THE MILWAUKEE POLLUTION CASE - IMPLICATIONS FOR WATER RESOURCES PLANNING1

ABSTRACT: The Illinois v. Milwaukee Federal District Court decision is the most far reaching application yet of the federal common law of nuisance to interstate water pollution conflicts. Although a Federal Appelate Court recently rescinded part of the district court decision, Milwaukee must still upgrade its metropolitan sewage system to a level beyond that required by federal and state regulations. The improvements must be completed with or without federal aid. The case points out the apparent inability of the Clean Water Act, the most comprehensive federal legislation affecting the nation's water quality, to deal with certain interstate water quality conflicts. The Milwaukee decision could set a precedent for similar settlements elsewhere which may in turn affect the U.S. Environmental Protection Agency's water quality clean up program. A more integrated, ecosystem conscious approach to management of shared water resources (e.g., the Great Lakes) would help reduce the need for court decisions like Illinois v. Milwaukee.     

INTERSTATE AND INTERNATIONAL COMPETITION FOR WATER RESOURCES1

ABSTRACT: Federal-state relations over the management and regulation of ground water resources have undergone a number of changes in recent years. There are a variety of reasons that the role of the federal government in ground water management may increase in the future. One important reason federal policymakers may become involved concerns the extent of competition for ground water resources that cross state and national borders. This article summarizes reasons that interstate and international competition for ground water resources may provide the impetus for federal intervention in ground water management and presents the results of a survey conducted to determine the extent of that competition.     

A CRITIQUE OF WATERSHED MANAGEMENT EFFORTS IN THE LOWER MISSISSIPPI ALLUVIAL PLAIN1

ABSTRACT: Integrated watershed management in the Lower Mississippi Alluvial Plain (Delta) requires blending federal, state, and local authority. The federal government has preeminent authority over interstate navigable waters. Conversely, state and local governments have authority vital for comprehensive watershed management. In the Delta, integrating three broad legal and administrative regimes: (1) flood control, (2) agricultural watershed management, and (3) natural resources and environmental management, is vital for comprehensive intrastate watershed, and interstate river basin management. Federal Mississippi River flood control projects incorporated previous state and local efforts. Similarly, federal agricultural programs in the River's tributary headwaters adopted watershed management and were integrated into flood control efforts. These legal and administrative regimes implement national policy largely in cooperation with and through technical and financial assistance to local agencies such as levee commissions and soil and water conservation districts. This administrative infrastructure could address new national concerns such as nonpoint source pollution which require a watershed scale management approach. However, the natural resources and environmental management regime lacks a local administrative infrastructure. Many governmental and non governmental coordinating organizations have recently formed to address this shortcoming in the Delta. With federal and state leadership and support, these organizations could provide mechanisms to better integrate natural resources and environmental issues into the Delta's existing local administrative infrastructure.     

INTEGRATING SOCIAL ANALYSIS INTO WATER RESOURCES PLANNING: SOME EMERGING TRENDS IN THE CORPS OF ENGINEERS1

ABSTRACT: While federal water resources laws and regulations require social analysis, no one workable formula exists for integrating it into water resources planning. Two primary problems in integrating social analysis into planning are examined; making trade-offs between policy acceptability and theoretical competence, and managing social analysis in planning. For illustration, the article builds on emerging trends within the U.S. Army Corps of Engineers. It concludes by observing that creative application of social theory to policy problems along with innovative data gathering techniques are the primary routes to managing these problems.     

USE OF THE DELPHI METHOD IN RESOLVING COMPLEX WATER RESOURCES ISSUES1

ABSTRACT: The tri‐state river basins, shared by Georgia, Alabama, and Florida, are being modeled by the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers to help facilitate agreement in an acrimonious water dispute among these different state governments. Modeling of such basin reservoir operations requires parallel understanding of several river system components: hydropower production, flood control, municipal and industrial water use, navigation, and reservoir fisheries requirements. The Delphi method, using repetitive surveying of experts, was applied to determine fisheries' water and lake‐level requirements on 25 reservoirs in these interstate basins. The Delphi technique allowed the needs and requirements of fish populations to be brought into the modeling effort on equal footing with other water supply and demand components. When the subject matter is concisely defined and limited, this technique can rapidly assess expert opinion on any natural resource issue, and even move expert opinion toward greater agreement.     

A Nationally Consistent NHDPlus Framework for Identifying Interstate Waters: Implications for Integrated Assessments and Interjurisdictional TMDLs

The US Environmental Protection Agency’s (EPA’s) Total Maximum Daily Loads (TMDL) program promotes nationally consistent approaches for documenting the progress in restoring impaired waters. EPA’s TMDL program provides tracking systems comprising both database and geographic information systems (GIS) mapping components. The GIS mapping is implemented using the National Hydrography Dataset (NHD). The EPA and the US Geological Survey have developed an enhanced NHD product (NHDPlus) that is applied in this study to define an interstate waters framework for the conterminous United States. This NHDPlus-based framework provides an efficient watershed-oriented approach for selecting interstate waters. Greater consistency in approaches for interstate waters is essential for providing improved techniques for integrated assessment and management programs. Improved analysis tools for interstate waters are clearly important from a federal perspective. Insights based on tools for federal interstate waters are also of interest for state water quality agencies when they deal with complicated interjurisdictional challenges that can require leveraging support from a wide range of stakeholders. Summaries are provided on the degree of consistency documented for inland waters where states have provided TMDL listing GIS information for shared interstate NHD reaches, and summaries are provided on the patterns for interstate assessments organized according to the ecoregions developed for EPA’s Wadeable Streams Assessment. The relevance of this interstate waters framework in leveraging the TMDL program to provide enhanced support for watershed oriented management approaches is also explored.     

Transboundary Groundwater Policy: Developing Approaches in the Western and Southwestern United States1

Hathaway, Deborah L., 2011. Transboundary Groundwater Policy: Developing Approaches in the Western and Southwestern United States. Journal of the American Water Resources Association (JAWRA) 47(1):103‐113. DOI: 10.1111/j.1752‐1688.2010.00494.x Abstract: The western and southwestern United States include dozens of groundwater basins that cross political boundaries. Common among these shared groundwater basins is an overlay of differing legal structures and water development priorities, typically, with insufficient water supply for competing human uses, and often, a degraded ecosystem. Resolution of conflicts over ambiguously regulated groundwater has clarified transboundary groundwater policy in some interstate basins, while transboundary groundwater policy in international basins is less evolved. This paper identifies and contrasts approaches to transboundary groundwater policy, drawing from recent conflicts and cooperative efforts, including those associated with the interstate compacts on the Arkansas and Pecos Rivers; the Hueco and Lower Rio Grande Basins shared by New Mexico, Texas, and Mexico; and the Mexicali Basin in California and Mexico. Some efforts seek to fit groundwater policy into existing surface water allocation procedures; some strive for a better fit – incorporating scientific understanding of key differences between groundwater and surface water into policy frameworks. In some cases, neither policy nor precedent exists. The collective experience of these and other cases sets the stage for improved management of transboundary groundwater; as such, challenges and successes of these approaches, and those contemplated in several hypothetical model agreements, are examined.     

INTERSTATE WATER ALLOCATION COMPACTS IN THE WESTERN UNITED STATES - SOME SUGGESTIONS1

ABSTRACT: Agreements between states, or compacts, provide a mechanism for resolving transboundary resource issues. The twenty-two compacts allocating the water of rivers among states in the western United States are examined to provide guidance for drafters of future compacts. The method of allocation selected for a compact reflects the state's allocation of the risk of dry years. Allocations based on models have been unsuccessful. Percentage allocations are good for fairly apportioning risk, but conflict with principles of prior appropriation. Guarantees of minimum flows should be used with great care, to avoid any state becoming a guarantor of natural phenomena over which it has no control. Disputes should be anticipated, and a dispute resolution mechanism agreed upon. Arbitration or litigation are likely to prove the most politically acceptable. Compacts should be comprehensive in scope, encompassing groundwater as well as surface use. Federal claims should also be addressed, and some form of protection from subsequent changes of federal policy should be incorporated in the agreement and its ratifying legislation.     

Management of Water Shortage in the Colorado River Basin: Evaluating Current Policy and the Viability of Interstate Water Trading1

Wildman, Richard A., Jr. and Noelani A. Forde, 2012. Management of Water Shortage in the Colorado River Basin: Evaluating Current Policy and the Viability of Interstate Water Trading. Journal of the American Water Resources Association (JAWRA) 48(3): 411-422. DOI: 10.1111/j.1752-1688.2012.00665.x Abstract: The water of the Colorado River of the southwestern United States (U.S.) is presently used beyond its reliable supply, and the flow of this river is forecast to decrease significantly due to climate change. A recent interim report of the Colorado River Basin Water Supply and Demand Study is the first acknowledgment of these facts by U.S. federal water managers. In light of this new stance, we evaluate the current policy of adaptation to water shortages in the Colorado River Basin. We find that initial shortages will be borne only by the cities of Arizona and Nevada and farms in Arizona whereas the other Basin states have no incentive to reduce consumptive use. Furthermore, the development of a long-term plan is deferred until greater water scarcity exists. As a potential response to long-term water scarcity, we evaluate the viability of an interstate water market in the Colorado River Basin. We inform our analysis with newly available data from the Murray-Darling Basin of Australia, which has used interstate water trading to create vital flexibility during extreme aridity during recent years. We find that, despite substantial obstacles, an interstate water market is a compelling reform that could be used not only to adapt to increased water scarcity but also to preserve core elements of Colorado River Basin law.     

DEVELOPMENT OF FEDERAL RESERVE RIGHTS1

ABSTRACT: The concept that has been termed “Indian Rights to Water” is one manifestation of the area of federal reserved rights that is a major concern of states in arid regions. The federal reserved rights are those that are reserved in fact or by implication in federal actions, acts, reservations, and treaties. Federal actions include such things as navigation improvement and flood control projects. The Federal Court System, since the Civil War has been promulgating, developing, and protecting federal reserved water rights. The development of those rights can be traced from early cases through the landmark cases such as U.S. v. Rio Grande and Irrigation Co. (1899); Winters v. U.S. (1908) with the origin of the Winters' Doctrine of Indian Rights; Federal Power Commission v. Oregon, commonly called the Pelton Dam Case (1955); Arizona v. California (1963); U.S. v. District Court for Eagle County (1971); to existing suits on surface water sources such as that on appeal in regard to reserved federal water rights on the Truckee River. It can be shown that the federal position has been consistent through all the years in that the federal rights have been protected, expanded, developed, and preserved in a more or less predictable manner.     

Policy Frameworks Influencing Outdoor Water‐use Restrictions

Water‐use efficiency in the United States (U.S.) has improved in recent years. Yet continued population growth coupled with increasingly conservation‐oriented regulatory frameworks suggest that residential water suppliers will have to realize additional efficiency gains in coming decades. Outdoor water‐use restrictions (OWRs) appear to be an increasingly prevalent demand‐side management policy tool. To date little research has investigated the policy mechanisms that govern OWR adoption and influence the prevalence of OWRs. This article fills this gap with an assessment of state‐level policies influencing local‐level restrictions on residential outdoor water use in each of the 48 contiguous U.S. states, and with a detailed illustration of the cross‐scalar dynamic of one state's policy framework in practice. An examination of the implementation of OWRs in 24 neighboring towns in Massachusetts across the 2003‐2012 period indicates the interplay between state‐level and local‐level policies leads to OWRs implementation over extended time‐periods, even when drought conditions are not present. This finding suggests OWRs are being used as a tool for general‐purpose water conservation rather than as a stopgap measure justified by temporary water shortage conditions. Future research should investigate how local‐level water savings vary with differing state‐level approaches.     

A Gis‐Based Approach to Watershed Classification for Nebraska Reservoirs1

Abstract: The U.S. Environmental Protection Agency is charged with establishing standards and criteria for assessing lake water quality. It is, however, increasingly evident that a single set of national water quality standards that do not take into account regional hydrogeologic and ecological differences will not be viable as lakes clearly have different inherent capacities to meet such standards. We demonstrate a GIS‐based watershed classification strategy for identifying groups of Nebraska reservoirs that have similar potential capacity to attain a certain level of water quality standard. A preliminary cluster analysis of 78 reservoirs was performed to determine the potential number of Nebraska reservoir groups. Subsequently, a Classification Trees method was used to refine number of classes, describe the structure of reservoir watershed classes, and to develop a predictive model that relates watershed conditions to reservoir classes. Results suggest that Nebraska reservoirs can be represented by nine classes and that soil organic matter content in the watershed is the most important single variable for segregating the reservoirs. The cross‐validation prediction error rate of the Classification Tree model was 26.3%. Because all geospatial data used in this work are available nationally, the method could be adopted throughout the U.S. Hence, this GIS‐based watershed classification approach could provide water resources managers an effective decision‐support tool in managing reservoir water quality.     

Addressing Declining Appropriations for Bureau of Reclamation Infrastructure: Policies Needed for Enabling Private Finance

Western water infrastructure was funded in the early and mid‐20th Century through federal financing through the Bureau of Reclamation. Over the past 30 years, federal financing has been less forthcoming, which has been commensurate with an increase in the need for financing rehabilitation and replacement of western irrigation infrastructure. As federal appropriations have declined, there has been increased interest in alternative approaches to infrastructure including public–private partnerships (P3s), loan guarantees, or title transfer of federal infrastructure. However, two of these approaches — P3s and loan guarantees — are precluded by existing federal budgetary policies, particularly Office of Management and Budget (OMB) scoring practices. If the OMB changed its policies for P3s or loan guarantees, private capital could play an important role in recapitalizing aging Reclamation infrastructure.     

THE LEGAL‐INSTITUTIONAL ANALYSIS MODEL AND WATER POLICYMAKING IN A BI‐NATIONAL SETTING1

ABSTRACT: This paper reports the use of a water negotiation model, the Legal‐Institutional Analysis Model (LIAM), in the bi‐national setting of the U.S. and Mexico in the Paso del Norte region. The following study discusses the results of developing baseline data where interstate, international, and cultural factors, as well as a long history of conflict, impact on negotiations and the extent to which the LIAM is a valuable tool for analyzing behavior among institutional actors in such a setting. The findings suggest that most water policy actors in the region prefer brokered solutions as defined within the LIAM framework.     

AN ECONOMIC OVERVIEW OF HAWAII'S WATER INSTITUTIONS1

ABSTRACT: The problem of allocating scarce water resources among competing uses and users over time in Hawaii is addressed within the context of analytical institutional economics. The nature of this problem has been, in recent years, highly complicated by important institutional changes that control operating decisions for water supply and water pollution. Whereas the imbalance in governmental initiatives regarding changes in the system of water rights (predominantly state) and environmental laws (predominantly federal) are based on U.S. constitutional provisions, the more fundamental roots of the crucial legal doctrines involved have been traced back to the common property concept. This suggests that the more promising opportunities for meeting the water policy challenges of the state are to be found in the historical common property system (ahupua'a) of Hawaii.     

INSTITUTIONAL OPTIONS FOR THE COLORADO RIVER1

ABSTRACT: In many interstate river basins, the institutional arrangements for the governance and management of the shared water resource are not adequately designed to effectively address the many political, legal, social, and economic issues that arise when the demands on the resource exceed the available supplies. Even under normal hydrologic conditions, this problem is frequently seen in the Colorado River Basin. During severe sustained drought, it is likely that the deficiencies of the existing arrangements would present a formidable barrier to an effective drought response, interfering with efforts to quickly and efficiently conserve and reallocate available supplies to support a variety of critical needs. In the United States, several types of regional arrangements are seen for the administration of interstate water resources. These arrangements include compact commissions, interstate councils, basin interagency committees, interagency-interstate commissions, federal-interstate compact commissions, federal regional agencies, and the single federal administrator. Of these options, the federal-interstate compact commission is the most appropriate arrangement for correcting the current deficiencies of the Colorado River institution, under all hydrologic conditions.     

Reasonable Use?: The Challenges of Transboundary Groundwater Regulation in the Eastern United States

Regulating groundwater in the Eastern United States (U.S.), particularly transboundary aquifers between states, is a challenge given the patchwork quilt of common law, statutory frameworks, and agency rules. Such regulation is made more challenging by the need for better quantification of pumping and use. These dynamics are exemplified through several case studies, including the first ever U.S. Supreme Court case related to groundwater withdrawals (set in the Eastern U.S.). As dynamics such as expanded irrigation, population increases, and ecological considerations influence groundwater use across the Eastern U.S., water use will continue to be an important driver for economic activity and interaction within and between states. To effectively regulate transboundary aquifers, governance solutions must incorporate current science into decision making and be implemented at local, state, regional, and federal scales.     

The Tribal Environment: Solid Waste in Indian Country

The issue of solid waste management in Indian country is multidimensional in scope because it affects more than just regulatory concerns. There are more than 550 federally recognized Alaska Native and American Indian Tribes in the United States. Tribes are sovereign nations that have a special relationship to the federal government and a unique legal status. The environmental problems faced by tribes are many, and it is only fair that tribes, as sovereigns, specify the levels of protection on their lands. The one-size-fits-all regulatory approach to environmental problems and solid waste management in particular does not work and often leads to conflict between tribes and the federal and state governments. Inherent tensions also exist between tribes and various levels of government concerning jurisdiction of lands and managing solid waste. These intergovernmental relationships are often complex and present unique challenges to all. More research needs to be done on targeting resources to meet the capacity-building needs of tribes, as well as the overall environmental management needs of Indian country under the federal trust obligation. Successful intergovernmental relationships can be fostered through partnership arrangements between tribes and federal, state, and local governments. In the area of solid waste such partnerships have worked. It requires that all levels of government deal with tribes with careful consideration of their cultural, historic, and socioeconomic aspects, which are often intertwined.     

Enhanced learning from multi-stakeholder partnerships: Lessons from the Enabling Rural Innovation in Africa programme

Despite increasing interest and support for multi‐stakeholder partnerships, empirical applications of participatory evaluation approaches to enhance learning from partnerships are either uncommon or undocumented. This paper draws lessons on the use of participatory self‐reflective approaches that facilitate structured learning on processes and outcomes of partnerships. Such practice is important to building partnerships, because it helps partners understand how they can develop more collaborative and responsive ways of managing partnerships. The paper is based on experience with the Enabling Rural Innovation (ERI) in Africa programme. Results highlight the dynamic process of partnership formation and the key elements that contribute to success. These include: (i) shared vision and complementarity, (ii) consistent support from senior leadership; (iii) evidence of institutional and individual benefits; (iv) investments in human and social capital; (v) joint resources mobilization. However, key challenges require coping with high staff turnover and over‐commitment, conflicting personalities and institutional differences, high transaction costs, and sustaining partnerships with the private business sector. The paper suggests that institutionalizing multi‐stakeholder partnerships requires participatory reflective practices that help structure and enhance learning, and incrementally help in building the capacity of research and development organisations to partner better and ultimately to innovate.     

Barriers to Water Conservation in the Rio Grande Basin1

Abstract: The Rio Grande basin shares problems faced by many arid regions of the world: growing and competing demands for water and river flows and uses that are vulnerable to drought and climate change. In recent years legislation, administrative action, and other measures have emerged to encourage private investment in efficient agricultural water use. Nevertheless, several institutional barriers discourage irrigators from investing in water conservation measures. This article examines barriers to agricultural water conservation in the Rio Grande basin and identifies challenges and opportunities for promoting it. Several barriers to water conservation are identified: clouded titles, water transfer restrictions, illusory water savings, insecure rights to conserved water, shared carry‐over storage, interstate compacts, conservation attitudes, land tenure arrangements, and an uncertain duty of water. Based on data on water use and crop production costs, price is found to be a major factor influencing water conservation. A low water price discourages water conservation even if other institutions promote it. A high price of water encourages conservation even in the presence of other discouraging factors. In conclusion, water‐conserving policies can be more effectively implemented where water institutions and programs are designed to be compatible with water’s underlying economic scarcity.