Moving Water

How to Cite

Stern, S., & Tarlock, A. D. (2024). Moving Water: Managed Retreat of Western Agricultural Water Rights for Instream Flows. Columbia Journal of Environmental Law, 49(S), 249–290.


Climate change-induced megadrought and rapid urbanization are forcing western agriculture into retreat as water supplies diminish and heat and drought ravage crops and livestock. At the same time, the megadrought is imposing deep ecological harm on riparian areas, fish species, and soil and increasing the concentration of pollutants in dwindling waterways. These developments raise the question of how to use the water rights left behind as western irrigated agriculture in-evitably shrinks. We argue that federal purchase of some of these rights could create a pool of water available for instream flows (also termed environmental flows) to preserve waterways and aquatic eco-systems. We propose that the federal government acquire some west-ern water rights from agricultural holders, just as it has acquired homes in residential “managed retreat” programs, and dedicate those rights to instream flows. This proposal is novel in agricultural policy, which has stubbornly subsidized agriculture in place, and in the schol-arship on government managed retreat from climate change, which has focused on retreating people and land, not rights in natural re-sources. Federal government managed retreat of western water rights reasserts a federal role in western water allocation, a feature we con-tend accords with current needs as well as history. The allocation of western water and the system of state and private water ownership are largely the result of the post-Civil War response to illegal gold and silver mining thought necessary to encourage western settlement. These policies no longer respond to the modern urbanized West and its present environmental challenges. Drought retreat presents an oppor-tunity for the federal government to move toward a more balanced al-location of western water and create durable environmental benefits.
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Copyright (c) 2024 Christopher Joseph