Water, Climate Change, and the Law: Integrated Eastern States Water Management Founded on a New Cooperative Federalism

Abstract

More robust planning and management is needed to confront new patterns of water use and increasingly extreme and less predictable climate-induced variations in water availability. Issues such as water allocation law, gaps in the array of water management objectives, and comparatively rigid and unresponsive operating rules for water facilities are increasingly more significant. Neither the water law of most Eastern states nor the existing water institutions are adequate to adapt to the challenges of less stable and potentially diminished water supply. The failure of adaptation is likely to cause serious economic and environmental harm if water is not better managed, and the most essential uses of water given priority in times of shortage.

This Article proposes a new water governance regime that offers several means for improving water management in the Eastern United States as water shortages become more common. The Article also considers whether the proposed model has a realistic possibility of acceptance. The proposed governance model has two principal legal elements and one operational aspect. Legally the model relies on state adoption of (1) a comprehensive water use planning and permit system usually denominated “regulated riparianism” as the underlying state water law (2) enhanced by a federal statute similar to the Coastal Zone Management Act that coordinates both federal and state water allocation activities by requiring them to be consistent with the states’ adopted and federally approved water plans. Operationally, the model incorporates multiparty use of computer simulations modeling a full array of basin-wide benefits as a key element in determining facilities operation.

Keywords: water law, water use, water resources, federalism, climate change

JEL Classification: K32