Stern & Tarlock: A “Managed Retreat” Policy for Western Water Rights

In Moving Water: Managed Retreat of Western Agricultural Water Rights for Instream Flows, authors Stephanie Stern (Arizona Law) and A. Dan Tarlock (Chicago Kent College of Law) discuss the current state of water rights in the West and advocate for a change in federal policy to reallocate western water rights to address the effects of “megadrought” and rapid urbanization.

The article describes the current water rights system in the West as resting on the principle that all water rights were ceded from the federal government to the states. Once the arid region was settled, eighty to ninety percent of all water allocation went to agricultural uses. The population boom in the West, which now includes some of the nation’s largest urban settlements, has worsened the access to water problem. Since 2000, this problem has been coupled with one of the most severe droughts in world history, referred to as the “megadrought.”

Stern and Tarlock identify four interests that they assert should be considered when allocating water rights in the West: (1) agriculture adaptation to climate change, (2) urban interests, (3) Native American homeland protection, and (4) promotion of environmental values. The authors focus primarily on environmental values. They propose a series of possible legal options and remedies for how the federal government should begin accumulating and using water rights, advocating for a “managed retreat” policy. This framework emphasizes voluntary and strategic accumulation of surface water rights from farmers who are leaving the region due to the drought conditions. The authors encourage use of these rights by the federal government to preserve instream flows. By dipping into this increasingly available pool of water rights, the federal government can begin to manage the risks of climate change and natural disasters that come with insufficient water supply.

Although the authors recognize possible pushback, including political resistance because of historic land independence and agricultural values in the West, they emphasize the need for some intervention by the federal government. They promote looking to Hawai’i’s reallocation of water rights as an example and emphasize the overall lower transaction costs and increased efficiency that can be achieved through this framework with the ultimate goal of improving water access and sustainability in the face of climate change.