LAWRENCE — There is no life without water — therefore access to water might be considered a human right. However, that has not always been the case in American water law. A new book explores of case laws and evolving concepts in how water is governed, encompassing topics such as climate change, tribal rights and technologies for accessing water in areas where it is rapidly disappearing.
“Water Law: Concepts and Insights, 2nd Edition” was co-written by Robin Kundis Craig, Robert A. Schroeder Distinguished Professor of Law at the University of Kansas; Noah Hall of Wayne State University and Robert Adler of the University of Utah.
“We were lamenting how there were no good water law books for students in the east. They were primarily focused geographically on the west, so we decided to write our own,” Craig said. “We wanted to get into how water law intersects with common and environmental law. It’s not strictly a case book, but we updated it, largely for human rights focus that has been added for water.”
The book examines the emerging issue of whether there is a fundamental human right to water in the United States. California has enacted such a right, and a recent case in Montana upheld environmental rights more generally under the state constitution. Similar cases in other states such as Pennsylvania and Florida have occurred, although the book focuses on the Flint, Michigan, water crisis and its contribution to the growing recognition of water as a human right that is becoming codified in law.
“This is potentially changing the entire character of water law,” Craig said of the rulings.
The text also documents how environmental issues are forcing a change in water law. Climate change is rapidly changing approaches to water. Endangered species protections have also required shifts in law and policy. Meanwhile, tribal agreements on water and compacts signed as long as 70 or 80 years ago before climate change was a consideration are being re-examined.
Ongoing cases such as the removal of dams in the Klamath River and navigability of other waterways continue to raise environmental questions on the use of fresh water sources.
“It’s an exciting time, the first in a long time there has been a fundamental change in how we think about water,” Craig said. “Humans are now in competition with other species for remaining water. That was one of the big signs we needed reform and was in response to the Endangered Species Act. The new human rights focus is also a reflection of that.”
“Water Law” examines policy throughout the United States as well. Several states have enacted policies requiring public interest reviews for any new water uses. Those policies, plus ongoing interstate disputes over water, are thoroughly examined.
The book, which can serve as a textbook, guide for practitioners or source for general audiences, also details both Supreme Court precedent on water as well as recent rulings and cases likely to make their way to the high court.
“There is always something happening with water at the Supreme Court,” Craig said.
While “Water Law” focuses primarily on American state and federal water issues, it does examine questions of water and energy in other parts of the world. To wit, areas such as the Middle East, which have little water but plentiful energy, have increasingly turned to desalinization as a method of providing fresh water. While the practice is not as common in the United States, the book advises policymakers and water law practitioners would be wise to learn from experiences outside the country.
“That can lead to conversations in the United States about when does desalinization make sense here,” Craig said. “In places like California that is becoming more relevant, and Florida, too, as their aquifers are becoming depleted. It’s a good way of looking at the economics of water and water infrastructure.”
After a thorough examination of legal doctrines and policies guiding water on the state and federal levels, the text closes by anticipating upcoming issues in water rights, such as “takings” litigation and how the evolving conception of water as a human right, water property rights and environmental protections will all shape the future of water law in the United States.
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