Adam Webster is a PhD student at the Adelaide Law School and a 2012 Fulbright South Australia Scholar. He shares his experiences as a visiting scholar in the United States.
I am a PhD candidate at the Adelaide Law School and was one of two winners of a 2012 Fulbright South Australia Scholarship. My PhD research examines the rights of the States of Australia to water from rivers that flow through more than one State. I am currently spending 10 months in the United States for the purpose of investigating how interstate water disputes have been resolved in the United States, and considering whether these approaches can be applied in Australia. In particular, I am interested in the role that the United States Supreme Court has played in settling interstate water disputes.
I arrived in the United States in August last year and spent the first 6 months visiting the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado Law School in Boulder, Colorado. Since February this year I have been visiting the James E Rogers College of Law at the University of Arizona in Tucson, Arizona.
One of the interesting features of the development of water law in the United States is that the States in the western region of the US have taken a very different approach to intrastate water allocation compared to the eastern States. Broadly speaking, States in the east adopted an approach that attempted to preserve the natural flow of the river, because when the relevant laws were developed (in the nineteenth century) the flow of the water was used to operate mills on the banks of rivers and streams. In the drier western States water use was driven largely by mining and irrigation – uses which required water to be diverted from the river, thereby depleting its flow. Consequently, rights to water were granted on a first-in-time basis, irrespective of how that water use might disturb the natural flow of the river for subsequent downstream users.
The fact that different approaches to intrastate water allocation were adopted only further complicated how water from interstate rivers, such as the Colorado River and Arkansas River, was to be shared between States. While many interstate water disputes have been solved by the States entering into a compact (or what we might refer to in Australia as an ‘intergovernmental agreement’), some disputes have not been able to be resolved in this way and have been litigated by States in the United States Supreme Court. The United States Constitution does not expressly deal with interstate water rights; however, the Supreme Court has held that there is an ‘equality of right’ between States and, as a consequence, each State is entitled to an ‘equitable apportionment’ of the water of the interstate river. From an Australian perspective, the interesting question is whether the High Court of Australia could adopt a similar approach in resolving and future disputes over the waters of the River Murray. Examining this question is an important part of my PhD research.
Beyond the PhD research, my time in the United States has, and continues to be, an amazing experience. Colorado was a ‘swing State’ in the US Presidential Election and while in Boulder I had the opportunity on two occasions to hear President Obama speak on campus. Understanding the differences between the Australian and United States electoral systems and comparing the different issues which are central to an election campaign in the two countries was fascinating.
I have also had the opportunity to take a couple of road trips: I have travelled across the Rocky Mountains and followed the Colorado River into Utah; and when moving from Boulder to Tucson, took the 1000 mile drive down through Colorado and New Mexico and across to Arizona. Getting out and seeing the countryside has made me realise how similar the dry conditions are to those in Australia. This region of the United States is heavily reliant on snow melt (and being about to store it) for its water supply.
Living in Boulder at an attitude of 1655m (5430ft) at the foot of the Rocky Mountains took a little getting used to; especially going for a run during winter when the temperature dropped to -20°C. By comparison, Falls Creek Village is at 1600m and Mt Hotham Village is at 1750m. I am currently in Tucson, Arizona, which is very different from both Boulder and Adelaide. There are cacti 3-4m tall everywhere and I am told that during summer there will often be 100 days over 100°F (38°C). Temperatures like that make Adelaide’s most recent summer look cool. Fortunately for me I will be heading back home to Adelaide in June!
Written by Adam Webster