Lessons from the Development of Western Water Law for Emerging Water Markets: Common Law vs. Central Planning

The story of water in the American West shows that political intervention is unnecessary. Local institutions and rules could be the basis for a legal regime sufficient to deal with water issues that arise. The importation of central planning regimes for water can thus not only lead to the allocation of water in ways that harm the interests of indigenous peoples, but also can contribute to the destruction of customary legal systems, which themselves form a valuable part of indigenous people's cultural heritage. Failing to resist the attempts by special interests at a water grab may thus leave both the indigenous people's land and culture high and dry. Protecting customary legal regimes' water law, on the other hand, may help control water sensibly. This Article examines the development of water law in the West and suggests reliance on a common law rather than a central planning, regulatory regime. Part One describes the common law water rights system and its development in the West. Part Two surveys how courts in Montana and Wyoming dealt with water law issues in the nineteenth century. Part Three traces the development and spread of the "Wyoming System" of central planning for water. Part Four compares the common law and central planning as devices for allocating water. Part Five concludes by drawing lessons for modern water markets and other areas of environmental policy and for the development of water markets from the common law experience with water rights.

Lessons from the Development of Western Water Law for Emerging Water Markets: Common Law vs. Central Planning Academic Article