Drinking from the Same Cup: Federal Reserved Water Rights and National Parks in the Eastern United States
39 Pages Posted: 6 Nov 2013 Last revised: 24 Mar 2014
Date Written: April 25, 2013
United States National Parks are widely considered priceless national treasures deserving vigilant protection and preservation. A powerful, but underused, tool to protect national parks is the federal reserved water right. It ensures that when the federal government designates land for a particular use (e.g., a national park), it also implicitly reserves enough water to satisfy the primary purposes for which that park was created. To date, the federal government has only claimed federal reserved water rights for national parks in arid western states like Utah or Montana that follow a prior appropriation water regime (i.e., first-in-time, first-in-right). However, climate change and population growth along with increased agricultural, industrial, and municipal water usage have resulted in droughts that are severely affecting national parks in eastern states, such as South Carolina and Alabama. Unlike western states that typically follow a prior appropriation water regime, eastern states generally adhere to a riparian water regime, which presumes that sufficient water is available for all uses allowing all landowners abutting a water resource the “reasonable use” of that water. In times of water scarcity, therefore, riparian regimes are ill-suited to protecting water quantity in national parks.
This article argues that because riparian regimes lack the robust regulatory mechanisms to efficiently protect water resources for national parks in the eastern United States, the National Park Service should claim federal reserved water rights for at-risk national parks in the East and negotiate federal-state agreements to preserve sufficient water for them.
Keywords: National Park, water, federal reserved water right, riparian, prior appropriation
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