1. David N. Cassuto Pace University School of Law (USA) & Romulo Sampaio Getulio Vargas Foundation School of Law (Brazil)

2. Why Compare? U.S. : Developed country with considerable water resources (the Great Lakes alone contain over 20% of the world’s surface freshwater) yet also significant and growing water availability issues. Latter is due in part to a legal regime that reflects an antiquated vision of the country’s geography. Brazil: Developing rapidly; home to between 8-15% of the world’s freshwater and facing many challenges of water management and allocation.

3. Outline Brief survey of the two countries’ respective water regimes (with some relevant history) Fluid notion of property Encroaching hydrological realities (including groundwater overdraft) Responses of the legal systems And now… Climate Change

4. U.S. WATER LAW Based on notion of hydro-abundance English common law Yeoman Ideal (Thomas Jefferson) Manifested itself in different ways in eastern and western U.S.. Primarily state law (w/some important federal law as well) The usufruct

5. Eastern U.S. Water Law Riparian Rights – Surface water available to landowners whose property borders a watercourse. Based on notion of abundant, readily available water – everybody is entitled to all of the water (“natural flow”). Evolved over time to “reasonable use,” which permits off- tract use. Priority to domestic uses. Rondout Reservoir in Upstate New York, United States, providing water to the region surrounding New York City.

6. Progression to Permitting Droughts, increasing population and industrial uses make pure riparianism increasingly unworkable. Shift to permitting and comprehensive managerial regime. Sets out terms of use and regulates users. Creates predictability and avoids tragedy of the commons but at the cost of a large-scale administrative apparatus.

7. Western U.S. Water Law The Glen Canyon Dam on the Colorado River in Arizona, United States. Prior Appropriation (in many states; hybrid versions in others) Limited Water and Lots of Public Land Miners need water and do not own land  Playground Principle (“It’s mine; I got it first!”) “First in Time; First in Right – First to divert water from a watercourse and make “beneficial use” of it has superior right as against all future diverters. “Beneficial” is term of art. Refers to permissibility of use and also that it not be wasteful.

8. Progression to Administrative State Over time, Prior Appropriation becomes state administered. Permits govern water rights Ecological concerns enter the fray (too late) raising issue of Instream Flow, non-diversionary uses, etc.

9. Groundwater (briefly) Water law treats groundwater as hydrologically separate and has different rules Relevant Doctrines: Absolute Ownership Reasonable Use (several forms) Correlative Rights Prior Appropriation

10. Federal Law Federal law interweaves with state water law in significant ways. E.g.: Reserved Rights (Winters Doctrine) Navigation Servitude Endangered Species Act Wild & Scenic Rivers Act

11. BRAZILIAN WATER LAW Iguassu Falls on the Iguassu River in Paraná, Brazil. Same origins as American legal regime – both are based on Roman law & notion that water is public resource and therefore managed by state or held in trust However: private ownership of water was historically allowed by Portuguese law (implemented in Brazil) Replaced by 1916 Civil Code (allowed private ownership) Replaced by 1934 Water Code (also allowed private ownership but restricted it to springs w/in private property or water bodies located entirely w/in or underneath private property)

12. Transition to 1988 Constitution 3 phases of Brazilian Water Law ( see Benjamin, et.al ): Navigability Phase: Prior to 1934, only navigable water bodies held in trust Hydroelectricity Phase: 1934 regime combined public & private ownership (private estates were very large; water bodies often dwelt entirely w/in them). Perceived need for hydroelectricity drove gov’t to revoke much of 1916 code (70% of Brazilian energy is derived from hydropower). Environmental Phase: Water as limited resource to be managed for public good.

13. The Environmental Phase NEPA (Brazilian version) enacted in 1981 1988 Constitution (guarantees all citizens right to ecologically balanced environment) 1997 Water Management System Act & 2002 Civil Code These 3 federal acts shifted legal vision of water to public resource and trust and greatly expanded federal authority over water. Under this new “environmental phase”, all lakes, rivers and watercourses including groundwater become either state or federal property Municipalities retain residual legislative authority

14. Permitting With the expropriation of privately owned water, a comprehensive permit system was created. Permits required for all but insignificant uses. River Basin Committees administer the new “user pays/polluter pays” system.

15. Liberal vs. Social Democracy U.S. is liberal democracy – aiming for minimal gov’t interference Brazil is social democracy – expectation of state involvement U.S. – common law tradition (precedent is key) Brazil is civil law (more susceptible to change)

16. Key Points of Comparison Both countries’ laws driven initially by notions of limitless abundance Both have evolved toward permitting schemes U.S. retains significant property rights in water Brazil has moved toward state ownership

17. Climate Change & Water Both countries threatened by inevitable hydrological shifts. Both land and water will be impacted. Regional water scarcity is not new in either country but neither hydroregime is set up to cope with rapidly evolving geography.

18. The Future of Water Adaptation to projected adverse hydrologic impacts of global climate change will require well-developed property rights regime in the affected basin, and that the regime must be supported by public and private adaptive management institutions. Public private partnership – similar to other ecological regimes. Conservation is key but some realignment of hydro-norms is inevitable. But w/fluid resource that is both biologically crucial and commodified, methods of adaption become harder to implement. No precedent for the unprecedented. Flexibility is key.

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