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Troubled Waters An Examination of the Disconnect between River Science and Law M. P. Taylor,* C. D. Ives, P. J. Davies,† and R. Stokes‡ †
Environmental Science, Department of Environment and Geography, Faculty of Science, Macquarie University, North Ryde, Sydney, NSW 2109, Australia ‡ School of Law, Faculty of Arts, Macquarie University, North Ryde, Sydney, NSW 2109, Australia
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multitude of perspectives and practicalities often cloud and erode the beneficial nexus between environmental science, policy development and legal definitions of natural resources. In particular, arguments over water resources, such as those relating to the definition of a ‘stream’ or ‘river’, have and continue to plague U.S. and Australian landowners, judges, policy and lawmakers, resource managers, and scientists.1 3 Similar to the U.S. context described by Doyle and Bernhardt,1 Australian lawmakers have been unable to resolve the seemingly obvious question of what is a “river” or “stream”.2 4 Australia is the driest inhabited continent, with most of the nation’s inland rivers being ephemeral. However, in Australian law, English definitions and understandings of natural resources (including rivers) have been adopted as a result of the doctrine of reception, following British settlement in Australia in 1788. Given the vast biogeophysical differences between England and Australia, it is unsurprising that significant confusion and litigation has been generated surrounding the definition of a river.2 4 Australian common-law decisions have defined rivers as requiring “bed, banks and water” and “continuity, permanence and unity”.2,3 However, for the vast majority of Australia’s ephemeral rivers, these thresholds are frequently not met, as these systems do not display the geomorphic features of watercourses from more humid regions. Ephemeral flow regimes influence significantly the form, function and appearance of small tributary streams in the r 2011 American Chemical Society
upper parts of catchments.1,2,4 In many cases these systems have no defined banks or bed and are discontinuous in form. Given that these tributaries comprise a large proportion of the stream network,2 they form an important component of a catchment's habitat, water quality and quantity controls, and the geomorphic and hydrological dynamics of the system as a whole. However, these smaller tributaries often fail to be defined legally as “protected land” (broadly equivalent to U.S. jurisdictional waters) under relevant Australian acts. As in the U.S., this ambiguity results in arguments over what is, and is not a river because it influences what activities can be undertaken in and adjacent to these features. In Australia, like the U.S., no prescribed method exists for determining whether or not a watercourse is a river under law. In light of this, Taylor and Stokes2 developed a “9 part test” based largely on field observations as way of determining whether or not a watercourse could be considered to be a river. It was subsequently employed in litigation over proposed development adjacent to an urban system (Silva, Nelson v Ku-ring-gai Council [2009] NSWLEC 1060, 6 March 2009). In another, ongoing, legal dispute (Department of The Environment, Climate Change and Water v November Foxtrot Pty Ltd. 2011 NSW Local Court, Armidale), the NSW Government Office of Water Principal Geomorphologist argued the method for deciding whether or not to place a “blue line” (demarking a river) on a topographic map was made by a cartographer using the following unpublished “rules”: 1 Is there a linear pattern of vegetation along a valley bottom that is different from adjacent areas (responding to the wetter conditions caused by flow)? And; 2 Is there a channel or channels with banks (seen as linear depressions bounded by roughly parallel low, steep slopes)? If not; 3 Is there a bed or beds with flow paths (seen as linear depressions only)? Of greatest concern is that decisions about the placement of ‘blue lines’ are not based upon the field observations of a scientist, but on the opinion of a cartographer, supported by limited field verification. The blue lines created by this flawed process are used regularly by public authorities, lawyers and land developers to determine whether or not a river exists according to law. This produces similar contentions and challenges to those experienced in the U.S., as indicated in Doyle and Bernhardt1 Received: August 25, 2011 Accepted: August 29, 2011 Published: September 09, 2011 8178
dx.doi.org/10.1021/es202982g | Environ. Sci. Technol. 2011, 45, 8178–8179
Environmental Science & Technology
VIEWPOINT
A significant challenge with the use of blue lines in NSW arises because a Government Order requires the use of maps up to 40 years old.5 The dynamic appearance and disappearance of channel networks highlighted by Doyle and Bernhardt1 is also true for Australia—a continent characterized by floods and droughts. Inspection of topographic maps more recent than those relied upon in the Order,5 shows that some blue lines are “missing”. Taylor and Stokes2 concluded that the blue lines are, in effect, “little more than a cartographer’s interpretation of reality” (p 210). The question of what is a river is also pertinent in urban landscapes where the natural hydrological regime is often severely modified following increased impervious surface areas.4 This causes the channelization of streams in the upper reaches of catchments because of higher velocity flows during rainfall events. As a result, these reaches may be more likely to receive legal protection because of their altered geomorphic form, even though flowing water is absent much of the time. Davies et al.4 discuss and provide recommendations for the improved management of urban rivers and their riparian setbacks. These authors contend that riparian environments adjacent to smaller, less welldefined streams also need to be recognized as part of a holistic, dynamic, and interconnected aquatic-terrestrial system.4 Such an approach is needed to be consistent with the principles of Ecologically Sustainable Development, which forms the basis of environmental law and policy in Australia. The ultimate question underlying the issue of the definition of a river is how we, as environmental scientists, communicate the value and utility of our research to decision-makers. Research articles and involvement in litigation are valuable, as is publication in industry and focused professional journals.2,4 However, we must also train the next generation of law and policy makers to understand the interaction between science and land-use planning. Indeed, we have a responsibility to be involved with state and local government bodies, community advisory boards and reference groups, as vehicles for promoting best-practice approaches. Thus the lesson is clear we must be involved actively in law and policy so that legal definitions and decisions reflect contemporary environmental science, and not the origins of law from a different time and place.
’ AUTHOR INFORMATION Corresponding Author
*E-mail:
[email protected].
’ REFERENCES (1) Doyle, M. W.; Bernhardt, E. S. What is a stream? Environ. Sci. Technol. 2011, 45, 354–359. (2) Taylor, M. P.; Stokes, R. When is a river not a river? Considerations of the legal definition of a river for geomorphologists practicing in New South Wales, Australia. Aust. Geogr. 2005, 36 (2), 183–200. (3) Lamaro, E.; Stokes, R.; Taylor, M. P. Riverbanks and the Law: The arbitrary nature of river boundaries in New South Wales, Australia. The Environmentalist 2007, 27 (1), 131–142. (4) Davies, P.; Ives, C. D; Findlay, S.; Taylor, M. P. Urban rivers and riparian systems directions and recommendations for legislators, policy makers, developers and community users. EPLJ, 28, 313. (5) NSW Government Gazette. Government Gazette of the State of New South Wales, 24 March 2006; Vol. 27, pp 1500 1509, http://www.nsw. gov.au/gazette/2006 (accessed August 15, 2011).
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