Expanding municipal and Industrial demand, along with increasing use of supplemental irrigation have escalated consumptive water use dramatically In the Eastern United States since World War II. This escalated use already has caused water shortages in some parts of the East, and experts predict more widespread water supply problems In the future.
As the inadequacies of the common law water rights system in a water-scarce environment have become evident, many eastern states have supplemented or replaced common law rules with some form of statutory water allocation system. Typically, these statutes establish a permit system administered by a state water resources agency. These permit systems generally have worked well, but many of them have serious weaknesses. For example, water resources planning frequently is not coordinated with administration of the permit system. Additionally, most individual permits are of relatively short duration, have no renewal guarantee, and leave permit holders’ rights uncertain during periods of water shortage. Uncertainty for long-term planning and for water shortage periods undermines confidence in the statutory allocation system, thereby discouraging capital investment. Finally, most statutes have no explicit mechanism for reallocating water from less productive to more productive uses.
This Article will examine permit systems in the East and propose a number of Improvements. Following a brief analysis of the common law doctrines that govern surface water and ground water allocation in the East, the Article describes the salient features of the permit systems that exist in fourteen eastern states. Finally, the Article discusses the principal deficiencies of these permit systems and suggests a number of legislative responses.
Richard Ausness, Water Rights Legislation in the East: A Program for Reform, 24 Wm. & Mary L. Rev. 547 (1983).