Today we published a new journal article in the Journal of the American Water Resources Association. We look at an element of western prior appropriation water law that appears to challenge several of the basic tenants of prior appropriation water rights.
In western water law, water is allocated by priority date. That is, when there is not enough to go around, the most senior (oldest) water rights get fully filled at the expense of the most junior (newest). But water rights are only valid to the extent that they are used – “use it or loose it.”
Priority date determines your place in line and you can only maintain that place in line by using water.
In all the prior appropriation states there is a provision to hold you place in line without using water while you build your project – a temporary “construction permit.” We looked at the number, uses, and age of these “construction permits” in Colorado to see how “temporary” they are. It turns out that there are a lot of rights that are holding their place in line, but are not being used. We think this is the first quantification of an effect that has been discussed in the academic legal literature, but has not been measured.
With the drought in full swing out in the western US, you cannot help hearing about the water stress felt by Colorado River users like Las Vegas, Los Angeles, and Phoenix. Many people will point to irrigated agriculture in the West as an inefficient use of water that ought to be stamped out. I disagree. Growing alfalfa in Arizona is not inherently a dumb idea – there is a long growing season, fertile soil, and a predictable climate. You just need to add water and you get fields that are as productive, if not more, than fields in the southeastern US.
The current issue of the High Country News has a nice little blurb about the fate of some of the irrigated crops from the Colorado River Basin. It turns out that we use some very valuable Colorado River water to grow alfalfa that we ship to Asian dairies.
Yet another report on water use in the corporate sector came out this week. This one is a joint effort by Vox Global and The Pacific Institute. They report on survey results covering 51 US-based companies from a range of industries. The companies were asked about how they view water’s impact on their businesses and how the business planned to respond to water challenges.
The top-line takeaway was that water was viewed as a current problem that affects many businesses – 79% of companies currently face water challenges, and 84% believe they will in the next 5 years. However they also found that “the majority of companies surveyed do not appear to be planning corollary increases in the breadth and scale of their water risk management practices”
Every few years Congress authorizes numerous US Army Corps of Engineers projects under a omnibus authorization bill – typically called the “Water Resources Development Act” (WRDA). Congress has been working on the current iteration of WRDA throughout the year, and it appears the end may be in sight. I provide a brief summary of the status of the bill and highlight a few issues that I find interesting: authorizing projects in a post-earmark world, marketing of surplus water at USACE facilities (North Dakota), reservoir reallocation for M&I use (ACF controversy), and new vehicles for funding water infrastructure.
My summary is here: WRDA Status (Nov 21)
Briefly, as of Nov 21st, the bill is in conference, and the conferees have expressed optimism of producing and voting on a report by the end of 2013. The authorization process in the Senate bill is a bit more open ended and will lead to a more projects being authorized than the House bill which enumerates specific projects. Restrictions on reservoir reallocation included in earlier drafts of the bill seem to have disappeared.
Another excellent summary covering a wider range of WRDA issues by CRS is here.
I have found Bloomberg BNA Water Law & Policy Monitor (subscription required) to be the best source of current news on bill as it works it way through the process.
The “energy-water nexus” has become popular in water resources over the past few years. I am skeptical of those that find a nexus in just about anything, nevertheless, there is a potential for some interesting and valuable research involving water use in the energy production sector.
My dissertation work at Johns Hopkins involved trying to figure out what happens
to a river bed when you increase the sediment supply to the bed. We know that the arrangement of a bed – bars, pools, riffles, etc… depends on the balance between the water and the sediment supplied to a reach of river. Dams can interrupt the flow of sediment and water, which can upset the balance and therefore change the character of the river. We were motivated to look at this by a dam removal (www.jhu.edu/marmot) during which the Sandy River, Oregon, was given an increased sediment supply. To expand on our observations in the field, we did a laboratory flume experiment at the University of Minnesota’s Saint Anthony Falls Laboratory.
This paper (Podolak and Wilcock (2013) ESPL published in Earth Surface Processes and Landforms) describes our experiments and their results. We used a large flume (nearly 3 meters wide) and established alternate bar topography. We then increased the sediment supply twice, measuring the bed topography and grain size as it evolved to the new higher sediment supply.
Would you save a stranger’s place in line for five minutes? What about an overnight line for the latest phone? These are essentially the questions that Coloradans face today over water. Many people are ‘holding a place in line’ because of a distorted application of a particular water law. Fortunately, the Colorado Supreme Court has stepped in to rein in this distortion, most recently in a decision handed down last week.
The distortion arises because of two key aspects of western water law. First, the doctrine of prior appropriation (‘first in time, first in right’) creates the line for water. Users with the oldest water rights get their allocation first, and the more junior users get fulfilled only after senior water rights are filled. Second, because a water right is only valid if it is put to beneficial use (‘use it or lose it’) only actual users can ‘stand in line.’ This is intended to avoid water speculation.
California has recently declared a human right to water. People oppose water markets on the basis that we shouldn’t buy and sell something that is a basic human need – ignoring the fact that we do this with food all the time. To make sense of this, we need to dig into the numbers. How much water do we use? How much water is needed to fulfill the basic human requirement?
According to the USGS’ most recent report on water withdrawals in the United States, we withdrew 390 million acre-feet of freshwater during 2005 (the year with data reported). An acre foot is a volume of water that covers one acre of land one foot deep, or 326,000 gallons. Of this total, only 8% was used for domestic use - inside and outside the home.
How much water is needed for basic human needs? In a 1996 paper, Peter Gleick, then of the Pacific Institute, estimated that basic human water requirements were 50 liters (13.21 gallons) per day per person. This accounted for 5 to drink, 20 for sanitation (toilets), 15 for bathing, and 10 for food preparation. He cited previous studies showing average U.S. water use for toilets, baths, showers, and kitchens to be 4-5 times that value (220-235 liters per person per day). Applying this basic value to the 2005 US population, there is 4.5 million acre feed needed to fulfill basic human needs in the U.S. – or 1% of the total annual water withdrawals. How much water is this? The Mississippi River (at Baton Rouge) typically discharges 390 million acre feet per year. We can take 4 days of Mississippi River flow to fulfill all the basic human requirements for the entire country and then worry about how to use the rest of the flow of every river in the nation.
We can probably agree that poverty should not force anyone in our country to forego the water needed for basic human requirements. While markets are often considered to efficiently allocate resources, they neither equitably allocate resources nor assure a basic level of distribution. To ensure a basic level of equity, we can rely on some other system, typically a government allocation of resources. But, our decisions regarding allocating 100% of our water resources should not be driven by the need to allocate the first 1%.
Those who advocate market-based systems to allocate the valuable scarce water resource, are primarily concerned with the 99% of the water use that is not used for basic human needs. This 99% is used to grow crops, generate electricity, water lawns, produce oil, grow livestock, provide recreation, and more. Those who oppose markets for water on the grounds that markets can leave the poor without access to a life-sustaining resource are concerned with 1% of the water use. Reconciling this disagreement requires us to recognize that system to allocate 99% of our water may be inappropriate for 100% of it, and the system to allocate 1% of our water may similarly be inappropriate to allocate 100% of it. Lets all admit this, and we may get past the markets vs. human rights false choice.