Abstract
Addressing modern-day water scarcity will likely require legal mechanisms to facilitate efficient water transfers between states. One such mechanism is a water market. Water markets promote more efficient water consumption and abound within states, but generally do not exist between states. This absence stems from protectionist state laws and from interstate water compact provisions which govern and allocate shared water sources. While useful in many regards, interstate water compacts often impose unnecessary legal obstacles against innovative drought-mitigating measures—including interstate water markets. The most serious of these obstacles is the fact that states cannot revise interstate water compacts without (1) obtaining unanimous consent from all original parties to a compact and (2) receiving Congressional approval for proposed revisions. The fierceness of interstate water disputes—and the asymmetrical costs and benefits associated with revising outdated interstate compact provisions—make it extremely difficult for states to take the initiative in implementing interstate water markets.
This Comment contends that Congress should take the initiative instead, under the exercise of its Commerce Clause powers. This Comment advances the foregoing proposal as follows: Part I provides a primer on water law and interstate water compacts. Part II presents interstate water markets as a solution to water scarcity and explains how Congress should act to enable them. Specifically, Part II argues that Congress should enact legislation that revises federal and state statutory provisions which presently prevent interstate water transfers. Part II also argues that Congress should enact legislation prohibiting states from imposing new, reactionary impediments to prevent parties from buying and selling water rights to buyers in other states. By so doing, Congress can unleash the floodgates of interstate water commerce needed to respond to drought conditions.
Recommended Citation
Jakob Haws,
A Bill of Thirst: How Congress Can Support Interstate Water Markets,
128
Dick. L. Rev.
749
(2024).
Available at:
https://ideas.dickinsonlaw.psu.edu/dlr/vol128/iss3/5