Document Type

Article

Publication Date

Summer 2010

Abstract

Conflicts over water allocation have, become a national topic, rather than a regional one confined to the West. Increased water use and projections for further increased demand are combining with the decline of stationarity to underscore the importance of having sound water management policies and a coherent plan for water allocation at the ready and capable of implementation. Historically, and in an earlier era of water federalism, the state police power was acknowledged as the proper locus for making water law and policy.

In the twentieth century, even while laws and rhetoric respected the division of authority favoring the states, the real power over water in most basins passed into the federal government's programmatic and regulatory control, creating a mismatch of supposed authority and actual power over water. The federal imperatives that may have justified that shift when the relevant laws were enacted are now half a century old and seem out of touch with the modem reality of water management. A new statute that employs a structure similar to that of the Coastal Zone Management Act of 1972 will put the states back in control of the water and concurrently use federal authority in 'a role for which it is well suited, putting the states under pressure to make genuine concessions to one another in the management of shared basins and playing referee if they do not treat one another fairly.

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