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- Title
INTERSTATE WATER RIGHTS: TAKE NO DROP FOR GRANTED.
- Authors
Frenkel, Amelia I. P.
- Abstract
During the past 100 years, water rights have been equitably apportioned among states by the Supreme Court and, increasingly, divvied up by interstate water compacts. Despite these rulings and interstate agreements, when water flows across state lines individual upstream users may nonetheless draw on waters allocated to downstream users on the other side of the border, satisfying their needs out of the lower state's water allocation. And upstream states that lack a rightful claim to sufficient water-as they increasingly do in modern drought conditions- have every incentive to let their citizens do just that. To deter this behavior, states have turned to the Supreme Court, assuming the role of civil plaintiffs in suits against other states. The Court-most recently in its decision in Kansas v. Nebraska-has embraced monetary remedies as a means to deter upstream users from seizing more water than the states' compacts allow. Such deterrence comes at a cost, however: even when an upstream state is able to use water more efficiently than its downstream neighbor, it is penalized for doing so. At the same time, the tools of deterrence are of little help to water users on the losing end of a breach, as any recovery goes to the state, rather than to the individuals who suffered losses as a result of the water shortage. This paper proposes a new framework for resolving interstate water disputes: by applying the law of eminent domain to interstate water takings, the Court could promote more efficient interstate water use during a time of widespread drought, while vindicating the usufructory rights of downstream states' citizens.
- Subjects
UNITED States; INTERSTATE agreements; WATER rights; KANSAS v. Nebraska; PLAINTIFFS; DROUGHTS
- Publication
Harvard Environmental Law Review, 2016, Vol 40, Issue 2, p253
- ISSN
0147-8257
- Publication type
Article