Water law and the changing tide

Water quality and water quantity strongly related in fact, weakly connected in law

By Susan Williams

Fischman

First, said Fischman, the law must provide a “rule of decision,” which determines what principles should apply in order to resolve a dispute. The two most common rules used are priority, which translates basically into first-come-first-served, and equitable sharing.

“Priority favors early existing users, which provides a great deal of security in a water user’s expectation that it can continue to rely on water. It favors the status quo and often frustrates flexible responses to changed circumstances, such as new technology or emerging environmental problems,” Fischman explained.

“Equitable sharing relies on a number of mostly subjective factors to adjust water among users. It is flexible but can discourage investment and invite speculative litigation because the outcome of disputes is difficult to predict.

Fischman, who teaches classes in environmental, administrative, public natural resources, water and wildlife law at the School of Law-Bloomington’s program in environmental law, said that most U.S. water rules of decision combine aspects of both approaches. Western states, however, emphasize priority while Eastern states lean toward equitable sharing. Internationally, water allocations tend to be determined by treaties, after which each nation handles disputes in their jurisdictions using national laws.

The second key issue, said Fischman, is who decides who gets what and how much. The two basic models are judicial and administrative. The judicial model responds to disputes only after some injury has occurred, while the administrative model relies on experts to resolve new disputes but also to act to avoid conflict through planning, permitting and regulation.

“The judicial model resolves disputes on the basis of the information brought to the court or tribunal by the parties in dispute,” said Fischman.” Often decision makers are generalists with no specialized knowledge of hydrology. Administrative decision makers can bring to bear on a problem their own expertise as well as other information that goes beyond what the parties to the dispute might have.”

According to Fischman, treaties and other forms of law generally treat pollution, or water quality, as a separate issue from allocating quantities.

“This raises additional problems,” he said, “because the two issues are strongly related in fact but weakly connected in law.”

This also raises the question of how the law will deal with other contemporary issues such as our changing values in how water is used, a shift that begets plenty of conflict and resolution.

For example, as Blomquist explained, stream flows were once allocated exclusively between municipalities and agriculture for consumptive uses. But now, they are also being set aside by legislation, regulation or court decrees for species protection and habitat, recreational uses—such as swimming, rafting and kayaking—and aesthetic and preservation uses, like national and state designations of “wild and scenic” rivers. And in several Western states, he said, Indian tribes are asserting long-held but largely dormant water rights that were promised by the federal government when reservations were established.

“Thus,” said Blomquist, “we are asking the same amounts of water to serve a larger array of needs. When you try to get a limited water supply to serve more purposes, you can expect both shortages and conflicts to be more frequent and more intense.”

When a finite water supply must serve more and more purposes, shortages and conflicts tend to be more frequent and more intense.