Water Law Goes National

Water law is rapidly becoming a very important practice area, due to population growth and movement, pollution, drought, and the impact of and extremes wrought by climate change. In addition to achieving “top-of-the-fold” prominence, it is also bursting through its traditional bounds

Water law has traditionally been (1) a state matter, and (2) confined to periodically drought-stricken and thirsty Western states. To the extent that water law crossed state lines, it was usually through a regional compact.

This appears to be changing.

A Federal Role?

This week the U.S. Supreme Court heard arguments in two water disputes between states that examined the role of the U.S. government in state vs. state water conflicts.

In Texas v. New Mexico and Colorado, the federal government intervened on the side of Texas, which argues that New Mexico is violating a 1939 compact by allowing its residents to take water that belongs to Texas. A court-appointed special master last year wrote in an interim report that the U.S. exceeded its authority in intervening in the case since it has no claim itself to the water and should be restricted only to bringing claims under federal reclamation law. The Supreme Court is only considering what the extent of the U.S. government’s role should be, not the merits of the water dispute.

In Florida v. Georgia, Florida sued Georgia to cap the volume of water Georgia takes from the Apalachicola-Chattahoochee-Flint River System. The impetus for the lawsuit was the collapse of Florida’s Apalachicola Bay oyster fishery. The federal government refrained from joining the litigation notwithstanding that the U.S. Army Corps of Engineers operates a series of dams and reservoirs along the contested river system. A court-appointed special master ruled last year that Florida showed “real harm” and at least “likely misuse of resources by Georgia,” but said that without federal involvement, there was no way to guarantee that a cap on Georgia’s water consumption would result in more water for Florida. The Supreme Court must decide whether to accept the special master’s ruling in favor of Georgia.

In addition to the potential for federal involvement in an area of law traditionally the province of the states, Florida v. Georgia is also unusual in that it involves an Eastern water dispute.

Traditional Water Law

States have fought vigorously to keep water rights within their exclusive domain. However, this is being threatened by water supply stresses caused by the factors cited at the beginning of this article. One of the consequences of this is that no longer do you find water law courses only in law schools west of the Mississippi River. In recent years, Eastern law schools have also launched such courses. Their curricula are similar to what has been offered for many years in Western law schools.

Water law encompasses how society allocates and protects this critical resource. Under that broad umbrella, specific issues include:

  • how water is allocated during periods of scarcity;
  • active conservation methods;
  • protection of threatened groundwater resources;
  • environmental limits on water development such as the Endangered Species Act and the “public trust” doctrine;
  • constitutional issues in water governance;
  • Indian water rights;
  • protection of water quality; and
  • interstate and international water disputes.

Legal and water policy debates are becoming more heated in inverse proportion to water scarcity. As a result, water law practice is spreading from its traditional Western and Southwestern niches to law firms throughout the country.

This emerging national practice is not a temporary phenomenon. Water law is going to be dynamic as far out as we can see. Moreover, it is moving in the direction of becoming an international practice, spurred by climate change, increasing cross-border pollution, and the preservation of the marine environment and resources.

Note. Aspiring water law practitioners are advised to become knowledgeable about the history of water development and politics.

Resources

  • Water Headlines. EPA Office of Water
  • Water Law in a Nutshell. David H. Getches (4th ed. 2009)
  • Cases and Materials on Water Law. George A. Gould, Douglas L. Grant, Gregory S. Weber (7th ed. 2005)
  • Law of Water Rights and Resources. A. Dan Tarlock (2011 – ), current version available on Westlaw
  • Legal Control of Water Resources: Cases and Materials. Joseph L. Sax (4th ed. 2006)
  • Principles of Water Law and Administration: National and International. Dante A. Caponera (2nd ed. 2007)
  • U.S. Geological Survey National Water Information System