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The Law and Governance of Water Resources

The Law and Governance of Water Resources

The Challenge of Sustainability

New Horizons in Environmental and Energy Law series

Douglas Fisher

This path-breaking book focuses on the law and legal doctrine within the wider policy context of water resources and analyses the concept of sustainability.

Chapter 10: Normative Arrangements in Federal Jurisdictions

Douglas Fisher

Subjects: environment, environmental law, water, law - academic, environmental law, water law


INTRODUCTION The essential characteristic of a federal system is the division or distribution of sovereignty among a number of entities within the federation. The arrangements between these entities are quasi-international in character. Each such entity – often called a state or a province – may exercise its legislative, executive and judicial powers within its territory as it sees fit, but subject to the constraints in the constitution setting up the federation. Water resources in a federation may in some circumstances be shared resources in much the same way as in an international context. To what extent, therefore, is a community of interest recognised in a federal structure and to what extent is there a capacity within a federal structure to integrate the governance of water resources? For this purpose we shall consider three federal jurisdictions: the United States of America, Canada and Australia. UNITED STATES OF AMERICA (a) The Constitutional Context When the United States of America was established towards the end of the 18th century, the common law of England was in a state of doctrinal uncertainty: were water rights acquired according to the appropriation doctrine or were water rights recognised in accordance with the riparian doctrine. In the event the eastern states within the United States preferred the riparian doctrine and the western states the appropriation doctrine. But there are many rivers located within the north American continent which flow across the boundaries of two or more states. The Supreme Court of the United States has recognised that admission to...

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