August 31, 2020

The contours of water law in the 21st century: Limitations on the private diversion of public water

by James M. Olson

On the eve of the third decade of the 21st century, the global water crisis has become existential—a crisis that has and will test the law of water, private landowners, citizens, communities, states, and countries who seek to compete for control of water for their needs and the existence of life itself. We live in inseparable arcs of a water cycle—the watershed where we live and the hydrosphere. Until the end of the 20th century, the law struggled to conform to this reality. While the legal rules for lakes, streams, and groundwater are often separate and disparate, the modern sciences of hydrology, geology, and ecosystems have pointed the courts and law toward a more holistic understanding of water, human uses of and needs for it, and the life that depends on it. Courts are now catching up to the reality that if the law does not look at the cause and effect of human activities impacting every facet of the water cycle, the law will not protect the whole—the public water commons—on which all life depends.

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