Adaptation, Evolution and Symbiosis in Water Law

Sandi Zellmer, University of Nebraska Lincoln

Abstract

: This article traces the evolution of the laws governing the use of water for consumption, waste disposal, public purposes and environmental protection. It provides a unique integration of water resources law and environmental law, two fields that are otherwise highly fragmented in the United States. Both the historic tensions and the emerging collaborations among federal, state, tribal and private interests in managing water resources are assessed in an effort to illuminate future pathways for conservation and the restoration of degraded waterways. The article begins with colonial America and proceeds through five significant eras in U.S. history: the Gilded Age of industry; the Progressive Era of wise use; the rise of the administrative state and first generation environmental regulations during the New Deal; the conservation movement of the post-War years; and, finally, the late twentieth century era of beneficial use tempered by second generation command and control regulation.

In the early days, discharges of sewage and industrial toxins, depletion of stream flows and the contamination of drinking water supplies were addressed only haphazardly, and almost exclusively at the local level. The federal government influenced water policy through navigational enhancements and reclamation works, but took a deferential stance toward state and local law on water rights, land use and public welfare. Beginning in the New Deal years of the 1930s, Congress and the federal agencies assumed active involvement in multiple-use development of hydropower, floodplains and recreation. Rigorous requirements to protect the integrity of waterbodies and the fish and wildlife species that depended on them were not embraced, however, until the 1970s. The command and control regulatory programs initiated in the 1970s are as powerful today as they were then, but the low-hanging fruit has been harvested and additional “next generation” tools are needed to restore and protect the nation’s waterways. Meanwhile, organic, ever-evolving common law norms will likely play a revitalized role in the sustainable management of water resources, but only if complemented by a strong, ecologically based federal regulatory baseline.