Article by: Jesse Reiblich & Christine A. Klein

41 PEPP. L. REV. 439 (2014)

Climate change adaptation is all about water.  Although some governments have begun to plan for severe water disruptions, many have not.  The consequences of inaction, however, may be dire.  As a report of the U.N. Environment Programme warns, “countries that adopt a ‘wait and see’ approach potentially risk the lives of their people, their ecosystems and their economies.”  In the United States, according to one study, nearly 60% of the states are unprepared to deal with the impending crisis. Responding to this void, we offer what we believe is the first comprehensive, fifty-state survey of water allocation law and its efforts to ensure an adequate water supply in the face of a changing climate.  In particular, we focus on one specific allocation mechanism—“water transfer”—because it is both widely considered and broadly controversial as a climate adaptation strategy.  Through this Article, we seek to make three unique contributions to the literature.  First, we parse the opaque usage of the phrase “water transfer” and construct a typology of its three most prominent meanings.  Second, we have conducted an empirical review of water transfer statutes, and present our raw data in table form, grouped by state and by transfer type.  Finally, we have categorized state transfer statutes along a continuum, from measures that restrict transfers, to those that mitigate transfer impacts, to those that encourage transfers.  Overall, we offer to legislators a “toolkit” of options, arrayed along a logical continuum.

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