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Appurtenancy Reconceptualized: Managing Water in an Era of Scarcity |
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Olivia S. Choe [View as PDF]
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113 Yale L.J. 1909 (2004)
I. THE NEED TO REASSESS REGULATED RIPARIANISM
Until recently, the eastern United States has been blessed with an abundance of water; unlike the arid West, shortages in the East have historically been "rare and short-lived." During the past few decades, however, water has increasingly become scarce, due to recurring droughts and burgeoning urban and suburban populations. A severe drought struck the East Coast in 2002, forcing residents in rural Maine to stop flushing toilets and washing dishes, significantly damaging crops in the Midwest, and leading New Jersey to ban lawn watering. But that drought was only the latest and harshest of several that have hit the region since the 1980s. Rapid population growth and commercial development in and around eastern cities have also contributed to shortages, in some cases leading to interstate disputes. Scientists predict that erratic precipitation patterns will persist, producing recurring droughts in years to come; continued growth in demand will only exacerbate the consequences of weather shifts.
For policymakers, water shortages present three central challenges. First and most obviously, scarcity reminds us of the limits of our natural resources, and forces us to consider conservation measures. Second, scarcity requires that we assess the efficiency of water allocation and usage. Third--especially in the context of water, a universally necessary resource--equity demands that basic needs be met, and that one group of users not be allowed to exclude another group from an essential resource. In recent decades, water shortages have compelled eastern lawmakers to face these three issues--conservation, efficiency, and equity--directly. The result has been growing dissatisfaction with the legal regime that had historically governed the distribution of water rights in the East: common law riparianism.
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