CLE

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Register for this month’s CLE, “Wrangling Over Water Rights,” from 1-2 p.m. ET on Wednesday, Sept. 17.

In a mountainous region straddling the border between Arizona and Ne­vada—close enough for easy day trips from Las Vegas—Lake Mead is losing its water.

To be precise, Lake Mead is a reservoir.

It was created by the Hoover Dam, which opened in 1935 to harness the Colorado River, the water lifeline for much of the West. Lake Mead’s purpose is to hold as much water as possible.

But ominously, water levels in the nation’s largest man-made lake have dropped to only half-capacity. An eight-year drought is the primary culprit for the losses so far, but scientists at the Scripps Institution of Oceanography in La Jolla, Calif., say climate change threatens what’s left of Lake Mead. They put the chances at 50-50 that the reservoir will be dry by 2021.

That kind of forecast sends shivers through booming Las Vegas, which depends on Lake Mead for 90 percent of its water. In February, news reports quoted flamboyant Vegas mayor Oscar Goodman saying that California farmers should go thirsty before his city does. “No one is going to allow us to dry up,” said Goodman at a news conference. “The Imperial Valley farmers will have their fields go fallow before our spigots will run dry.”

While Goodman’s statement might have been largely bluster, it accurately describes the stakes in the growing battle for access to the dwindling supply of freshwater in the United States.

Already strained by the demands of urban growth, industrial development and agriculture, the nation’s water supply now appears to be facing the additional threat of climate change.

While debate continues about global warming, many climatologists foresee a pattern in which mountain snows, which feed the Colorado and other important river systems in North America, will be depleted by rising temperatures. Longer dry spells will occur despite periods of intense storms and flooding. Mean­while, rising sea levels, caused by glacial melting and thermal expansion of warmer waters, threaten to contaminate coastal freshwater reservoirs and aquifers with salt. There is even concern about the Great Lakes, one of the planet’s largest freshwater resources, which have been near historic low levels in recent years.

These days, we think we can’t live without oil. But without water, we will die. Even diminished water flows can dry up farms, shut down hydroelectric and nuclear power plants, and cripple businesses that need water for their operations.

THE NOT-SO-GOOD WAR

In the face of those threats, conflicts over water promise to be widespread and bitter. And the sheer scale of massive river and lake systems that sprawl across state lines while serving millions of homes, farms and businesses means that piecemeal solutions are not likely to provide any long-range solutions.

Instead, there need to be new ways of thinking about how the law defines and dispenses water rights, says David R. E. Aladjem, who chairs the Water Resources Committee in the ABA Section of Environment, Energy and Resources.

“Climate change presents a really historic challenge to resource management, whether it involves water rights, water quality or protection of endangered species,” says Aladjem, a partner in the Sacramento, Calif., office of Downey Brand. “More and more, we’re not going to be able to solve this with litigation. We’re going to have to be very creative and collaborative to try to adjust our efforts and strategies to the changing circumstances.”

Not everyone has caught up with that kind of thinking, however.

For two decades now, Alabama, Florida and Georgia have been fighting the so-called tri-state water wars, which, in the view of some experts, present a textbook example of how not to deal with water shortages.

At issue is Georgia’s attempt to reserve approximate­ly one-fifth of the water stored in Lake Lanier—a federal reservoir constructed by the U.S. Army Corps of Engineers in the Apalachicola-Chattahoochee-Flint River Basin—for Atlanta, one of the fastest-growing cities in the United States. The basin, with its inter­connected rivers, provides water to all three states.

Georgia maintains that the reservoir, which opened in 1956, was always intended to be a primary source of water for Atlanta.

But Alabama and Florida point to the reservoir as a means for providing hydroelectric power and flood control in the region. They claim that if Georgia gets its way, reduced river flows will harm navigation and nuclear power plants in Alabama while threatening Florida’s valuable oyster trade as well as some endangered species. They contend that Georgia should focus on improving conservation rather than just grabbing more water.

In the latest round of the legal battle, the U.S. Court of Appeals for the District of Columbia Circuit ruled in February in Southeastern Federal Power Customers Inc. v. Geren (PDF) that an agreement changing water allocations from Lake Lanier constituted a major change in the operation of the reservoir that was not permissible without approval from Congress.

Joseph Dellapenna
Photo by Christopher Crisman

Then in June, Florida filed a notice of intent to sue the Army Corps of Engineers, alleging that its man­agement of Lake Lanier violates the Endangered Species Act.

A record-breaking drought in the Southeast that started in 2006 has only added to the heat of the tri-state water wars.

Last year, Georgia Gov. Sonny Perdue prayed for rain on the steps of the state capitol, and in November, Lake Lanier approached its record-low level. The drought eased somewhat this spring, but the region still is nervous about water supplies.

In February, Georgia opened up a new front when it revived a 190-year-old border dispute with Tennessee by claiming a strip of land bordering the banks of the Tennessee River. Under current boundaries, the river runs southwest through Tennessee and then into Alabama, but never crosses the Georgia line.

“I’m not going to lie to you,” Georgia state legislator John Meadows told the Christian Science Monitor at the time. “I want water out of the Tennessee River.”

But the tri-state water wars won’t solve anything the way they’re being fought, says Robert H. Abrams, a law professor at Florida A&M University.

“They just don’t get it,” says Abrams, a past chair of the environment section’s Water Resources Committee, in reference to the states’ efforts to win in court rather than negotiate a sound water-sharing agreement. “They still think they can maximize their own positions at the expense of the others. They haven’t thought about the needs of the basin as a whole.”

There have been efforts to approach water shortages in a regional way—the Colorado River Compact is a notable example—but cooperative agreements may be tougher to hammer out and maintain in an environment of growing competition for supplies of water that are becoming increasingly uncertain.

“We’re going to have to work within a legal frame that developed before we became aware that the climate was changing,” says Aladjem. “One of the things that water resources managers have used in the past is to take the hydrological data and say, ‘This is what happened in the past, so we can now extrapolate as to what will happen in the future.’ But with climate change, that assumption is no longer valid.”

SHARE THE PAIN

Access to water in the arid west already was a concern when the Colorado River Compact was reached in 1922 by seven states—Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming—that draw water from the river as it follows a 1,450-mile course from the Rocky Mountains to Mexico.

The states created the compact as a way to share the waters of the Colorado River rather than rely on the doctrine of prior appropriation, the primary legal regime for governing water rights in the West.

The prior appropriation doctrine developed during the 19th century in California and Colorado, where water was a precious commodity necessary for widespread mining operations. To head off disputes, the miners adopted the principle of “first in time, first in right.” Anyone who first used a specified allocation of water had the right to continue to use it in perpetuity—even if it meant cutting off newer users in times of drought.

This principle is the bedrock of prior appropriation law. In times of scarcity, senior users may protect their allocations of water by asking authorities to issue a “call”—a demand that junior users shut off spigots and turn off pumps, or replace water lost to senior users.

When it was introduced, the prior appropriation doctrine provided an efficient system for allocating water. But that was before the region’s boom in development and population. Now, the bulk of senior rights remain in the hands of agriculture, while growing urban centers make do largely with the less certain access to water provided by junior rights.

Without the compact, California would have been able to draw off most of the Colorado River’s water under prior appropriation claims that predated those of most of the other states.

The compact was based on estimates by hydrologists that pegged the river’s annual flow during an average 10-year period at 17.5 million acre-feet. (An acre-foot is the amount of water necessary to cover 1 acre of land to a depth of 1 foot. An area of 17.5 million acres is nearly the size of Massachusetts, Vermont and New Hampshire.)

The compact allocated 7.5 MAF to the states in the Upper Colorado River Basin (Colorado, New Mexico, Utah and Wyoming) and another 7.5 MAF to the states in the lower basin (Arizona, California and Nevada). Mexico’s right to 1.5 MAF of water was recognized in a 1944 treaty.

There have been problems with the compact right from the start. Early on, scientists recognized that their initial estimates of the Colorado River flow were high. Since the agreement was reached, the annual flow has been closer to 14 MAF rather than 17.5 MAF, and during the region’s current drought, the flow has been much lower, averaging only 9.6 MAF between 2000 and 2004. Consumption continues to hover around 16.5 MAF, however, depleting the water in the river’s primary reservoirs, Lake Mead and Lake Powell.

In December, the seven states signed a new agreement with the federal government that sets forth plans to deal with water shortages caused by reduced flows on the Colorado River. The states and federal officials said the new agreement, which runs through 2026, is intended to forestall litigation over water shortages.

Still, some experts wonder whether it’s time for the Colorado River Compact itself to be renegotiated in recognition of changes that have occurred in the region since 1922.

“People used to say it would happen when pigs fly, but certainly global change will be forcing attention on the issue in a very real way,” says A. Dan Tarlock, a professor and director of the Program in Environmental and Energy Law at Chicago-Kent College of Law.

In other parts of the West, the prior appropriation doctrine itself is undergoing reconsideration.

A key issue involves transfer of water rights. Under prior appropriation law, water rights are transferable, and they can be bought, sold, leased—or lost, if the owner fails to make beneficial use of them.

Illustration by Jeff Dionise

In theory, this gives the courts flexibility to recognize new water rights as circumstances change. Thirsty cities, for instance, may buy up or lease senior water rights, usually from agricultural interests. In practice, however, there are substantial obstacles to the timely and efficient transfer of water rights.

The priority of senior rights means that any party purchasing a water right for a new use must first prove that the new use will not harm owners of existing rights on the waterway, says Barbara Cosens, a law professor at the University of Idaho. “The new use might change the timing or the rate of the stream flow,” she says. “Protecting all the other water users usually means you can’t transfer the full water right as it appears on paper.”

In addition, many Western states have not fully adjudicated water rights within their boundaries. Many senior users, some of whose rights might date back to the 19th century, may have never had their water rights recognized by a court decree. As a result, says Robert J. Glennon, a law professor at the University of Arizona, “when someone goes to transfer the right, the validity, the scope and every other aspect of the right are put into question.”

A number of states are engaged in the slow-moving adjudication process, but owners of senior rights may have trouble enforcing them even when they have re­ceived judicial recog­nition.

In 2005, for instance, a coalition of senior users in Idaho, mostly agricultural irrigators, asked the director of the Idaho Department of Water Resources to issue a call to have water access curtailed for junior users—mostly farmers, but also some cities—in the East Snake Plain Aquifer.

The director issued the order, but only to restore a “minimum full supply” of water based on 1995 usage amounts, not the full extent of water rights that had been recognized for senior users by the state courts. In doing so, the director applied the department’s rules requiring a determination that senior users had suffered material harm, and that they had been making efficient use of their water before a call could be enforced.

The coalition of senior users sued to have the 1995 rules declared unconstitutional. In March 2007, the Idaho Supreme Court ruled in American Falls Reservoir District No. 2 v. Idaho Department of Water Resources (PDF) that the rules were constitutional on their face but could be unconstitutional in their application.

The court sent the case back to the department for an independent hearing conducted by the court’s recent­ly retired chief justice, Gerald Schroeder. In April, Schroeder issued a recommendation that backed the senior users, stating that the rules, as applied by the Water Resources Department, amounted to a re­adjudication of water rights. The department has not yet acted on Schroeder’s report.

In Tarlock’s view, these kinds of legal fights may soon be a thing of the past. He predicts that states will be increasingly reluctant to enforce senior water rights against the interests of the region’s cities, which continue to grow in both population and political clout.

In the future, he suggests, priority rights will be enforced in the context of small-scale disputes. In larger disputes, the cost and time required to pursue claims in the courts may lead many senior users to forgo their priority rights in favor of water-sharing agreements involving multiple parties.

But those types of agreements can be tough to negotiate, says Steve Moore, a staff attorney at the Native American Rights Fund in Boulder, Colo., who represents tribes in water rights matters. “You have to try and fashion these agreements so that they take this complex array of needs into account and still have the flexibility so that, over time, they are durable. It’s like a very complex tapestry—you pull one thread and everything else reacts.”

THE PICNIC IS OVER

Things are different back east. unlike the arid West, where legal claims to water depend on who used it first, in the historically water-rich East, the common-law principle of riparian rights prevails. Under riparian rights doctrine, the owner of land adjacent to a body of water is entitled to use that water.

A key element of traditional riparian rights doctrine is the idea that the use of water should be reasonable, says Joseph W. Dellapenna, a professor at Villanova Uni­ver­sity School of Law. Under that standard, diverting water from a lake or river would be prohibited. Riparian rights do not recognize a first claim to water over claims that arose later. Generally, courts intervene only in lawsuits arising out of disputes over riparian rights and limited government regulation.

But that seemingly pastoral approach to water rights may be coming to an end as the East begins to face its own water shortages.

In May, attendees of the 2008 Eastern Water Re­sources Conference sponsored by the ABA Section of Environment, Energy and Resources—titled “A Climate of Change”—heard the sobering news from Eric F. Wood, a professor of civil and environmental engineering at Princeton University. After providing the increasingly familiar litany of threats from climate change, Wood summed up the situation in simple terms: “More water when we don’t want it. Less water when we do want it.”

Barbara Cosens
Photo by J. Craig Sweat

The good news is that riparian law was starting to evolve even before water shortages began to loom over the eastern portion of the United States, says Dellapenna, who co-chairs the International Environ­mental Law Committee in the ABA Section of Inter­national Law. And those changes, he says, may make it easier for the law to respond more effectively to wa­ter scarcity.

In most states, a layer of laws, regulations and court decisions has been added to the core doctrine of riparian rights, creating what Dellapenna describes as “regulated riparianism.”

The basic concept underlying regulated riparianism is that water is a public good that the state may reg­ulate for the benefit of the health, safety and well-being of the public. Accordingly, no water is allowed to be withdrawn from a source without a time-limited permit.

The permit system gives states new tools to manage water shortages, according to Dellapenna. Through permits, a state can promote conservation by adding more explicit criteria to the “reasonable use” doctrine, such as environmental preservation and efficient use. The time-limited nature of the permit gives the state flexibility to adapt to changing circumstances through its power to deny renewal for some uses and issue new permits for others.

Dellapenna estimates that about half of the Eastern states have adopted some form of regulated riparianism, but the rules can vary significantly from state to state. Seeking more uniformity, the American Society of Civil Engineers commissioned Dellapenna and others to develop a model code of regulated riparianism.

The society adopted the code in 2003, but so far no states have signed on. Tarlock, for one, doesn’t expect that to happen anytime soon. “It’s a complex regulatory scheme, and especially in the Eastern states, water regulation is still a very tough sell,” he says.

GREAT LAKES RULE

The Great Lakes are the freshwater equivalent of the oil-rich Persian Gulf, and the leaders of eight states that border the lakes are taking steps to maintain control over their increasingly precious resource.

After years of negotiations and political maneuvering, the Great Lakes Compact finally gained approval earlier this year from the legislatures of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsyl­vania and Wisconsin. A companion agreement includes the Canadian provinces of Quebec and Ontario.

Proponents say it is just a matter of time before the Great Lakes Compact also receives the necessary approval of Congress.

The compact prohibits increases in current water diversions from the Great Lakes Basin along with any new diversions. The agreement also sets standards to guide water supply decisions within the basin.

The protective nature of the compact is apparent, says Noah D. Hall, a law professor at Wayne State University. “It was pretty clear that the parts of the country that are growing rapidly don’t have the water supplies they need to sustain that growth,” he says.

“It was seen as only a matter of time before they would start looking to the Great Lakes to supply that water.”

Hall says the compact represents the kind of proactive, regional approach to water management that will be needed in an era of shortages. In addition to limits on water diversions out of the Great Lakes, the compact requires each signatory state to develop a conservation plan and establishes a council made up of the eight governors, with broad authority to conduct research, produce reports and forecasts, and plan for the future.

A key feature of the compact is that it encompasses use of both groundwater and surface water in the Great Lakes Basin, says Hall. “Hydrologists have been saying for years that managing surface and groundwater separately didn’t make sense,” he notes.

Many in the water law field say the Great Lakes Compact reinforces the importance of a cooperative approach to dealing with limited water supplies.

The effort needs to start among entities that share the same water sources, says Alf W. Brandt, a lawyer who serves as adviser on water resource law and policy to the California State Assembly. “I think it’s going to take thinking globally but acting locally,” says Brandt. “I know it’s trite, but it’s going to take each of these watersheds to figure out what’s facing them in terms of climate change and what works in that watershed.”


Kristin Choo is a freelance writer in New York City.


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