Academic journal article Texas Law Review

The River Commons: A New Era in U.S. Water Policy

Academic journal article Texas Law Review

The River Commons: A New Era in U.S. Water Policy

Article excerpt

Soon after the Constitution was ratified, the national government began a water development program based on the premise that rivers best serve society if they are controlled, diverted, and dammed. In 1802, the year the Army Corps of Engineers was established, such an approach was an accurate reflection of the needs and realities of the new nation. In 2005, it is hopelessly anachronistic and no longer reflects the economic interests or social values of the country. As a result, there is a critical disjuncture between U.S. water policy and America's water needs. But political tradition, fueled by pork-barrel politics and special-interest welfare, has made it politically difficult to move beyond the policies of the past. Despite this resistance, there is an inexorable movement toward a new era in water policy, one that is more accurately characterized as river policy, because it focuses on healthy, intact river systems that are viewed as an integral part of the public commons. Thus, the next era in national policy will focus on restoring and preserving intact riverine systems.

The uses of rivers can be divided into two categories. The first includes those uses that dismember riverine systems through development and extractive uses: agriculture, inland shipping channels, hydropower, floodplain development, and urban water use. The second category consists of those uses that thrive only in the context of healthy, intact river systems: habitat preservation, water quality preservation, and recreation and tourism. This Article's argument is not that we should abandon the first category in favor of the second, but rather that current levels of development can easily meet the needs of the first category. Indeed, we can reverse some development and still adequately meet the needs of economically rational uses. The new policy era represents a reprioritization of water favoring nonextractive, sustainable, economically viable uses that serve the broad, long-term public interest.

This Article will assess some of the accomplishments, and costs, of 200 years of water development and then present an analysis of current uses and preferences. This analysis will make obvious the gap between what we have done to our rivers and what we want from our rivers.

I. The Legacy of Water Development

In a sense, the long-held policy of developing rivers has been wildly successful. Such projects have been viewed as so clearly beneficial that elected officials and government bureaucrats have championed them for two centuries. Believing that any project was better than no project, a broad array of political forces pushed for these projects even when their economic justifications were questionable, if not overtly illogical. Driving this attitude was a larger social construct that mankind was best served by captive rivers that otherwise were a plague on society. W.J. McGee, President Theodore Roosevelt's water advisor, captured this belief succinctly when he explained that the control of water "was the single step remaining to be taken before Man becomes master over Nature."1 This belief was reflected in the policies and organizational culture of the federal government's principal water development agencies, the Army Corps of Engineers and the Bureau of Reclamation. The Corps of Engineers revealed its philosophy in a 1950s-era film produced to extol the virtues of the Kissimmee River channelization project; the film's narrator explained that the project was designed to "control the water and make it do our bidding," subduing the "crazed antics of the elements."2 The Bureau of Reclamation had a similar philosophy. A 1946 report, recommending that dams be built in the Grand Canyon, was titled "The Colorado River, A National Menace Becomes a Natural Resource."3 The Bureau's most colorful commissioner, Floyd Dominy, forcefully summarized its attitude when he said "[t]he unregulated Colorado River was a son of a bitch. It wasn't any good. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.