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1. Court ascertains whether Congress had a specific intent on the issue before the Court
a. Considers particular statutory language at issue as well as the language and design of the
statute as a whole
2. When the statute is silent or ambiguous with respect to the specific issue, the question is whether the
agency’s answer is based on a permissible construction of the statute

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Common Law Considerations
Law of Nuisance
 Nuisance—the actionable interference with the use and enjoyment rights in land
 Nuisance at law—an act, occupation, or structure that is a nuisance at all times and under any
circumstances, regardless of location or surroundings
 Nuisance in fact—an act, occupation, or structure that become nuisances by reason of their location
or by the reason of the manner in which they are constructed maintained or operated
 Not dependent on finding of negligence in the operation
 Establishing Nuisance
 Public nuisance—interferes with the rights of the public
 Private nuisance—those that affect persons in their individual capacities
 Intentional
 Intention met when tortfeasor acts for the purpose of causing a certain outcome, or knows an
outcome is substantially certain to result from the conduct
 Nontrespassory
 Unreasonable
 More concerned about the harm caused by conduct than on the specific conduct
 To be unreasonable, harm must be more than minimal; consider:
 Character of the neighborhood
 Intensity and duration of the interference
 Prevailing customary uses of land
 Social utility of the defendant’s activities
 Interference with another’s use and enjoyment of land
 Right to farm defense— no ag or farming operation will be deemed to constitute a nuisance due to
alleged objectional (1) odor, (2) noise, (3) dust, (4) chemicals, or (5) water pollution, provided the
farm (1) has been operation for at least one year, (2) has not been substantially changed, and (3)
conforms to generally accepted agricultural practices
 Negligent operation of a farm resulting in the nuisance may defeat this defense
 Relief
 Recovery or an injunction depends on if the conduct allows a single right of action or successive
rights
 This depends on whether the nuisance is permanent or temporary by the character of the nuisance
to which the land is subjected and not by the quantity of resultant damages
 Ask whether the harm is intended to continue and last for the foreseeable future or not
 Is the harm complete or continuing
 To determine whether to grant injunctive relief to abate a nuisance, courts employ a balancing test
incorporating the following factors:
 The character of the interest to be protected
 The relative adequacy to the plaintiff of an injunction and of other possible remedies
 Plaintiff’s delay in bringing suit
 Plaintiff’s misconduct
 The relativize hardship to result if injunction in granted and to plaintiff if it is denied
 The interests of third persons and of the public

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 The practicality of framing and enforcing the order or judgment

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Law of waste
 Law of waste determines rights of persons who share title to the same parcel of land
 Main question is how much present use of land should be restricted (if at all) for the benefit of
holders of future interests
 Waste can be:
 Voluntary—caused by deliberate actions
 Test is reasonableness—present possessors may use land so long as the use is “reasonable” as
judgment by:
 Character and intensity of possessor’s use
 Whether the use is one commonly pursued in the area
 Users impact on the market value of the affected parcel
 Comparison of the current use to that which the future interest holder would devote the
property upon assuming possession
 The likelihood of the plaintiff securing possession of the parcel in the future
 Permissive—caused by a failure to act
 Persons in possession have duty to make repairs and pay all charges on the property
 Failure to perform could result in forfeiture of the estate
 Possessor is under no burden to assume costs that exceed economic benefits supplied by the
land
 Innocent—caused by acts of third person where the possessory tenant is without fault
 Available remedies include damages and injunctive relief

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Conservation Easements
 Conservation easements protect environmental quality by restricting possessors of property from taking
actions that would compromise that quality
 Generally governed by state statute
 NE Conservation easement statute:
 A right, whether or not stated in the form of an easement, restriction, covenant, or condition
 In any deed, will agreement, or other instrument
 Executed by or on behalf of the owner
 Of an interest in real property
 Imposing
 A limitation upon the rights of an owner or an affirmative obligation upon the owner
appropriate to the purpose of retaining; or
 Protecting the property in its natural, scenic, or open condition
 Assuring its availability for agricultural, horticultural, forest, recreational, wildlife habitat, or
open space use, protecting air quality, water quality, or other natural resources or for such other
conservation purpose as may qualify as a charitable contribution under the Internal Revenue
Code of 1955
 In order to minimize conflicts with land use planning, these easements must be approved by the
appropriate governing body
 Once created, they may be released to the holder of the servient estate, if approved
 However, they can also be assigned to any governmental body or charitable corporation or to a trust
authorized to secure such an easement
 Conservation easements may be modified or terminated upon a showing that they are no longer “in the
public interest” or no longer serve the conservation or preservation purpose for which they were created
 Tax concerns
 Tax-deducible by the federal Tax Reform Act of 1976
 The value of the donated servitude for tax purposes is its fair market value, typically the
difference between the land’s fair market value with and without the servitude
 In certain states, tax amount will increase
 Try to keep land in agricultural classification by retaining the right to graze or bale
 Propose tax for specific acres, e.g., 67 acres a agricultural and 3 acres as recreation
 Land trusts—organizations that protect land and water by buying or accepting donations of land or
development rights in land
 Advantage of conservation easements is that it keeps land in private ownership, making people much
more likely to commit it

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Environmental Impact Statements
 Environmental Impact Statements are a component part of the National Environmental Policy Act (NEPA)
 NEPA establishes the broad national framework to protect the environment from actions by the united
states government
 NEPA’s basic policy is to assure that all branches of government give proper consideration to the
environment prior to undertaking any major federal action that significantly effects the environment
 NEPA requirements are invoked when federal activities are proposed
 The agency carrying out the federal action is responsible for complying with the requirements of NEPA
 Federal, state, tribal, or local agency may need to act as a cooperating agency to assist the lead agency
in complying with NEPA by providing information or resources
 Environmental Assessments (EAs) determine whether or not a federal action has the potential to cause
significant environmental effects; they discuss:
 The need for proposal
 Alternatives (when there is an unresolved conflict concerning alternative uses of available resources)
 Environmental impacts of the proposed action and alternatives
 A listing of agencies and persons consulted
 After an EA, an agency either issues a Finding of No Significant Impact or determines there is a
significant impact warranting an Environmental Impact Statement

 Environmental Impact Statements (EISs) are assessments of the likelihood of impacts from various courses of
action and are required from all Federal agencies
 The judiciary wants an analysis, not just a report of statistics

 When required:
 EISs are required if a proposed major federal action is determined to significantly affect the quality of the
human environment
 Action—actions taken by federal agencies qualify as federal actions
 Effects—requisite effects include ecological, aesthetic, historic, cultural, economic, social, or health,
whether direct, indirect, or cumulative
 Limits on what effects are important for NEPA purposes:
 General rule: effects that are essentially unrelated to the physical environment are not
relevant
 Purely economic effects of a federal action do not trigger a requirement to prepare an EIS
 Psychological effects are not relevant to NEPA
 Psychological effects are too remote and insufficiently casually related to a change in the
physical environment to be reviewable in an EIS
 Predominantly aesthetic effects are not relevant to NEPA
 Socioeconomic effects—only consider socioeconomic impacts that are closely related to
adverse effects on the physical environment
 Where an agency has no ability to prevent a certain effect due to its limited statutory authority
over the relevant actions, the agency cannot be considered a legally relevant “cause” of the effect
 A supplement to a draft or final EIS is required when:
 An agency makes substantial changes to the proposed action that are relevant to its environmental
concerns

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 There are significant new circumstances or information relevant to the environmental effects that
have bearing on the proposed action or its impacts

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 Exceptions, i.e., when the government does not need to prepare an EIS
 Statutory conflicts
 Nondiscretionary actions
 Functionally equivalent actions
 Emergencies
 Categorical exclusion
 A categorical exclusion is not an exemption from compliance with NEPA, but merely an
administrative tool to avoid paperwork for those actions without significant environmental effects
 Appropriation requests
 Extraterritorial actions
 Moving targets—a goal or objective that is unattainable by the act due to changing circumstances or a
lack of authority, e.g., NAFTA

 Procedures
 Agency publishes a Notice of Intent in the Federal Register
 Starts the scoping process. i.e., the period in which the federal agency and the public collaborate to
define the range of issues and possible alternatives to be addressed in the EIS
 Draft of EIS is published for public review and comment for minimum of 45 days
 Final EIS is published with responses to substantive comments, which begins the minimum 30-day “wait
period” before a final decision can be made on a proposed action
 Agency issues a record of decision (ROD) that (1) Explains the agency’s decision, (2) describes the
alternatives the agency considered, and (3) discusses the agency’s plans for mitigation and monitoring, if
necessary

 An EIS includes:
 Cover sheet identifying lead agency (and cooperating agencies if any), contact info, title and location of
proposed action, paragraph abstract of EIS, and the date when comments must be received
 Summary, including (1) the major conclusions, (2) area(s) of controversy, and (3) the issues to be
resolved
 Purpose and need statement—explains the reason for the proposed action and what agency expects to
achieve
 Environmental impact of the proposed action
 Environmental consequences—discussion of direct and indirect environmental effects and their
significance
 Direct—effects that are caused by the action and occur at the same time and place
 Indirect—also caused by action, but later in time or farther removed in distance, but still
reasonably foreseeable
 Any adverse environmental effects which cannot be avoided should the proposal be implemented
 Alternatives—consideration of a reasonable range of alternatives that can accomplish the purpose and
need of the proposed action
 Any irreversible and irretrievable commitments of resources which would be involved in the proposed
action should it be implemented
 Supplement (if required, see supra)

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Endangered Species Act
 ESA provides a program for the conservation of threatened and endangered plants and animals and the
habitats in which they are found
 The law requires federal agencies to ensure that actions they authorize, fund or carry out are not likely to
jeopardize the continued existence of any listed species or result in the destruction or adverse
modification of designated critical habitat of such species

 Section 4—ESA requires the FWS to identify and list species that are “endangered” or “threatened”
 Species may be listed (1) by initiative of the government, or (2) through a petition process provided
by the Administrative Procedure Act
 Upon receiving a petition, FWS must determine whether the petition is supported by “substantial
scientific or commercial information”
 the decision must be based solely on the best scientific and commercial data available
 the Secretary is not required to find and consider any information that is arguably susceptible to
discover, i.e., the agency has to consider the petition, but doesn’t have to do the work for the
petitioners
 ESA defines species to include “any subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or wildlife which interbreeds when mature
 For distinct population segments, the species must be:
 Discrete (from the remainder of the species to which it belongs)
 Satisfied if population segment is separate from other populations of the same taxon as a
consequence of physical, psychological, ecological, or behavioral factors, or if a
population’s boundaries are marked by international borders
 Significant (to the population segment of the species to which it belongs)
 Analyzed under four nonexclusive factors:
 Whether the population persists in a unique or unusual ecological setting
 Whether the loss of the population would cause a significant gap in the taxon’s range
 Whether the population is the only surviving natural occurrence of a taxon
 Whether the population’s genetic characteristics are markedly different from the rest
of the taxon

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 Critical Habitats
 ESA requires the appropriate Secretary to designate a “critical habitat” for all listed species
 ESA contemplates designation of both “occupied and “unoccupied” critical habitat
 Occupied—specific areas within the geographic area occupied by the species, at the time it is
listed . . . on which are found those physical or biological features that are (1) essential to the
conservation of the species, and (2) which may require special management considerations or
protection
 “occupied” critical habitat has been interpreted to mean areas within which a species is
“likely to be present,” as distinct from the relatively fewer areas within which a species
“resides”
 Except in special circumstance (determined by the Secretary) critical habitat shall not include
the entire geographic area which can be occupied
 Unoccupied—specific areas outside the geographical area occupied by the species at the time it is
listed . . . upon a determination by the Secretary that such areas are essential for the conservation
of the species
 EPA requires a designation of critical habitat concurrent with the listing of the species “to the
maximum extent prudent or determinable”
 Designation should be made on the basis of the best scientific data available and taking into
account economic impact (and any other relevant impact) that results from specifying a particular
area as critical habitat
 Agencies must conduct a full analysis of all of the economic impacts of a critical habitat
designation, regardless of whether those impacts are attributable coextensively to other cases
 Pursuant to §7 of ESI, all Federal agencies must take such action as is necessary to ensure that
actions authorized, funded, or carried out by them do not result in the destruction or modification of
critical habitat area
 Critical habitat designation is not prudent when:
 The species is threated by taking or other human activity, and identification of critical habitat can
be expected to increase the degree of such threat to the species; and/or
 Such designation of critical habitat would not be beneficial to the species

 Injuries
 Direct—obvious action that kills or physical injures animals in a way that they do not or cannot free
or defend themselves or an environmental pollutant that causes the animal to suffer physical
complications
 Indirect—impairment of an animal’s ability to survive as a species (i.e., feeding, breeding, shelter)

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 Take Prohibition
 §9 of ESA makes it unlawful for any person to “take” any endangered or threatened species
 Take—to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage
in any such conduct
 Harm—an act which actually kills or injures wildlife; such act may include significant habitat
modification or degradation where it actually kills or injures wildlife by significantly impairing
essential behavioral patterns, including, breeding, feeding, or sheltering
 Both indirect as well as deliberate takings are prohibited, i.e., intent encompasses the natural
outcome of your actions

 Indirect take permits

 Congress amended §9 by the addition of §10, which authorizes the Secretary to permit “any taking
otherwise prohibited by §9 if such taking is incidental to, and no the purpose of, the carrying out of an
otherwise lawful activity
 If the secretary finds that any such taking would be incidental, would be mitigated appropriately, and
would not appreciably reduce the likelihood of the survival and recovery of the species in the wild, he or
she is instructed to issue the permit
 No permit mat be issued unless the applicant has submitted a Habitat Conservation Plan (HCP) to the
Secretary
 An HCP must specify:
 The impact which will likely result from such taking,
 What steps the applicant will take to minimize and mitigate such impacts and the funding that
will be available to implement such steps,
 What alternative actions to such taking the applicant considered and the reasons why such
alternatives are not being utilized, and
 Such other measures that the issuing agency may require as being necessary or appropriate for
purposes of the plan
 Further, service regulations instruct that an HCP should include:
 a complete description of the activity sought to be authorized,
 the common and scientific names of the species sought to be covered by the permit, and
 the number, age, and sex of such species, if known
 Before a permit is issued, the fact-finding official of the agency must resolve:
 Whether the activity will be free from purposeful takes; and
 Whether the applicant will mitigate the authorized takes’ effects
 Incidental take permission is express and activity-specific
 Authorizations on the face of the permit that set forth specific methods of taking are to be strictly
construed and shall not be interpreted to permit similar or related matters outside the scope of strict
construction
 Authority under the permit is limited to what can be found within the four corners of the permit, i.e.,
activities not named in the permit are not covered even if they are connected to the main problem
 Permit Revocation Rule—an ITP may not be revoked unless continuation of the permitted activity would
be inconsistent with the criterion set forth in ESA and the inconsistency has not been remedied by the
Services in a timely fashion
 In effect, the PRR specifies that the Services will not revoke an ITP unless continuation of the permit
puts a listed species in jeopardy of extinction
 No surprises rule—assures project proponents that once an HCP is prepared and species monitoring
and mitigation are established, the Services will not later impose additional requirements, even if
environmental conditions change over time

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Water Rights
 Surface water and ground water have been treated independently by law, even though they
interrelate and extracting groundwater can lower flow levels on surface streams and diverting
surface waters can lower the water table
 Water uses are:
 Consumptive—removes water from its source and precludes its return
 Non-consumptive—does not result in permanent loss of water from that source
 Out-of-stream—water direct from a source for use on land near or far from the source
 Instream—water serving a use while remaining in its natural location

 Riparian regulation
 One who owns a defined parcel of land bordering a water source is a riparian and has rights to
water in the stream
 Water can be taken out of the stream for use on the riparian land
 The right to water is secured by virtue of land ownership, and is lost upon transfer of title to the
riparian land
 Basic features of the riparian system:
 Only applies to canalized surface waters (excludes rivers, lakes, and some ponds)
 Water must be used on the riparian land itself
 No gallonage limitations, but water must be dedicated to a “reasonable use”
 Correlative right, i.e., in times of shortage, riparian must share the burden of reducing water
use

 Prior Appropriation regulation

 Right to water; landownership is irrelevant to water right acquisition, and the water may be used
on other than riparian land (usually taking water means diversity it out of its stream of origin)
 A right to water is superior or inferior to another’s right based on the time at which the right is
secured
 Rights to water are quantified
 Cessation of use (i.e., abandonment) extinguishes the right
 Use to which water is applied must be “beneficial”
 In times of shortage, the rights are not correlative—juniors must yield to seniors
 Managed by state regulatory agencies, and requirements specified by statute and agency
regulation
 A prior appropriation right is a property right

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 Ground water—water which occurs or moves, seeps, filters, or percolates through the ground under the
surface of the land
 Methods of property rights in groundwater:
 Overlying rights—the right to use groundwater arises by virtue of land ownership; the owner of
overlying land has rights to extract water for use on that overlying land
 In many (but not all) “overlying rights” jurisdictions, water use is permissible only on the
overlying land itself; transfer of water for use on other parcels is prohibited
 While there are no quantitative limitations in place in overlying rights jurisdictions, use of
more than a reasonable amount (however determined) is disallowed
 This is not based on harm to others
 Overlying rights to groundwater are essential correlative; consequently, in times of shortage,
all users must reduce their amounts for use for the benefit of all other users
 Prior appropriation—
 Groundwater rights are separate from interests in land, and therefor may be used on other
than overlying land
 A right to the water is superior or inferior in relation to another’s right based on the time at
which the right is secured
 The rights are quantified
 Cessation of use (i.e., abandonment) extinguishes the right
 The use to which water is applied must be “beneficial”
 Rights are not correlative—juniors must yield to seniors
 Managed by state regulatory agencies, and requirements specified by statute and agency
regulation

 NE water law
 Surface water—prior appropriation
 The right to unappropriated water is never denied unless detrimental to public welfare
 Ground water—correlative rights (modified scheme)
 Groundwater in NE is owned by the public; in times of shortage, priority is gen in order of:
 Household
 Ag
 Industrial
 NE water law ignores the hydrological fact that ground water and surface water are inextricably
linked
 BUT restatement (second) of torts §858 essentially adopts a correlative rights rule that allows for
a balancing of many factors to determine reasonableness, i.e., balances the equities and hardships
between competing users
 Rule: a groundwater user is not subject to liability for interference with the use of water of
another, unless the withdrawal of the ground water has a direct and substantial effect upon a
watercourse or land and unreasonably causes harm to a person entitled to the use of its water

 Two wats to lose a water right:

 Abandonment
 Discontinuance by government

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 Correlative Rights doctrine—legal principle that adjoining landowners must limit their use of a common
waster source to a reasonable amount

 The Restatement (Second) of Torts §858

 A proprietor of land (or his grantee) who withdraws ground water from the land and uses it for a
beneficial purpose is not subject to liability for interference with the use of water by another, unless
 The withdrawal of the ground water unreasonably causes harm to a proprietor of neighboring land
through lowering the water table or reducing artesian pressure
 The withdrawal of ground water exceeds the proprietor’s reasonable share of the annual supply or
total store of ground water, or
 The withdrawal of ground water has a direct and substantial effect upon a watercourse or lake and
unreasonably causes harm to a person entitled to the use of its water
 Reasonableness is determined on consideration of the interests of the riparian owner making the use, of
any riparian proprietor harmed by it and of society as a whole; factors that affect the determination
include:
 The purpose of the use
 The suitability of the use to the watercourse or lake
 The economic value of the use
 The social value of the use
 The extent and amount of harm it causes
 The practicality of avoiding the harm by adjusting the us or method of use of one proprietor or the
other
 The practicality of adjusting the quality of water used by each proprietor
 The protection of existing values of water uses, land, investments, and enterprises
 The justice of requiring the user causing the harm to bear the loss

 Interstate Disputes
 Interstate allocation—when streams cross state borders; three methods on how to divide:
 Equitable apportionment—SC makes call using equitable principals to guide it
 SC appoints special master to conduct discovery and propose a plan to the Court
 Special master’s findings, while persuasive, are not binding as fact until the SC adopts them
 Interstate compact—state agreements on the allocation of waters in an interstate stream
 Must be ratified by Congress to be binding against water users within the states
 Essential a statute (b/c ratification) and a contract between the states
 Federal legislation—Congress has the power to allocate water among states
 Navigational servitude exists in situations where the federal government exercises commerce
clause authority to regulate the navigation on a stream or other waterway
 A state seeking to prevent or enjoin a diversion by another state bears the burden of proving that the
diversion will cause it real or substantial injury or damage
 After such proof is made, the burden shifts to the other state to show that the existing diversion should be
allowed to continue under the principles of equitable apportionment

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