49 Pages Posted: 15 May 2014
Date Written: May 4, 2014
U.S. water law can be static, rigid, and fragmented, using legal arrangements to give a false sense of security against change. These characteristics are maladaptive to changing conditions and sudden disturbances, as illustrated by conflict in the Colorado River system over decreasing water quantities, tensions between groundwater management and private property rights in Texas, and litigation over nutrient runoff in the Mississippi River basin. Water law must become more adaptive if aquatic ecosystems, legal institutions, and society itself are to be resilient under conditions of change and disturbance. This article applies a relatively new “adaptive law framework” to the field of water law in order to promote social-ecological resilience in water governance. In particular, the article explores three features of an adaptive water law system: 1) shared risk among the system’s stakeholders; 2) conditional and flexible standards, instead of rigid rules, to govern water rights and permits; and 3) integrated water governance. Several examples of watershed planning and governance illustrate various aspects of an adaptive water law system emerging from system participants’ efforts to address water insecurity and rapid transformation of aquatic conditions. These examples include the Santa Ana Watershed Project in California, the Blackfoot Challenge in Montana’s Blackfoot River basin, state-mandated watershed planning in the State of Washington, adaptive management of Kentucky’s Green River, and watershed restoration and regulation in the urban-suburban Anacostia River watershed of Maryland and Washington, D.C.
Keywords: water, watershed, adaptive law, adaptation, resilience, social-ecological resilience, water rights, water quality, planning, governance, property, Clean Water Act, prior appropriation, groundwater
Suggested Citation: Suggested Citation
Arnold, Craig Anthony (Tony), Adaptive Water Law (May 4, 2014). Kansas Law Review, Vol. 62, p. 101, 2014; University of Louisville School of Law Legal Studies Research Paper Series No. 2015-15. Available at SSRN: https://ssrn.com/abstract=2436627