This article considers the deployment of public power over the water resource. Federalism, like property, fragments control by dividing and separating power. While fragmentation might work to some extent for relatively discrete aspects of public power, such as those with respect to going to war, entering treaties, issuing money, and raising and maintaining armed forces, when applied to water, questions immediately arise: which unit of government gets to decide about the allocation of private power – property. Which unit of government can deal with those challenges that transcend formal boundaries, such as the environment? A river is a unitary, integrated, single entity, which in turn is a part of the unitary, integrated, single entity that is nature, the environment itself. A river defies the borders and boundaries and the management ‘solutions’ imposed upon it by something as arbitrary as federalism.
The article contains three parts. Part I examines the constitutional settlements with respect to water resources found in the United States and Australia. Part II recounts attempts in both jurisdictions to use what is known as ‘cooperative’, ‘flexible’, or ‘marble-cake’ federalism to overcome the problems created by the federal division of powers over water resources. Parts III and IV explore the nature of existing disputes and emerging challenges that arise as a consequence of the federal division of power over water resources: overallocation and overuse of the resource relative to land use planning and instream or ecological flows of water; First Nations or Indigenous cultural flows of water; international obligations with respect to the water resource; and, perhaps the most significant and potentially the most intractable challenge from the perspective of federalism, climate change. In the Conclusion, we reflect upon the enormity of the challenges: climate change, the allocation of water among more than one nation, and the inability of federalism to cope as those challenges increase in severity. Still, federalism seems here to stay, notwithstanding its inability to provide workable solutions for water management. Yet it is only in understanding the frailties that we might better understand what federalism must do in order to adapt and respond to the challenges it faces.
Babie, Paul T and Leadbeter, Paul and Nikias, Kyriaco, Federalism Fails Water: A Tale of Two Nations, Two States, and Two Rivers (April 27, 2020) Journal of Environmental Law and Litigation, volume 35, 1.