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U.S. Fresh Water Law & Governance in The U.S. FRESH WATER LAW &GOVERNANCE IN THE ANTHROPOCENE: ACRITIQUE OF THE RIPARIAN RIGHTS LEGAL FRAMEWORK AS ABASIS FOR WATER GOVERNANCE IN VERMONT CourtneyR.Hammond Wagner*† INTRODUCTION...........................................................................................549 I. THE CHALLENGE OF THE ANTHROPOCENETOFRESH WATER LAW ......550 II. THE HYDROLOGIC CYCLE IN THE ANTHROPOCENE ..............................552 ClimateChange and theHydrologicCycle...........................................553 III. BRIEF SURVEYOFFRESH WATER RESOURCE LAW IN THE U.S...........554 A. TheNature of Riparian Rightsand thePrincipleof ReasonableUse .....................................................................................556 B. Riparian RightsToday: Regulated Riparianism ...............................558 IV.THE CURRENT LEGAL AND REGULATORY FRAMEWORK FOR WATER RIGHTS IN VERMONT .................................................................................560 Current StateofWater in Vermont .......................................................562 V. DECONSTRUCTIONOFTHE PRINCIPLE OF REASONABLE USE IN VERMONT...................................................................................................565 ReasonableMisuse................................................................................568 VI.ALTERNATIVE DIRECTIONS FOR VERMONT WATER LAW IN THE ANTHROPOCENE.........................................................................................569 A. Implementing an Environmental Ethic.............................................570 B. Expandingthe Concept of Riparianism............................................573 CONCLUSION ..............................................................................................574 INTRODUCTION Theera of theAnthropocene1 will challenge governments, legal frameworks, and resource management regimes to reexamineunderlying *Ph.D. in NaturalResources fromthe Rubenstein School of Environment and Natural Resources, UniversityofVermont andGraduateFellowatthe Gund Institute for Environment, University of Vermont. B.A. DartmouthCollege (2011). †The author wouldlike to acknowledge support from theEconomicsfor the Anthropocene partnership with funding fromthe Social Sciences andHumanities Research CouncilofCanadaand the Gund Institute forEnvironment at theUniversity of Vermont.The author wouldalso like to thankDr. PeterBrownand Dr.Geoff Garver for their encouragement in pursuing this Essay and feedback on earlier essay versions. 1. The “Anthropocene”isaproposedtermtodescribe thecurrent geological epoch to capture “the centralrole of mankindingeology and ecology.” It wasfirstsuggested as anew geological epoch by P. J.Crutzen &E.F.Stoermer’s The “Anthropocene.”See Paul J. Crutzen&EugeneF.Stoermer, The“Anthropocene,” GLOBAL CHANGE NEWSL.(Int’l Geosphere-Biosphere Programme(IGBP), 550 Vermont Law Review [Vol.43:549 structures andassumptions fromthe perspectiveofenvironmentallimits.2 Onesuch system that will challenge these structures is theglobal hydrologiccycle.3 Within theU.S., issues of wateruse are traditionally viewed as relating to theconceptsofownership and property rights, and wateruse is primarily allocatedtoachieve economic development.4 As such,the legal framework andpolicyfor addressing issues of water allocation, use, and quality is inadequateinthe faceofthe ecological crises of theAnthropocene,and in fact played adirect role in creatingthesesame crises.5 In this Essay,Iexamine thelegal system of riparian rights, one of the primarydoctrines in theU.S.for governing waterrights, andits evolution to theregulatedripariansystem.6 Through an investigationintothe current state of theriparianwater rightssysteminVermont,Iexaminehow,in practice, thedoctrine and corresponding statutorylaw do not adequately protectwater resources. Thesystemdoes not accuratelyaccountfor the ecological limits embedded in thehydrologiccycle in deciding questions of waterallocation, use, and quality in Vermont.7 Instead,the principleof “reasonableuse” is employedtoweigh economic developmentmore heavily than ecologicallimits.8 Isuggestthat theripariandoctrine in Vermont,and in theU.S.morebroadly, requiresrestructuringbased on the principles of an environmental ethicinorder to face thechallenges of the Anthropocene to thehydrologiccycle.9 I. THE CHALLENGE OF THE ANTHROPOCENETOFRESH WATER LAW “Sicutere tuo, ut non alienum lædas.” –Justice Story, CircuitJustice10 Stockholm, Swed.), May2000, at 17 (discussing thereasoningbehind coining and using theterm “Anthropocene”). 2.See Mary ChristinaWood, Nature’s Trust:ALegal,Political and Moral Framefor Global Warming,34B.C. ENVTL.AFF.L.REV.577, 577–78 (2007) (articulatinghow thecurrentclimate crisis requireshumans to redefinethe government’s obligations to protectingthe environment). 3.See id. at 577 (stating that climatechange willhavedetrimental effects on waterresources). 4.See infra PartIII (overviewing waterlaw andits origins in theU.S.). 5.See infra PartII(analyzing theeffect of thecurrent legal regimeonwater issues). 6.See infra PartIII.A (examining the evolutionofriparianrights in U.S. jurisdictions). 7.See infra Part II (discussing the changing hydrologic cycle in theAnthropocene); infra Part IV (describing the current problemsVermont faces regarding waterquality). 8.See infra notes132–36 and accompanyingtext (notingthat Vermont has long used a “reasonableuse” standardwhen allocatingwater use permits). 9.See infra PartVI.A (explaining thefoundational elements of alandethic); see also infra PartVI.B (proposing to modify riparianism to supportalandethic). 10.Tyler v. Wilkinson, 24 F. Cas. 472, 474 (C.C.D.R.I. 1827) (No. 14,312). 2019] U.S. Fresh WaterLaw &Governance in theAnthropocene 551 As theglobal community begins to comprehend thesocial,political, and environmentalchallengesofthe Anthropocene,11 we must bringinto questionthe ability of traditional naturalresource laws to allocateresources in away that respectsand restoresthe ecological boundariesofEarth’s biophysical systems.12 Theabove quote, so useyour ownasnot to injure another’s property,isthe definingprinciple of onesuchset of laws,those based on theripariandoctrine in U.S. waterlaw.13 Accordingtothe doctrine, ariparianlandowner is given certain rightstothe useofwater abuttingthe landowner’s land,but canonlyuse watertothe extentthat it does not degrade thequality or quantity of theresource for anyother riparianlandowner.14 Duetothe global natureofthe hydrologiccycleand thefact that waterisanessentialresourcefor life, theentire human population, as well as themillions of speciesmaking up life on Earth,have astake in thequantity and qualityoffresh water.15 In this Essay,Iexplorethe questionofwhether or not theriparian doctrine is capable of facing thethreats to thehydrologiccycle—and thereforethe threatstohumanity’s fresh waterresources—inthe Anthropocene.16 As IdescribeinPartII, thischallenge consists of two generalissues: currentand historical levelsofenvironmental degradation, such as waterpollutionorover-allocation, andincreasingrisk of extreme weathereventsand uncertaintyinwater suppliesdue to climatechange.17 Through examiningthe historical foundations of theripariandoctrine andthe modern day system of regulated riparianism,Iargue that the ripariandoctrinewill need amendmentstoprotectour watersystems in the 11.See, e.g.,Will Steffen, Paul J. Crutzen &John R. McNeill, The Anthropocene: Are Humans Now Overwhelmingthe Great Forces of Nature,36AMBIO: J. HUM.ENV’T,Dec. 2007, at 614 (stating that “[i]nterestin[the Anthropocene] has escalated rapidly”). 12.See Wood, supra note2,at592, 595 (discussing how to reframetraditional environmental laws to protect natural resources). 13.See infra PartIII.A(overviewing theprinciples of riparianrightsinthe U.S.). 14. See DAN A. TARLOCKETAL., WATER RESOURCES MANAGEMENT:ACASEBOOK IN LAW AND PUBLIC POLICY 111, 116 (5thed. 2002) (quotingMeng v. Coffey,93N.W.713, 717–18 (Neb. 1903))(discussingthe rightsofownersoflands abutting waterwaysand notingthat “[t]he lawdoes not regardthe needs and desiresofthe person taking thewater solely to the exclusion of allother riparian proprietors”). 15.See infra Part II (analyzing theeffectsofthe Anthropocene on thehydrologicsystemand theU.S.systemofgovernment). 16.See infra Part II.B (listing requirements for waterlegislation in theAnthropocene to address climatechange). 17.KENNETH D. FREDERICK &PETER H. GLEICK,PEW CTR. ON GLOB.CLIMATE CHANGE, WATER &GLOBAL CLIMATE CHANGE:POTENTIAL IMPACTS ON U.S. WATER RESOURCES 2–4 (1999), https://www.c2es.org/site/assets/uploads/1999/09/clim_change.pdf. 552 Vermont Law Review [Vol.43:549 Anthropocene.Iwill beginPartIIbyexploringthe challenges of environmentaldegradationand deteriorationtothe globalhydrologic system in theAnthropocene.InPartIII, Iprovide an overviewoffresh waterlaw andthe riparian doctrine in theU.S.InPartIV, Itrace the evolutionofthe riparian doctrine to thecurrent, modern-day system of regulated riparianism,using thefresh waterlegalsysteminVermont as a casestudy. In PartV,Idraw uponevidence—again from Vermont—to demonstrate flawsinimplementationofthissystemfor protectingfresh waterresources in theState.Finally,inPartVI, Isuggestmodifications to thedoctrineofriparianrightsbased on legally instatinganenvironmental ethicthatprioritizes ecological boundariesand enforces consequences when economic ends arepursued to thedetriment of ecosystems. II. THE HYDROLOGIC CYCLE IN THE ANTHROPOCENE Humans arenow theprimary forcealtering theglobal freshwater cycle.18 This manipulationhas dramatic
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