Author(s)

F. Rochford

Abstract

Overallocation of irrigation entitlements has occurred in many developed river basins. In the Murray Darling Basin in Australia the Water Act 2007 (Cth) requires the establishment of a Basin Plan that will set the requirements for all water resource plans across the Basin. It is anticipated that it will significantly cut irrigation allocations across the Basin. This paper will consider the means by which Australian jurisdictions have reduced and will further reduce allocations, and assess whether these strategies can be translated to American jurisdictions. Emerging issues relating to Constitutional takings in the Australian jurisdiction reflect a much more fully developed jurisprudence in the United States. The strategies for allocation clawback are restricted by the requirement to provide ‘just terms’. The means by which this Constitutional protection frames mechanisms for reducing overallocation are considered, and emerging conceptions of the right to water assessed. Keywords: water, law, policy, human rights. 1 Introduction Water is a perennial issue in the notoriously variable Australian climate. Echoing the Federation debates of the 1890s [1], the first decade of this millennium was marked by increasing concern about water security in the face of a decade-long drought [2]. In this context, a political consensus arose as to the need to correct the overallocation of water in the Murray Darling Basin. Supplementing a suite of Constitutional powers patched together by the Federal government, States handed over some of their Constitutional powers to the Commonwealth to effect Basin-wide reforms under the Constitutional provision s.51 (xxxvii). The Water Act 2007 (Cth) was the result. Under that Act, and

Keywords

water, law, policy, human rights