Climate Change, Regulatory Fragmentation, and Water Triage

Viewed from a watershed perspective, we are unconsciously sacrificing many marine ecosystems because upstream fresh water is a regulatorily fragmented resource. That is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water use have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource. Moreover, the ecological effects of this regulatory fragmentation are also becoming obvious, particularly when downstream marine ecosystems are considered. Such conflicts in water management are only likely to increase as climate change alters the expected availability of water in many areas of the country. In particular, in those regions where climate change reduces water supplies, competition for water resources in general, and conflicts between consumptive and in situ users in particular, are likely to increase. As such, climate change is likely to underscore two significant weaknesses of the current regulatory fragmentation of water resources that the nation should address: (1) the lack of any comprehensive public debate that acknowledges and weighs the cross-jurisdictional tradeoffs among water uses that insufficient supply makes necessary; and (2) the general failure of fresh water regulation, particularly consumptive use regulation, to acknowledge watersheds' end of the line - the oceans. This Article focuses primarily on the second weakness of current water resource management. Specifically, this Article argues that marine ecosystems have often been the largely unnoticed casualties of water's regulatory fragmentation but that these ecosystems are nevertheless too valuable to continue to be left unconsidered in fresh water regulation. This Article also argues that considering marine ecosystems could provide output-focused, ecosystem-based regulatory goals that could provide one basis for coordinating and, when necessary because of water shortage, prioritizing regulatory choices for fresh water. Moreover, by adding weight to existing arguments for leaving water in situ and highlighting additional sensitivities to water pollution, marine ecosystem output goals could suggest both regulatory adjustments to inputs and more comprehensive structural reforms that would better protect the entire watershed - including the human health that depends upon the health of that watershed. The Article concludes by offering a number of suggestions to improve water resource management, in two groups. The first group of suggestions consist of relatively limited amendments to existing federal statutes. The second set of suggestions outlines a broad restructuring of water resources management in the United States. To better incorporate oceans and other federal interests, however, both sets of suggestions envision an expanded (although certainly not exclusive) role for the federal government in water resource management.