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86 Tul. L. Rev. 81 (2011-2012)

handle is hein.journals/tulr86 and id is 83 raw text is: Unnatural Resource Law: Situating Desalination in Coastal Resource and Water Law Doctrines Michael Pappas* This Article offers the first legal analysis of desalnation, the process of converting saltwater into freshwater Desaliation repesents a key climate change adaptation measur because the United States has exploited nearly all of its freshwater resources, freshwater demands continue to grow and climate change threatens to diinhish significantly existing freshwater supplies. Howevei; scholarship has yet to address the legal ambiguities that desalination aises in the context ofproperty waterlaw, and coastalresource doctrines. This Article addresses these ambiguities and suggests the legal adaptations necessary to accommodate desalnation as a climate change adaptation. Under curnt legal doctrines, the chain of title for desalination is uncertain. Emerging desaliation projects face questions about the entity with proplietary authority over seawater the nature of the nght to intake seawater, the nature ofa desalinators iterst in desalnated water, and the nature of the interest that a utility upon receiving water from a desalinato; holds in the desalhnated water his Aricle argues that legislation is necessary to clarilfy this chain of title both because existing common law doctrines are insufflcient to resolve these issues and because development of new common law cannot keep pace with emerghng desalnation projects. Thus, the Article proposes legislation that (1) clarfies fedemal sovereignty over saltwater (2) considers the public trust doctrine in creating a permit scheme for the intake of saltwater, (3) recognizes desalinators as service providers rather than holders ofpivate property in desalinated water and (4) recognizes municipal utilities as holding vested property nights in desalmated water Finally the Article proposes that this claified chain of title for desalnation can serve as a model for developing ecosystem service markets, public trust doctrine applications, and property theories aimed at adaptig other resource doctries to cope with climate change. I. INTRODUCTION........................................ 82 II. BACKGROUND OF DESALINATION ................... ...... 85 A. The Desalnation Process, Its Limitations, and Its Costs............................. 86 B. Desalkation Projects Currently Underway . ..........90 III. RIGHTS AND AMBIGUITIES IN THE CHAIN OF TITLE FOR DESALINATION .......................................93 IV RESOLVING THE CHAIN OF TITLE FOR DESALINATION ................ 101 A. Lh2k 1-The Sovereign.. .............................. 101 * C 2011 Michael Pappas. Forrester Fellow and Instructor in Legal Writing, Tulane Law School; ID. 2007, Stanford Law School; M.A. and B.A. 2003, Stanford University. Thanks to Mark Davis, Rob Verchick, Adam Feibelman, Ron Scalise, Nancy Leong, Justin Pidot, and Fred Cheever for helpful comments on previous drafts. Special thanks to Alayne Gobeille, Sam Brandao, and Kirk Tracy for fantastic research assistance. Finally, thanks to the editorial staff of the Tulane Law Review. 81

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