William & Mary Environmental Law and Policy Review


In the eastern United States, a natural abundance of water has historically satisfied regional water needs. However, rapid population growth and expansive development, as well as changing climate conditions, threaten to deplete and diminish regional water resources. Riparianism, the reigning water rights regime in the American East, is insufficient to address concerns arising from these emerging forces because it assumes sufficient water will be available for all users. Recent interstate disputes, such as Virginia v. Maryland and Florida v. Georgia, highlight a new hydrological reality characterized by not only increased consumption of eastern water resources, but also by increased competition between users. As eastern states seek to secure and protect their water rights, it is imperative that Native American tribes in the East do the same.

The Winters doctrine provides a powerful tool for securing and protecting Native American water rights. It also acts as a restraint on state control of water resources. Established in 1908 by the Supreme Court in Winters v. United States, the doctrine is one that tribes in the West have employed since the 1970s. In the East it has yet to be applied. Legal scholars have addressed whether and why Winters applies in the historically water-rich riparian jurisdictions of the eastern United States, and have concluded that nothing bars Winters’s applicability. Yet, Winters is a doctrine of necessity, invoked only when a “fear of leaving an Indian reservation without sufficient water for sustenance and fulfilling its purposes” is present. The East’s natural abundance of water, combined with a water rights regime that guarantees each user a reasonable share of the available water, effectively created a presumption that necessity does not exist.

However, this is no longer the case. Although sufficient water has been available for all users in the past, the East’s present—and future—hydrological reality leaves many users dry, including Native American tribes. Riparianism cannot satisfy their needs because it only guarantees users reasonable use of the water instead of a specified amount. This means that, in times of water shortage, tribes may not have enough water to fulfill the purposes of their reservations. Necessity, therefore, can exist in the East. This Article examines the element of necessity in the Winters doctrine, imagining how necessity could arise in the East in a situation that would require a court to apply Winters. This Article begins by explaining the establishment and evolution of the Winters doctrine and federal reserved water rights. Then, it places Winters in context with state water law, briefly describing the prior appropriation and riparianism regimes as well as Winters’s relationship to these regimes. Next, this Article discusses necessity as a critical element for securing federal reserved water rights. Notably, this section identifies two factors—(1) hydrology and climate and (2) inadequate protection of water rights under state water law—analyzed by the United States Supreme Court in its four Winters decisions to determine the doctrine’s applicability. This Article then examines the element of necessity in the West. Finally, this Article briefly explains why Winters applies in the East, and concludes by discussing how tribes in the region could satisfy necessity.