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<br />r <br />, <br /> <br />oa0715 <br /> <br /> <br />i, <br /><c' <br /> <br />i:."/ . <br /> <br />,......... <br /> <br />American Bar Association <br />Section of Environment, Energy and Resources <br /> <br />'.r.-: <br /> <br />.',:."'"', . <br />.:)..:.... <br /> <br />Keynote Address: <br />Issues in the Watershed :Management Movement <br /> <br />:..: <br />Y'-;;'-, <br />'!.,': <br /> <br />!l\~! <br /> <br />t,: <br />1"; ,.~ <br /> <br />,ir,'..,/,.. <br /> <br />Joseph L..Sax <br />Boalt Hall (Law School) <br />University of California (Berkeley) <br /> <br /> <br />19th Annual Water Law Conference <br />San Diego, California <br />February 15, 2001 <br /> <br />As I thought about the theme of this conference, a line from an Qld song kept running through my <br />head: "Everything that's old is new again." It's not just that it has taken us 120 years to come to terms <br />with what John Wesley Powell advised in his timeless Report on the Lands of the Arid Region.! The idea <br />of the river as an endowment of the watershed, and the notion that the water belongs to the river and its <br />environs, is at least as old as the common law doctrine of natural flow. As an 18th Century New Jersey <br />'. c~se put it, "the water flows in its natural channel, and ought always to be permitted to run there, so that <br />!a,1l through whose land it pursues its natural course, may continue to enjoy the privilege of using it for <br />::theii: own purposes." 2. Of course, environmental concerns of the modern type did not undergird such <br />'>'/~@:!Y riparian doctrines. But there was in the pre-industrial world a powerful sense both (1) that rivers had <br />';~;;;great amenity values that ought to be protected; and (2) that rivers should be protected from excessive <br />tFNem!lnd by restricting benefits to the watershed of origin. This early area-of-origin idea, which explains <br />;tm~Yarious restrictive rules that limited use only to riparian tracts within the watershed, reveals a pre- <br />"~liyitonmental intuition that water is a limited resource that can be over-stressed if competition for its <br />" 'fits is not limited. Moreover, early water law doctrines carried a strong element of community. <br />i>'>, "cthent (another area-of-origin intuition). This idea is found not only in the English and American <br />;'F:9Qi$mPhlaw traditions, which protected rivers and lakes for the benefit of those within its watershed; but <br />...t>~t~~ili'the pueblo doctrine of Hispanic water law, and in the appurtenance doctrine that was a feature of <br />,t,,-y~:~)twestern water law (and still remains on the books here and there, at least as a theoretical principle). <br />:t:':-;~R~~~ it has been nearly forgotten, those ideas dominated even early western legislatures. For example, <br />. . ".c ",_:'';:;'~''_''_ . . <br /> <br />"", ,</,1 Report on the Lands ofthe Arid Region ofthe United States: With A More Detailed Account of <br />i{t;;tp;~,;-kllfids of Utah (Wallace Stegner, ed., Harvard Univ. Press 1962)(1879). <br />;~""'.< :"". - '~.'. '. . ~ <br /> <br />2'Merritt v. Parker, 1 N.J.L. 460, 463 (1795). <br /> <br />1 <br /> <br />1 <br />