTH AMERICA; UNITED STATES;

EID: 63549090619     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (348)

1. 33 U.S.C. § 1344 (2000).
2. Rapanos v. United States, 547 U.S. 715 (2006).
3. NAT'L ACAD. OF SCIS., NAT'L ACAD. OF ENG'G & INST. OF MED. OF NAT'L ACADS., FACILITATING INTERDISCIPLINARY RESEARCH 32-33 (2005) ("If science and engineering deal with extremely complex systems, the same is true for studies of human society. How human societies evolve, make decisions, interact, and solve problems are all matters that call for diverse insights. Very fundamental questions are inherently complex.").
4. Although many would argue that humans are part of the natural system, humans are considered separately here because we have developed one approach for resolving social disputes - law - and one approach for resolving disputes concerning the state of natural systems - science.
5. That energy can be converted from one form to another but cannot be created or lost-i.e., isconserved - is the firstlaw of thermodynamics. See, e.g., NICHOLAS W.TSCHOEGAL, FUNDAMENTALS OF EQUILIBRIUM AND STEADY-STATE THERMODYNAMICS (2000) (that the entropy, or disorder, of a system will increase over time if no energy is added is the second law of thermodynamics).
6. See, e.g.,
7. id.
8. For another discussion of the differences between hard and soft sciences by a legal scholar, see, forexample, David E. Adelman, The Art of the Unsolvable: Locating the Vital Center of Science for Environmental Law and Policy (draft paper prepared for Law, Science and the Environment Conference, Lewis and Clark Law School, 2007), http://www.klark.edu/dept/ elaw/2007_lse_papers.html (last visited Apr. 21, 2008). As prefigured above, the simple answer is that the power of science depends on the nature of the problem and the strength of the tools available to analyze it. Good science ranges from the highly precise and accurate methods found in the hard sciences (e.g., Newtonian physics) to heuristic models that expose general patterns in complex systems (e.g., ecology). Science is thus inherently pluralistic, as the different scientific disciplines attest, and a unitary conception of environmental science is neither a desirable end nor a viable goal.
9. Id. at 2 (citations omitted).
10. See also Holly Doremus, Science Plays Defense: Natural Resource Management in the Bush Administration, 32 ECOLOGY L.Q. 249, 298 (2005) ("With the right equipment, the speed of light, the pull of gravity, and the atomic weight of hydrogen, for instance, can all be measured to a very high degree of both precision and accuracy. Biological phenomena, even at the level of a single organism, are more complicated, more variable, and therefore inherently more difficult to obtain highly certain information about. Moving to the community or ecosystem level adds yet another level of variability. Unlike some physical scientists, conservation scientists often cannot, as a practical matter, test their hypotheses under closely controlled laboratory conditions. They must rely upon observations of the natural world which are both difficult to make and subject to a high degree of background variation in order to try to understand complex biological processes. Under those circumstances, while a very strong consensus may develop around the existence and general outline of general principles such as heredity or evolution, science may never produce certainty about the extent, or even the existence, of causal relationships between ecosystem decline and specific human activities.").
11. Luna B. Leopold, Water Surface Topography in River Channels and Implications for Meander Development, in GRAVEL-BED RIVERS 59-87 (R.D. Hey ed., 1982), available at http://eps.berkeley.edu/ people/lunaleopold/(137)%20Water%20Surface%20Topography%20in%20River% 20Channels%20and%20Implications%20for%20Meander%20Development.pdf.
12. See, e.g., Shang J. Yao & Bruno J. Zwolinski, Studies on Rates of Nonequilibrium Processes, in 21 ADVANCES IN CHEMICAL PHYSICS: CHEMICAL DYNAMICS: PAPERS IN HONOR OF HENRY ERYING, pt. 2, at 91 (2007), available at http://www3.interscience.wiley.com /cgi-bin/bookhome/114180975/ProductInformation.html (last visited Apr. 21,2008);
13. Barbara Cosens Gallinatti, Initiation and Collapse of Active Circulation in a Hydrothermal System at the MidAtlantic Ridge, 23° N, 89 J. GEOPHYSICAL RES. 3275 (1984).
14. See, e.g., P.B. Redmond et al., Copper Deposition by Fluid Cooling in Intrusion-Centered Systems: New Insights from the Bingham Porphyry Ore Deposit, 32 UTAH GEOLOGY 217-20 (2004);
15. G.H. Brimhall, Early Fracture-Controlled Disseminated Mineralization at Butte, Montana, 72 ECON. GEOLOGY 37-59 (1977).
16. See generally E.O. WILSON, CONSILIENCE: THE UNITY OF KNOWLEDGE (1998).
17. For additional discussion of this by a legal scholar with a biology background, see Holly Doremus & A. Dan Tarlock Science, Judgment, and Controversy in Natural Resource Regulation, 28th Annual Public Land Law Conference: Science and Democracy in Public Land Conflict: Forest, Fish, and Fire, 26 PUB. LAND & RESOURCES L. REV. 1, 18 (2004) ("First, as sensible ecologists have constantly warned, ecology and the related biological sciences will never reach the precision and elegance of physics and mathematics.").
18. See, e.g., J. DAVID ALLEN, STREAM ECOLOGY: STRUCTURE AND FUNCHON OF RUNNING WATER (1995).
19. VEN TE CHOW ET AL., APPLIED HYDROLOGY 272-73,304 (1998) (the term for friction is in the St. Venant equations used to handle river flow).
20. See, e.g., W.E. Dietrich et al., Sediment Patches, Sediment Supply and Channel Morphology, in RIVER, COASTAL AND ESTUARINE: MORPHODYNAMICS (RCEM 79-90) (G. Parker & M.H. Garcia eds., 2005).
21. See, e.g., C. Paola et al., Tozvard a Unified Science of the Earth's Surface: Opportunities for Synthesis Among Hydrology, Geomorphology, Geochemistry, and Ecology, 42 WATER RESOURCES RES. W03S10, doi:10.1029/2005WR004336 (2006).
22. See, e.g., JEFFREY MOUNT, CALIFORNIA RIVERS AND STREAMS (1995);
23. W.E. Dietrich & J.T. Perron, The Search for a Topographic Signature of Life, 439 NATURE 411 (2006).
24. Gallinatti, supra note 9, at 3275.
25. Id.
26. See, e.g., N. Shikazona, Water-Rock Interaction and Mass Transfer in Hydrothermal Systems: Kinetics, Fluid Flow, and Mixing Model, 833 AIP CONF. PROC. 125-28 (2006).
27. This has also been referred to as a problem of scale. David Adelman notes: Simon Levin, an ecological modeler and theorist, describes this approach with characteristic clarity: "This is the principal technique of scientific inquiry: by changing the scale of description, we move from unpredictable, unrepeatable individual cases to collections of cases whose behavior is regular enough to allow generalizations to be made. In so doing, we trade off the loss of detail or heterogeneity within a group for the gain of predictability; we thereby extract and abstract those fine-scale features that have relevance for the phenomena observed on other scales." One implication of this approach is that not all levels of abstraction for analyzing a problem are created equal. Just as it would be foolish to try to study the behavior of a gas by attempting to follow the motion of every single gas molecule, so too may it be futile to attempt to understand biodiversity by tracking populations of individual species. Consideration of scale matters for basic scientific understanding and for very practical problems of effective environmental management. In fact, the two are closely linked because identification of strong associations (i.e., patterns) through basic scientific work makes environmental management possible.
28. Adelman, supra note 7, at 8.
29. WILSON, supra note 11, at 15. "Consilience," as used by Wilson, describes a unified theory across the natural and social sciences and, in his words, means "[l]iterally a 'jumping together' of knowledge by the linking of facts and fact-based theory across disciplines to create a common groundwork of explanation."
30. Id. at 8 (citation omitted).
31. Id. at 15.
32. See, e.g., Sharachchandra Lélé & Richard B. Norgaard, Practicing Interdisciplinarity, 55 BIOSCIENCE 967 (2005) ("Disagreements within the social sciences, however, are therefore extremely deep-rooted, in part because of a mistaken belief (left over from 19th-century physics) that social phenomena ought to be explained, or largely explained, by a few universal principles.").
33. WILSON, supra note 11, ch. 5.
34. Id.
35. Id.
36. Id. at 91.
37. See, e.g., Peter Kosso, Scientific Understanding, 12 FOUND. SCI. 173 (2007).
38. One author notes that this adaptation is already occurring in endangered species law, stating, Law, acting alone, would never have produced the process rules the court devised for critical habitat in the Homebuilders case. Neither would science on its own have led to them. Rather, the law-science process of the ESA, as in other environmental law programs, is an emergent property. Law and science have mingled under the ESA for almost 35 years. The result is a process that does not make complete sense to any lawyer wearing only a law hat, or to any scientist wearing only a science hat. That is to say, the ESA's law-science process cannot be understood through the reductionist lens of law or science alone. It has properties that do not exist in law alone or in science alone, therefore it no longer makes sense to evaluate the ESA strictly from the perspective of legal process or of science process. J.B. Ruhl, The Co-evolution of Environmental Science and Environmental Law (paper prepared for Law, Science and the Environment Conference, Lewis and Clark Law School, 2007), http:// www.lclark.edu/dept/elaw/2007_lse_papers.html (last visited Apr. 21, 2008).
39. Jamison Colburn, No Time Like the Present: The Eighteenth-Century Judicial Power Meets the Twenty-first-Century Problem in Massachusetts v. EPA, 38 TRENDS (ABA Section on Env't, Energy & Resources), Mar./Apr. 2007, at 4.
40. The two cases, both from the Sixth Circuit, were Rapanos v. United States, 376 F.3d 629 (2004),
41. and Carabell v. United States, 391 F.3d 704 (2005). The consolidated case is referred to as Rapanos.
42. U.S.C. § 1344 (2000).
43. Rapanos v. United States, 547 U.S. 715 (2006).
44. See, e.g., Information Quality Act, 44 U.S.C. § 3516 (2000);
45. Kirk O'Reilly, Science, Policy, and Politics: The Impact of the Information Quality Act on Risk-Based Regulatory Activity at the EPA, 14 BUFF. ENVTL. L.J. 249 (2007).
46. See, e.g., J.B. Ruhl & J. Salzman, In Defense of Regulatory Peer Review, 84 WASH. U. L. REV. 1, 10 (2006) (In discussing the need for peer review, the authors state, "The standard argument that agencies must make policy decisions in the face of incomplete and uncertain scientific data, and thus should not be bound to the rigors of peer review, turns the issue on its head. Designed wisely, regulatory peer review can help reveal how much scientific uncertainty underlies an agency decision and can thus demand that the agency explain how the gap was filled.");
47. Doremus, supra note 7, at 253 ("The core of the problem is not the involvement of politics but its concealment behind a cloak of science.");
48. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613, 1617 (1995) ("Although camouflaging controversial policy decisions as science assists the agency in evading various political, legal, and institutional forces, doing so ultimately delays and distorts the standard-setting mission, leaving in its wake a dysfunctional regulatory program.").
49. Formally known as the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).
50. U.S.C. § 1311(a) (2000).
51. Id. § 1362(12)(A). The full text of the definition is as follows: The term "discharge of a pollutant" and the term "discharge of pollutants" each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to any waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.
52. Id. The definition of and debate over the meaning of "navigable waters" in this definition are the focus of Rapanos.
53. U.S.C. § 1344(a) (2000).
54. Although the CWA is primarily implemented by the EPA, the dredge and fill portions of the Act are administered by the Army Corps of Engineers, 33 U.S.C. § 1344(d) (2000), for reasons of history discussed below.
55. U.S.C. § 1362(7) (2000).
56. Id. § 1342.
57. Id. § 1342(b).
58. Id. § 1344.
59. Id. § 401 et seq.
60. For a general treatment of the pre-Rapanos agency and court actions, see Donna M. Downing et al., Navigating Through Clean Water Act Jurisdiction: A Legal Review, 23 WETLANDS 475 (2003). Not only is the article a good overview of the sequence of events, but, because it is authored by legal counsel to the EPA and the Corps of Engineers, it also provides insight into possible agency interpretation of those events.
61. Natural Res. Def. Council v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
62. Permits for Activities in Navigable Waters or Ocean Waters, 40 Fed. Reg. 31,320 (July 25, 1975) (to be codified at 33 C.F.R. pt. 209). Note that in 1979 Attorney General Civiletti issued an opinion determining that the EPA is the agency with the authority under the CWA to define waters of the United States, 43 Op. Att'y Gen. 197 (1979), and the agencies now provide consistent regulations pursuant to EPA, Memorandum of Agreement, http://www.epa.gov/owow/wetlands/guidance/404f.html (last visited Apr. 23, 2008).
63. C.F.R. § 328.3(b) (1978).
64. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 125-26 (1985).
65. Id. at 132.
66. Id. at 133-34.
67. Id. at 124 n.2.
68. Solid Waste Agency of N. Cook County v. United States, 531 U.S. 159 (2001) [hereinafter SWANCC].
69. Clean Water Act Section 404 Program Definitions and Permit Exceptions; Section 404 State Program Regulations, 53 Fed. Reg. 20,764, 20,765 (June 6, 1988) (to be codified at 40 C.F.R. §§ 232-233) (EPA clarification);
70. Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,206-217 (Nov. 13,1986) (to be codified at 33 C.F.R. pts. 320-330) (Corps clarification). Although broader in scope than implied and not actually a regulation, this language is generally referred to as the Migratory Bird Rule.
71. See, e.g., Downing et al., supra note 46, at 483.
72. SWANCC, 531 U.S. at 167,172.
73. Id. at 167.
74. Id. at 172.
75. Id. at 172-73.
76. See, e.g., Downing et al., supra note 46, at 492 ("It is this question-the 'significant nexus' between an intrastate non-navigable 'isolated water and the rest of the aquatic ecosystem- that will likely determine whether the water will be protected by the CWA.");
77. Scott G. Leibowitz, Isolated Wetlands and Their Functions: An Ecological Perspective, 23 WETLANDS 517, 526 (2003).
78. C.F.R. § 230.3(t) (2008).
79. LEWIS M.COWARDIN ET AL.,CLASSIFICATION OF WETLANDS AND DEEPWATERHABITATS 1(FWS/OBS-79/31,1979),http://www.fws.gov/nwi/ Pubs_Reports/Class_Manual/class_titlepg.htm (last visited Apr. 29, 2008).
80. EPA, EPA 843-17-04-011a, WETLANDS OVERVIEW (2004), available at http://www.epa.gov/owow/wetlands/pdf/overview.pdf.
81. COWARDIN ET AL., supra note 62, at 3.
82. EPA, EPA 8.43-F-01-002c, FUNCTIONS AND VALUES OF WETLANDS (2001) [hereinafter FUNCTIONS AND VALUES], available at http:// www.epa.gov/owow/wetlands/pdf/fun.val.pdf;
83. see also EPA, What Are Wetlands?, http://www.epa.gov/owow /wetlands/vital/nature.html (last visited Apr. 29, 2008).
84. FUNCTIONS AND VALUES, supra note 65.
85. Id.
86. EPA, EPA 943-F-06-001, WETLANDS: PROTECTING LIFE AND PROPERTY FROM FLOODING (2006), available at http://www.epa.gov/owow /wetlands/pdf/Flooding.pdf.
87. FUNCTIONS AND VALUES, supra note 65.
88. Id.
89. COWARDIN ET AL., supra note 62, at 3.
90. EPA, Wetlands Definitions, http://www.epa.gov/owow/wetlands/what/ definitions.html (last visited Apr. 25, 2008).
91. Ralph W. Tiner, Geographically Isolated Wetlands of the United States, 23 WETLANDS 494, 494 (2003);
92. Leibowitz, supra note 60, at 517-18.
93. In technical terms, to be surrounded by uplands can be identified by such features as "hydrophytic plant communities surrounded by terrestrial plant communities or undrained hydric soils surrounded by nonhydric soils." Tiner, supra note 73, at 495;
94. Leibowitz, supra note 60, at 518.
95. Tiner, supra note 73, at 495;
96. Leibowitz, supra note 60, at 518-19.
97. Tiner, supra note 73, at 495;
98. Leibowitz, supra note 60, at 518-19;
99. Thomas C. Winter & James W. LaBaugh, Hydrologic Considerations in Defining Isolated Wetlands, 23 WETLANDS 532, 534-35 (2003).
100. Tiner, supra note 73.
101. Leibowitz, supra note 60, at 519.
102. Id. at 521-22.
103. Dennis F. Whigham & Thomas E. Jordan, Isolated Wetlands and Water Quality, 23 WETLANDS 541, 543, 547 (2003).
104. Barbara L. Bedford & Kevin S. Godwin, Fens of the United States: Distribution, Characteristics, and Scientific Connection Versus Legal Isolation, 23 WETLANDS 608, 621 (2003).
105. See Tiner, supra note 73, at 498.
106. U.S. 715 (2006). The Court achieved a majority on the outcome but issued two concurring opinions and two dissents. Justice Scalia wrote for the plurality and was joined by Chief justice Roberts and justices Alito and Thomas. Chief Justice Roberts and Justice Kennedy wrote separate opinions with Kennedy concurring in the outcome. Justice Stevens wrote a dissent joined by Justices Souter, Ginsburg, and Breyer. Justice Breyer wrote a separate dissenting opinion.
107. In discerning the factual background from the opinions, it is worth noting that, similar to astute law students, the authors, while each accurately stating the facts, chose those facts that made their approach and conclusion appear most reasonable. Thus, the author of the particular facts chosen for the purposes of this article will be noted in each instance.
108. Rapanos, 547 U.S. at 729 (Scalia, J., writing for the plurality).
109. Id. at 763 (Kennedy, J., concurring).
110. Id. at 762 (Kennedy, J., concurring).
111. Id.
112. Id.
113. Id.
114. Id.
115. Id.
116. Id. at 765 (Kennedy, J., concurring).
117. Id.
118. Id. at 764 (Kennedy, J., concurring).
119. Id.
120. Id. at 790 (Stevens, J., dissenting (quoting App. to Pet. for Cert. in No. 04-1034, p. B7)).
121. See id.
122. Id. (Stevens, J., dissenting) (quoting App. in No. 04-1384, p. 127a-128a). The letter from the Corps to the Carabells stated, Your parcel is primarily a forested wetland that provides valuable seasonal habitat for aquatic organisms and year round habitat for terrestrial organisms. Additionally, the site provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair. The minimization of impacts to these wetlands is important for conservation and the overall ecology of the region. Because the project development area is a forested wetland, the proposed project would destroy the resources in such a manner that they would not soon recover from impacts of the discharges. The extent of impacts in the project area when considered both individually and cumulatively would be unacceptable and contrary to the public interest.
123. Id. at 791.
124. Rapanos v. United States, 376 F.3d 629, 643 (6th Cir. 2004);
125. Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704, 708 (6th Cir. 2004).
126. Rapanos v. United States, 546 U.S. 932 (2005) (mem.);
127. Carabell v. U.S. Army Corps of Engineers, 546 U.S. 932 (2005) (mem.).
128. U.S.C. § 1362(7) (2000).
129. Rapanos, 547 U.S. at 739 (quoting WEBSTER's SECOND 2882).
130. Id. at 742.
131. Presumably Scalia's "'waters of the United States' in their own right" means navigable waters as traditionally defined; whereas "waters of the United States" as referred to in the CWA includes these surfacially connected waters. Id.
132. Id. at 739 (quoting WEBSTER'S SECOND 2882).
133. Somewhat amusingly, Justice Scalia does rely on one other source - the 1942 Warner Brothers classic "Casablanca" - for the proposition that a dry desert is not water. Id. at 2218. This is fitting in that justice Scalia's chosen definition reflects a nineteenth-early-twentieth-century view that if you cannot see it, it is not there. However, the millions of people now living in the southwestern United States in places where no surface water is apparent might disagree.
134. See Looking It Up: Dictionaries and Statutory Interpretation, 107 HARV. L. REV. 1437, 1437-39 (1994).
135. One author notes that while the U.S. Supreme Court has referred to dictionaries in over 600 cases over two centuries, it has dramatically increased its usage since the mid-1980s. Id. at 1437.
136. The author also notes that rarely before the present period did the Court use the dictionary as the central factor in an important determination. Id. at 1439-40.
137. Ralph A. Rossum, The Textualist Jurisprudence of Justice Scalia, http:// salvatori. claremontmckenna.edu/publications/RARScalia.asp (last visited Aug. 15, 2008).
138. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 13 (Amy Gutman ed., 1997).
139. See id.
140. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985).
141. See SCALIA, supra note 108.
142. See, e.g., CHARLEs W. JOHNSON, HOW OUR BILLS ARE MADE, H.R. DOC. 108-93 (2003), available at http://www.senate.gov/ reference/resources/pdf/howourlawsaremade.pdf.
143. Looking It Up, supra note 106, at 1441-42.
144. U.S.C. § 1319(c) (2000) (providing for criminal penalties);
145. U.S.C. § 1344 (providing for permits for dredge and fill of wetlands and specifically noting that "the Administrator [may] take action pursuant to section 1319 of this title");
146. id. § 1344(n). No criminal actions were filed against Carabell; however, a criminal action filed separately from this case was filed against Rapanos. Rapanos v. United States, 547 U.S. 715, 763 (Kennedy, J., concurring).
147. SCALIA, supra note 108, at 13.
148. See also Chisolm v. Roener, 501 U.S. 380 (1991) (Scalia, J., dissenting);
149. Rossum, supra note 107.
150. Rapanos, 547 U.S. at 738.
151. Here, the traditional role referred to is a state's jurisdiction over water within its territory. See, e.g., United States v. New Mexico, 438 U.S. 696, 705 (1978).
152. The federalism argument is somewhat disingenuous when applied to the situation at hand. Most western states have laws defining "waters" or "waters subject to appropriation" to distinguish between those waters that can become an item of property and thus commerce and those waters that cannot. See, e.g., N.M. STAT. ANN. § 72-1-1 (1978) (defining "waters" as anything in a channel);
153. Sporhase v. Nebraska, 458 U.S. 941, 954 (1982) (concluding that water, once appropriated, is an article of commerce). If the true concern is deference to states, why not defer to their definition? Certainly, western congressional representatives of states participating in drafting the CWA would have known of these definitions. Nevertheless, this would not resolve the legitimate question of how a layperson is to interpret the term "waters."
154. For example, see a series of articles on the case in volume 22 of Natural Resources & Environment, published in 2007 by the American Bar Association. In particular, see James Murphy, Hard to Navigate: Rapanos and the Future of Protecting Our Waters, 22 NAT. RESOURCES & ENV'T 3 (2007) (referring to the case as "one of the most important, and befuddling, CWA decisions the Court has ever issued");
155. Joshua A. Bloom, What's Next After Rapanos, id. at 13 ("Unfortunately, the Court has done little more than muddy the waters in defining the extent of the federal government's authority under the CWA....");
156. Robin Kundis Craig, Which Way Federalism Under Section 402?, id. at 20 ("The Supreme Court's decision ... clouds the future of the Clean Water Act's (CWA's) National Pollutant Discharge Elimination System....");
157. W. Parker Moore & Fred R. Wagner, A Regulatory Proposal That Even the Supreme Court Could Love, id. at 34 ("It is unlikely the lower courts will be able to iron out the regulatory wrinkles left in the wake of Rapanos.");
158. Donna Downing et al., Technical and Scientific Challenges in Implementing Rapanos' "Water of the United States," id. at 42 (stating, " i Rapanos and SWANCC] create new scientific and technical challenges" and "[t]he jurisdictional terms such as 'relatively permanent' and 'significant nexus' used in the Rapanos opinion are legal concepts").
159. Rapanos, 547 U.S. at 735-36.
160. Id. at 741. Note that both scientists and lawyers have spent considerable time and effort arguing for protection of wetlands under the CWA on ecological bases. Justice Scalia resoundingly rejects this as an independent basis for jurisdiction.
161. Id. at 742 (citing SWANCC, 531 U.S. at 167, 171). This article will leave the analysis of this conclusion to others.
162. A map of the eastern plateau region of Arizona shows most surface water sources, including portions of the Little Colorado River, to be intermittent. 2 ARIZONA WATER ATLAS 50 (2006 draft), available at http://www.azwater.gov/dwr/Content/Find_by_Program /Rural_Programs/content/water_atlas/ArizonaWaterAtlas_Vol1_ Introduction_Draft_June 2006.pdf. Of the 92 large reservoirs built for water use in the area, 33 are intermittent or dry.
163. Id. at 36. Surface water is a municipal supply for the cities of Flagstaff and Page and for the town of Eager in the southeastern corner of the planning area. It is also utilized for agricultural irrigation by Indian and non-Indian users. Surface water from the Lake Mary reservoir system is an important municipal supply for the City of Flagstaff. Because surface water is drought sensitive, it can be unreliable.
164. Id. at 15.
165. U.S.C. § 1251(a) (2000).
166. See Sporhase v. Nebraska, 458 U.S. 941, 946, 949 (1982).
167. C.F.R. § 230.3(t).
168. FUNCTIONS AND VALUES, supra note 65;
169. EPA, supra note 68.
170. Rapanos v. United States, 547 U.S. 715, 740 (2006) (citing United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132 (1985)).
171. Id. (quoting Riverside Bayview, 474 U.S. at 132, 135 & n.9).
172. Id. at 757-36.
173. Id. As explained in the Rapanos dissent, the Corps published notice seeking comment following SWANCC and decided not to act after 43 states and 99 percent of the comments requested that the Corps not reduce the scope of jurisdiction.
174. Id. at 738 n.4. However, the Corps did direct its field staff that it could no longer assert jurisdiction over "'isolated', intrastate, non-navigable water bodies."
175. Downing et al., supra note 46, at 475 (citing a Corps of Engineers legal memorandum dated January 19, 2001). The legal memorandum was superseded by a guidance published in the Federal Register on January 15, 2003, directing field staff that "SWANCC squarely eliminates CWA jurisdiction over isolated waters that are intrastate and non-navigable, where the sole basis for asserting CWA jurisdiction is the actual or potential use of the waters as habitat for migratory birds that cross state lines in their migrations."
176. Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States," 68 Fed. Reg. 1991-96 (Jan. 15, 2003) (to be codified at 33 C.F.R. pts. 110, 112, 116, 117, 122, 230, 232, 300, 401).
177. Justice Kennedy refers to this lack of connection between possible post-SWANCC rulemaking and the issue in these cases by stating, "New rulemaking could have averted the disagreement here only if the Corps had anticipated the unprecedented reading of the Act that the plurality advances." Rapanos, 547 U.S. at 778.
178. Id. at 726 ("In SWANCC, we considered the application of the Corps" Migratory Bird Rule' to 'an abandoned sand and gravel pit in northern Illinois.' 531 U.S., at 162, 121 S. Ct. 675.
179. Observing that '[i]t was the significant nexus between the wetlands and 'navigable waters' that informed our reading of the CWA in Riverside Bayview,' id., at 167, 121 S. Ct. 675 (emphasis added), we held that Riverside Bayview did not establish 'that the jurisdiction of the Corps extends to ponds that are not adjacent to open water.' 531 U.S., at 168, 121 S. Ct. 675 (emphasis deleted).").
180. SWANCC, 531 U.S. 159,167 (2001) (referring to Riverside Bayview, 474 U.S. at 131-32).
181. See, e.g., Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. ILL. L. REV. 783.
182. Riverside Bayview, 474 U.S. at 131.
183. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 279
184. (cited in Rapanos, 547 U.S. at 785).
185. Rapanos, 547 U.S. at 783-87.
186. Id. at 781.
187. Id. at 766
188. (citing Riverside Bayview, 474 U.S. at 134-35 (internal citations omitted)).
189. Id. at 774-75.
190. Id. at 777-78
191. (citing U.S. CONG., OFF. OF TECH. ASSESSMENT, OTA-O-206 WETLANDS: THEIR USE AND REGULATION 43, 48-52 (1984), available at http://govinfo.library.unt.edu/ota/OTA_4/DATA/1984/ 8433.pdf);
192. RALPH W. TINER, IN SEARCH OF SWAMPLAND: A WETLAND SOURCEBOOK AND FIELD GUIDE 93-95 (2d ed. 2005);
193. Stefanie L. Whitmire & Stephen K. Hamilton, Rapid Removal of Nitrate and Sulfate in Freshwater Wetland Sediments, 34 J. ENVTL. QUALITY 2062 (2005).
194. Rapanos, 547 U.S. at 774-75
195. (citing Henry Fountain, Unloved, But Not Unbuilt, N.Y. TIMES, June 5, 2005, at 3;
196. Anthony DePalma, Rebuilding a River Upstate, For the Love of a Tiny Mussel, Dam to Be Demolished to Save an Endangered Species, N.Y. TIMES, Apr. 26, 2004, at 1;
197. A. Kent MacDougall, Damage Can Be Irreversible Drought, Floods, Erosion Add to Impact of Tree Loss, L.A. TIMES, June 19,1987, at 10).
198. Rapanos, 547 U.S. at 775
199. (citing U.S. CONG., OFF. OF TECH. ASSESSMENT, supra note 139, at 43, 48-52.
200. Rapanos, 547 U.S. at 777
201. (citing Brief for Association of State Wetland Managers et al. as Amici Curiae Supporting Respondents, at 21-23, Rapanos, 547 U.S. 715 (2006);
202. Brief for Environmental Law Institute as Amicus Curiae Supporting Respondents, at 23, Rapanos, 547 U.S. 715 (2006)).
203. Rapanos, 547 U.S. at 779.
204. GEORGE COSTELLO, STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS, at CRS-13 (Cong. Res. Serv. 97-589, updated Mar. 30, 2006), available at http://www.fas.org/sgp/crs/misc/97-589.pdf.
205. Rapanos, 547 U.S. at 778.
206. Id. at 779.
207. Id. at 788.
208. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-45 (1984).
209. WILLIAM F. FUNK & RICHARD H. SEAMON, ADMINISTRATIVE LAW 261 (2d ed. 2006).
210. Rapanos, 547 U.S. at 792.
211. Id. at 794.
212. Chevron, 467 U.S. at 844.
213. Rapanos, 547 U.S. at 804.
214. Id. at 806.
215. Id. at 807
216. (citing United States v. Deaton, 332 F.3d 698, 707 (4th Cir. 2003), for the concept of pollutant transport from tributaries to navigable rivers;
217. U.S. CONG., OFF. OF TECH. ASSESSMENT, supra note 139, at 43, 48;
218. Don C. Erman & Vernon M. Hawthorne, The Quantitative Importance of an Intermittent Stream in the Spawning of Rainbow Trout, 105 TRANSACTIONS OF AM. FISHERIES SOC'Y 675-81 (1976);
219. Brief for American Rivers et al. as Amici Curiae at 14 (for the concept that sediment can cover gravels and thereby impair spawning in both navigable waters and their tributaries)).
220. See, e.g., Nat'l Wildlife Fed'nv. Nat'l Maritime Fisheries Serv., No. CV 01-640-RE, CV 05-23-RE, 2005 WL 1278878, at *5 (D. Or. May 26,2005), aff'd, Columbia Snake River Irrigators Ass'n v. Nat'l Wildlife Fed'n, 230 Fed. Appx. 659 (9th Cir. 2007) (After invalidation of the 2000 BiOp on the Federal Columbia River Power System, rather than addressing the concerns raised by the district court, the agency, under a new administration, took a completely different approach. The district court in the cited case refused to defer under such circumstances.).
221. See, e.g., Ruht & Salzman, supra note 36, at 10 (In discussing the need for peer review, the authors state, "The standard argument that agencies must make policy decisions in the face of incomplete and uncertain scientific data, and thus should not be bound to the rigors of peer review, turns the issue on its head. Designed wisely, regulatory peer review can help reveal how much scientific uncertainty underlies an agency decision and can thus demand that the agency explain how the gap was filled.");
222. Doremus, supra note 7, at 253 ("The core of the problem is not the involvement of politics but its concealment behind a cloak of science.");
223. Wagner, supra note 36, at 1617 ("Although camouflaging controversial policy decisions as science assists the agency in evading various political, legal, and institutional forces, doing so ultimately delays and distorts the standard-setting mission, leaving in its wake a dysfunctional regulatory program.").
224. Rapanos, 547 U.S. at 811-12. Justice Breyer is the one Justice who has written specifically about science and the law.
225. See, e.g., STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993).
226. Rapanos, 547 U.S. at 811.
227. Id.
228. Id.
229. U.S.C. § 1251(a) (2000).
230. Rapanos, 547 U.S. at 811.
231. See, e.g., Nat'l Ass'n of Homebuilders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007) (resulting in the Court splitting 54).
232. The National Oceanic and Atmospheric Administration issued its first Federal Columbia River Power System BiOp in 1992; it was challenged by industry and irrigation groups but withstood the challenge and lasted for its one-year term. See, e.g., Pac. Nw. Generating Corp. v. Brown, 822 F. Supp. 1479 (D. Or. 1993) aff'd, Pac. Nw. Generating Co-op. v. Brown, 38 F.3d 1058 (9th Cir. 1994) (challenging the 1992 Biological Opinion for the Federal Columbia River Power System);
233. Idaho Dep't of Fish & Game v. Nat'l Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994) (successfully challenging the 1993 Biological Opinion for the Federal Columbia River Power System);
234. Am. Rivers v. Nat'l Maxine Fisheries Serv., No. CV 96-384-MA, 1997 WL 33797790, at *10 (D. Or. 1997) (challenging the 1994 Biological Opinion for the Federal Columbia River Power System);
235. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 254 F. Supp. 2d 1196 (D. Or. 2003) (successfully challenging the 2000 Biological Opinion for the Federal Columbia River Power System);
236. Nat'l Wildlife Fed'n v. Nat'l Maritime Fisheries Serv., No. CV 01-640-RE, CV 05-23-RE 2005 WL 1278878, at *5 (D. Or., 2005) aff'd, Columbia Snake River Irrigators Ass'n v. Nat'l Wildlife Fed'n, 230 Fed. Appx. 659 (9th Cir. 2007) (successfully challenging the 2005 Biological Opinion for the Federal Columbia River Power System).
237. See, e.g., Massachusetts v. EPA, 549 U.S. 497 (2007).
238. While it might also be argued that scientific methodology must also be reformed to better integrate social and political systems, this article focuses on reform within the legal system.
239. This does not mean that, by acknowledging hydrologic connection, Congress must protect connected waters, simply that it be express about whether it intends that protection or not.
240. Off. of Tech. Assessment, August 1996 OTA Archive, http://www.gpo.gov/ ota/ (last visited June 29, 2007).
241. Doremus & Tarlock, supra note 12, at 24 ("Congress has shown no interest in facing up to the political costs of making these choices explicitly. It is more politically advantageous to declare aspirational goals in ringing terms, but leave the implementing agencies with the hard task of determining the extent to which those goals will be achieved." (citation omitted)).
242. Leibowitz, supra note 60, at 521 (citations omitted).
243. This may resemble what has been referred to as adaptive management. See, e.g., Janet C. Neuman, Adaptive Management: How Water Law Needs to Change, 31 ENVTL,. L. REP. 11,432 (2001) (discussing the need to introduce flexible "adaptive" management into the prior appropriation system). However, it is intended here to encompass broader parameters for monitoring, including relevant social changes.
244. See, e.g., Jack Lewis, The Birth of EPA, EPAJ., Nov. 1985, available at http://www.epa.gov/history/topics/epa/15c.htm.
245. Id.
246. Much has been written about the good science/bad science debate and the Information Quality Act, 44 U.S.C. § 3516 (2000).
247. See, e.g., Stephen M. Johnson, Junking the "Junk Science" Law: Reforming theInformation Quality Act, 58 ADMIN. L. REV. 37(2006);
248. O'Reilly, supra note 35. Because it is the author's opinion that this is primarily a political debate and act, and the courts remain the appropriate forum for challenge to agency action, it will not be discussed in the context of this article.
249. See, e.g., Doremus & Tarlock supra note 12;
250. Johnson, supra note 175, at 47 ("As academics have frequently noted, there are, and have always been important gaps in the information that the government needs in order to make decisions to protect health, safety, and the environment.");
251. Ruhl, supra note 30, at 8;
252. Ruhl & Salzman, supra note 36;
253. Sidney A. Shapiro, OMB and the Politicization of Risk Assessment 3 (draft paper prepared for Law, Science and the Environment Conference, Lewis and Clark Law School, 2007), http://www.lclark.edu/dept/elaw/ 2007_lse_papers.html (last visited Jan. 2, 2008);
254. Wagner, supra note 36, at 1619.
255. Shapiro, supra note 176, at 5-6.
256. See, e.g., Doremus, supra note 7, at 253;
257. Thomas O. McGarity, Our Science Is Sound Science and Their Science Is Junk Science: Science-based Strategies for Avoiding Accountability and Responsibility for Risk-Producing Products and Activities, 52 U. KAN.L. REV. 897, 932 (2004);
258. Ruhl & Salzman, supra note 36, at 20;
259. Wagner, supra note 36 ("Although camouflaging controversial policy decisions as science assists the agency in evading various political, legal, and institutional forces, doing so ultimately delays and distorts the standard-setting mission, leaving in its wake a dysfunctional regulatory program.").
260. See, e.g., Johnson, supra note 175, at 47-48 ("As academics have frequently noted, there are, and have always been, important gaps in the information that the government needs in order to make decisions to protect health, safety, and the environment.");
261. Wagner, supra note 36, at 1619;
262. see also Doremus & Tarlock, supra note 12, at 3;
263. Ruhl, supra note 30, at 8;
264. Ruhl & Salzman, supra note 36;
265. Shapiro, supra note 176, at 3.
266. Shapiro, supra note 176, at 3 ("The ultimate question of whether an agency has sufficient proof that a statutory risk trigger has been met is a legal, not a scientific, issue. It is a legal issue, in part, because Congress intended agencies to make regulatory decisions on the basis of imperfect knowledge. Agencies therefore do not conform to scientific standards of certainty. As Judge Skelly Wright once explained,' Agencies are not limited to scientific facts, to 95 % certainties.' This means an agency determination that there is sufficient evidence to satisfy a risk trigger can be legally valid even if the scientific community does not universally agree about the degree of risk that exists." (citations omitted)).
267. See also Ruhl &Salzman, supra note 36. In recommending a different kind of peer review for agency science, Ruhl and Salzman state, "regulatory peer review can help inform the public about where an agency's use of science in support of a proposed decision ends and where its use of professional judgment and normative policy choices begins."
268. Id. at 20-21 ("Whether innocent or deliberate, this kind of misuse of science does not necessarily lead to poor policy decisions. After all, agencies may have no choice but to extrapolate from incomplete data when a decision needs to be made at that moment. It can raise concerns, however, if an agency justifies its decision to the public, courts, and legislature as being driven chiefly by the science when it is in fact based on a policy judgment informed by inconclusive science.");
269. Doremus & Tarlock, supra note 12, at 3 ("Typically, the disputes are fundamentally about how incomplete data are interpreted and applied, rather than about what the data are or how they have been gathered.").
270. Wagner, supra note 36, at 1619 (quoting nuclear physicist Alvin Weinberg, who refers to "trans-science" as "questions which can be asked of science and yet which cannot be answered by science").
271. See, e.g., Ruh] & Salzman, supra note 36, at 6 ("Just as scientific peer review involves independent evaluation of scientific research, regulatory peer review refers to the outside evaluation of an administrative agency's compilation, selection, or use of scientific data to support a proposed regulatory decision such as a rule, standard, permit, or other policy.").
272. McGarity, supra note 178, at 932 ("The courts must also recognize that the policy-relevant conclusions of scientific studies are never based exclusively upon science. Policy considerations frequently have an impact on interpretations of raw scientific data. More importantly, policy nearly always drives the inferences that an expert draws from scientific studies." (citations omitted)).
273. See Shapiro, supra note 176.
274. Doremus & Tarlock, supra note 12, at 24
275. (quoting 33 U.S.C. § 1313(d)(1)(C) (2000)).
276. See, e.g., Ruhl & Salzman, supra note 36, at 10. In discussing the need for peer review, the authors state, The standard argument that agencies must make policy decisions in the face of incomplete and uncertain scientific data, and thus should not be bound to the rigors of peer review, turns the issue on its head. Designed wisely, regulatory peer review can help reveal how much scientific uncertainty underlies an agency decision and can thus demand that the agency explain how the gap was filled.
277. Id.
278. See also Doremus, supra note 7, at 253 ("The core of the problem is not the involvement of politics but its concealment behind a cloak of science.");
279. Wagner, supra note 36, at 1617 ("Although camouflaging controversial policy decisions as science assists the agency in evading various political, legal, and institutional forces, doing so ultimately delays and distorts the standard-setting mission, leaving in its wake a dysfunctional regulatory program.").
280. Ruhl, supra note 30, at 8 ("Rather, I suggest we accept that science will never completely answer the questions posed in the ESA, that agencies inevitably are making decisions in a chaotic world in which information is never adequate to provide certainty, and questions about policy and science blur together.").
281. See, e.g., Doremus, supra note 7, at 290. Doremus states, Political choices cannot be removed from the process. Instead of trying to remove them, it would be more helpful to focus on making the political elements of these decisions more transparent. At the moment, the determinative points in the decision making process tend to be hidden from public view, so that the public never has the opportunity to untangle the contributions of career scientists and political appointees to the ultimate decision. That can allow decisions that are in fact primarily political to be disguised as scientific ones.
282. Id. (citations omitted).
283. Ruhl & Salzman, supra note 36, at 10. The authors summarize their idea of "regulatory peer review" as follows: When focused on the latter inquiry - the question of whether the agency's claims of scientific support for its decision are justified - regulatory peer review can help inform the public about where an agency's use of science in support of a proposed decision ends and where its use of professional judgment and normative policy choices begins.
284. Id.
285. See also Shapiro, supra note 176, at 10.
286. Ruhl & Salzman, supra note 36, at 10 (In recommending a different kind of peer review for agency science, the authors state, "regulatory peer review can help inform the public about where an agency's use of science in support of a proposed decision ends and where its use of professional judgment and normative policy choices begins.").
287. J.B. Ruhl's experience with regulatory review was as a participant on a review panel of the scientific basis for a jeopardy opinion on operation of a Reclamation project in the Klamath basin, a particularly acrimonious issue. Id. n.8.
288. See generally McGarity, supra note 178, at 897;
289. see also Shapiro, supra note 176, at 7 ("Regulatory science can also be politicized when an administrator stacks scientific advisory panels with scientists whose previous work or professional orientation indicates they will resolve ambiguous scientific issues in a manner friendly to the administrator's policy preferences.").
290. See, e.g., Holly Doremus, Reinvigorating the Union of Wonder and Power, 24 VA. ENVTL. L.J. 281, 282-83 (2005). The basic structure of our legal institutions was established long before we understood the nature of environmental problems, indeed long before we recognized such a category of problems. The design of those institutions is at best an awkward fit for environmental problems. The institutions are highly fragmented, while the problems they are supposed to solve cross boundaries almost gleefully, spilling from one parcel or one political jurisdiction to another, migrating from air to water to land, and infiltrating even the largest protected areas.
291. Id.
292. As noted above, monitoring the results of a particular law or policy and using those results to improve implementation can, in certain circumstances, be quantified and modeled. Models that take a systems approach may be particularly useful in this effort, but are beyond the scope of this article. See generally ANDREW FORD, MODELING THE ENVIRONMENT: AN INTRODUCTION TO SYSTEM DYNAMICS MODELING OF ENVIRONMENTAL SYSTEMS (1999).
293. Barbara Cosens, The Role of Hydrology in the Resolution of Water Disputes, J. CONTEMP. WATER RES. & EDUC., May 2006, at 17.
294. For example, The Utton Transboundary Resources Center at the University of New Mexico recently sponsored a study that resulted in the production of a Model Interstate Water Compact, available at http:// uttoncenter.unm.edu/model_compacts.html (last visited Aug. 29, 2007). Although extremely useful on the scale of the type of setting that led to the project - a multi-state, variable climate, surface water dominated system like the Colorado River - the model is of only limited use for a small interstate basin with a relatively homogenous economy and climate that is dominated by groundwater sources such as the Palouse Basin shared by Washington and Idaho. The Palouse Basin is part of ongoing research by the author and a multidisciplinary team focused on developing case studies for use in the University of Idaho's new graduate program in Water Resources.
295. Cosens, supra note 195.
296. For some reason, we tend to refer to this as being too "academic," whereas my guess would be that scientists refer to it as an "ideal" world.
297. A pilot project initiated by the American Association for the Advancement of Science (AAAS) and the American Bar Association is underway to allow selection of an expert or panel of experts for a court to rely on for scientific matters. See Justice Stephen G. Breyer, The Interdependence of Science and Law, in SCIENCE AND TECHNOLOGY POLICY YEARBOOK (AAAS 1999), available at http:// www.aaas.org/spp/yearbook/chap9.htm (last visited Nov. 28, 2007);
298. Mark S. Frankel, The Role of Science in Making Good Decisions (AAAS Testimony before the House Committee on Science, June 10, 1998), available at http://www.aaas.org/spp/sfrl/projects/testim /mftest.htm (last visited Nov. 28, 2007);
299. H.R. COMM. ON SCI., 105TH CONGRESS, UNLOCKING OUR FUTURE: TOWARD A NEW NATIONAL SCIENCE POLICY § IV.E, at 54-55 (Comm. Print 105-B 1998). However, this approach seems more suited to science matters that arise in criminal cases and certain civil cases such as product liability. In the vast realm of review of regulatory action, this approach may not only lack the uniformity and cost effectiveness necessary for implementation, but also may fail to provide the integrated legal-scientific solutions made possible by the recommendation set forth in the following text.
300. This article focuses on changes to the federal district court system. To the extent that challenges to federal agency action in the environment and natural resources area go directly to the D.C. Circuit Court, the same recommendations apply.
301. COLO. REV. STAT. ANN. § 37-92-201 (West 2004).
302. Id. § 37-92-201(1).
303. Id. § 37-92-203.
304. Id. § 37-92-203(4).
305. Id. § 37-92-203(7).
306. Id. § 37-92-203(6).
307. See MARILYN C. O'LEARY, AN ANALYSIS OF THE COLORADO WATER COURT SYSTEM 18 (prepared for the Office of the N.M. State Engineer, 2003, through the Utton Transboundary Res. Ctr., Univ. of New Mexico School of Law), available at http://uttoncenter.unm.edu /pdfs/Colorado_Water_Courts.pdf.
308. O'LEARY, supra note 206, at 17.
309. COLO. REV. STAT. ANN. § 37-92-303 (West 2004).
310. Id. § 37-92-202.
311. Id.
312. Id.
313. Id. § 37-92-503.
314. Id. § 37-92-204.
315. O'LEARY, supra note 206.
316. Id.
317. Id.
318. The current federal standard is articulated in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 580 (1993). In Daubert, the Court relaxed the former standard for admission of scientific evidence in court, which had required general acceptance in the particular scientific field, and instead articulated four non-exclusive factors to be applied by the trial court judge acting as gatekeeper. The factors are (1) the "theory or technique...can be (and has been) tested"; (2) the "theory or technique has been subjected to peer review and publication"; (3) a "known or potential error rate" has been determined; and (4) the technique has "widespread acceptance" in the particular area of science.
319. See also Margaret A. Berger, The Supreme Court's Trilogy on the Admissibility of Expert Testimony, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 72 (Fed. Jud. Ctr. ed., West 1994).
320. This term has been used in a variety of ways both to indicate representation of a client and to indicate distortion of the scientific methods. See, e.g., Frederick R. Anderson, Science Advocacy and Scientific Due Process, 16 ISSUES IN SCI. & TECH., Summer 2000, at 71, 74;
321. William Stelle, Jr., Overcoming the Seven Myths of Columbia River Salmon Recovery, 28 ENVTL. L. 493, 499 (1998) ("[A]genda-driven science advocacy continues to color the debate, and to cloud the underlying policy issues that lie at the core of salmon recovery in the Basin.");
322. Margaret A. Shannon et al., Science Advocacy Is Inevitable: Deal with It, in PROCEEDINGS OF THE SOCIETY OF AMERICAN FORESTERS ANNUAL CONFERENCE (1996).
323. See, e.g., Arizona v. California, 373 U.S. 546, 551 (1963).
324. Id.
325. Id.
326. For example, settlement has become a highly favored approach in Indian water right disputes because results often lead to development of infrastructure and administrative processes. See generally TRIBAL WATER RIGHTS: ESSAYS IN CONTEMPORARY LAW, POLICY, AND ECONOMICS (John E. Thorson et al. eds., 2006);
327. NEGOTIATING TRIBAL WATER RIGHTS (Bonnie G. Colby et al. eds., 2005).
328. Barbara Cosens, Water Dispute Resolution in the West: Process Elements for the Modern Era in Basin-wide Problem Solving, 33 ENVTL. L. 949 (2003);
329. Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754, 755 (1984).
330. Cosens, supra note 223, at 949.
331. COLO. REV. STAT. ANN. § 37-92-203(2) (West 2004).
332. O'LEARY, supra note 206, at 19.
333. Information on Dividing the Waters can be found at http:// www.dividingthewaters.org/. "Dividing the Waters is a collaboration of a network of judges, special masters and referees who preside over western water adjudications and other complex water litigation."
334. Id. The project seeks to "improve the management and outcome of general stream adjudications and other complex water-related litigation affecting western people and the region's environment."
335. Id. The project serves state trial judges, state appellate judges, federal trial and appellate judges, and U.S. Supreme Court special masters.
336. Id.
337. The State Engineer's office in Colorado was established in 1881 and is within the Division of Water Resources of the Department of Natural Resources. See http://water. state.co.us/.
338. See, e.g., IDAHO CODE ANN. § 42-201(4) (2006) (amended 2008) (requiring a permit for appropriation of water);
339. MONT. CODE ANN. § 85-2-301(1) (2007) (same);
340. WASH. REV. CODE § 90.03.250 (2008) (same).
341. O'LEARY, supra note 206, at 17.
342. Id.
343. See, e.g., Clean Water Act, 33 U.S.C. § 1311 (2000) (requiring the EPA to set effluent limitations for point source discharges);
344. id. § 1313 (requiring the EPA to review state water quality standards);
345. id. § 1314 (requiring the EPA to develop water quality criteria);
346. see also Clean Air Act, 42 U.S.C. §§ 7408,7409 (2000) (requiring the EPA to establish air quality criteria for certain pollutants);
347. id. § 7410 (requiring the EPA to review state implementation plans);
348. id. § 7411 (requiring the EPA to establish standards of performance for new stationary sources of air pollutants).