Water Rights and Water Quality Management

Abstract

Water rights constitute the oldest institutional arrangement for control of water quality, but recent decades have seen extensive development of alternative controls. These new mechanisms for water quality management have replaced the system of water rights as the primary institution for quality control, but these rights still function in an important supplementary capacity. Any qualitative change that substantially interferes with other legally recognized uses of water is in violation of water rights, but the determination of whether a particular quality alteration is in violation of the rights of others is a function of the judicial process. The fact that water rights require court action for their enforcement is a basic defect with regard to their effectiveness as an institution for water quality management. Specific weaknesses as a managerial mechanism include the responsive nature of court action, the limited scope of litigation between individuals, and the burden of proof facing the injured party. These weaknesses are largely overcome by the administrative agency approach, a basic reason for its widespread acceptance at present.