Water Law in the United States and Brazil - Climate Change and Two Approaches to Emerging Water Poverty

This article examines two of the major water legal regimes in theAmericas—that of Brazil and the United States. Both countries haveextensive wet and dry regions and both hydro-regimes face a significantthreat from global warming. Brazil, for instance, is home to betweeneight and fifteen percent of the world’s fresh water, and its fast-growingeconomy and population present major challenges in management andallocation. The U.S. also faces major water allocation problems resultingfrom past settlement policies; unsustainable reclamation projects; andalso fast-growing domestic, industrial and agricultural demand. In the United States, water has traditionally been perceived as arenewable and limitless resource, a cultural legacy that has exerted apowerful influence on the nation’s common law. Similarly, in Brazil, thenotion of water as infinitely abundant drove water policies until theenactment of the Constitution in 1988. In both countries, however,hydrological realities have become impossible to ignore. Their respectivelaws and jurisprudence have begun shifting toward management andallocation systems that acknowledge the limited nature of the resource. This article surveys the two countries’ water regimes, offering abrief history of their evolution and then focusing on the challenges of thepresent. It examines how the notion of a strong private property rightin water is slowly (in the North-American case) and more abruptly (in the Brazilian case) evolving in the face of increased governmentalintervention. The article then turns to the challenges of climate change. InBrazil, policies that fail to take desertification into account may threatenthe country’s energy supply as well as the availability of potable water.In the United States, ignoring climate change in water management andallocation policies could significantly increase the existing water scarcityin the West and exacerbate the growing and already serious watershortage in the traditionally humid East.