Document Type

Working Paper

Publication Date

3-22-2006

SSRN Discipline

PSN Subject Matter eJournals; LSN Subject Matter eJournals; Health Economics Network; Sustainability Research & Policy Network; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Political Economy - International eJournals; Law School Research Papers - Legal Studies; Administrative Law eJournals; SRPN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Political Institutions eJournals; Humanities Network; Political Science Network; Environmental & Natural Resources Law eJournals; Political Economy - Development eJournals

Abstract

Although Australia and the United States share a common law heritage water law has developed in significantly different patterns in the two nations Much of the credit for Australias different course can be ascribed to Alfred Deakin who after taking a study tour of the American West in 1885 wrote a report that rejected the doctrine of prior appropriation as used in the arid states of the American West and advocated a system in which the rights of the state were elevated over those of the individual Unfortunately both countries have generally treated water just like land and other natural resources as a commodity for human use manipulation and degradation Little thought or significance at least until relatively recently was attached to the adverse environmental impact of reduced stream flows and the severe damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats Both countries therefore face the difficult challenge of trying at a late date to bring together two separate but inextricably connected disciplines one focusing on water use and the other on water quality The challenge is daunting especially in light of both existing uses of water giving rise to settled expectations in Australia and often confirmed as a matter of right in the United States and anticipated growth in demand Complicating the situation in the United States is its fragmented approach to law and regulation dealing with watershed issues Water quantity law is statedriven while water pollution law is primarily federal in origin with the notable exception of nonpoint source pollution which is primarily the responsibility of state government Land use management on the other hand is generally a question for local government After exploring the three separate regimes governing water use water quality and land use the article discusses and evaluates a number of approaches for trying to integrate these regulatory schemes into a mechanism that can enhance and protect the integrity of our aquatic systems while also meeting many human needs in a sustainable and adaptive way Perhaps the most important aspect of this analysis lies in its attempt to connect in terms of law and institutions the natural and symbiotic relationship between land use and water Although that relationship has long been ignored it is essential to conceive of a river or other freshwater system as part of a larger interdependent ecosystem one linking all land and aquatic features in a particular watershed

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