Addressing transnational pollution requires both international and domestic law. Transnational pollution is an international problem that demands and deserves the attention of international legal mechanisms such as treaties, agreements, arbitration, and international management and governance. At the same time, transnational pollution problems can often be addressed more effectively and efficiently through the domestic legal system. An ideal approach is to harmonize transnational pollution management and dispute resolution under international and domestic law. This Article seeks to provide pragmatic, feasible, and politically realistic solutions to transnational pollution by harmonizing international and domestic law. However, given the diversity in geography, domestic legal systems, and political realities that frame transnational pollution problems around the world, a specific pragmatic solution in one region may be useless or impossible in another region. Thus, this Article focuses on transnational pollution problems and harmonizing the relevant international and domestic laws of one transnational region, the United States-Canada border, with the hope that it may provide lessons and potential models that will be valuable to policy makers and scholars elsewhere.

The eight Governors of the Great Lakes States signed a proposed new compact for the Great Lakes and St. Lawrence basin on December 13, 2005, and they joined with the Premiers of Ontario and Quebec in a parallel agreement on the same topic on the same day. Neither document is legally binding-the proposed new compact because it has not yet been ratified by any State nor consented to by Congress; the parallel agreement because it is not intended to be legally binding. Both documents are designed to preclude the export of water from the Great Lakes-St. Lawrence basin apart from certain limited exceptions. The documents do little to promote rational resource management apart from limiting exports. There is debate over whether the two documents are adequate to achieve their announced goals and over whether the goals are the right ones. The lessons found in the well developed body of customary international law applicable to water resources, most recently summarized in the Berlin Rules on Water Resources, have largely been ignored. Comparison of the two documents with the Berlin Rules suggests that the documents will not provide satisfactory solutions to the challenges of managing the Great Lakes, even in the near future, given the broad ecological concerns that are not addressed in the two documents.

Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under section 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters," defined by law to mean "waters of the United States." Since 1975, the United States Army Corps of Engineers (the Corps), which is primarily responsible for the section 404 permitting program, has construed "navigable waters" expansively to encompass most wetlands that could affect interstate commerce. In three decisions over the course of twenty years, the Supreme Court has expressed increasing skepticism that the phrase "navigable waters" supports the Corps' broad claim of regulatory authority. In its most recent decision, United States v. Rapanos, 126 S.Ct. 2208 (2006), a majority of the Court found that the phrase "navigable waters" encompassed only those waters that met the traditional test for navigability.

This Article considers the state of federal wetlands regulation after Rapanos. It begins by describing the significant role that wetlands play in the ecological health of the planet, and the impracticality of setting standards to protect those wetlands at the state or local level. It then examines the history of wetlands regulation, focusing in particular on the Clean Water Act, and the problems encountered with regulating wetlands by federal agencies and in the courts. The Article concludes with recommendations for improving the section 404 program. While the Corps can and perhaps should adopt rules to clarify the law, the time is long overdue for Congress to amend the Clean Water Act to clarify the scope of federal authority over wetlands. In doing so, Congress should affirm its original intent to establish a comprehensive federal program for wetlands regulation under the Clean Water Act. This can best be accomplished by abandoning the ill-fated use of the phrase "navigable waters" and substituting a new phrase such as "constitutional waters," which will clearly convey Congress's intent to encompass all waters that are subject to federal jurisdiction under the constitution.

In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water's very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and returned the legal rule to what had been the long accustomed practice-that the public enjoyed rights to traverse the Great Lakes coast of Michigan below the ordinary high-water mark. This Article offers extensive historical support for the public trust positions taken by the Michigan Supreme Court drawn from the Romans, the Medieval period in which modern concepts of sovereignty derived, and the English and American uses of the doctrine up through the end of the nineteenth century. These sources demonstrate that the public rights of use of the foreshore of this nation's great waters, including the Great Lakes, derive from the very essence of sovereignty as it is embedded in the American system of government. Accordingly, the public trust doctrine as received and expounded in this country is properly conceived of as an inherent limitation on the sovereign that no branch of government at either the state or federal level is free to ignore.

The modern public trust doctrine compels each Great Lakes state to protect the sustainable future of the Lakes and to preserve traditional public uses. At the same time, the doctrine constrains the states' powers to allow exploitation of trust resources. This Article provides a brief historical overview of the public trust doctrine in waterways and their submerged lands. It next explores how the eight Great Lakes states have applied the doctrine, discusses the surprising number of differences in the doctrine's development from state to state, and provides comparison charts. After analyzing the variety of approaches used by the eight states to implement the doctrine, the Article builds upon some of those approaches to craft a new model.

The Article proposes three levels of analysis for applying the trust doctrine in the Great Lakes states. The first level addresses the geographic scope of the doctrine in waterways. The second level analyzes public rights of access to waterways. The third level examines which uses of the waterways should be protected and how impairments of those uses should be remedied. The Article offers new tests at each level for implementing the trust.

While the Article argues for an expansive application of the public trust doctrine in the Great Lakes, the Article also reviews a number of arguments about the nature of the doctrine and whether it is compatible with private property rights. Finally, the Article concludes that, if ever there was a natural system on earth so fundamental to a region and worthy of protection under a public trust, it is the Great Lakes system.

Since 1985, the eight Great Lakes states and the Canadian provinces of Ontario and Quebec have cooperated to prevent almost all diversions of water from the Great Lakes basin. In 2005, the eight states signed an Agreement to create a tiered system of reviews for diversions and a draft interstate Compact, which creates a binding process to regulate diversions. This cooperation is primarily a state initiative, supported by the federal governments in both countries, which has paid little attention to the international character of the lakes. This Essay argues that there are three major benefits to the region from the incorporation of international environmental law into the anti-diversion regime. First, the recent Compact is an important recognition of the Lakes as a common heritage of human kind. Second, the success of the regime will be aided by the involvement of the International Joint Commission (IJC) in diversion issues because of its broader perspective on Great Lakes issues. Third, international law serves as an additional buffer against the invocation of international and domestic free trade laws to unravel the proposed environmental-navigation protection regime.

Rising urban and environmental demand for water has created growing pressure to re-allocate water from traditional agricultural uses. Water markets are powerful institutions for facilitating this re-allocation, yet the evolution of water markets has been more complicated than those for other resources. In this paper, we set the context for water marketing with an overview of western water law that highlights unique aspects of water law that affect how or whether a water market can develop. Second, we present new, comprehensive data on the extent, nature, and timing of water transfers across 12 western states from 1987-2005. We describe the methodology and decision rules used to collect water transfer information. Third, we identify water market trends and movements to provide a greater understanding of the institutional structure and the mechanisms by which water is transferred in the American West.

Restoration of environmental integrity in the Great Lakes Basin has been only a qualified success after thirty-five years of efforts pursuant to policies developed by federal, state, and provincial governments. Many unresolved problems stem from activities under local government control, yet in the past local governments were excluded from Great Lakes policy-making. By looking at recent changes in the powers, interests, experience, and influence of local governments in Ontario, this Essay concludes that local governments now have the ability to participate meaningfully in Great Lakes policy formation and implementation. To include local governments would improve the chances of successful restoration of ecosystem integrity. However, a number of challenges must first be tackled so that an expanded role for local governments can be most effective.