Remembering the Ocean in Water Law

Abstract

In the United States and many other countries, a legal divide occurs at the coast. Management authorities, for example, often change somewhere in the vicinity of the high tide line. However, in most cases, freshwater flows into saltwater. This connection has always been vital to trade and navigation and allows numerous inland cities—such as London, U.K., and Portland, Oregon, USA—to function as active seaports. That connection is also why water law should be more cognizant of the ocean: how nations regulate freshwater affects the health of the ocean.

The abuse of the freshwater-saltwater nexus is pervasive worldwide. Moreover, the regulatory fragmentation that prevents governments from comprehensively including coasts and the ocean within watershed management or freshwater law is also well-documented. Both water pollution and freshwater allocations can and do harm the ocean and coastal ecosystems.

Instead of revisiting the problem of regulatory fragmentation, however, this chapter focuses instead on instances when water law remembers the ocean. Using illustrative examples from United States law, it explores the many ways in which the laws governing the pollution and allocation of freshwater can be—and have been—cognizant of the eventual terminus of almost all freshwater flows. The goal is to provide a starting toolbox for researchers and regulators who want to better protect the ocean and coastal resources from upstream insults.

Keywords: water law, water allocation, water pollution, freshwater-saltwater nexus, salmon, instream flow