Abstract
The world’s hydroclimate has become more extreme in the last several decades—a phenomenon described in technical terms as the loss of stationarity. Focusing particularly on the drought-induced stresses, this Article examines water governance in the American West and Australia seeking aspects in the laws, institutions, and approaches of each nation that could be adapted to advantage by the other in coping with the onset of reduced flows in major river basins—most prominently, the Colorado in the U.S. and the Murray-Darling in Australia. Significant similarities of history, settlement of arid regions, and legal systems abound. These include Anglo settlement bringing riparian water law to the continents, surprisingly similar land and water resource distributions, federal systems in both nations vesting state primacy over natural resources subject to subservience to the national government in certain regards, the 19th century settlement of the more arid areas of the interior, and now the 21st century water shortage conditions being faced. Together these similarities both invite comparison and make transference of governance institutions feasible. The advocated changes are non-trivial. The major suggestion for Australia is for their courts to force greater accountability of the states to the areas in which the Commonwealth has used its overarching authority to set a higher bar for performance by the states than has been achieved so far. In the U.S., for more than a century, the Supreme Court has established itself as a major force, constraining the states from pursuing self-interest to the detriment of their neighbors and national interests. Australian courts have been far more passive. As seen in a famous high visibility U.S. Endangered Species Act case, the Australian courts should see this as simply enforcing the law as written, not being more activist. More radically, this Article calls for replacing prior appropriation with the water governance system chosen by Australia more than a century ago and updated significantly by the National Water Initiative in 2004 and the Commonwealth Water Act 2007. At the beginning of the 20th century, when it was apparent that riparianism was ill-suited to its inland climates, the Australian states adopted an entitlement/allocation system in which water users’ entitlements are like shares of the whole and the whole is a variable amount based on water year projections about how much water will be available. Thus, in Australia shortages are, in essence, borne by all water entitlement holders; in the U.S. under prior appropriation, juniors (those whose water use began later in time) get no water if that is what is necessary to protect the senior appropriators in receiving their full water right. At the beginning of the 21st century, Australia took the further step of protecting riparian environments through a planning process that divided waters between a consumptive pool and an environmental pool that recognized both the importance of ecosystem services and the national commitment to protect Ramsar wetlands. Almost needless to say, making changes in either system that result in reallocation of water when water is short entails the question of whether those receiving less water after the change are entitled to compensation. In Australia, the courts have been deferential to the authority of government to allocate water as a sovereign prerogative and have not found violations of the Commonwealth’s constitutional protection of property. In the U.S., any change trenching on property “rights” raises questions of whether property has been taken for public use without just compensation. Although the change advocated here might seem a sure victory for the water rights holders making takings claims, there is surprisingly little on-point case law. Saliently, Supreme Court precedents support the conclusion that a change to the Australian entitlement/allocation system would pass constitutional muster. The general rule of non-compensation, however, should be tempered by what the Australian system calls risk allocation, where a subset of water use reductions attributable to governmental policy are compensated. In sum, this Article argues for a two-way transfer. On the Australian side, it advocates for greater judicial superintendence of governmental adherence to the law as written and intended. On the U.S. side, it advocates adoption of the Australian entitlement allocation system and its set aside for an environmental pool. Both nations stand to benefit greatly.
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Recommended Citation
Robert H. Abrams,
Water Governance and Water Futures in the United States and Australia,
65
Nat. Res. J.
193
(2025).
Available at:
https://digitalrepository.unm.edu/nrj/vol65/iss2/5
