Modern Water Law

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As the population of the greater Las Vegas area grows and the climate warms, the threat of a water shortage looms over southern Nevada. But as Christian S. Harrison demonstrates in All the Water the Law Allows, the threat of shortage arises not from the local environment but from the American legal system, specifically the Law of the River that governs water allocation from the Colorado River. In this political and legal history of the Las Vegas water supply, Harrison focuses on the creation and actions of the Southern Nevada Water Authority (SNWA) to tell a story with profound implications and important lessons for water politics and natural resource policy in the twenty-first century. In the state with the smallest allocation of the Colorado’s water supply, Las Vegas faces the twin challenges of aridity and federal law to obtain water for its ever-expanding population. All the Water the Law Allows describes how the impending threat of shortage in the 1980s compelled the five metropolitan water agencies of greater Las Vegas to unify into a single entity. Harrison relates the circumstances of the SNWA’s evolution and reveals how the unification of local, county, and state interests allowed the compact to address regional water policy with greater force and focus than any of its peers in the Colorado River Basin. Most notably, the SNWA has mapped conservation plans that have drastically reduced local water consumption; and, in the interstate realm, it has been at the center of groundbreaking, water-sharing agreements. Yet these achievements do not challenge the fundamental primacy of the Law of the River. If current trends continue and the Basin States are compelled to reassess the river’s distribution, the SNWA will be a force and a model for the Basin as a whole.

Water resources were central to England's precocious economic development in the thirteenth and sixteenth centuries, and then again in the industrial, transport, and urban revolutions of the late eighteenth and early nineteenth centuries. Each of these periods saw a great deal of legal conflict over water rights, often between domestic, agricultural, and manufacturing interests competing for access to flowing water. From 1750 the common-law courts developed a large but unstable body of legal doctrine, specifying strong property rights in flowing water attached to riparian possession, and also limited rights to surface and underground waters. The new water doctrines were built from older concepts of common goods and the natural rights of ownership, deriving from Roman and Civilian law, together with the English sources of Bracton and Blackstone. Water law is one of the most Romanesque parts of English law, demonstrating the extent to which Common and Civilian law have commingled. Water law stands as a refutation of the still-common belief that English and European law parted ways irreversibly in the twelfth century. Getzler also describes the economic as well as the legal history of water use from early times, and examines the classical problem of the relationship between law and economic development. He suggests that water law was shaped both by the impact of technological innovations and by economic ideology, but above all by legalism.

The vital importance of water to human activity is such that most societies and cultures have sought to establish legal rules over its use and allocation. In most jurisdictions legal rights to water have been linked to land tenure and ownership rights. A number of countries have recently undertaken substantive water law reforms, usually involving the introduction of formal and explicit water rights that clearly specify the volume of water that is subject to each right ("modern water rights"), together with institutional arrangements for their allocation, registration, monitoring and enforcement. Modern water rights are not intrinsically tied to specific land plots, are often transferable and available to be traded on a temporary or permament basis. This book reviews international experiences of the introduction and use of modern water rights. It is based on a survey of relevant primary and secondary legislation, published literature, internet sources and practical experience.

Scarcity of water, floods and erosion caused by climate change have made the management of water resources a challenge to national and international actors worldwide. States have also initiated water projects to improve social welfare, often with significant impacts on the environment. This book combines close analysis of the legal structures of water rights with consideration of the modes of water management projects to illustrate current water-related problems in terms of practical solutions in a global context.