Appurtenancy reconceptualized: managing water in an era of scarcity.

AuthorChoe, Olivia S.
  1. THE NEED TO REASSESS REGULATED RIPARIANISM

    Until recently, the eastern United States has been blessed with an abundance of water; unlike the arid West, shortages in the East have historically been "rare and short-lived." (1) During the past few decades, however, water has increasingly become scarce, due to recurring droughts and burgeoning urban and suburban populations. (2) A severe drought struck the East Coast in 2002, (3) forcing residents in rural Maine to stop flushing toilets and washing dishes, (4) significantly damaging crops in the Midwest, (5) and leading New Jersey to ban lawn watering. (6) But that drought was only the latest and harshest of several that have hit the region since the 1980s. (7) Rapid population growth and commercial development in and around eastern cities have also contributed to shortages, (8) in some cases leading to interstate disputes. (9) Scientists predict that erratic precipitation patterns will persist, producing recurring droughts in years to come; (10) continued growth in demand will only exacerbate the consequences of weather shifts.

    For policymakers, water shortages present three central challenges. First and most obviously, scarcity reminds us of the limits of our natural resources, and forces us to consider conservation measures. Second, scarcity requires that we assess the efficiency of water allocation and usage. Third--especially in the context of water, a universally necessary resource--equity demands that basic needs be met, and that one group of users not be allowed to exclude another group from an essential resource. In recent decades, water shortages have compelled eastern lawmakers to face these three issues--conservation, efficiency, and equity--directly. The result has been growing dissatisfaction with the legal regime that had historically governed the distribution of water rights in the East: common law riparianism.

    Under riparianism, "an owner of land abutting a waterbody has the right to have the water continue to flow ... subject to the equal rights of each owner to make strictly limited use of the water." (11) Riparian landowners, also called riparians, "share the common benefits that arise from adjacency to defined bodies of water." (12) Although riparian law had governed surface water in the East from the time of the first Anglo-American settlers, (13) it came under increasing criticism during the latter half of the twentieth century. From a conservation standpoint, riparianism failed to protect against excessive diversions by riparians, or to ensure minimum stream flows for the public. (14) From an efficiency standpoint, riparian rights were inherently uncertain because they were correlatively defined, and thus could shift over time as neighboring users and uses changed; (15) uncertainty, in turn, inhibited investment and prevented the development of markets in transferable water rights. (16) And from an equity standpoint, riparianism was accused of favoring private agrarian interests. (17) Moreover, because rights were determined by ex post litigation, riparianism--like any common law regime--lacked a procedural mechanism for reallocating resources to those in need during times of scarcity. (18)

    In the hopes of addressing these doctrinal shortcomings and better dealing with water shortages, approximately half of the eastern states formerly governed by common law riparianism established water permit systems, also known as permitting systems. (19) These regulated riparian statutes--often adopted in response to scarcity concerns (20)--envision a rationalized, administrative approach to water rights allocation. (21) In theory, regulated riparianism requires that all direct users obtain a limited-duration, renewable permit from a state administrative agency. (22) This presumably allows the agency to make comprehensive ex ante decisions about preferred uses and impacts on other users, rather than resolve single disputes in ex post litigation. Agencies also have authority to reallocate water during times of shortage. (23) While these regulatory schemes are usually meant to be comprehensive, certain groups of users are often exempt from the permit requirement. (24) In contrast with common law riparianism, use on nonriparian land is generally allowed under permitting systems. (25)

    What has become apparent over the last few decades, however, is that regulated riparianism suffers from its own weaknesses and, more importantly, has failed to solve many of the problems associated with traditional riparian law. Because of the exemptions accorded large groups of users, regulated riparianism appears "piecemeal," incoherent, and protective of inefficient uses. (26) Even in those cases where permits are required, agencies tend to favor existing or grandfathered uses, thus preventing reallocation from lower- to higher-value uses. (27) In addition, because permits create rights that are temporary and often "use-specific," voluntary transfer markets have failed to develop. (28) Agencies also often fail to institute conservation-oriented norms in their permitting decisions. (29) Finally, agencies have yet to develop satisfactory methods for allocating rights during shortages. (30) In short, permitting systems have not proved much more successful than their common law predecessor in addressing problems of conservation, efficiency, and equity.

    It is thus time for eastern policymakers to reassess regulated riparianism. Indeed, some states are currently in the process of intensely reviewing their water allocation laws, while those that lack permitting schemes are likely to impose some mode of regulation in the near future. (31) Most eastern water law scholars believe that the answer is more comprehensive management and greater centralization of control. (32) Richard Ausness, for instance, calls for the abolition of exemptions for large-scale users, increased centralization and coordination of administration, and more detailed planning for shortages. (33) Joseph Dellapenna likewise characterizes less-than-comprehensive schemes as "an unseemly hodgepodge of requirements," (34) and advocates the creation of "effective comprehensive planning mechanisms." (35) But is a policy of greater centralization and increased managerial control necessarily the wisest approach? Are there alternative governance regimes that might achieve greater efficiency, higher levels of conservation, or a viable market in water rights?

    Drawing on the extensive common property literature, this Note argues that such alternatives are indeed available. A wide body of scholarship in anthropology and institutional economics demonstrates that local users in a variety of contexts, from lobster fishing to irrigation, have been able to develop sustainable methods for managing scarce, common-pool resources, thereby overcoming a tragedy of the commons without the need for government regulation. This Note asserts that the organizational and institutional insights offered by common property scholarship are relevant to contemporary water management.

    The Note begins by suggesting that the common property model (36) may not be such a remote concept in eastern water law after all. Indeed, close consideration of traditional riparian law reveals the outlines of the common property model embedded in the doctrine itself. Specifically, Part II argues that the appurtenancy requirement within riparian law--restricting riparian rights to appurtenant owners and restricting usage to appurtenant land-bears distinct similarities to key features of common property regimes. Limiting rights to those owning riparian land functioned as a proxy for creating an exclusive community, (37) while restricting usage to appurtenant land capped, in a rough way, total usage of the resource. (38) Drawing on the appurtenancy doctrine, as well as the common property literature, I urge greater attention to certain central principles of resource conservation and management--principles that the appurtenancy doctrine, properly understood, can be seen to support.

    I should be clear from the outset about the goals of such an interpretation of the appurtenancy requirement. Identifying similarities between the appurtenancy doctrine and common property regimes is meant to illuminate structural values that have proved durable in a variety of contexts. In particular, I emphasize the success of groups of users who are closest to a common-pool resource at managing against its scarcity. For critics of riparianism who may be skeptical of the wisdom of returning to the common law for inspiration, I would stress that it is appurtenancy's underlying principles--the principles of proximity to, and familiarity with, the resource at stake--and not merely the formal doctrinal rules that continue to bear relevance.

    In fact, the rigorous requirements of the appurtenancy doctrine have been significantly modified in the last century and a half, and in many jurisdictions they no longer strictly govern. Part III examines case law reflecting this doctrinal shift and concludes that the decline of the appurtenancy requirement was the inevitable result of another key doctrine in riparian law: the reasonable use requirement, under which riparian rights are correlative and are limited only by the rights of other riparian proprietors. (39) I argue that whereas the appurtenancy doctrine relied on a fundamental limiting approach to resources, the reasonable use doctrine, as interpreted and applied by the courts, relied instead on an inherently tolerant and expansionist ethic. Contrasting these two strands within riparianism serves several purposes: It provides a doctrinal explanation for the weakness of the appurtenancy requirement, it suggests a historical account of the law's failure to conserve, and it highlights a distinction--important for resource-management purposes--between rules that limit usage and those that balance users' interests.

    Part IV returns to the...

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