Water Law and the Search for Sustainability: A Comparative Analysis

Abstract

Domestic water law regimes all around the world face a common challenge: how to allocate freshwater resources in a fair, efficient, and sustainable way. Agriculture, industry, and municipalities have traditionally competed for this increasingly limited resource. The legal structures that were devised to meet those critical economic and social uses, however, ignored another use, a non-consumptive use that until recently was not well understood and had relatively few champions in the political or legal arena. The environment — including adequate stream flows and healthy ecological processes — is the use that our domestic water law regimes have typically overlooked since these legal systems were designed, in large measure, to regard water as a commodity for exclusive human use and consumption.

As a result of this myopic approach to the use of a natural resource, many rivers and streams bear little resemblance today to the waters they once were. Agricultural interests, industry, municipalities, and other water managers have manipulated and degraded our freshwater resources in relentless fashion, all facilitated by domestic water law regimes. Meanwhile, little or no attention was paid to the adverse environmental effect of reduced stream flows or to the value of the ecological services that well-functioning freshwater systems provide.

After so many years and the creation of so many economic and social expectations predicated upon prior practice, change is difficult. Nevertheless, a number of legal systems have attempted, to one extent or another, to integrate environmental concerns into their legal regimes for allocating water. This chapter, from the Water Resources Planning and Management book published by the Cambridge University Press, explores the way in which three nations have done so: the United States, South Africa, and Australia. It also examines the failure of a pure market approach in Chile, which made water into a complete commodity to the exclusion of ecological considerations.

Keywords: water law, water rights, environmental flows, environmental law, comparative law