Introduction

Domestic water law regimes all around the globe face a common challenge: how to allocate freshwater resources in a fair, efficient, and sustainable manner. Agriculture, industry, and municipalities have traditionally competed for this increasingly limited resource. The legal structures that were devised to meet those critical economic and social uses, however, ignored another use, a non-consumptive use that until recently was not well understood and had relatively few champions in the political or legal arena. The environment – including adequate stream flows and healthy ecological processes – is the use that our domestic water law regimes have typically overlooked; the reason is that these legal systems were designed, in large measure, to regard water as a commodity for exclusive human use and consumption.

As a result of this myopic approach to the use of a natural resource, many rivers and streams bear little resemblance today to the waters they once were. Agricultural interests, industry, municipalities and other water managers have manipulated and degraded our freshwater resources in relentless fashion, all facilitated by domestic water law regimes. Meanwhile, little or no attention was paid to the adverse environmental effect of reduced stream flows or to the value of the ecological services that well-functioning freshwater systems provide.

After so many years and the creation of so many economic and social expectations predicated upon prior practice, change is difficult. Many waters are over-appropriated or otherwise impaired by excessive or unwise water uses.