Deflating the Deference Myth: National Interests vs. State Authority under Federal Laws Affecting Water Use

In the United States, the law governing the allocation and use of water resources-"water law"-is primarily state law. The states, particularly in the West,! have jealously guarded their water allocation authority against real or imagined federal interference, and the federal government has largely (though not entirely) let them make their own decisions regarding water rights. These are true statements, widely or even universally accepted. If asked to explain them, however, many students of water law would surely offer a broader statement about the federalism of water-that is, that the federal government has consistently deferred to the states in matters relating to the control and use of water resources.

That statement is conventional wisdom, and it too is widely accepted.