American Water Policy:
“When the well is dry, we know the worth
of water”
1
Water is an essential life-sustaining element. It pervades our lives
and is deeply embedded in our cultural backgrounds. The basic
human needs of a secure food supply and freedom from disease
depend on it. Social development – endeavours such as the smooth
functioning of hospitals – likewise relies on the availability of clean
water. Economic development requires energy resources and
industrial activities, and both are in turn water-dependent.2
-Kofi Annan
Joseph Blaney *
I. INTRODUCTION
Although an abundance of natural resources and continued prosperity have
sheltered American citizens from the survival issues that plague less developed
nations, an impending water shortage lurks behind the façade of America’s
seemingly endless supply of freshwater. Further complicating the prospect of a
water shortage is the fact that such a crisis slashes the United States in two based
upon the country’s natural distribution of water. While “the United States’ average
daily precipitation equals 4.2 trillion gallons, … enough annual precipitation to cover
the entire country to a depth of 30 inches,”3 such numbers are misleading due to a
disproportionate allocation of freshwater east of the Mississippi River. “About one* J.D. candidate, May 2008, Temple University James E. Beasley School of Law.
1
Benjamin Franklin.
2
U.N. Educational, Scientific, and Cultural Organization [UNESCO], The United Nations World Water
Development Report 2: Water: A Shared Responsibility, V (2006) [hereinafter UNESCO Report].
3
U.S. EPA REGION 5 AND AGRICULTURAL & BIOLOGICAL ENGINEERING, PURDUE UNIVERSITY:
GROUND WATER.
PRIMER (1998), http://www.purdue.edu/dp/envirosoft/groundwater/src/supply.htm#budget.
75
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TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
third of the United States, including most of the area west of the 100th Meridian
(which passes through the Dakotas, Nebraska, Kansas, Oklahoma, and Texas),
requires irrigation to sustain tilled agriculture.”4 “East Coast Americans” enjoy vast
quantities of easily accessible water, while “Mountain and West Coast Americans”
often hover on the brink of water shortage and rely heavily on irrigation techniques.
Drought is endemic to the American West and Southwest.5
A parallel can also be drawn, as between the eastern and western halves of the
United States, with the United States and developing countries around the world.
For developing countries, water shortages have become life-threatening due to a lack
of safe, accessible drinking water. Population growth, urbanization, and unregulated
industrial development have led to the pollution of river and lake water with highly
toxic chemicals. 6 Use and consumption of such water has in turn led to increasingly
serious health problems.7 This parallel serves to demonstrate the substantial
detrimental effects that a water crisis can have if left unaddressed. While conditions
have not reached such harmful levels in developed nations, including the United
States, they provide a reminder of how valuable water is and of the immediate threat
that a water shortage would present.
On the whole, water is a commodity that has been taken for granted too often,
especially in the United States. Eastern Americans think about water quantity
problems only during the rare instances of drought in their region.8 Based on the
number and stated mission of instructive seminars, state government organizations,
and non-profit groups, many Americans remain uneducated on the issues of water
law and water shortage.9 State and federal water policy provisions often remain
unexamined and unknown by everyday citizens even in western states with
4
WILLIAM E. WARNE, THE BUREAU OF RECLAMATION 6 (Praeger Publishers 1973).
RISK-BASED DECISION MAKING IN WATER RESOURCES VI 165 (Yacov Y. Haimes, David A. Moser, &
Eugene Z. Stakhiv eds., American Society of Civil Engineers 1994) [hereinafter RISK-BASED DECISION
MAKING].
6
CONFLICT MANAGEMENT OF WATER RESOURCES 3 (Manas Chatterji, Saul Arlosoroff, & Gauri Guha,
eds., Ashgate Publishing Limited 2002).
7
Id.
8
RISK-BASED DECISION MAKING, supra note 5, at 165.
9
General and state specific water law seminars, organizations, and groups are offered throughout the
United States, especially in the West.
See, e.g., Lorman Education Services,
http://www.lorman.com/waterlaw.php (last visited Apr. 21, 2007); Resources for the Future,
http://www.rff.org/
(last
visited
Apr.
21,
2007);
Law
Seminars
International
http://www.lawseminars.com/;
The
Foundation
for
Economic
Education,
http://www.fee.org/publications/thefreeman/article.asp?aid=67 (Apr. 21, 2007); California Water Law
Symposium, http://www.waterlawsymposium.com/ (Apr. 21, 2007); The Water Education Foundation,
http://www.water-ed.org/marapril04.asp (Apr. 21, 2007); Community Water Rights Project,
http://www.ecologycenter.org/cwrp/ (Apr. 21, 2007); The National Ground Water Association,
http://www.ngwa.org/
(Apr.
21,
2007);
Human
Rights
Education
Associates,
http://www.hrea.org/learn/guides/food.html (Apr. 21, 2007); state and federal EPAs,
http://www.epa.gov/highschool/water.htm (Apr. 21, 2007); state water resources control boards,
http://www.swrcb.ca.gov/education/index.html (Apr. 21, 2007); The Universities Council on Water
Resources, http://www.ucowr.siu.edu/ (Apr. 21, 2007); The Western States Water Council,
http://www.westgov.org/wswc/index.html (Apr. 21, 2007); The Southern Regional Water Program,
http://srwqis.tamu.edu/waterquantity.aspx (Apr. 21, 2007); The Pacific Northwest Regional Water
Program, http://www.pnwwaterweb.com/ (Apr. 21, 2007).
5
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American Water Policy
77
prominent water quantity problems.10 Not only are most Americans unaware of the
considerable supply differential that distinguishes the eastern and western halves of
the United States, they are also unaware that different legal schemes have taken
shape in these two parts of the country in order to provide for the peaceful allocation
of water.11
Lack of awareness about the substantial possibility of a water shortage will
prevent the electorate from making the necessary push on elected officials to create
and implement practical water policies. Failure to take action now will, in turn, lead
to more substantial problems when a serious water shortage occurs in the future.
Therefore, in the same way that the U.S. government addressed the problem of
settling the west through the Reclamation Act of 190212 and the problem of
eliminating chemical compounds known as CFC’s by enacting the Montreal
Protocol,13 the U.S. government needs to make a significant push at this time to
create awareness and address the impending problem of water shortage as applicable
to the American west, the United States, and the world as a whole.14
This paper addresses the impending global water crisis, and in particular the
growing crisis that exists in the United States. Part II of this article provides a
framework for water usage in the United States and water shortage around the world.
Part III of this article gives the background of existing water law in the United States
by comparing riparian water rights to prior appropriation water rights. Part IV
10
Risk-Based Decision Making, supra note 5, at 165.
Id.
12
See Reclamation Act of 1902, ch. 1093, 32 Stat. 388 (1902) (codified as amended at 43 U.S.C. § 372)
(appropriating funds from sale of public lands to irrigating arid lands).
13
Montreal Protocol on Substances that Deplete the Ozone Layer, Sep. 16, 1987, 26 I.L.M. 1541, 1550
(1987), also available at S. Treaty Doc. No. 100-10 (1987), 1522 U.N.T.S. 29 [hereinafter Montreal
Protocol].
14
Even though political forces have resulted in the division of Earth into separate countries that have an
abundance of some resources and a scarcity of others, the world has come together in times of global
crisis and achieved varying degrees of success. When chlorofluorocarbons (“CFCs”) were found to be a
major reason for growing holes in the ozone layer over the polar icecaps, the world body politic united to
develop the Montreal Protocol which gradually phased out CFCs. See Montreal Protocol art. 2, supra
note 13 (providing phase-in times for compliance). Over time, this effort proved to stabilize the
depletion of the ozone layer and has been viewed as a success. (See Exhibit G for a list of substances and
protocol phase-out guidelines) Presently, emission of carbon dioxide into the atmosphere through
burning fossil fuels has been found to be a major reason for increasing temperatures known as global
warming. See generally Intergovernmental Panel on Climate Change, Climate Change 2001: Synthesis
Report (2001), available at http://www.ipcc.ch/pub/un/syreng/spm.pdf (explaining anthropogenic impact
on global warming). As a result, the world body politic united to develop the Kyoto Protocol which
created an intricate system to phase out the emission of carbon dioxide. See Kyoto Protocol to the
United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22, available at
http://unfccc.int/essential_background/kyoto_protocol/items/1678.php. Lack of support from the United
States coupled with the exemption of many developing nations have proven to be a significant
impediments to achieving success in phasing out emissions of carbon dioxide, as treaty signatories have
not seen or felt leadership and feel as if they carry an undue burden. See U.S. Withdraws from Kyoto
Protocol, GREENPEACE USA, Apr. 5, 2001, available at http://www.greenpeace.org/usa/news/u-swithdraws-from-kyoto-prot; see also Exhibit H for a list of gases, sources and parties. Thus, although
there are many factors that go into the successful recognition, analysis, and solution to global collective
action problems, one of the most significant is leadership by the United States in efforts that been
legitimized via scientific data.
11
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TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
defines the scope and impact of the Reclamation Act and discusses the role that a
legislative response could play. Finally, Part V concludes the article with a vision
for the future including the role that water might play on a society’s ability to govern
itself.
PART II. WATER SHORTAGE
a) Water Usage in the U.S. – Irrigation and Electricity
A considerable amount of water used in the United States is consumed for
irrigation purposes and electricity production. According to the U.S. Geological
Survey, an estimated 408 billion gallons of water were used per day during the year
2000.15 Since 1985, the total amount of water used per day has fluctuated less than 3
percent.16 At 137 billion gallons of water per day during the year 2000, water
consumed for purposes of irrigation was, and continues to be, the largest single use
of freshwater in the United States.17 Irrigation accounts for nearly 65 percent of total
freshwater withdrawals since 1950 when excluding the amount of withdrawals for
thermoelectric power uses.18 Nearly 195 billion gallons per day, or 48 percent of all
freshwater and saltwater withdrawals for 2000, were used for thermoelectric19
power.20 The breakdown for freshwater use in the United States is as follows:
Irrigation – 40%
Thermoelectric – 39%
Public Supply – 13%
Industry – 5%
Livestock, aquaculture – less than 1%
Domestic (self-supplied) – 1%
Mining – 1%”21
These statistics clearly show that irrigation and thermoelectricity account for the
bulk of water used in the United States.
Reallocation of water supplies via irrigation22 will continue to be necessary
wherever and whenever freshwater is unevenly distributed around the Earth. In the
year 2000, about 56.9 billion gallons from ground sources and 89.7 billion gallons
from surface sources were withdrawn per day for purposes of irrigation in the United
15
U.S. Geological Survey, Estimated Use of Water in the United States in 2000 (2000),
http://pubs.usgs.gov/circ/2004/circ1268.
16
Id.
17
Id.
18
Id.
19
Thermoelectricity is defined as “electricity produced by the direct action of heat” such as by the
unequal heating of a circuit composed of two dissimilar metals or any generic heat engine.
Thermoelectricity,
MERRIAM
WEBSTER
ONLINE
DICTIONARY,
http://www.mw.com/dictionary/thermoelectricity (last visited Mar. 18, 2007) [hereinafter “Thermoelectricity”].
20
Id.
21
U.S. Geological Survey, Water Science For Schools: Water Use Q & A (2005),
http://ga.water.usgs.gov/edu/qausage.html [hereinafter Water Use Q &A].
22
Irrigation is defined as “the watering of land by artificial means” such as “to foster plant growth.”
Irrigation, Merriam Webster Online Dictionary, http://www.m-w.com/dictionary/irrigation (last visited
Mar. 18, 2007).
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American Water Policy
79
States.23
•
•
•
Types of irrigation systems used in the United States include:
Flood irrigation – water is poured onto the land and flows through fields.
Spray irrigation – water is sprayed or sprinkled onto fields.
Drip (micro) irrigation – water is slowly dripped from small pipes onto
crops.24
Out of a total 61.9 million irrigated acres of land in the United States, 29.4
million acres utilize flood irrigation (about 47 percent), 28.3 million utilize spray
irrigation, and 4.2 million utilize drip irrigation.25 (See also Exhibit A). Unless
significant shifts occur in the location and abundance of freshwater in the United
States, irrigation will continue to be an extremely important process for those
involved in agriculture.
In 1995, thermoelectric26 power plants produced approximately 2.69 billion
watthours (gigawatt hours) of electricity.27 Hydroelectric28 power plants accounted
for another 310,000 gigawatt hours of electricity.29 In 2000, about 136,000 million
gallons of freshwater and 59,500 million gallons of saline water per day were used in
the thermoelectric power-production process.30 Unfortunately, the creation of
electricity via thermoelectric processes will continue to be necessary in regions
without other significant means for the production of electricity until new or
alternative electricity production processes are implemented. Furthermore, as the
U.S. population swells – in turn increasing electric energy needs – the use of water in
thermoelectric, hydroelectric, coal, oil, and nuclear plants will also continue to
increase.31
b) Water Shortage
Although many Americans remain unaware, the risk of water shortage is an
23
Water Use Q & A, supra note 20.
Id.
25
Id.
26
Thermoelectricity, supra note 19.
27
WATER USE Q & A, supra note 20.
28
Hydroelectric is defined as “of or relating to production of electricity by waterpower” such as by a
dam, waterwheel, or tidal power. Hydroelectric, MERRIAM WEBSTER ONLINE DICTIONARY,
http://www.m-w.com/dictionary/hydroelectricity (last visited Mar. 18, 2007).
29
Id.
30
Id.
31
See NORTH AMERICAN ENERGY WORKING GROUP, NORTH AMERICA: THE ENERGY PICTURE (2002)
available at http://www.eia.doe.gov/emeu/northamerica/engsupp.htm (describing energy production
and uses in the United States); see also P. Torcellini, N. Long, & R. Judkoff, Consumptive Water Use for
U.S. Power Production, NATIONAL RENEWABLE ENERGY LABORATORY, Dec. 2003, available at
http://www.nrel.gov/docs/fy04osti/33905.pdf (a study of power plants and their respective water
consumption); see also NUCLEAR ENERGY INSTITUTE, U.S. NEEDS NEW NUCLEAR PLANTS TO MEET
ENERGY DEMAND [AND] MAINTAIN
SUPPLY DIVERSITY (2006), available at
http://www.nei.org/index.asp?catnum=3&catid=1373 (forecasting that, in order to satisfy growth in
electricity demand of 1.8 percent annually through 2030, the United States must increase electricity
production by nearly 45 percent – the equivalent of adding more than 300 new 1,000-megawatt power
plants; and that the DOE’s demand growth projection is a conservative estimate and is below the actual
growth rate of the past five decades).
24
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TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
increasingly important issue around the world.32 Analysts working for Shell, CocaCola, Proctor & Gamble, Cargill, and other companies that use and depend heavily
on secure water supplies suggest that the next 10-20 years are extremely important.33
They claim that as the world becomes richer and populations continue to increase,
heavier demands will be made on increasingly scarce water supplies.34 These
businesses and their prognosticators foresee increasing societal unrest, drastic
economic cycles in Asia, and massive population shifts in Europe.35 Furthermore, a
study of future water availability and abundance suggests that the chance of water
conflict is increasingly likely in many countries.36 Presently, nearly one quarter of
the world’s population lives in areas of “physical water shortage,” where natural
distribution, over-use, and wasteful agricultural practices have resulted in decreasing
groundwater levels and rivers drying up.37 Presently, one third of the world’s
population suffers from a shortage of water, clearly increasing the probability that
“water crises” will occur in countries with large populations such as China, India,
and the U.S.38 In 2000, scientists forecasted that one in three individuals would face
a water shortage by 2025, but water experts now claim that this threshold has already
been crossed.39 Thus, whether or not Americans or other people around the world
are actually aware of it, water shortage is an issue that looms large and will continue
to grow in the future.
The present scenarios forecast by water shortage experts paint a bleak picture of
the U.S. and the world if nothing is done to stem and push back the impending crisis
– all of this without accounting for the possible consequences of global warming.40
A World Wildlife Foundation (“WWF”) study claims that countries along the
Atlantic seaboard of Europe are suffering from recurring droughts, while waterintensive eco-tourism and irrigation endanger the water supply in the
Mediterranean.41 In Australia, salinity threatens a large proportion of important
32
John Vidal, Cost of Water Shortage: Civil Unrest, Mass Migration and Economic Collapse,
UNLIMITED,
Aug.
17,
2006,
available
at
GUARDIAN
http://www.guardian.co.uk/water/story/0,,1851712,00.html.
33
Id.
34
Id.
35
Id.
36
Id.
37
Vidal, supra note 32.
38
Id.
39
Fiona Harvey, World Water Shortages Growing 20 Years Ahead of Predictions, FINANCIAL TIMES
DEUTSCHLAND, Sept. 18, 2006, at 1, available at
http://www.iwmi.cgiar.org/assessment/files_new/newsroom/FinancialTimes_World_2006.pdf.
40
See NATURAL RESOURCES DEFENSE COUNCIL, CONSEQUENCES OF GLOBAL WARMING (2006),
available at http://www.nrdc.org/globalWarming/fcons.asp (delineating the effects of global warming);
see also Andrew Revkin, U.N. Draft Cites Humans in Current Effects of Climate, N.Y. TIMES, Apr. 5,
2007, available at http://www.nytimes.com/2007/04/05/science/earth/05climate.html?_r=1&oref=slogin
(describing global warming’s effect on the Earth’s water); see also Andrew Revkin, Scientists Detail
Climate Changes, Poles to Tropics, N.Y. TIMES, Apr. 7, 2007, available at
http://www.nytimes.com/2007/04/07/science/earth/07climate.html (illustrating the severe consequences
of global warming).
41
Water Crisis Hits Rich Countries, WORLD WILDLIFE FEDERATION, Aug. 16, 2006, available at
http://www.panda.org/index.cfm?uNewsID=77900.
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American Water Policy
81
agricultural regions.42 In America, much of the western half of the U.S. is already
using significantly more water than can be naturally replenished.43 According to one
theory, three divergent visions for the future seem possible:
• Misery and shortages in megacities and drought in Africa.
• China leads a recycling rush as the world moves to a new hydro
economy.
• Water is the means of social control as floods and disease devastate the
world.44
Global warming, an urgent issue unto itself, will only serve to aggravate and
complicate any water crises based on predictions of “lower rainfall, increased
evaporation, and changing patterns of snow melting.”45
Continuing on the current track of water usage and consumption will lead to
serious hardships and a decrease in the standard of living. Water usage has increased
six-fold in the past 100 years and, due to requirements of agricultural irrigation, is
predicted to double again by 2050.46 Over 2 billion people inhabit locations where
water is used excessively, leading to decreased underground water levels, drying
rivers, and a general lack of access to water.47 Based on the economic theory
whereby scarce resources incur greater demand, and due to a 50 percent increase in
the amount of food the world will need in the next 20 years, water prices everywhere
will increase.48 Clearly, without improvements in the distribution, allocation, usage,
and conservation of water, there will be widespread consequences resulting in
greater depletion of water resources, more widespread scarcity, and in turn,
increasing water prices.49 As a result of increased water prices, individuals and
families will be forced to spend a greater percentage of income on water, retain less
disposable income, and therefore see a drop in their standard of living.50
c) Possible Responses
1. Conservation
There is no single factor, and therefore no single solution, to the increasing
prevalence of water shortages. However, an understanding of the main reasons for
this crisis is necessary to develop a comprehensive strategy to deal with the
problem.51 One of the factors that drives water scarcity is growing competition for
42
WORLD WILDLIFE FEDERATION, RICH COUNTRIES, POOR WATER, 14 (2006), available at
http://assets.panda.org/downloads/rich_countries_poor_water_final_170706.pdf.
43
Id. at 10.
44
Vidal, supra note 32.
45
Harvey, supra note 39.
46
Vidal, supra note 32.
47
Id.
48
Id.
49
Id.
50
See Vidal, supra note 32 (discussing likelihood that the price of water will continue to increase).
51
See Vidal, supra note 32 (nothing such factors to include: increasing population in turn requiring
increased foodstuffs, varying levels of industrial development and pollution, the natural
distribution/allocation of freshwater around the world, the natural distribution/allocation of other natural
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TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
water from three different interests: natural/environmental locations, agricultural
locations, and urban locations.52 Another factor driving water scarcity is global
warming.53 Increased temperatures are gradually melting the polar icecaps, in turn
shifting sea levels and changing both coastal and inland water levels.54 Changing
water levels affect stream flow patterns so as to limit supplies during the summer –
“the period of highest agricultural water demand.”55 A third factor driving water
scarcity is growing world population.56 Demand for food will continue to increase
as the world’s population continues to grow.57 An increased demand for foodstuffs
necessitates greater production of crops around the world, resulting in farmers who
use one of the aforementioned irrigation techniques.58 While other factors do lead to
water scarcity, these aforementioned aspects represent the most significant reasons
for water shortages.
Although techniques for the conservation of water have been implemented and
often result in decreased water usage, application of these techniques often utilizes
an increased amount of electricity. An increased amount of electricity production
requires increased water usage, thus offsetting the gains made via many conservation
techniques.59 Many factors have continued to drive increases in agricultural use of
electricity.60 Two of these – drip irrigation and intensive-intentional groundwater
storage – illustrate exactly why agricultural uses continue to place ever-increasing
demands on the electric grid.61 Farmers in the western United States have begun to
switch to pressurized irrigation systems – using electrically driven pumps to spray
water on crops – in order to conserve water.62 At the same time, however,
groundwater storage – actively storing water below ground during wet years and
withdrawing water via electric pumps during dry periods – by western farmers has
increased and in turn increased the use of electricity significantly.63 So, while water
resources in turn relating to greater or lesser use of water for uses such as thermoelectricity, global
warming, competition for water resources between rural and urban locations, etc.).
52
WATER ENERGY TECHNOLOGY TEAM, AGRICULTURAL USAGE (2006), available at http://waterenergy.lbl.gov/node/10.
53
Richard Ingham and Anne Chaon, Water Scarcity: Global Warming to Deepen Thirst for Blue Gold,
NEWS.YAHOO.COM, Mar. 22, 2007, available at
http://news.yahoo.com/s/afp/20070322/sc_afp/environmentwaterclimate_070322120032; also available
at http://www.terradaily.com/reports/Global_Warming_To_Deepen_Thirst_For_Blue_gold_999.html.
54
Revkin, supra note 40.
55
WATER ENERGY TECHNOLOGY TEAM, supra note 52.
56
World Water Day 2007: Coping with Water Scarcity, ENVIRONMENT NEWS SERVICE, Mar. 22, 2007,
available at http://www.ens-newswire.com/ens/mar2007/2007-03-22-01.asp.
57
Winning the Food Race, POPULATION REPORTS, Ser. M, Num. 13, available at
http://www.infoforhealth.org/pr/m13edsum.shtml#top.
58
Id.
59
See Robert Hill, Energy Conservation with Irrigation Water Management, UTAH STATE UNIVERSITY
EXTENSION, May 1999, available at http://extension.usu.edu/files/engrpubs/biewm02.pdf (describing
conservation techniques that possible save energy and water); see also WATER ENERGY TECHNOLOGY
TEAM, supra note 52 (illustrating challenges related to conservation as pertains to irrigation due to water
and electricity demands).
60
WATER ENERGY TECHNOLOGY TEAM, supra note 52.
61
Id.
62
Id.
63
Id.
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American Water Policy
83
conservation seems like it always should be a good thing, as it enables agricultural
specialists to decrease their usage and consumption of water, pressurized irrigation
systems increase energy use. Similarly, although groundwater storage might also
seem like a good thing, as it enables agricultural specialists to decrease their usage
and consumption of water, groundwater pumps also increase energy use. Therefore,
in both circumstances, increased energy use creates a need for increased production
of electricity. An increased need for production of electricity results in water usage
and consumption via thermoelectric and hydroelectric production plants. Thus, even
those conservation techniques that have been implemented may fail to alleviate the
water shortage problem that exists.64
2. WaterSense
The cliché is that necessity is the mother of all invention – as the water shortage
crisis is publicized and becomes more severe, business, community, and individual
efforts to combat the problem will become increasingly more effective. Many of the
same businesses and individual prognosticators who have forecasted increasing
water shortages in the United States and around the world in the near future also
contend that water scarcity will spur investment in new technologies.65 Thus, the
water shortage itself will instigate research and development of water-saving
technologies and improved water management.66 As is often the case, many
researchers and environmentalists say that it is possible to “reduce water scarcity,
feed people, and address poverty with only one tradeoff – the environment.”67 Water
and wastewater management utilities, agriculture, and industry as a whole
increasingly have begun to rely on water efficiency as “a low-risk, low-cost option”
that helps to meet growing human water demands and regulated environmental
needs.68 A new partnership program between the American government (via the
EPA) and its population at large, called WaterSense, has developed the motto,
“Every drop counts.”69 In the same way that the FDA mandates labeling on
packaged foodstuffs, the EPA hopes to implement a program that educates American
consumers on making informed water choices to “save money and maintain high
environmental standards without compromising performance.”70 The WaterSense
64
Robert Evans, R.E. Sneed, J.H. Hunt, Irrigation Management Strategies to Improve Water & EnergyUse Efficiencies, NORTH CAROLINA COOPERATIVE EXTENSION SERVICE, Jun. 1996, available at
http://www.bae.ncsu.edu/programs/extension/evans/ag452-5.html.
65
Wim van der Hoeck, Water and Rural Livelihoods, 2020 FOCUS 9: OVERCOMING WATER SCARCITY
AND QUALITY CONSTRAINTS, Brief 5 of 14, Oct. 2001, available at
http://www.ifpri.org/2020/focus/focus09/focus09_05.htm.
66
Id.
67
Harvey, supra note 39.
68
Robert Varney, Making Sense on Water Usage, BOSTON BUSINESS JOURNAL, Sept. 22, 2006, at
Opinion, available at http://boston.bizjournals.com/boston/stories/2006/09/25/editorial3.html.
69
Id.
70
Jennifer Wood, New EPA Program Saves Dollars and Makes Sense, EPA NEWSROOM, Jun. 12, 2006,
at 2006 Press Releases, available at http://www.epa.gov/aging/press/epanews/2006/2006_0612_1.htm.
Also available at
http://www.greenbiz.com/news/news_third.cfm?NewsID=33218&CFID=252443&CFTOKEN=3720144
2.
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TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
label will be recognized easily on products and services that perform at least “20%
more efficiently than their counterparts.”71 “The average household adopting water
efficient products and practices can save 30,000 gallons per year – enough to supply
a year of drinking water for 150 of their neighbors.”72
3. Water Audit
Another possible method to respond to the impending water crisis is for
individuals and corporations to analyze the amount of water they use, and the uses
that water plays in their daily lives or operations.73 A water audit is the process by
which an individual or some other entity examines water usage and water usage
records74 and/or determines if a valid water right exists at a certain location.75 In
the former type of water audit, an assessment of water usage and loss is conducted in
order to account for all water supplied, how much of each type of loss occurs, and
how much these losses cost.76 The latter type of water audit encompasses a broad
range – from a quick overview of readily available files to an intensive search for
documents, including such things as titles or deeds, government agency survey
maps, and public utility claims or rights.77 Unless a state engineer is involved in the
process, a water audit does not usually provide a definitive answer as to the absolute
legal rights of the parties involved.78
Water audits can be extremely useful, not only to cut back on water consumption,
but also for individuals or businesses that seek to determine whether a given location
would be suitable for a specific purpose. A thorough analysis of the amount of water
being used in a household could reveal significant waste, whereby a household might
discover that cutting back on waste might be as simple as installing “water-saver”
showerheads and faucets. Similarly, a company might be able to streamline its
operations to limit water waste after a thorough analysis of where and when water is
being used. Additionally, water availability and supply certainly would be top
concerns prior to undertaking the decision to move a family or business west of the
Mississippi. Therefore, a water audit might be suggested or ordered to aid in the
process of determining where to move. For example, a water audit in the Rio
Grande Valley might examine the following types of documents: “U.S. Bureau of
Land Management Survey Maps and Field Notes, Local Fire Insurance Maps,
71
72
73
Id.
Id.
See Maryland Department of the Environment, Conducting a Household Water Audit, available at
http://www.mde.state.md.us/assets/document/ResAudit.pdf (last visited Mar. 18, 2007) (describing what
a water audit is and how individuals can conduct their own water audits at home); see also Pennsylvania
Department of Environmental Protection, Water Audit Procedure for Large Water Consumers, available
at http://www.dep.state.pa.us/dep/subject/hotopics/drought/facts/audit.pdf (last visited Mar. 18, 2007)
(describing how a water audit could be conducted by a large corporation).
74
AMERICAN WATER WORKS ASSOCIATION, WATER AUDIT METHODOLOGY (2006), available at
http://www.awwa.org/WaterWiser/waterloss/Docs/03IWA_AWWA_Method.cfm.
75
WATERBANK, WATER AUDIT (2006), available at http://www.waterbank.com/wateraudit.htm.
76
AMERICAN WATER WORKS ASSOCIATION, supra note 74.
77
WATERBANK, supra note 75.
78
Id.
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Railroad Right of Way and Property Maps, Railroad Right of Way Warranty Deeds,
U.S. Department of Agriculture Soil Survey Maps, Rio Grande Drainage Survey
Maps, Rio Grande Plane Table Maps, Appraisal Sheets, Aerial Photography, Local
Township Residential/Commercial/Utility Titles and Deeds, etc.”79 Overall, using
both types of water audits will create a picture by which an individual or company
can make its best guess about the abundance of water at a certain location, functions
supported by the estimated abundance of water, possible sources for increased water
supply, and alternative locations more suited to the function sought to be
undertaken.80 While this analysis would not be deemed definitive for legal purposes,
it would certainly aid an individual or manager seeking an assessment with respect to
water availability and supply prior to making a decision to buy or build.81
PART III. BACKGROUND
a) Overview of Existing Law
1. Law Governing the Distribution of Water
a. Water Rights
Although many “East Coast Americans” take the readily accessible nature of
freshwater for granted, water rights are an important aspect in the distribution of
water. Water rights are the rights of an individual to use water from a given source,
such as a river, stream, pond, or source of groundwater.82 In areas with significant
availability and abundance coupled with few users, the allocation of rights can be
simple and straightforward.83 In areas with lesser availability and many users, the
allocation of water rights can be complicated and contentious.84 Some allocation
systems treat surface water and groundwater in the same manner, while others use
different principles for each.85 Without sufficient knowledge of water rights
applicable to a particular location, an individual, family, community, or business
could end up living on or owning property upon which an adequate water supply is
neither present, accessible, nor legally available.
As the water scarcity increases, water allocation and distribution play an
increasingly vital role. Economic theory shows that supply and demand are brought
79
Id.
80
See AMERICAN WATER WORKS ASSOCIATION, supra note 74 (describing methodology and benefits of
a water audit); see also WATERBANK, supra note 75 (describing methodology and benefits of a water
audit).
81
Id.
82
A water right is defined as “a right to the use of water.” Water right, MERRIAM WEBSTER ONLINE
DICTIONARY, http://www.m-w.com/dictionary/water%20right (last visited Mar. 18, 2007).
83
Anne J. Castle, Water Rights Law – Prior Appropriation, FINDLAW, (Jan. 1999),
http://library.findlaw.com/1999/Jan/1/241492.html.
84
Id.
85
Id.
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into equilibrium by price.86 Scarcity is a restriction on supply. The price for scarce
goods increases until demand comes into equilibrium with supply.87 Water rights are
the rights of an individual user to use water from a given water source.88 Therefore,
as the scarcity of freshwater increases, so too does the value of freshwater.89 In turn,
as the value of freshwater increases, so too does the role and importance of water
rights.90
Due to the disparate natural distribution of freshwater across the United States,
two main systems for determining water rights developed – with one exception.91
Riparian water rights are common in the east and prior appropriation water rights are
common in the west.92 Custom, culture, geography, legislation, and case law help
shape the way in which each state applies these basic principles.93 Adjudications are
the legal proceedings used to determine the relative priority of claims to water rights.
The concept of federally reserved water rights is the one exception to the generally
applicable state laws.94 When the federal government reserves public land for
special use (the “public land reserve exception”) – Indian reservations, military
reservations, national parks, forests, monuments, and the like – it also implicitly
reserves water in sufficient amount to provide for the reservation’s original
purpose.95 However, the federal government consented to having its water rights
claims adjudicated in state court by enacting the McCarren Amendment.96 Thus,
state courts exercise virtual autonomy vis-à-vis adjudicating federal, state, and local
water rights
Each state has a process for changing how a water right is exercised, such as
amending the point of diversion or withdrawal, the place of use, or the purpose of
use.97 States must remain vigilant to guard against the impairment of other
downstream water rights, the enlargement of water rights, and injury to the public
86
GCSE Economics, Demand and Supply: Price Equilibrium (2006),
http://www.tutor2u.net/economics/gcse/revision_notes/demand_supply_price_equilibrium.htm.
87
Michael Lynn, Scarcity’s Enhancement of Desirability: The Role of Naïve Economic Theories, 13
Basic and APPLIED SOCIAL PSYCHOLOGY 67 (1992), available at
http://www.questia.com/PM.qst?a=o&se=gglsc&d=80933424.
88
Id.
89
Id.
Id.
91
See U.S. GEOLOGICAL SURVEY, WATER SCIENCE FOR SCHOOLS: HOW MUCH OF YOUR STATE IS
WET? (1987), http://ga.water.usgs.gov/edu/wetstates.html (demonstrating the natural distribution of
freshwater across the United States); see also Exhibit “D”.
92
BUREAU OF LAND MANAGEMENT: NATIONAL SCIENCE & TECHNOLOGY CENTER, WESTERN STATES
WATER LAWS: WATER APPROPRIATION SYSTEMS (2006),
http://www.blm.gov/nstc/WaterLaws/appsystems.html [hereinafter WATER APPROPRIATION SYSTEMS].
93
Id.
94
BUREAU OF LAND MANAGEMENT: NATIONAL SCIENCE & TECHNOLOGY CENTER, WESTERN STATES
WATER LAWS: FEDERAL RESERVED WATER RIGHTS (2006),
http://www.blm.gov/nstc/WaterLaws/pdf/FedResWaterRights.pdf [hereinafter FEDERAL RESERVED
WATER RIGHTS].
95
Id.
96
Id.
97
Id.
90
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interest when reviewing changes.98 Overall, it is important to acknowledge the
different frameworks that exist in order to recognize what system is applicable in a
particular state and whether the public land reserve exception is applicable.
b. Riparian Rights
Riparian principles were adopted at a time when water usage and population
figures made water a seemingly inexhaustible commodity.99 Through most of
recorded history, water was deemed to be common property – something that people
could use but not own.100 This is embodied by the original English concept of
“riparian rights” – the allocation of water among those property owners whose land
is adjacent to the water source.101 Most of the eastern United States adheres to
riparian principles, whereby all landowners whose property is adjacent to a body of
water have the right to make reasonable use of it.102 A riparian water right is only a
usufructuary right – “the legal right of using and enjoying something belonging to
another”103 – and not a property right. Therefore, although water may be used and
enjoyed if it passes through the property of a landowner, the landowner may not
unreasonably detain or divert the water.104 If there is not enough water to satisfy all
users, allocation is made on the basis of, and in proportion to, frontage on the water
source so that no single user can diminish a water source.105 Such rights cannot be
sold or transferred other than with the adjoining land, and water cannot be
transferred out of the watershed.106
In sum, a riparian water right has several distinct characteristics separating it from
a prior appropriative water right. Riparian rights are of equal priority, therefore
affording no weight to the sequential acquisition of water rights.107 Unless
adjudicated, a riparian right is not quantified but instead includes any amount of
water that can be used for a reasonable and beneficial purpose. Similarly, a riparian
right cannot be lost via non-use. Riparian rights are correlative, meaning that
riparian proprietors share water shortages and surpluses.108 A riparian right extends
only to water that is within the watershed of the riparian proprietor’s water source
and does not include any seasonal storage of water. Riparian rights are part of the
land and cannot be transferred for use on other lands. Therefore, if a piece of land is
subdivided, parcels that are separated from the adjacent water source lose their
riparian rights unless they have been reserved.109
98
WATER APPROPRIATION SYSTEMS, supra note 92.
Id.
100
Id.
101
Id.
102
Id.
103
Usufruct, MERRIAM WEBSTER ONLINE DICTIONARY, http://www.m-w.com/dictionary/usufruct (last
visited Mar. 18, 2007).
104
WATER APPROPRIATION SYSTEMS, supra note 92.
105
Id.
106
Id.
107
Id.
108
Id.
109
WATER APPROPRIATION SYSTEMS, supra note 92.
99
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c. Prior Appropriation
Prior appropriation was adopted at a time and in places when the scarcity of water
made it a valuable and necessary commodity. As settlers moved west during
America’s formative years, riparian rights were replaced with the concept of “prior
appropriation” or the “Colorado Doctrine” – a system of allocation which treats
water as a resource unrelated to land.110 The general principle is that water rights are
unconnected to land ownership and can be sold or mortgaged like other property,
though specific regulations vary from state to state.111 The first person to use a
quantity of water from a water source for a beneficial use has the right to continue to
use that quantity of water for that purpose.112 The requirement of application for
beneficial use is satisfied by irrigation, mining, industrial application, stock
watering, domestic and municipal use, and many other non-wasteful economic
activities.113 Beneficial use of water has expanded in recent years by some states to
include ecological purposes.114
Although lawmakers set out with the best of intentions – to encourage pioneer
farmers to move west without fear of lack of water – the consequences of prior
appropriation are now being felt. As the western water supplies decrease, opposing
parties seek to obtain or retain valuable water rights.115 However, perpetual property
rights belong to whoever takes water from the commons first, while subsequent users
can use the remaining water for their own beneficial purposes provided that they do
not impinge upon the rights of previous users.
In sum, a prior appropriative water right has several distinct characteristics that
distinguish it from a riparian water right. A water appropriator must exercise
explicit intent in order to obtain a prior appropriative right.116 The appropriator must
divert the water, except in cases of in-stream use.117 In order to perfect
appropriation, the water must be applied to and for a recognized beneficial use in a
fixed and definite amount.118 Once all of these requirements have been met, the
appropriator is given a date which reflects when his or her priority was established
vis-à-vis water use in that location.119
1. Annual Use
An appropriator’s position in time based on the first beneficial use of the water
right is extremely important, as the yearly usage quantity and appropriation date
110
Castle, supra note 83.
WATER APPROPRIATION SYSTEMS, supra note 92.
112
Castle, supra note 83.
113
Id.
114
Id.
115
See Randal C. Archibold and Kirk Johnson, An Arid West No Longer Waits for Rain, N.Y. TIMES,
Apr. 4, 2007, available at http://www.nytimes.com/2007/04/04/us/04drought.html# (reporting on the
$2.5 billion in water projects that are planned or under way in four western states, the biggest expansion
in the west’s quest for water in decades).
116
WATER APPROPRIATION SYSTEMS, supra note 92.
117
Id.
118
Id.
119
Id.
111
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attach to each water right. Thus, in a given year, the user with the earliest
appropriation date (‘senior appropriator’) may use up to his or her full allocation of
water.120 Subsequently, the user with the next earliest appropriation date (‘junior
appropriator’) may use his or her full allocation of water, and so forth.121 It is clear
that in times when water is in short supply due to drought or rainfall shortage, junior
appropriator(s) might not receive any or all of their water allocation rights.122
Therefore, due to the changing nature of water availability in regions that employ the
prior appropriation doctrine, an appropriator’s position in time becomes extremely
important.
2. Transfer and Multiple Users
In general, water rights under the prior appropriation distribution scheme are
treated like property rights in land and can be transferred. Thus, a junior
appropriator can attempt to make up for a possible water shortfall by buying and/or
selling water rights. In so doing, each water right retains its yearly usage quantity
and original appropriation date.123 This means that the amount of water historically
consumed under a water right can be transferred to another for his/her use.124
Similar to real property law, if a water right is not used for a beneficial purpose for a
period of time, it may lapse under the doctrine of abandonment.125
There are, however, three major requirements which inhibit the transfer of an
appropriative water right. First, an appropriated water right cannot be severed from
the land on which the water is appurtenant to, but rather remains attached to the
originally appropriated water source(s).126 Second, the party attempting to transfer
the appropriated water right must show that there will be no injury to other
appropriators. Transfer to a party whose use threatens the rights of other
appropriators of the same water source will not be sanctioned.127 Finally, the party
attempting to transfer the appropriated water right must establish the extent of the
water right to be transferred, as subdivision of an appropriated water right is often
allowed if feasible.128
Government or quasi-government agencies are usually charged with regulating
water sources with many users and overseeing allocations.129 Water sources that
cross state or international borders can be quite contentious and are generally
governed by federal court ruling, interstate agreements, and international treaties.130
Water rights can be thought of as property rights, though other appropriators’ rights
play an important role in the where and how of transferring such rights.
120
Id.
WATER APPROPRIATION SYSTEMS, supra note 92.
122
Id.
123
Id.
124
Id.
125
Id.
126
WATER APPROPRIATION SYSTEMS, supra note 92.
127
Id.
128
Id.
129
Id.
130
Id.
121
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b) State Example: Montana Water Law
Application of the prior appropriation doctrine can be observed in most states
west of the Mississippi. The state of Montana is no exception, as it follows prior
appropriation principles. Montana’s laws set forth that the state’s water resources are
“the property of the State of Montana and are to be used for the benefit of the
people.”131 Before 1973, Montana state law did not regulate water acquisition or use
via strict statutory limitations. Common law precedent and the prior appropriation
doctrine were applied when legal disputes arose. Thus, simply diverting water from
a source and applying it to a beneficial use obtained a water right. Rarely was the
filing of a document with a governmental entity required to give notice of the
appropriation.
The Montana Water Use Act became effective on July 1, 1973, however, and
altered the procedure for acquiring and changing water rights.132 The distribution of
appropriative water rights is now an administrative process overseen by the Montana
Department of Natural Resources and Conservation.133 “Montana water law
authorizes the closure of basins to certain new appropriations through the adoption
of administrative rules and the negotiation of reserved water right compacts.”134
Some river basins and new water appropriations have been closed by the department
due to water availability problems, over-appropriation, and a concern for protecting
existing water rights. Taken as a whole, this piece of state legislation is a huge
provision contained under Title 85 of Montana’s annotated code. Summarily, “the
1973 Montana Water Use Act changed the administration of water rights
significantly in the following ways”:
• All water rights existing prior to July 1, 1973, are to be finalized through
a statewide adjudication in state courts.
• A permit system was established for obtaining water rights for new or
additional water developments.
• An authorization system was established for changing water rights.
• A centralized records system was established. Water rights were
recorded prior to 1973, but not consistently in county courthouses
throughout the state.
• A system was provided to reserve water for future consumptive uses and
to maintain minimum in-stream flows for water quality, fish, and
wildlife.135
131
Water Appropriation Systems, supra note 92.
Id.
133
Ted J. Doney, Montana Courts: Water Law, Basic Montana Water Law (updated 2003) (1990),
http://courts.mt.gov/water/forms/basiclaw.doc.
134
WATER APPROPRIATION SYSTEMS, supra note 92.
135
Id.
132
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PART IV. DISCUSSION/SOLUTION
a) Reclamation Act
Prior to enactment of the Reclamation Act,136 countless inadequate starts were
made to develop lands west of the Mississippi. The need for construction of dams
and facilities to control, store, and distribute water from streams and rivers proved
too costly for individual states to effectively undertake the needed ‘reclamation.’137
The Reclamation Act, also known as the Newlands Reclamation Act or National
Reclamation Act of 1902, is a federal law that funded irrigation projects for the arid
lands of the American West.138 Over time, this legislation proved to be the impetus
for a more organized development of the western United States.
The Reclamation Act was not popular, as most Americans at the time lived east
of the Mississippi and felt that money sent to reclaim the ‘Great American Desert’
was a waste.139 Overall, this legislation was intended to use “revenues received from
the public lands and from disposal of publicly owned resources found mostly in the
public domain” to create and finance a Reclamation Fund.140 A significant portion
of these funds were used for the construction of irrigation projects in the sixteen
western public-land states – states lying either wholly or partially west of the 100th
Meridian.141 President Theodore Roosevelt, intent on increasing executive power by
expanding the reach of the federal government, signed the bill into law and sold it to
the American people by continually stating that the legislation’s purpose was that of
‘homemaker,’ as “successful homemaking is but another name for the upbuilding of
the nation.”142 As a concept centered on regional homebuilding, the Reclamation
Act put restrictions on the size of land ownership at 160-acres per person.143 Only
parcels of land this size or smaller were permitted to use water from federal
irrigation facilities.144 Today, that limit has been raised to 320 acres for property
owned by a married couple.145 Although these limitations were and have been
opposed, without them the Reclamation Act would be nothing more than a subsidy
for large landholders and agricultural conglomerates.
Over time, the Reclamation Act has continued to be successful due to
amendments to the legislation and adaptation of its purpose. While reclamation was
successful for the program’s first 50-60 years, it eventually led to the damming of
136
See RECLAMATION ACT/NEWLANDS ACT OF 1902 (2006),
http://www.ccrh.org/comm/umatilla/primary/newlands.htm (listing the original provisions of the
Reclamation Act of 1902).
137
Warne, supra note 4.
138
Id.
Id.
140
Id.
141
Id.
142
Warne, supra note 4.
143
Id.
144
Id.
145
Id.
139
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nearly every major western river.146 In response to a lawsuit against the federal
government in the 1970’s alleging improper acreage limitation administration,
Congress passed Public Law 97-293. Title II of Public Law 97-293 is known as the
Reclamation Reform Act of 1982 (RRA).147 Thus, the primary role of the Bureau of
Reclamation has evolved from one of water resource development to one of water
resource management.148 Only more efficient water use – not by any single entity
acting independently, but by the entire western community – can meet this
challenge.149
Overall, the Reclamation Act serves to demonstrate that the federal government,
through legislation, can effectively raise awareness, change the landscape of
America, and refine laws in order to make them more applicable over the course of
time. The U.S. government clearly played the most significant role in the
development of the American west from an arid wasteland to a fully irrigated and
productive agricultural region. Having recognized that times were changing,
American lawmakers adapted the Reclamation Bureau from an agency focused on
development to an agency focused on conservation and management. Over time, as
development continues to increase – though at a slower pace – environmentally
friendly solutions will need to be implemented in order to sustainably maintain the
west’s current existence. Thus, not only was the government able to create
awareness and support for a program that was unpopular, it was able to adjust that
program when the time came in order to meet new challenges rather than writing
wholly new legislation.
b) Legislative Response
With respect to water and the impending shortage, two facts seem
incontrovertible: (1) there is a web of factors at play around the world influencing
the course that this crisis takes, and therefore, (2) no easy solution to the problem
exists. While there is precedent for resolution of collective action problems150 via
international agreement as demonstrated by the Montreal Protocol,151 there is equal
and opposite precedent for inability to resolve such problems in this way as
demonstrated by the Kyoto Protocol.152 The United States should not make the
146
Id.
U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION – RECLAMATION REFORM ACT OF
1982 (2006), http://www.usbr.gov/rra/.
148
Id.
149
Id.
150
See Collective Action Problems, Washington University Faculty – William J. Talbott (2007),
http://faculty.washington.edu/wtalbott/phil240/trcap.htm (stating that a collective action problem is a
situation in which everyone in a given group has a choice between two alternatives and where, if
everyone involved chooses the alternative act that is individualistically rational, the outcome will be
worse for everyone involved, in their own estimation, than it would be if they were all to choose the
other alternative.
151
Montreal Protocol, supra note 13.
152
See Steven Martinovich, The Failure of the Kyoto Protocol, Japan Today, Feb. 18, 2006,
http://www.japantoday.com/jp/comment/900 (discussing the difficulties surrounding agreement and
effective implementation of the Kyoto Protocol). See also Tony Karon, When It Comes to Kyoto, U.S. is
the ‘Rogue Nation,’ Time, Jul. 24, 2001, available at
147
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mistake of waiting for someone else to take the lead. Recent history has shown that
the American government will take action, unilateral if need be, when national
security is threatened.153 Adequate water supply should be included as part of
America’s national security agenda. If dependence on non-essential resources such
as foreign sources of energy is perceived as an American addiction that threatens
national security if cut off, so too should the possibility of dependence on foreign
sources of water be perceived as a threatening addiction.
Assuming the United Nations and other non-governmental organizations
(“NGOs”) are most effective when the United States takes a lead role in addressing
collective action problems, it is most important for the American government to
make water data a priority. By working through multi- and bi-lateral agreements,
NGOs, and other international bodies, the United States can make a significant push
that leads to a more complete body of raw knowledge. The United Nations Water
Development Report makes clear that, “… It is only when the data has been
collected and analyzed that we can properly understand the many systems that affect
water (hydrological, socio-economic, financial, institutional, and political alike),
which have to be factored into water governance.”154 Leadership – through actual
public sector collection efforts or through the creation of incentives for private sector
collection – from the United States in gathering data is an important component to
seriously tackling this problem. Only then will Americans and citizens of other
developed nations awaken to the severity of the impending crisis and the need to
take collective action. Once data has been collected, analysis by the scientific
community and NGOs will provide the context necessary for debate about proposed
solutions.
Maintaining a view of water as an essential national security interest, and in light
of prior regulatory efforts like the Reclamation Act, legislation to create an
American future that includes sustainable water resources is imperative. Absent a
global initiative toward gathering water data, the United States should increase funds
to the U.S. Geological Survey and enlarge its mission to include: the acquisition of
enhanced water data for North and Central America, analysis of the acquired data,
and advertisement or publication of the data and analysis throughout the country.
This information will provide American politicians with the necessary research
foundation to convince citizens that the time to act has come, to hold hearings on the
best way to move forward, and to write legislation that creates a comprehensive,
sustainable water policy for the United States.
Whether America’s federal system of governance has yielded positive results
with respect to the management of water rights by individual states, federal
legislation that creates a separate “Water Bureau” to enforce water guidelines and
works in tandem with federal and state EPAs remains imperative. The legislation
should also include a jurisdictional hook whereby federal funds are only distributed
http://www.time.com/time/world/article/0,8599,168701,00.html (discussing how America’s failure to
ratify the Kyoto Protocol has led to a lack of effective global leadership).
153
See Richard Falk, The New Bush Doctrine, The Nation, Jun. 27, 2002, available at
http://www.thenation.com/doc/20020715/falk (discussing the Bush administration’s doctrine of
preemption).
154
UNESCO Report, supra note 2, at 525.
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to those states enforcing federal policy via their own Water Bureaus. In the same
way that automobiles have been regulated by minimum emission standards during
state inspection, so too could such water legislation establish minimum conservation
requirements for states, municipalities, businesses, families, and individuals during
water audit inspections. Assuming the data gathered by the U.S. Geological Survey
does not include state specific information, a water audit requirement would first
measure the amount of water available in a given region. Subsequently, the water
audit would also measure the total water used by the state and its occupants down to
the business, family, and individual levels. The Water Bureau would be tasked with
establishing maximum water use guidelines for each type of user and maximum and
minimum penalties for those failing to meet regulations. Another section of the
legislation could require further development and implementation of projects like
WaterSense by state EPAs.
Any recommendation tilted towards increased governmental regulation is
ambitious, but the large size of such a collective action problem155 and the fact that
water plays an integral role in the survival of humanity makes the creation of further
regulation necessary. Failure to address the issue of America’s water supply could
have severe consequences like increased health problems, food and water shortages,
competition between citizens – both rich and poor – for the right and use of water,
competition between states and regions of countries, competition between countries
– both rich and poor – for the right and use of water, and the like.156 Arguments
against further government regulation, against further government programs, against
further government taxation have their place and are significant. However, the
Reclamation Act demonstrates that federal legislation can be successful and can be
adapted to changing conditions on the ground. Similarly, individual state-imposed
water laws have been successful – and can be further reinforced and reinvigorated to
maintain sustainable levels of freshwater across the United States, both now and in
the future.
PART V. CONCLUSION
Although a crisis may occur for any number of reasons, there are two main paths
that will lead to ‘a crucial state of affairs’157 – the inability to take action upon an
unforeseeable problem that crops up, or the failure to take action upon a foreseeable
problem until it reaches a critical point. Water has been necessary for human
survival since the beginning of time, but water shortage has only become a
consistent problem in the recent past. While it is true that a general lack of
information among ordinary citizens makes severe water crisis a seemingly
unforeseeable problem, the facts show that government officials around the world
are, or reasonably should be, aware of this growing problem. Failure to gather
substantial scientific data and present it to citizens runs along the same lines as the
155
See Elinor Ostrom, International Food Policy Research Institute, Collective Action and Property
Rights for Sustainable Development (2004), http://www.ifpri.org/2020/focus/focus11/focus11_02.pdf
[hereinafter International Food Policy] (discussing collective action problems and possible solutions).
156
Water Crisis Hits Rich Countries, supra note 41.
157
See International Food Policy, supra note 155.
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American government’s failure to communicate the impending crises via entitlement
programs such as Social Security, Medicare, and Medicaid. While there is no
guarantee of public support, it seems clear that knowledge in the hands of everyday
citizens could lead to the political force necessary to address water issues around the
world.
Water shortage is a serious crisis that is not fully understood by political actors or
their constituents due to a lack of information. Developing nations are already
feeling the consequences of this shortage.158 Similar results will face the United
States and other developed nations unless the maintenance of adequate water
supplies is made a priority by national governments. As stated in the United Nations
World Water Development Report, “[There is] clear and convincing evidence that
data on almost every subject related to water issues is usually lacking, unreliable,
incomplete, or inconsistent.”159 Therefore, a first and necessary step in tackling the
impending water crisis is the accumulation of a consistent, uniform, and accurate
base of scientific evidence from countries around the world. Utilization of methods
employed by administrative organizations like the Census Bureau would contribute
to sustaining an effective effort that reaches all nations, thus amassing the greatest
amount of data possible.
While some may argue that the lack of prior water planning has doomed any
present or future resolution of water shortage, American history demonstrates just
the opposite. In his book WATER AND AMERICAN GOVERNMENT, Donald J. Pisani
contends that the American West has been the antithesis of a planned society when
compared to other countries around the world.160 He maintains that the system upon
which this lack of planning was based – federalism – creates “flexible, adaptable,
and decentralized institutions” that have utilized market forces to combat emerging
crises.161 To sum, Pisani believes that a substantial shortcoming of centralized
planning is the possibility that any given scheme may ultimately prove to be a
failure. A federal system of government,162 both as seen within the United States
and around the world when viewed as a series of autonomously governed regions,
provides the opportunity to investigate where water has been managed well and
where it has been managed poorly. Federalism also provides the world community
with the flexibility to adapt current practices to those proven to be more sustainable
without the imposition of a single-minded, authoritarian decree. Although individual
countries working within or without world bodies such as the United Nations have
reached water shortage crises of varying degrees, the absence of prior planning does
not doom current attempts toward a sustainable resolution.
In 1966, American Congressman Jim Wright wrote that, “America can solve its
water crisis before it becomes a widespread, irreversible famine – if we act with bold
158
159
160
UNESCO Report, supra note 2, at Preface.
UNESCO Report, supra note 2, at 525.
DONALD J. PISANI, WATER AND AMERICAN GOVERNMENT 294-295 (University of California Press
2002).
161
Id.
162
Where federal means a system whereby centralized planning by a national government is not the only
mechanism for policy implementation, but rather local, state, and national entities work together.
96
TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
imagination, determined resolution, and a sufficient sense of urgency.”163 His
sentiments remain true, both for the United States and for other countries around the
world, if taken at face value. No excuse remains at this time for failure to take
action. Based simply on the United Nations Water Development Report, water is no
longer an abundant resource and its allocation has begun to reach a point of crisis for
many countries. Political leaders need to focus on gathering and conveying clear
information through media outlets in order to change public attitudes among those
who have yet to be affected. Only when everyday citizens can see, feel, and
understand the consequences of water shortage will the value of water be
appreciated. Subsequent to a popular groundswell, as has begun to take shape in the
United States via ‘green’ solutions to energy needs, government and administrative
leaders need to act with a sense of urgency to change the present crisis dynamics.164
American leadership in the realm of water crisis will push other nations, developed
and undeveloped, to reexamine their own policies and consider adopting similar
measures.
163
CONGRESSMAN JIM WRIGHT, THE COMING WATER FAMINE 232, 234-235 (Coward-McCann, Inc.
1966).
164
Id. at 234-235.
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97
Exhibit A
How the acres are irrigated in major irrigation states is illustrated in the following
table:
State
Acres irrigated Acres flooded, Acres sprayed, Acres dripped,
(thousands)
(percent)
(percent)
(percent)
California
10,100
54%
16%
30%
Nebraska
7,820
53%
47%
0%
Texas
6,490
37%
62%
1%
Arkansas
4,510
86%
14%
0%
Idaho
3,750
35%
65%
<1%
Colorado
3,400
65%
35%
<1%
Kansas
3,310
20%
80%
<1%
Oregon
2,170
47%
53%
<1%
Florida
2,060
41%
25%
34%
Montana
1,720
71%
29%
0%
Washington 1,570
16%
81%
3%
Wyoming
84%
16%
<1%
47%
46%
7%
1,160
United States 61,900
165
165
U.S. Geological Survey, Water Science for Schools: Water Q & A (2007),
http://ga.water.usgs.gov/edu/qausage.html.
98
TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
Exhibit B
166
166
U.S. Geological Survey, Water Science for Schools: Earth’s Water Distribution (2007),
http://ga.water.usgs.gov/edu/waterdistribution.html.
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99
Exhibit C
One estimate of global water distribution:
Water source
Percent
Water volume, Water volume, in
of fresh
in cubic miles cubic kilometers
water
Percent
of total
water
Oceans, Seas, &
Bays
321,000,000
1,338,000,000
--
96.5
Ice caps,
Glaciers, &
5,773,000
Permanent Snow
24,064,000
68.7
1.74
Groundwater
5,614,000
23,400,000
--
1.7
Fresh
2,526,000
10,530,000
30.1
0.76
Saline
3,088,000
12,870,000
--
0.94
Soil Moisture
3,959
16,500
0.05
0.001
Ground Ice &
Permafrost
71,970
300,000
0.86
0.022
Lakes
42,320
176,400
--
0.013
Fresh
21,830
91,000
0.26
0.007
Saline
20,490
85,400
--
0.006
Atmosphere
3,095
12,900
0.04
0.001
Swamp Water
2,752
11,470
0.03
0.0008
Rivers
509
2,120
0.006
0.0002
Biological Water 269
1,120
0.003
0.0001
Total
1,386,000,000
-
100
332,500,000
Source: Gleick, P. H., 1996: Water resources. In Encyclopedia of Climate
and Weather, ed. by S. H. Schneider, Oxford University Press, New York,
vol. 2, pp.817-823.
167
167
U.S. Geological Survey, Water Science for Schools: Earth’s Water Distribution (2007),
http://ga.water.usgs.gov/edu/waterdistribution.html.
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TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
Exhibit D
This data represents only “inland” water—water that is surrounded by lands of the
United States. Areas, such as the Great Lakes, are excluded.
State
Water
Land
area
area
(sq.
(sq. miles)
miles)
Percent
of state
that is
water
State
Land
area
(sq.
miles)
Water
area
(sq.
miles)
Percent
of state
that is
water
Rhode Island
1,212
158
D. C.
69
6
13.0%
Kentucky
40,410
740
1.8%
8.7%
Alabama
51,705
938
1.8%
Florida
58,664
4,511
7.7%
Texas
266,807
4,790
1.8%
North Carolina
52,669
3,826
7.3%
California
157,706
2,407
1.5%
Maine
33,265
2,270
6.8%
South Dakota
77,116
1,164
1.5%
Louisiana
47,752
3,230
6.8%
Georgia
58,910
854
1.4%
Maryland
10,460
623
6.0%
Idaho
83,564
1,153
1.4%
Minnesota
84,402
4,854
5.8%
Illinois
56,345
700
1.2%
Massachusetts
8,284
460
5.6%
Montana
147,046
1,658
1.1%
Delaware
2,045
112
5.5%
Missouri
69,697
752
1.1%
New Jersey
7,787
319
4.1%
Mississippi
47,689
457
1.0%
Vermont
9,614
341
3.5%
Pennsylvania
45,308
420
0.9%
New York
49,108
1,731
3.5%
Nebraska
77,355
711
0.9%
Alaska
591,004
20,171
3.4%
Oregon
97,073
889
0.9%
Utah
84,899
2,826
3.3%
Wyoming
97,809
820
0.8%
New Hampshire 9,279
286
3.1%
Ohio
41,330
325
0.8%
Wisconsin
56,153
1,727
3.1%
Hawaii
6471
46
0.7%
Connecticut
5,018
147
2.9%
Indiana
36,185
253
0.7%
South Carolina
31,113
909
2.9%
Kansas
82,277
499
0.6%
Michigan
58,527
1,573
2.7%
Nevada
110,561
667
0.6%
Virginia
40,767
1,063
2.6%
Iowa
56,275
310
0.6%
Washington
68,139
1,627
2.4%
Colorado
104,091
496
0.5%
Tennessee
42,144
989
2.3%
West Virginia
24,232
112
0.5%
Arkansas
53,187
1,109
2.1%
Arizona
114,000
492
0.4%
North Dakota
70,702
1,403
2.0%
New Mexico
121,593
258
0.2%
Oklahoma
69,956
1,301
1.9%
United States
3,618,770
79,481
2.2%
Data is from the Statistical Abstract of the United States
168
U.S. GEOLOGICAL SURVEY, AREA OF EACH STATE THAT IS WATER (2007),
http://ga.water.usgs.gov/edu/wetstates.html.
168
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American Water Policy
101
Exhibit E
Water Usage in the U.S.:
169
169
U.S. EPA, HOW WE USE WATER IN THE UNITED STATES (2006),
http://www.epa.gov/watrhome/you/map1.gif; see also U.S. EPA, TOTAL, SURFACE-WATER, AND
GROUND-WATER WITHDRAWALS (2000), http://ga.water.usgs.gov/edu/2000/wutotal.gif.
102
TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
170
170
U.S. EPA, Total, Surface-Water, and Ground-Water Withdrawals (2000),
http://ga.water.usgs.gov/edu/2000/wutotal.gif.
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American Water Policy
103
Exhibit F
Irrigation in the U.S.:
171
171
U.S. Department of Agriculture, Economic Research Service – Briefing Room: Irrigation and
Water Use (1997), http://www.ers.usda.gov/Briefing/WaterUse/Gallery/Slide8.GIF.
104
TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
172
172
U.S. Department of Agriculture, Economic Research Service – Publications: AREI Chapter 2.1
(2002), http://www.ers.usda.gov/publications/arei/eib16/Chapter2/2.1/fig212.jpg; see also
U.S. Department of Agriculture, Economic Research Service – Publications: AREI Chapter 2.1 (2007),
http://www.ers.usda.gov/publications/arei/eib16/Chapter2/2.1/.
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American Water Policy
105
173
173
U.S. Department of Agriculture, Natural Resources Conservation Service – National Water and
Climate Center: Benefit to Irrigated Agriculture (1996),
http://www.wcc.nrcs.usda.gov/publications/Briefing-Book/irrigz.gif.
106
TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
174
174
U.S. Department of Agriculture, Natural Resources Conservation Service – Technical Resources:
Acres of Irrigated Land Converted to Developed Land (1997),
http://www.nrcs.usda.gov/Technical/land/lgif/m5345l.gif.
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American Water Policy
107
175
175
U.S. Department of Agriculture: Natural Resources Conservation Service, Acres of Irrigated
Cropland (1987), http://www.nrcs.usda.gov/TECHNICAL/land/lgif/m5614l.gif.
108
TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
176
176
U.S. Department of Agriculture: Natural Resources Conservation Service, Acres of Irrigated
Land (1997), http://www.nrcs.usda.gov/Technical/land/lgif/m5297l.gif.
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American Water Policy
109
177
177
U.S. Department of Agriculture: 2002 Census of Agriculture: Acres of Irrigated Land (2002),
http://www.nass.usda.gov/research/atlas02/Farms/Land%20in%20Farms%20and%20Land%20Use/Acre
s%20of%20 Irrigated%20Land.gif.
110
TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXVI
Exhibit G
Ozone Depleting Substances
Developed Countries
Developing Countries
Chlorofluorocarbons (CFCs)
Phased out end of 1995
Total phase out by 2010
Halons
Phased out end of 1993
Total phase out by 2010
Carbon tetrachloride
Phased out end of 1995
Total phase out by 2010
Methyl chloroform
Phased out end of 1995
Total phase out by 2015
Hydro chlorofluorocarbons (HCFCs)
Freeze from beginning of 1996
35% reduction by 2004
Hydro bromofluorocarbons (HBFCs)
Methyl bromide
65% reduction by 2010
Freeze in 2016
90% reduction by 2015
at 2015 base level
Total phase out by 2020
Total phase out by 2040
Phased out end of 1995
Phased out end of 1995
Freeze in 1995 at 1991 base level
Freeze in 2002 at average
25% reduction by 1999
1995-1998 base level
50% reduction by 2001
20% reduction by 2005
70% reduction by 2000
Total phase out by 2015
178
Total phase out by 2005
178
JEFFREY D. KOSTA, MONTREAL PROTOCOL 3 (2006),
http://www.colorado.edu/MCEN/APControl/Montreal.pdf.
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American Water Policy
Exhibit H
Annex A
Greenhouse gases
Carbon dioxide (CO2)
Methane (CH4)
Nitrous oxide (N2O)
Hydrofluorocarbons (HFCs)
Perfluorocarbons (PFCs)
Sulphur hexafluoride (SF6)
Sectors/source categories
Energy
Fuel combustion
Energy industries
Manufacturing industries and construction
Transport
Other sectors
Other
Fugitive emissions from fuels
Solid fuels
Oil and natural gas
Other
Industrial processes
Mineral products
Chemical industry
Metal production
Other production
Production of halocarbons and sulphur hexafluoride
Consumption of halocarbons and sulphur hexafluoride
Other
Solvent and other product use
Agriculture
Enteric fermentation
Manure management
Rice cultivation
Agricultural soils
Prescribed burning of savannas
Field burning of agricultural residues
Other
Waste
Solid waste disposal on land
Wastewater handling
Waste incineration
Other
111
112
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Annex B
Party Quantified emission limitation or reduction commitment
(percentage of base year or period)
Australia 108
Austria 92
Belgium 92
Bulgaria* 92
Canada 94
Croatia* 95
Czech Republic* 92
Denmark 92
Estonia* 92
European Community 92
Finland 92
France 92
Germany 92
Greece 92
Hungary* 94
Iceland 110
Ireland 92
Italy 92
Japan 94
Latvia* 92
Liechtenstein 92
Lithuania* 92
Luxembourg 92
Monaco 92
Netherlands 92
New Zealand 100
Norway 101
Poland* 94
Portugal 92
Romania* 92
Russian Federation* 100
Slovakia* 92
Slovenia* 92
Spain 92
Sweden 92
Switzerland 92
Ukraine* 100
United Kingdom of Great Britain and Northern Ireland 92
United States of America 93
* Countries that are undergoing the process of transition to a market economy.179
179
United Nations Framework Convention on Climate Control, Kyoto Protocol to the United Nations
Framework Convention on Climate Change (2006), http://unfccc.int/resource/docs/convkp/kpeng.html.