The Ongoing WAR for Water

Article excerpt

Real headlines: "Kansas Claims $63 Million in Damages from Colorado;" "Texans Escalate Tensions with New Mexico. Over Water;" "Southeast States Still Far from Water Agreement," "Rio Grande Compact Must Consider All Valid Claims."

The battle for present and future water rights is on.

All over the country, from the Bay Delta area of California to the Potomac in Washington, DC, claims are being staked by developers, municipalities, districts, utilities, states, Native Americans, and the federal government over who has rights to both groundwater and surface water. Even states cradling the Great Lakes are subtly posturing over the rights to these goliath sources, says Tom Kimmell, executive director of the Irrigation Association.

"In the United States, surface water is owned by somebody," Kimmell explains. "So water rights are continually tested in the courts. But, ultimately, the public has final say." Population centers will have precedence over other constituents, Kimmell predicts. "Conservation and wastewater recycling will become predominant factors in resource development and sustainability."

"Colorado, California, Arizona, Nevada, New Mexico, Texas...we're seeing water rights issues pop up all over the 17 Western states," adds Ron Marlow, national water management engineer for the U.S. Natural Resources Conservation Service in Washington, DC. Even in the East, Marlow sees more activity in water rights. "The incredible urban growth near Atlanta and the agriculture activity in the lower part of the state has Florida, Georgia and Alabama tussling over how they can handle 'equitably' sharing and recharging water in the Apalachicola-Chattahoochee-Flint river basin.

"Cities along the north end of Colorado's front range are purchasing from farmers their rights to the South Platte River," he adds. In fact, private wetland banking has surfaced along Colorado's Front Range. Instead of rebuilding wetlands themselves, per the Clean Water Act, some developers can purchase existing wetlands from wetland banks, and not be liable for construction, maintenance, and monitoring. It's a quick, easy, and legal strategy to mitigate development in or near designated wetlands.

Marlow adds that during the '99 drought in the mid-Atlantic states, Virginia and Maryland sparred over conservation measures and use of the Potomac. "It's going on all over the county," he says, "and whatever the results of individual cases, it is inspiring strong conservation programs and the increased use of micro-irrigation."

Water rights and development

As agriculture and open space continue to yield to urbanization, water issues spring up. Municipalities are asserting their claims to current and future growth. The Endangered Species Act and the Clean Water Act require the federal government's involvement. Native Americans are beginning to attempt their "first-rights" claims to water in the West Agriculture is staking its claims. And international borders are tugging at their share of water.

"Water allocations and water rights are based on state law," relates Susan Asmus, director of the Water and Wetlands Policy Department for the National Association of Home Builders (NAHB) in Washington, DC. "Therefore as an association, we can't take a widespread action in water law." However, the NAHB does offer technical support for designing local or regional water conservation and xeriscape programs. "We advocate the implementation of water regulations at the most local form of government. Local governments understand the needs of their communities, and are better able to design workable programs."

Although Asmus contends that most water rights activity needs to be resolved locally, she adds that much of the public is starting to look toward the federal government to step in and oversee the process. "We see increasing activity in allocating surface water to protect endangered species," Asmus imparts, "as well as water quality controls imposed by the Environmental Protection Agency, such as developing total maximum daily loads (TMDLs), mercury levels in potable water, and so forth. …