Strong Medicine: Considering a Greater Federal Role in Water Management

1. Reed D. Benson
University of New Mexico School of Law

2. “Transformation” is not easily done
Western state water law based on the
prior appropriation doctrine is mostly:
- backward-looking
- rather rigid
- slow to change
Can law nonetheless help transform
water management in the West?

3. In the past century, 2 water law/policy
developments were transformational:
 the Reclamation program
 the Clean Water Act (CWA)
Federal laws greatly expanded the role
of the national gov’t regarding water
The programs certainly differ, but both
are a mix of federal mandates and $$$
-e.g. $89B under CWA grant/loan funds

4. Like the reclamation laws and the CWA,
a new federal water law should include:
 standards or requirements that reflect
and promote national policy goals
 funding that helps ensure tangible
progress toward meeting those goals
To what ends? Stronger management,
better incentives, greater investment
- pricing may be a crucial element

5. Why federal?
- Mixed bag of CWA success shows the
value of federal mandates & oversight
- Interstate compacts show that federal
carrots and sticks are often crucial
Why not federal?
- states play key roles under federal law
(e.g. project water rights, CWA actions)
- federal law allows for local innovation
(e.g. water & endangered species RIPs)

6. Water supply & demand in the Colorado River Basin,
with projections for the future (USBR 2012, p. SR-36)

7. “As with any scarce resource, increasing
demands on a dwindling supply bring
calls for public protection and
management.
No resource is more vital than water.”
Jon Kyl, 1982,
Writing on Arizona’s federally
motivated groundwater law of 1980
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