Drone Law 101

The Federal Aviation Administration (FAA) estimates that almost 2.5 million unmanned aerial systems, more commonly known as drones, will be purchased in 2016, and that annual sales will reach almost 7 million units by 2020.  Drones have been or soon will be employed in an ever-broadening dronesphere of applications, including photography, natural resource mapping and management, hobbyist flying, military and police applications, and perhaps even package delivery.  But as with many fast-emerging technologies, governance regimes have not kept pace with science.  As a result, many of these millions of purchasers have at least one thing in common: uncertainty over how their flying activities are regulated.

On Friday, April 8, the Environmental Law Society hosted a discussion of the future of drone regulation at the federal and state levels, featuring three experts: Russ Klingaman, who teaches Aviation Law and is a licensed pilot; Eric Compas, a UW-Whitewater professor and drone enthusiast who has received grant funding to investigate the use of drones for natural resource and disaster recovery purposes; and Detective Eric Draeger of the Milwaukee Police Department.  In a wide-ranging discussion, the panelists agreed that legal regimes governing drones are constantly evolving.  They grouped the top legal challenges related to drones into three categories: safety, privacy, and security.

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A Rejuvenated Navigational Servitude?

As a general rule, within its borders each individual state holds title to the beds of water bodies that were navigable at the time of its statehood, and has jurisdiction to regulate activity upon those waters.[1]  State authority over navigable waters is not absolute, however; in a previous post, for example, I discussed the limits imposed by the public trust doctrine.  The “navigational servitude” is another important constraint on state power.  It flows from the Commerce Clause and asserts “the paramount power of the United States to control [navigable] waters for purposes of navigation in interstate and foreign commerce.”[2]  This power justifies, for example, the acquisition and holding of private lands “to deepen the water . . . or to use them for any structure which the interest of navigation, in [the government’s] judgment, may require.”[3]  When validly exercised, the navigational servitude excuses the federal government even from the Fifth Amendment’s Takings Clause, because “the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.”[4]  Today, however, the navigational servitude has largely retreated into obscurity.  It is often viewed as a relic from a bygone era when rivers were the nation’s primary mode of commerce and long-distance travel.

AirshipThe advent of emerging technologies that will make water travel more attractive may catapult the navigational servitude to renewed prominence.  In the not-too-distant future, transformational technologies like hovercraft and airships may become common modes of commercial and public travel over navigable waters.  Integrating the resulting water-based activity into our legal and social systems would require involvement at all levels of governance, including the courts.  In fact, a fascinating example of a related dispute has already reached the United States Supreme Court.

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Waukesha and Racine Mayors Stake Out Opposing Positions on Water Diversion Application

Does Waukesha’s application to divert water from Lake Michigan represent the only reasonable option to provide its residents with clean, safe, and sustainable drinking water, or will it cause adverse environmental impacts and set a negative precedent leading to dozens more “straws in the lake”?  That was the subject of conversation between Waukesha Mayor Shawn Reilly and Racine Mayor John Dickert during an “On the Issues with Mike Gousha” program before a capacity crowd at Marquette Law School.

Waukesha diversionThe Great Lakes Compact, an agreement between Wisconsin and the other Great Lakes states, generally operates as a ban on new and increased diversions of Great Lakes water outside the Great Lakes basin, with certain limited exceptions.  One of those exceptions allows communities located outside the basin, but within counties that straddle the basin line, to apply for a diversion.  Waukesha is the first community to apply for a diversion under that exception.  Its application has drawn close attention locally and nationally.  The Compact sets out strict requirements for such applications.  To succeed, the City’s application must demonstrate that it has “no reasonable water supply alternative,” that its need cannot be reasonably avoided through the efficient use and conservation of existing water supplies, and that it will cause no significant adverse impacts to the quantity or quality of the water used, among other legal requirements.  Under the terms of the Compact, all eight Great Lakes governors (or their designees) have veto power over the application.

During the “On the Issues” program, the two mayors agreed on the importance of regional cooperation on water and other pressing issues (although both lamented the absence of that cooperation in this particular case), but not on much else.  In a respectful but pointed discussion, they staked out opposing positions on the pending application.

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