REVISITING STATE WATER RIGHTS LAW1

ABSTRACT: Water resources professionals should be engaged actively in revisiting state water rights law. During the past four years, sponsored by the American Society of Civil Engineers with cooperation of other water resources organizations, over a hundred engineers, hydrologists, geographers, lawyers, administrators, educators, water users, and other persons interested in water law have been preparing a Model State Water Rights Code. Preliminary drafts of the Model Code have been considered in four states, and its provisions will be disseminated nationally to state legislators and other policy makers upon formal publication in September 1994. The Model Code gathers the best provisions from state water laws into comprehensive regulated riparian and prior appropriation provisions, includes commentaries explaining how its textual sections address water resources planning and management issues, and references similar language in current state water statutes. The goal of the Code Project is to provide materials which will assist legislators so they can enact effective, efficient, and equitable water laws. In the future, the Code drafting group will expand its efforts to develop legal guidelines for allocating shared transboundary water resources, water quality law, federal water statutes, and other water resources legal issues.     

WATER YIELD AUGMENTATION THROUGH FOREST AND RANGE MANAGEMENT - ISSUES FOR THE FUTURE1

The demand for more water is increasing throughout the country. Research on upland watersheds clearly demonstrates that water yield can be increased using forest and range management practices. Based on the experience of the past several decades and a review of six papers in a recent AWRA series on water yield augmentation through vegetation management, the following issues and concerns are discussed: predicting increased yields from large basins; economic evaluation of additional flows; court acceptance and need for system models; the legal question of ownership and transferability of increased yields; and management emphasis on private and federal lands. The immediate potential for water yield augmentation is on carefully selected watersheds that have the bio-physical potential to produce high value water under environmentally acceptable multiple use management. We predict water yield management on a broader scale will result from increased pressures to solve the legal and economic issues involved.     

DETERMINING MINIMUM FLOWS AND LEVELS: THE FLORIDA EXPERIENCE1

ABSTRACT: Florida water resources are among the most abundant in the United States, with Florida receiving the second‐highest mean annual rainfall of all states. However, water supply issues have troubled the state due to the highly variable spatial and temporal distributions of water supply and demand, and they are aggravated by the population's preference for settling in coastal regions where freshwater resources are scarce. Historically, the competing issues of water resource development and natural systems protection have placed water management agencies and local governments at odds. In 1997, the Florida Legislature enacted several major changes to Florida water law in an attempt to improve water resource planning and protection. This paper briefly reviews the history of water management in Florida with an emphasis on decisions culminating in the 1997 legislation, which requires the development of minimum flows and levels. Also examined is the impact of the 1997 law on water management. Efforts made to comply with legislative mandates are summarized; these include, to date, establishment of minimum flows and levels on 209 water bodies and budgeting in excess of $1.4 billion for water resource development projects.     

CONJUNCTIVE MANAGEMENT OF WATER RESOURCES IN THE CONTEXT OF TEXAS WATER LAW1

ABSTRACT: This paper examines the critical interaction between existing Texas water law and the state's water resources. Conjunctive use and management of interrelated water resources, though seldom practiced, is generally considered desirable. However, a significant barrier to the coordinated, efficient use and management of water resources is the legal division of water in the various phases of the hydrologic cycle into different classes and recognition of well-defined water rights in the separate phases. Several examples of the problems which relate to, or result from, present Texas water law and which prevent correlated water resource management are discussed. Any substantive revision of Texas law, particularly ground water law, will apparently be difficult to achieve in the immediate future, primarily because of the large number of recognized private water rights and the political power inherent in them. Data necessary for operation of conjunctive management systems are gradually being acquired, and perhaps someday other hydrologic phases can be integrated with surface and ground water. Nevertheless, Texas courts and the legislature have sufficient information on the interrelated hydrologic cycle so that prospective water conflicts should be anticipated and avoided. Great care must be exercised in the recognition of new types of private water rights or extension of existing rights, because this institutional structure, once established, presents a formidable obstacle to desirable revisions of the law.     

WATERLAW AND THE HYDROLOGIC CYCLE: A TEXAS EXAMPLE1

ABSTRACT Scientists usually regard all water as merely passing through, but in different phases of, the endless hydrologic cycle. The law divides water in the cycle into several different classes. Each is treated separately and generally without consideration of interconnections existing within the cycle. Different rules of law have arisen concerning the ownership and use of each legal class. Under Texas law several classes of surface and ground water are recognized, and weather modification efforts bring yet another class, atmospheric moisture, under consideration. It is instructive to follow water moving through the hydrologic cycle in the Nueces River basin, Texas, as a framework for discussing the substantial interconnections between the various legal classes of water and the difficulties that arise from attempts to apply different rules of law to each class. Strictures imposed by Texas water law can seriously interfer with coordinated, efficient use and management of water resources, as evidenced by the Nueces River basin. Well-recognized, existing water rights in the several phases of the hydrologic cycle make change of these institutional constraints difficult to achieve.     

Reducing conflict over the Danube waters: equitable utilization and sustainable development

This paper develops the idea that the principle of equitable utilization must be applied in concert with sustainable water use not only in the resolution of specific disputes but in the cooperative management of water resources in general. It illustrates this point with two different cases involving the use of the Danube River. The first is the conflict over the Gabcikovo Nagymaros Dam, which now rests before the International Court of Justice. The author argues that a narrow legal ruling that fails to take into account broader issues of equitable utilization as they relate to sustainable development will not satisfactorily address the long-term questions at stake between the parties. The second involves the situation in the Danube Delta where the potential for conflict exists, but may be minimized through the convention and institutional framework developed to address the environmental degradation and pollution of the Danube River basin, which is based in part on the principle of equitable utilization and the goal of achieving more sustainable water use. The paper provides a brief overview of the geographical features of the Danube River and international water law. It then explores the principle of equitable utilization and sustainable water use in light of the two cases and discusses the implications for the resolution and management of conflicts involving internationally shared water courses.     

Finding Common Ground: How Advocacy Coalitions Succeed in Protecting Environmental Flows1

Abstract: This paper reviews several recent case studies in which states or countries have strengthened their protection of environmental flows to explore the key policy, stakeholder, and scientific elements that contributed to these advances in water management. A conceptual framework is developed to describe the actions of interest groups and individuals, how environmental flow issues get onto the formal agenda of decision makers, the events and conditions which precipitate this attention, the role of science and scientific uncertainty, and how interactions and dialog among individuals and groups with different interests lead to changes in state and national statutes. In general, the review found that changing policies is a result of actions of informed groups of interested parties using science and information to inform both the public and decision makers about the need for action and about the specific action needed. In almost all cases, environmental flow issues make it onto the formal agenda of institutions through one or more precipitating events, often legal challenges that call into question the existing legal framework for water management. Significantly, in almost all cases the engagement between advocacy coalitions with different and often opposing views results in reframing the issues to provide a common approach or solution upon which the competing coalitions can agree.     

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.     

SUBSTATE INSTITUTIONAL INNOVATION FOR MANAGING LAKES AND WATERSHEDS: A WISCONSIN CASE STUDY1

ABSTRACT: Since the 1970s, there has been extensive experimentation with new approaches to water and land resources management at the state and local levels. There is a critical need to document, assess, and synthesize lessons learned from the nation's recent experience with subnational institutional changes in environmental management. This paper examines institutional changes aimed at more integrated water and related resources management at the substate level of government. We describe innovative institutional changes in a case study of Dane County, Wisconsin, and assess the implementation and preliminary consequences of these changes. Dissatisfaction with watershed and lake management results and perceptions of institutional inadequacy led to significant changes in the structure and rules for county resources management. A new entity was created to focus watershed management responsibilities. The scope of authority and powers were expanded. However, these changes all occurred within the framework of a general purpose unit of government. The new institutional arrangements have achieved a number of milestones, although it is premature to fully assess resource outcomes. The substantive changes, implementation tactics, and overall experience in Dane County's reforms - especially with regard to addressing intergovernmental tensions and decentralized management, limited authorities and funding, and public and constituency support - have useful implications for other substate efforts at more comprehensive and integrated water resources management.     

ADVANTAGES AND DISADVANTAGES OF REGIONAL SEWERAGE SYSTEMS1

ABSTRACT: A few years ago, many water quality administrators were convinced that large regional sewerage systems, consisting of one large treatment plant and long trunk sewers extending out to various communities, represented the only efficient and economical means of assuring water quality control. In communities favoring rapid development, the provision of sewer service and encouragement of development of new centers along the trunk sewers offered an additional advantage. More recently quite different points of view are arising in certain areas. In parts of New Jersey strong environmental and community resistance has arisen to proposed central plant-trunk sewer systems. The facilitation of new development along the trunk sewers is viewed as a menace by townships not wanting intensive development of these areas. The diversion of effluent flows to trunk sewers rather than septic tanks would dry up the streams which water quality programs are supposed to protect. Both sides to the controversy have mobilized engineering, environmental, economic, and legal expertise and some critical policy issues have developed. Reconsideration of regional sewerage management and particularly trunk sewer policy is required. The decision as to extent of sewerage service areas involves complex and sensitive planning issues. Because of potential conflicts of interest, such decisions should not be left to staffs of sewerage authorities and their design engineers.     

VOTER REACTIONS TO THE 1976 WATER DEVELOPMENT AND QUALITY REFERENDA IN TEXAS1

ABSTRACT: Since 1957, Texans have had the opportunity to vote on eight referenda concerning the allocation of state funds for water resources development and the maintenance of water quality. In 1976, a water development amendment and a water quality amendment were presented simultaneously to the voters of Texas, affording a unique opportunity for electoral-geographic comparison of county-level returns on the two issues. In this paper, cartographic and statistical analyses of the county-level voting outcomes for each referendum are presented. In both cases, the referenda were supported by voters in water-deficient West Texas, especially those counties dependent on irrigated crop production. In contrast, urban voters and East Texans tended to oppose both amendments. However, support for the water quality amendment in the urbanized areas of Dallas-Fort Worth, Austin, and San Antonio enabled this amendment to pass statewide while its counterpart failed. The results highlight the importance of local differences in perceived water policy needs, and in doing so they illustrate that geographical anlaysis of returns from initiatives and referenda is a useful tool for understanding the locational conflicts underlying water resources and other policy efforts.     

PROBLEMS OF PUBLIC ACCESS TO WATER IN TEXAS LAKES AND STREAMS1

ABSTRACT: Rapidly increasing demand for recreational use of Texas' public waters is resulting in growing conflict between riparian landowners and the public. This paper examines the public access question, certainly one of the most poorly defined and understood areas of Texas water and property law. Since the appropriation acts of the late 1800's, most surface waters are owned by the state, and are held in trust for the benefit of the people. While there is no express statutory authority giving the general public the right to use these waters, there is extensive, if often conflicting, case law recognizing such rights on navigable streams. It is equally well established that the public may not gain access by crossing private property. Definition of public and private rights is complicated by the fact that Texas land grants (with their attendant property rights) have emanated from Spain, Mexico, the Republic of Texas, and the state. Obstacles imposed by riparian landowners to public entry, use and passage, as well as spatial aspects of access, are also considered. Because public access rights are based on the peculiar circumstances of each case, it is difficult to establish general legal principles, and there is almost no reliable information to aid the recreation-seeking public. A clear legislative enunciation of public rights appears politically infeasible at present, the most immediately attainable goal lying in the area of better public education.     

Scarcity and conflict,key problems in water management: a Mexican case study

Water scarcity has become a key issue in water management. There are two contrasting positions regarding scarcity as a source of conflict or cooperation. Accordingly, it is worth exploring what exactly are the conditions that make water scarcity a source of conflict or cooperation. The history of water conflicts has shown that people are more likely to kill around a water hole than when conflicts grow into national or international issues. This suggests that there may be an inverse relationship between the level of violence and the scale at which the water conflict takes place. A common problem in environmental management has been the lack of effective mechanisms to handle conflict. In the majority of these cases, the main shortcoming was an inability of the parties to identify their differences. Therefore, this research explores the idea that understanding the causes of conflict from the outset, followed by an evaluation, at the local scale, of the conditions, is a necessary precondition to finding appropriate and sustainable solutions. With this background in mind, the objective of this paper is to employ a conflict assessment process in order to explore to the extent to which a collaborative dialogue among stakeholders can be an appropriate approach to conflict resolution. A case study in Mexico is employed as a testing ground.     

TECHNICAL AND INSTITUTIONAL ASPECTS OF SEWAGE EFFLUENT-IRRIGATION WATER EXCHANGE,TUCSON REGION1

ABSTRACT .Many growing municipalities near irrigated agriculture are advocating a transfer of water now utilized for irrigation to municipal use. Alternatives are presented whereby this water can be transferred to municipal use in exchange for treated sewage effluent. The irrigation water would in effect be cycled through the municipal system prior to use on the farms. A case study of the Tucson region illustrates the relevant legal, economic and technical aspects. Effluent could be delivered to irrigators in Avra Valley at a cost less than that now paid for water pumped from declining water tables. In return the City of Tucson could import ground water now being used for irrigation through an existing pipeline which presently cannot be used because of a court injunction obtained by the irrigators. It appears that such an exchange agreement could be made without modification of existing statutory law. Similar exchange arrangements may prove to be feasible in other regions containing irrigated agriculture. Increased efficiency of water use can be achieved avoiding external effects which commonly arise in a direct transfer and are difficult to evaluate. High quality water is allocated to municipal use whereas nutrient-rich sewage effluent is transferred to irrigation.     

QUANTIFICATION OF INSTREAM FLOW NEEDS OF A WILD AND SCENIC RIVER FOR WATER RIGHTS LITIGATION1

ABSTRACT: The lower 4 miles of the Red River, a tributary of the Rio Grande in northern New Mexico, was designated as one of the “instant” components of the National Wild and Scenic River System in 1968. The Bureau of Land Management (BLM), as the managing agency of the wild and scenic river, was a participant in a general water rights adjudication of the Red River stream system. The BLM sought a federal reserved water right and asserted a claim to the instream flows necessary to protect and maintain the values of the river. Instream flows are not recognized under New Mexico water law. Instream flow requirements were determined by several methods to quantify the claims made by the United States for a federal reserved water right under the Wild and Scenic Rivers Act. The scenic (aesthetic), recreational, and fish and wildlife values are the purposes for which instream flow requirements were claimed. Since water quality is related to these values, instream flows for waste transport and protection of water quality were also included in the claim. The U.S. Fish and Wildlife Service's Instream Flow Incremental Methodology was used to quantify the relationship between various flow regimes and fish habitat. Experience in this litigation indicates the importance of using state-of-the-art methodologies in quantifying instream flow claims. The incremental methodology held up well under technical and legal scrutiny and is an example of the latest methodology that was applied successfully in an adjudication. On February 23, 1984, the parties involved in the adjudication entered a precedential stipulation recognizing a federal reserved right to instream flows for the Red River component of the National Wild and Scenic River System.     

WATER MARKETS AND DECENTRALIZED WATER RESOURCES MANAGEMENT: INTERNATIONAL PROBLEMS AND OPPORTUNITIES1

ABSTRACT: Because of its importance and the perceived inability of private sector sources to meet water demands, many countries have depended on the public sector to provide water services for their populations. Yet this has resulted in many inefficient public water projects and in inadequate supplies of good quality and reliable water. Decentralization of water management, including the use of water markets, cannot solve all of these water problems, but it can improve the efficiency of water allocation. When given adequate responsibility and authority, water user associations have effectively taken over water management activities at a savings to tax payers. Moreover, water markets add the potential benefit of improving water efficiency within a sector as well as providing a mechanism for reallocating water among sectors. The key question involves developing innovative mechanisms for reducing the transaction costs of organizing water users and of making water trades. Water rights need to be established which are recorded, tradable, enforceable, and separate from land if markets are to operate effectively. Also, institutions are needed that effectively resolve conflicts over water rights, including third party impacts and water quality concerns.     

ADAPTING THE LAW OF WATER MANAGEMENT TO GLOBAL CLIMATE CHANGE AND OTHER HYDROPOLITICAL STRESSES1

ABSTRACT: Existing legal regimes for the management of water resources are already stressed by changing technologies and growing populations. There is little reason for doubt that today the planet is undergoing significant and even alarming climate change. In the past such global climatic changes had dramatic effects on water resource availability with disastrous consequences for many human communities. Today's climate changes can be managed without such disastrous consequences for present day communities only if there are major reforms to existing water law regimes at the local, national, and international levels. In particular, at the local and national levels, water resources must be treated as public property rather than as common or private property. At the international level, water must be managed at the drainage basin level rather than according to national boundaries that largely ignore rational water management criteria. At all levels, care must be given to decentralizing decision making and to use economic incentives insofar as possible, without, however, mistaking economic incentives for markets. The public nature of water resources precludes true markets as a significant management tool.     

PERSISTENT CONFLICTS OVER TIMBER PRODUCTION AND WATERSHED MANAGEMENP: A PROBLEM ANALYSIS1

ABSTRACT: Most forest lands are managed for multiple purposes, among them timber production and water supply. Conflicts often arise in such cases because logging is perceived as a threat to water quality. These conflicts can result from uncertain factual information, from differences in underlying social values, or from imbalances in the incidence of costs and benefits. Resulting conificts may go unresolved because existing institutional structures fail to address the real roots of the dispute. When such conificts go unresolved, benefits are often lost, and social, political, and managerial costs are high. This study found that the roots of conifict may lie in value differences or in interest impacts, but attention may be focused inappropriately and unproductively on factual issues. It suggests that at least some long-standing disputes in the management of forested watersheds may be resolved by identifying the root causes of these disputes and choosing those actions, whether they be changes in management guidelines or altered institutional structures, which are appropriate to those causes.     

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.