WATER MARKETING: THE CASE OF INDIAN RESERVED RIGHTS1

ABSTRACT: Water marketing is an increasing important topic for policy makers and water managers, especially in the Western United States. Indian reserved rights (or Winters rights) differ in significant ways from water rights under most state prior appropriation systems. As Winters rights are quantified, a number of issues are emerging concerning the extent to which these water rights may be marketed, particularly to off-reservation users. This paper will review the evolution of Indian reserved water rights and discuss key issues surrounding the marketing of these rights.     

THE IMPORTANCE OF PERCEPTIONS IN THE DETERMINATION OF INDIAN WATER RIGHTS1

ABSTRACT The American Indian occupies a unique place in the federal system of government There are indications that this relationship will continue and that Indian reservations are at the threshold of economic development. As this occurs, the nature and extent of Indian water rights becomes more important to Indian and non-Indian alike. The determination of these rights is a matter of more than judicial decisions. To a large degree the determination of these rights will rest in the non-judicial arena and will be influenced by the perceptions of those rights held by Indians and water allocation officials, both state and federal. If the perceptions of these political actors are not congruent, then political conflict will occur as the rights become more important. To depend solely upon the judicial system to resolve these conflicts entails risks and costs to both Indians and to allocating officials. Indians are taking seriously the federal policy of Indian self-determination, and water allocation officials run decided risks in failure to realize this. An alternative suggested is to include Indians as consulting parties when decisions are being made that affect Indian interests.     

WATER AND WATER RIGHTS TRANSFERS: A NEW POLICY FOR NEBRASKA1

ABSTRACT: Nebraska has abundant supplies of high quality surface and ground water. The U.S. Supreme Court decision in 1982, declaring ground water to be an article of commerce, is widely perceived as giving neighboring states easier access to Nebraska water. Some neighboring states, particularly Colorado and Wyoming, are in water short situations. Additionally, current legal restrictions on certain types of transfers within the State could be inhibiting the “highest and best use” of Nebraska's water. Thus, in 1987 the Nebraska Legislature called for the development of a new water policy for Nebraska that would promote the economically efficient use of water, yet protect the environment as well as the rights of individuals (for example, third parties) and the public. Through an interagency study employing an extensive public involvement process, a policy to be recommended to the Legislature in 1989 emerged. The policy revises the basic definition of water rights and transfers and eliminates most of the inconsistencies in the water allocation system by treating most types of water resources, most types of water users, and most locations of use similarly in the permitting process. (The principal exception is the individual irrigator using ground water on the overlying land where overlying land is one government surveyed section; such use is not defined to be a transfer nor is a permit required.) An impact assessment would be required of most new water uses except on site uses of ground water. Compensation measures could be specified as a condition of the permit where appropriate. The permit would be issued only if the benefits of the proposed transfer clearly outweigh adverse effects that could not be avoided or effectively compensated. The policy allows for the sale or lease of “salvaged” water. It calls for the State to facilitate transfers by acting as a clearinghouse for potential buyers and sellers, and it allows the State to sponsor water projects. An annual fee to be paid by many water users, in order to provide a fund for compensation and for state sponsored water projects, was proposed. However, it met with extensive opposition. Thus, the policy recommends only that the Legislature examine potential funding programs and equitable user fees.     

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.     

AN ALTERNATIVE TO WATER POLLUTION CONTROLS1

ABSTRACT: A hypothetical, although realistic, water pollution problem was studied from a property rights viewpoint. Theoretical and economic justifications were developed. A fully-liable, private owner was found to be financially profitable while improving the water quality and providing recreational potential. The example confirmed that property rights provides an answer to stream pollution problems, but contradicted the view that water pollution control must be justified by recreational benefits.     

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.     

THE EVOLUTION OF TEXAS WATER LAW AND THE IMPACT OF ADJUDICATION1

Texas' surface water law began its evolution during the Hispanic period of occupance. Later, the English riparian doctrine was adopted, and finally, in the late 1800's, the prior appropriation doctrine was superimposed, resulting in an exceedingly complex dual system. Though the judiciary, legislature, and state water agencies have wrestled with the problem of coordinating these diverse water rights and more accurately delineating and measuring riparian rights and water use since early in this century, until recently all attempts were unsuccessful. The unknown riparian element, in particular, made coordinated and efficient management and administration of the state's surface water resources impossible. Finally, measurable progress toward solution of these problems began in 1967 with passage of the Water Rights Adjudication Act, aimed at identifying all unrecorded surface water rights claims and eventually merging all claims into the permit system. This paper examines the gradual evolution of Texas' curious blend of Hispanic-English riparian rights and later appropriate rights; discusses the resultant problems of water resource administration; and traces the progress of the ongoing water rights adjudication, a lengthy, expensive, and complex procedure, which should eventually make possible more efficient administration of all surface water rights.     

RIVER RECREATION: PUBLIC ACCESS VS. RIPARIAN RIGHTS1

ABSTRACT: The issues involved in the conflict between the rights of the public and those of riparian landowners are examined by reviewing the public access situation with regard to inland streams in the State of Virginia. Consideration is given to the legal framework defining access rights and to the attitudes of riparian landowners regarding the access question. Existing provisions of law suggest only limited recognition of public rights, but this law is incompletely developed. A considerably broader concept of public rights could be developed within the existing framework due to the existence of unresolved questions. The analysis of landowner attitudes is based on a survey of a sample of riparian owners chosen from throughout the state. The questionnaire used in the survey contained 123 questions in a variety of areas, including landowners' perceptions of public rights, problems encountered as the result of recreational water use, attitudes toward state designation and protection of scenic rivers, and the acceptability of alternatives for increasing public access. Although the survey results indicate substantial acceptance of the concept of public use, the landowners expressed concern over governmental control of land use and did not indicate a generally acceptable means for increasing public use.     

WATER RIGHTS,EMINENT DOMAIN,AND THE PUBLIC TRUST1

ABSTRACT: Faced with the necessity of meeting growing municipal water requirements in areas where available supplies are completely allocated, numerous cities throughout the West are turning to their eminent domain powers to affect a reallocation of water from less preferred uses to municipal uses, thus bringing about a sharp conflict with agricultural interests. As a basis for discussing these eminent domain powers, this paper begins with a brief review of the development of property rights. The existence of both private and public (social) rights in the “bundle of rights” is noted. In recent years the Public Trust Doctrine has been used to limit private rights in property, and to protect and strengthen social rights. A case study which focuses on a conflict between individual and social interests in water rights is discussed. This case involves the City of Thorton, Colorado which initiated municipal condemnation proceedings to acquire the water rights and structures of two nearby irrigation companies. The case represents an attempt to incorporate the spirit of the Public Trust Doctrine into legislation which sets forth procedures for resolution of similar water rights conflicts that will inevitably become more numerous throughout the West in the future.     

AN ANALYSIS OF PLAYA LAKE WATER UTILIZATION ON THE TEXAS HIGH PLAINS1

ABSTRACT: This paper examines the spatial, temporal and legal aspects of playa lake water utilization on the semi-arid Texas High Plains. These small basins of interior drainage collect and briefly hold an estimated two to three million acre-feet of runoff water annually, representing from one-fourth to one-third the quantity of groundwater pumped from the dwindling Ogallala aquifer. Once considered a detriment to farming operations, there is now increased interest in using playa water more effectively. At present direct pumping is the chief method of utilization, and modification of lake bottoms to concentrate runoff and reduce evaporation is the most widespread conservation practice. The use of playa water for groundwater reacharge is hampered by as yet unsolved technical problems. For many years the question of ownership of playa water remained unsettled. The Texas Water Rights Commission now classes it as diffused surface water, which under Texas law may be used by the landowner, though some legal problems remain. For play lakes to be effectively integrated into the regional water resource it becomes imperative that all present and prospective water utilization problems be identified and resolved.     

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.     

TREATING WATER INSTITUTIONS AS ENDOGENOUS VARIABLES: DEMONSTRATION OF A CONCEPTUAL MODEL1

ABSTRACT: Institutional innovation is central to many water resource problems. (In this context “institutions” refers to the laws and regulations governing water allocation and use.) Yet, typically, economic analyses treat institutions as exogenous and fixed. Unfortunately, this conventional assumption does not allow economists to address many modern problems. This paper develops an economic framework in which institutions are treated as endogenous. The model accounts for (1) factors that stimulate calls for formal institutional change, (2) the role of interest groups in policymaking, and (3) actual institutional change as it impacts choice domains and thus economic performance. The model is compared to a specific case of change in Colorado's water institutions, namely, instream water rights legislation in the 1970's. The empirical evidence is generally consistent with model hypotheses. The model promises to be useful to scholars and policymakers interested in institutional innovation.     

THE ACCURACY OF WATER USE FORECASTS: EVALUATION AND IMPLICATIONS1

ABSTRACT: Forecasts of 1980 river basin water use presented in the reports of the 1960 Senate Select Committee on National Water Resources and in the Water Resources Council's First National Water Assessment of 1968 were compared to estimates of actual use in 1980 to assess the accuracy of efforts to forecast future water use. Results show that the majority of the forecasts were substantially in error. In general, the First National Assessment forecasts erred by a smaller margin, but tended to repeat the regional patterns of overestimation (underestimation) exhibited in the Senate Select Committee forecasts. Moreover, forecasts of the two groups that came within 20 percent of the 1980 withdrawals, in general were accurate, not because of superior prediction, but because of offsetting errors in forecast components. This performance leads us to conclude that water use forecasts, regardless of the time-frame or the forecast method employed, are likely to always be highly inaccurate. Accordingly, if such forecasting efforts are to be of value in contemporary water resources planning, forecasters should direct their attention toward methods which will illuminate the determinants of the demand for water.     

PRIVATIZING THE GROUND WATER RESOURCE: INDIVIDUAL USE AND ALTERNATIVE SPECIFICATIONS1

ABSTRACT: While most inquiries into improving the efficiency of ground water allocation have focused upon various schemes involving centralized management, recently the focus has shifted towards exploring private property solutions to these problems. However, most of these studies, when modeling ground water use, have equated behavior under private property to that under common property conditions. This leads to the possibly mistaken conclusion that private property rights do not promote more efficient ground water use, because these models assume that producers ignore the future effects of current pumping. This paper attempts to correct this deficiency by formally modeling ground water use under common property, central management, and private property scenarios. Moreover, there are many ways that property rights can be defined over ground water, some establishing more exclusivity over the resource than others. Four specifications of property rights are analyzed for their likely effects on allocative efficiency: full stock-flow, partial stock-flow, limited stock-flow, and pure flow rights.     

THE IMPACT OF WATER RESOURCE QUALITY CHANGES ON SURROUNDING PROPERTY VALUES1

ABSTRACT: A case study is used to demonstrate a methodology for measuring the residential property value benefit of water pollution abatement. Increases in the value of single-family homes attributable to improvement in the water quality of the nearby Willamette River (Clackamas County, Oregon) were measured using a regression analysis technique. Sales prices and tax assessment data were used to estimate the change in property values coincident with the changes in water quality. The percentage increase in property value due to pollution abatement is expressed as a function of the distance between properties and the river bank.     

AN EVALUATION OF WEEKLY AND MONTHLY TIME SERIES FORECASTS OF MUNICIPAL WATER USE1

ABSTRACT: A cascade model for forecasting municipal water use one week or one month ahead, conditioned on rainfall estimates, is presented and evaluated. The model comprises four components: long term trend, seasonal cycle, autocorrelation and correlation with rainfall. The increased forecast accuracy obtained by the addition of each component is evaluated. The City of Deerfield Beach, Florida, is used as the application example with the calibration period from 1976–1980 and the forecast period the drought year of 1981. Forecast accuracy is measured by the average absolute relative error (AARE, the average absolute value of the difference between actual and forecasted use, divided by the actual use). A benchmark forecast is calculated by assuming that water use for a given week or month in 1981 is the same as the average for the corresponding period from 1976 to 1980. This method produces an AARE of 14.6 percent for one step ahead forecasts of monthly data and 15.8 percent for weekly data. A cascade model using trend, seasonality and autocorrelation produces forecasts with AARE of about 12 percent for both monthly and weekly data while adding a linear relationship of water use and rainfall reduces the AARE to 8 percent in both cases if it is assumed that rainfall is known during the forecast period. Simple rainfall predictions do not increase the forecast accuracy for water use so the major utility of relating water use and rainfall lies in forecasting various possible water use sequences conditioned on sequences of historical rainfall data.     

PROCEDURE FOR THE ECONOMICAL EVALUATION OF WATER NETWORKS' PARAMETERS1

ABSTRACT: The Generalized Geometric Programming and Branch and Bound technique are used to reach optimally designed water systems with their variables in integer forms. The water systems and constraints are formulated by sets of nonlinear equations. A solution for a specific water system is presented.     

EVALUATION OF CONSUMER NOTIFICATION UNDER THE SAFE DRINKING WATER ACT1

ABSTRACT: The Safe Drinking Water Act of 1974 as amended in 1986 requires that consumers be notified when maximum contaminant levels are exceeded in their community water supply and when prescribed testing and treatment procedures are not met. A review of communication theory indicates that for the message to be effective (1) it must be received by the intended audience, (2) it must be attended to by that audience, (3) it must be understood, and (4) it must be accepted and acted upon. A review and analysis of existing research evaluating notification programs administered under the Safe Drinking Water Act indicates (1) that receipt rates have been highly, variable, (2) that attention to the message has usually not been directly assessed, (3) that levels of understanding, while variable, have usually been minimal, and (4) that acceptance, though not often directly measured, seemed higher than expected. These results, while critical of past notification programs, indicate that understanding and acceptance can be increased if receipt and attention rates are increased. The paper concludes with a series of recommendations for improving receipt and attention rates, for increasing understanding, and, most importantly, for increasing acceptance and community action for upgrading local water treatment and quality.     

THE CONTINUING EVOLUTION OF AN AUSTRALIAN WATER RESOURCES POLICY1

ABSTRACT: Australia's extremely limited water resources highlight the need for policy guidelines for management. During the 1970s, there was the gradual evolution of a national water resources policy, facilitated by a nationally agreed statement of objectives and culminating in a federal policy statement presented in 1979. However, the Australian constitution gives major responsibility for water resources to the states. Further, the federal policy statement seems to assume that each state has a water resources policy and that it accords with the nationally agreed objectives. This is not the case, and the practical management of Australia's water resources falls short of the principles set out in the policy document. The River Murray, the nation's major water resource, provides ample evidence of this fact. With very limited water resources, Australia urgently needs to reduce the disparity between principle and practice in their management.     

ORGANIZATIONAL EVALUATION OF INDUSTRIAL WATER POLLUTION CONTROL IN THE NEW YORK REGION1

ABSTRACT: Non-technological factors related to the behavior and characteristics of organizations involved in pollution control are explored here as to their importance as determinants or indicators of the level of pollution control effectiveness. Methods of evaluating the existing level of effectiveness are developed and tested using the response of a selected set of industrial establishments to state water pollution abatement action in the New York Region from 1966 to 1971. The compliance of 209 manufacturing establishments to state abatement orders in the New York Region is evaluated with respect to selected organizational and industrial characteristics and characteristics of the firms'socioeconomic environment. The influence of state policies arid programs is also discussed. It was found that the degree of compliance to state abatement action by industry in the Region is positively related to organization size, the extent of waste generation, the wealth and size of the town in which the firm is located, and the availability of waste treatment facilities in the town. The age of the firm was not related to compliance. The structure of state abatement scheduling also influences the degree of compliance. The methods of analysis used here provide a basis for a comprehensive analysis of the effectiveness of pollution control as an alternative to the case by case approach that is currently being used.