America Needs a National Water Policy

by Tom Kando

 A little over two years ago, my sister Madeleine Kando wrote a piece on this blog, Water: An Endangered Species? As her title indicates, she was addressing an issue all too familiar to many of us - water scarcity. She hit the nail on the head when she wrote that “the biggest threat to the supply and availability of water and as such to life on earth, is the trend towards privatization of water resources.”
 I now pick up this issue, which has only become more acute since then:

This past winter has been one of two opposite extremes, climatewise: Back East, there has been record-breaking precipitation. The snow which accumulated around my sister Madeleine’s house in Boston reached as high as her roof.

Meanwhile here in California, we are going through our fourth consecutive year of drought. By some estimates, California has one’s year’s water supply left. (See California’s Drought). Our aquifers are drying up. Our vaunted agriculture is in jeopardy.

These two opposite problems are both long-term, and they are both the consequence of man-made climate change. The West, including California and the entire Colorado River Basin, suffers from increasing water scarcity, while the East experiences increasingly devastating storms and floods. River valleys such as those of the Ohio and the Mississippi will continue to flood, and vast amounts of excess water will be carried out to sea.

The West attempts to cope with its perennial water scarcity through conservation and a budding desalinization effort, such as the new desalinization plant outside of San Diego. (See San Diego Desalination).

In the East and South, the effort to prevent recurrences of disasters such as Katrina consists of building flimsy dikes.

While conservation, desalinization and dams may help a bit with the West’s drought and the East’s storms and floods, these steps do not offer a permanent solution.

The logical approach to this dual problem seems simple enough for a child to comprehend: Why not transfer water from where there is too much of it to where there is not enough? From where its overabundance does harm, to where its scarcity does likewise? Childish, simplistic, unrealistic you say. Perhaps. But I am not the first one to suggest such a plan. One of many is someone named Butch Miller, who wrote almost exactly the same thing in 2008, and many others did this years before that. Why is the idea still not considered seriously? The chief requirement would be an immense system of pumps and pipelines. Expensive, to be sure. But no more so than continuing the status quo, which in time will ruin the country.

The obstacles are political, technical and economic. There are several distinct issues: 1. Legal Water Rights in the United States. 2. Water Use and Ownership: Private vs. Public, Local vs. National/Federal. 3. Financial and Environmental Costs.

1. Legal Water Rights in the United States: In America, water rights are exceedingly complicated. In the East, where water is abundant, water rights are Riparian. In the dry West on the other hand, the doctrine is that of Prior Appropriation.

Both Riparian Rights and Prior Appropriation address “usage of the scarce water resource along the course of a river.” (Riparian Rights vs. Prior Appropriation). Under the riparian principles which largely prevail in the East, a landowner “whose property is adjoining a stream, can use its water. In lean seasons when demand exceeds supply, water is rationed out among the different landowners in proportion to the frontage on the water source. These rights to water cannot be sold or transferred independently except along with the adjoining land.”

“Western States follow prior appropriation principles for use of river and stream waters. Under this doctrine, whoever uses a particular river water first acquires a right to continued enjoyment of the same over and above rival claimants who start consuming later. Subsequent users can utilize only the remaining water. Here downstream owners suffer a distinct disadvantage since those upstream can appropriate as much water as they need for beneficial purpose, of course, without causing water pollution or without contaminating the river. As such upstream owners are in law obliged to pass over clean water downstream free of water pollution.” In addition, in the West water rights are largely regulated by the state laws.

 2. Water Use and Ownership: Private vs. Public; Local vs. National/Federal: Whether a region follows the Riparian or the Prior Appropriation system, water rights in this country are largely private and state-regulated. Only on federal lands and in Indian reservations are they federally regulated. “In most western states, one does not have any right to withdraw groundwater under land simply by virtue of owning the overlying surface. (Moreover,) U.S. Supreme Court decisions have confirmed that the federal government is to defer to state law on issues of water right administration and adjudication. (See, California v. U.S., 438 U.S. 645, 653 (1978). The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the western states is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress.” (Control of Private Water Rights).

On the other hand, the Public Trust Doctrine is the “principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use. Like other scarce and communal resources, water needs to be shared, transferred and - God forbid - even re-distributed. To many Americans such words are taboo, especially the last one, which is downright socialistic!

Yet water transfer already occurs within states, especially in states where the prior appropriation laws exist. For example, California plans to build two giant water tunnels which will divert water from the Sacramento-San Joaquin Delta near the San Francisco Bay area to the Southwest San Joaquin Valley and beyond. We even have interstate water-sharing compacts, for example the Colorado River Compact, signed in 1922, implemented since 1928, and allotting specific amounts of water to Colorado, New Mexico, Utah, Wyoming, Nevada, Arizona, California. Another similar compact is the Rio Grande Compact (1938), signed by Colorado, New Mexico and Texas. However, what is still lacking is a comprehensive national, federal water policy.

This is where we differ from many other countries, for instance China, India, the Netherlands and many others. In 2014, China launched a major South-to-North Water Diversion Project. India also has a national water Policy and ministry. As to Holland, that country’s very survival has always depended on its ability to control water. Thanks to a visionary national water policy, the Dutch achievements on that front are miraculous. After the disastrous flood of 1953, the government initiated its massive Delta Works, The nation’s resources were mobilized and a huge system of dams, sluices, locks, dykes and storm surge barriers was built. Some have called it one of the Seven Wonders of the World. This spectacular effort is literally saving that entire nation and protecting it against the ravages of the sea in perpetuity.

3. Financial and Environmental Costs: Developing and building a national water allocation system should be seen as an investment, as was the construction of the Interstate Highway system. In the long run, it will be an economic benefit, not a burden. In the Netherlands, all bodies of water are controlled by local “water boards.” These are responsible for maintaining the infrastructure and levying taxes for it on the community.

As to environmental costs, it is true that water diversion projects may affect the environment adversely. For example, many environmentalists oppose the California Delta water diversion project. However, it seems to me that the status quo would be worse, although projects have to be judged on a case to case basis.

Conclusion: As my sister Madeleine Kando notes, “it is interesting that water can not diminish or increase in the world, but still, there is a huge shortage. This cannot be due to anything else than mismanagement. It also has to do with inefficient agricultural practices, when alfalfa crops are grown at the wrong time of year, for instance. Worse, it is grown on such a large scale because of those damned prior appropriation rights. A farmer could grow a less water-intensive crop for a much larger profit, but then he wouldn't use up his 'quota' and he would have to forego that portion of his water usage. Isn't that nuts?”

What this country needs is a national water re-distribution policy. After all, America is one country, and the collective welfare of the nation requires a collective approach.

Our political system suffers from a certain degree of paralysis (as was the intent of the Founding Fathers). Changing our laws so as to accommodate changing times and conditions is often a challenge. Ours is the oldest operating constitution in the world. To many people such as Chief Justice Antonin Scalia, it is as sacrosanct as the Bible, viewed as infallible and as embodying the absolute truth, rather than a work in progress, a document put together by a group of brilliant but fallible men. Changing America is a daunting task.

The sharing of water is a case in point. Sharing must replace waste and potential profiteering. Water is a precious national good, to be shared by the entire country. We are all in this together. Because climate change is gradually but inexorably drying up large segments of our continent, such a policy is becoming increasingly urgent.

© Tom Kando 2015

  leave comment here