Academic journal article Texas Law Review

Water Scarcity, Marketing, and Privatization

Academic journal article Texas Law Review

Water Scarcity, Marketing, and Privatization

Article excerpt

I. Prelude

Most Americans take water for granted. Turn on the tap and a limitless quantity of high quality water flows for less money than it costs for cable television or a cell phone. The current drought has raised awareness of water scarcity, but most proposals for dealing with drought involve quick fixes-short-term palliatives, such as bans on washing cars or watering lawns except on alternate days. It is assumed that things will return to normal, and we will be able to wash our cars whenever we wish. But the nation's water supply is not inexhaustible. A just-released report of a White House subcommittee ominously begins: "Does the United States have enough water? We do not know."1 In a survey of states conducted by the U.S. General Accounting Office, only 14 states reported that they did not expect to suffer water shortages in the next 10 years.2

Is the sky falling? Not yet, but the United States is heading toward a water scarcity crisis: our current water use practices are unsustainable, and environmental factors threaten a water supply heavily burdened by increased demand. As the demand for water outstrips the supply, the stage is set for what Jared Diamond would call a collapse.3 How will we respond? When we needed more water in the past, we built a dam, dug a canal, or drilled a well. With some exceptions, these options are no longer viable due to a paucity of sites, dwindling supplies, escalating costs, and environmental objections. Instead, we are entering an era in which demand for new water will be satisfied by reallocating and conserving existing sources. The current water rights structure is the outcome of historical forces that conferred great wealth and power along with the water. The solution to tomorrow's water shortages will require creative answers to challenging issues of equity, community, and economics.

II. Supply and Demand

In 2000, Americans used a staggering 408 billion gallons of water each day.4 In many parts of the country, fresh water reserves have been depleted; diversions have dried up rivers and pumping has exhausted aquifers.5 Industrial solvents have contaminated thousands of groundwater basins, and ocean water has percolated into countless coastal aquifers, rendering them too saline for human consumption. We still have an abundance of potable groundwater, but we are pumping it faster than Mother Nature replenishes it. Additional diversions from our rivers and streams would come at a high environmental cost. In short, our existing use of water is unsustainable.

Moreover, climatic factors threaten the water supply. The recent drought, of historic proportions in some sections of the country, has caused cities, farms, and mining companies to scramble in search of new sources. And global climate change threatens profound (though currently uncertain) implications for the world's water. Notwithstanding the rantings of Fox News,6 credible scientists no longer doubt the reality of global warming.7 The release of carbon dioxide gases, a by-product of fossil fuel use, increases the ability of the sun's rays to penetrate our atmosphere, thus raising the earth's temperature.8 Higher temperatures produce a shorter snow season (more precipitation falls in the form of rain), faster snow melt, and increased runoff. These changes have significant implications for our water supply. Think of a mountain's snow pack as a gigantic water storage reservoir. Global warming reduces the amount of water in the reservoir, creating a need to find an alternative means of storage. Global warming also creates higher evaporation losses from the surfaces of lakes, reservoirs, and rivers. According to one recent report, global warming may reduce the Colorado River's reservoir level by one-third by mid-century.9

Demands on our water resources are increasing. Increased demands result from one simple fact: population growth. Since 2000, the population of the United States has surged from 285 to 295 million, with the Southwest leading the way. …

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