Water Rights & Water Fights: States No Longer Take Water for Granted. Having Laws in Place Helps When Disputes over the Precious Commodity Arise

Article excerpt

The Ailsa Craig juts from the Firth of Clyde off the west coast of Scotland. A rocky island, it has become part of Scottish golf lore, rising close by the Turnberry links. Undaunted by the often turbulent weather, the locals proudly explain, "If you cannot see the Ailsa Craig, it means it's raining. If you can see it, it means it's gonna rain."

George William Sherk, a Colorado water attorney, ascribes a similar comparison to the water conflicts that now grip many states. "There are two kinds of states," he notes, "those that are involved in an interstate water conflict, and those that are going to be involved in one."

The reasons are simple: Water does not adhere to lines drawn on a map, and growth is occurring where water isn't.

WATER FIGHT IN THE SOUTH

The tri-state dispute among Alabama, Florida and Georgia over water in the Apalachicola, Chattahoochee and Flint river system illustrates the problems facing humid Eastern states, which had seldom faced supply problems in the past. Atlanta's rapid growth and recurring regional droughts have landed the three states in federal court over who gets how much of an increasingly scarce resource. Georgia and Alabama need to satisfy growing urban drinking and waste water needs, while Florida is concerned about reduced flows into a bay that supports 90 percent of its oyster harvest.

All three states rely on the "riparian doctrine" of water use, which allows for "reasonable use" of water subject to equally reasonable uses in other states. The problem is that what is reasonable varies in time, place and in response to changing needs. There is no certainty. And because there has been an abundance of water in the East, there has been little pressure to establish more secure and equitable water management systems. "The Eastern states do not have a tradition of water shortage," Sherk points out. "Therefore, they have few laws to address one when it happens."

LACK OF CERTAINTY

This lack of certainty was one of the reasons that drove West Virginia, one of the few states east of the Mississippi River without some statutory water allocation system, to enact a law this session. There was concern that with rapid growth in the Washington, D.C., suburbs, residents of West Virginia's panhandle (a rapidly growing area itself that sends increasing numbers of commuters to D. …