When water is
plentiful for everyone, people are not concerned much about water
policy, but when droughts occur in different parts of the nation and
there is less water to go around for many uses, the rights to who has
access to the water and how they came to have it are very important.
Eighty percent
of the Nation’s water is used in the West—most of it for agricultural
use (Case and Alward 1997). Both population and water demand have
increased substantially since 1971. Water tables have dropped,
resulting in increased costs for food and energy production. Urban
areas are experiencing water shortages as their populations expand and
compete with agricultural irrigators for limited water supplies (Case
and Alward 1997). Downstream user demands for clean water are often in
conflict with upstream user impacts on water quality.
In addition to
increasing demands for drinking water, conflicts are arising between
agricultural uses and demands for adequate in-stream flows to maintain
aquatic species. The Klamath River, which originates in Oregon and
flows into Northern California, was the site of threatened violent
conflict in the spring of 2001 when, following several years of drought,
the U.S. Fish and Wildlife Service ruled that water diversion for
agricultural use would leave inadequate flows for the endangered
suckerfish, a species resident in this river. Indian tribes also
claimed that water diverted for farming left insufficient flows to
sustain the salmon population, and thus deprived the tribes of their
right to fish for salmon. While the Klamath River conflict appears to
be caused by competing uses of water by farmers, Indian tribes, and
protection of endangered species, it is more fundamentally caused by a
lack of clear water policy and unclear property rights.
Although many
previous studies have documented the West’s chronic water problems
(Frederick 1988; Guldin 1989; Anderson and Snyder 1997; Bell 1997;
Riebsame 1997; Kenney 1999; Glasser 2000; Pisani 2000), in 1992 Congress
established a commission to investigate and review Western water policy
and institutions. Section 3{3003} of The Act of 1992 directed the
President “to undertake a comprehensive review of Federal activities in
the nineteen Western States which directly or indirectly affect the
allocation and use of water resources, whether surface or subsurface,
and to submit a report to Congress on the President’s findings, together
with recommendations.” No
specific actions were intended, though this information would be used to
develop proposed legislation. Thus, the Western Water Policy Review
Advisory Commission was established.
Among Congress’s
reasons for forming the Commission was its determination that current
federal water policy suffered from unclear and conflicting goals, was
implemented by a maze of agencies and programs, and that the resulting
lack of clear policy and coordination created gridlock that could not be
resolved without addressing fundamental changes in institutional
structures and governmental processes.
To better
understand the origins of these complex institutions and different legal
doctrines governing water resources in the United States, this paper
will first explore:
The origins of
the riparian and appropriation doctrines of water rights, including
historic influences of Spanish and English law,
How the
California Gold Rush changed historic water use patterns,
How the prior
appropriation doctrine developed; and,
Why there is no
federal water law.
It will conclude
with a brief overview of major findings and recommendations of the
Western Water Policy Review Advisory Commission, and some alternative
proposals to provide answers to the dilemma of how best to manage water
resource issues in the western United States.
Brief History and
Evolution of U.S. Water Use
The Spanish
explorers of the sixteenth century brought with them their experience in
diverting water from natural water courses to make arid lands
productive. In their efforts to “civilize” native populations in what
is now California, they collected and settled Indians into central
communities that were often built around Catholic missions. Another
goal of Spanish settlement was to mine the rich ore bodies of the New
World, and collecting Indians at missions was in large part designed to
assure adequate labor forces for the mines. Production of food and
fiber in quantities beyond those required by the farmers themselves was
necessary to support the mines, as well as the military bases that
accompanied Spanish development. Irrigation was essential to accomplish
these tasks, and the diversion of water for irrigation became widespread
around Spanish towns and missions (Wilkinson 1992; Gillilan and Brown
1997).
The mines
themselves required substantial quantities of water, often more than
half a dozen towns or missions needed. Mining was a new water use in the
West, and after mines became prevalent throughout New Spain by the
eighteenth century, one that had significant potential to affect both
water quantity and quality for downstream users (Gillilan and Brown
1997).
The use of water
in the Spanish West was governed by the same laws enforced in Spain.
Water was owned by the Crown and was available to all for purposes such
as drinking, fishing, and navigation. Spanish law in the New World
continued to protect public uses of water, giving first priority to its
use by communities as a whole. Water was allocated to individuals only
after sufficient quantities had been secured to meet the needs of the
town. The law included protections for private water uses. Grants of
water for specific purposes were generally associated with grants of
land—but were issued separately. A land grant by itself entitled the
grantee to the use of water only for domestic purposes. The grantee’s
right was to use the water, while the state retained actual ownership
(Wilkinson 1992; Gillilan and Brown 1997).
Spanish water
law emphasized the need for fair division of the available water. While
the water rights of individuals were to be protected, in the Spanish and
Mexican judicial systems, the rights of the corporate community weighed
more heavily than those of the individual.
In the East, the
American colonies were established under the auspices of the English
Crown, and were subject to English laws. English water law was
relatively simple and undeveloped, having unfolded in a land where water
was abundant and conflicts over its use were correspondingly rare. The
navigable waters of England belonged to the Crown and were available to
the public for the purposes of navigation and fishing. The Crown’s
ownership prevented these important economic activities from being
monopolized by individuals, thereby reducing the potential for
conflict. Rights to the use of waters not being used for navigation
were held by those who owned the banks of the streams, and were
therefore known as riparian rights (Wilkinson 1992).
Water resource
conditions in the American colonies were similar to those in England,
and there was not much incentive to adopt a different set of water use
rules after American independence from England. Water use conflicts
were so rare in England and in the original American states that a body
of water law was not well developed in the first decades of this
country’s history.
Riparian Doctrine
The heart of the
original riparian doctrine as developed in Europe as the idea that
rivers had value primarily as an amenity. Rivers enhanced the value of
surrounding land, and each landowner along a river was entitled to
receive the benefit of free-flowing water. This came to be known as the
“natural flow” interpretation of the riparian doctrine. It held that
landowners were allowed to remove water from streams only for basic
domestic purposes such as drinking, bathing, cooking, and watering of
limited numbers of livestock. Landowners were otherwise required to
leave rivers in an undiminished and unpolluted condition (MacDonald
1990). This doctrine made sense where water was abundant and there were
few out-of-stream uses of water. The natural flow doctrine often gave
way, however, when advances in technology made rivers valuable as a
source of energy for turning the wheels of industry and then as a waste
disposal or coolant in next generations of industrial processes
(MacDonald 1990; Anderson and Snyder 1997).
The riparian
doctrine was modified during the Industrial Revolution to allow riparian
landowners to make reasonable use of the waters flowing over their
lands. This “reasonable use” interpretation gave each landowner the
right to the use of water flowing over the land without diminution or
obstruction. The landowner did not own the water itself—the right was
solely to the use of the water. When water flows were insufficient to
meet all uses, the deficiencies were borne as a common loss, with each
user cutting back by the same proportion. The extent to which any
particular use was allowed was determined by the potential injury to
other riparian landowners should that use occur (Gould
1990).
The features of
the reasonable use riparian doctrine were:
1. Only
riparian landowners could have rights to the use of water.
2. Owners of
non-riparian lands and any others wishing to preserve free-flowing
waters could not have any legal rights to the water.
An exception to
this general rule was the development of water rights under the riparian
doctrine through direct appropriation. Appropriation of water for
out-of-stream uses was legal under the English-American common law
system if the new water user was able to obtain the consent of all
affected riparian landowners. Consent was explicit, but may have been
assumed, if the new water use negatively impacted riparian owners, but
was nevertheless allowed to continue without interruption or objection
usually for 20 years. Rights developed through implied consent were
often referred to as “prescriptive” rights.
3. As the water
right is a consequence of land ownership rather than a separate piece of
property, the right is not lost simply because it has not been
exercised.
4. The
relationship among riparian landowners is one of “parity” rather than
“priority,” and the doctrine allows the entry and accommodation of new
water users. Water rights are relative rather than absolute; riparian
rights do not attach to a fixed amount of water.
As conditions
change, riparian rights for specific water uses may not be secure in
situations where there is not enough water to accommodate all desired
uses.
The riparian
doctrine of water rights originated in lands with humid climates where
precipitation easily supported agriculture and plentiful water supplies
made conflicts between water users infrequent, and where the legal
tradition was based on English riparian use. Much of the American West
did not fit this description. As settlers moved west, the aridity of
the land bore little resemblance to the eastern climates they had left
behind. Politically, westerners were far removed from the national
government in Washington D.C., and other sources of governmental
authority were rudimentary or nonexistent. The new rules that they
created with respect to water were often very different from those they
had lived with in the East.
How the California Gold
Rush Changed Historic Water Use Patterns
Miners provided
the primary impetus for changing the rules under the Spanish system
allocating water in the American West, especially after gold was
discovered in California in 1848. The population of California, and
later the entire West, increased enormously after gold was found and
as mining became the principal industry in with respect to water the
West.
The first gold
deposits were found primarily along streams, and early miners usually
established claims along the stream banks, where they could pan for gold
directly. Those arriving later, after the streamside locations had all
been claimed, were forced to establish “dry diggings” some distance
removed from the streams and then haul gravel in sacks or wheelbarrows
to the water to be washed. As mining operations grew in size and
sophistication, instead of bringing gravel to the water, streams were
diverted from their natural channels to bring water to the claims (Gillilan
and Brown 1997). Hydraulic mining utilized water pushed through hoses
under great pressure to wash entire hillsides directly into wooden
sluices. This mining method became widespread in the 1850s, and it
required the diversion and delivery of huge volumes of water to sites
often far from natural channels (Wilkinson 1992).
The use of water
was so basic to the production of gold that enterprising miners
discovered that they could make more money providing water to the mines
than they could from mining the gold itself. Private companies were
organized to build dams and canals. The size of the companies and the
scale of their waterworks was huge, and reservoirs impounded billions of
gallons of water.
The Prior Appropriation
Doctrine
Spanish
colonists settled the West in the sixteenth century under sponsorship of
the Spanish Crown, which provided the colonists with established systems
of government and law. Three centuries later when the miners and other
migrants moved to California, no government awaited them. The Gold Rush
occurred near the end of the U.S.-Mexican War, after the Mexican
government had been expelled, but before the region had been officially
transferred to the United States. There were no rules to define property
rights in the gold fields—either between individual miners or between
miners and the federal government (Fischer and Fischer 1990).
The miners did
not own the land they were occupying, the minerals they were seeking to
remove, or the water they were using. It was not even clear what rules
should eventually apply—those of the federal government, which owned the
land, or those of the state government, which had not yet been created,
but was widely anticipated. Rather than waiting for clarification of
the rules by some level of government, the miners treated the problem as
an opportunity. As there were no existing rules to guide their use of
land and its resources, they made their own.
The miners’
rules were created independently in each mining camp and administered by
committee. Adjudication of disputes and enforcement of rules was
undertaken by committees–if not by the aggrieved individuals
themselves. The miners’ greatest need was to establish rules governing
access to the gold. Because they did not own the land or minerals, the
usual rules of property ownership did not apply. Instead, the miners
adopted the “first come, first served” principle already in wide use on
the public domain, where rights were based on occupation rather than
ownership (Gillilan and Brown 1997).
The miners also
needed rules to govern the allocation of water. The first to arrive at
the gold fields, in the earliest months of the rush, often had their
choice of land to claim and water to use. The later arrivals often were
able to find promising, previously unclaimed land, but discovered that
there was not enough water available to work the claims. Water was
frequently the limiting factor in the production of the region’s mineral
wealth.
The riparian
principles used to allocate water in the East would have been of little
use to the miners even if they had been inclined to use them. Water
allocation principles based on plentiful rainfall, numerous streams, and
the need to leave water in the stream for downstream users made little
sense in regions where rainfall and streams were less abundant.
Instead, the miners applied the same rules they used to govern access to
mining claims. When applied to water, these rules became known as the
prior appropriation doctrine.
The miners
staked a claim to water by physically taking, or “appropriating,” what
they needed. Construction of the diversion necessary to take the water
served as notice to other miners that the water was being appropriated.
The first miners to appropriate water had the best right to continue
using it. Subsequent appropriators were required to make do with what
was left, if anything. Even if located upstream from a prior user’s
diversion works, a subsequent “junior” water user was required to allow
enough water to pass to meet the need of the downstream “senior”
appropriator.
The “use it or
lose it” principle was also incorporated within the prior appropriation
system, so that miners not making beneficial use of their water were
forced to surrender it to those who would. Limits were seldom placed on
the amount of water that an individual could use. A miner or company
was free to appropriate as much water as could be put to use, even if
that meant there would not be any left for those who arrived later, or
to sustain the integrity of the stream and its biota (Anderson and
Snyder 1997).
California gold
soon attracted investments from all over the world, and the gold fields
became dominated by increasingly larger and more sophisticated mining
and water supply operations. In the absence of definitive guidance from
federal or state legislatures, the task of defining uniform principles
fell to the California state courts.
The California
courts faced a difficult task. The courts had been organized following
California’s admission to the Union as a state in 1850 and derived their
jurisdiction and powers from the California state constitution. The
mining camps, however, were located almost exclusively on federal land
and it was not clear whether the state or the federal government had
jurisdiction over activities occurring there. The courts had also been
given conflicting directives from the state legislature. In 1850,
California’s first legislature had adopted the common practice (or
common law) as the state’s legal foundation, and this meant that the
allocation of water would be governed by riparian principles. But just
one year later, the legislature adopted a statute that sanctioned the
use of prior appropriation (Gillilan and Brown 1997).
The uncertainty
of their jurisdiction and the conflicting guidance given by the state
legislature made it difficult for the early courts to define a uniform
set of water allocation principles. Occasionally the courts developed
hybrid doctrines that merged aspects of both the competing doctrines.
Over time, their rulings increasingly reflected the precepts of the
prior appropriation doctrine that prevailed in the mining camps. In
1855, the California Supreme Court clearly set forth its justification
for adopting priority principles to resolve water disputes on the public
domain. The court reasoned that the federal government had implicitly
validated the new legal system by failing to object to it. Irwin v.
Phillips
(1855) is often cited as marking the birth of
the prior appropriation doctrine (Gillilan and Brown 1997). By the
1860s, the use of the prior appropriation doctrine was firmly
established as the mechanism by which the California courts would
resolve water conflicts occurring on the public domain.
Miners were not
the only ones to divert water from rivers and streams. There was a
massive infusion of settlers of all kinds to the West throughout the
latter half of the nineteenth century, and many of these settlers needed
to divert water out of natural channels to sustain their livelihoods.
Those who were able to claim land near rivers and streams were able to
raise crops with the aid of relatively primitive diversion and
irrigation works. But more widespread settlement required more
sophisticated irrigation methods. Irrigation soon became the dominant
water use in the West, far exceeding mining in terms of number of
locations in which it was practiced and the total volume of water used.
By the beginning
of the twentieth century, the principles of the prior appropriation
doctrine had been widely adopted throughout the West. The basic
features of the prior appropriation doctrine were:
1. The right to
use water could be obtained by taking the water and putting it to
beneficial use.
2. The right
was limited to the amount of water that was beneficially used.
3. First in
time was first in right.
4. The water
must be used or the right was lost.
These rules had
a major impact on the uses of western rivers and streams. For instance,
to take water and put it to a beneficial use, one had to exercise some
form of physical control over it. Control was exercised by building
storage and diversion dams or otherwise “developing” rivers, thereby
altering natural patterns of water flow. The allocation of water to
those who took it first provided incentives for settlers to take and put
to use all the water that they could possibly use as quickly as
possible, rather than leaving it for instream use or for potential
out-of-stream use by future settlers. Furthermore, beneficial use
requirements had the effect of excluding some water uses—such as many of
those that took place instream—that were not considered beneficial at
that time. Leaving water in streams was widely considered to be a waste
of water (Wilkinson 1992).
Allocation of
water according to the principles of the doctrine of prior appropriation
was consistent with the cherished American ideal that individuals, not
society, should control their destiny. It soon became apparent that
there were a number of problems with the operation of this system. One
of the greatest problems was the prevalence of claims for excessive
amounts of water. These problems eventually led people to call for
adoption of new administrative systems to control the allocation and
distribution of water.
In the prior
appropriation system, to ensure that water was distributed in accordance
with the priorities of the rights, any water user not receiving their
legal share of a river’s flow could place a “call” on the river. In
response to the call, agents of the state required any water users with
rights junior to those of the calling water user to curtail their
diversions until the senior right was satisfied. Diversions of the most
junior water rights on the watercourse were shut down first, the next
most junior, and so on until enough water was left in the stream to
fulfill the senior right.
The shift to the
prior appropriation doctrine was handled differently by each state.
Some states, particularly those where rainfall was more abundant, saw no
reason to completely eliminate the riparian doctrine as they expanded
the appropriation doctrine, and so made great efforts to accommodate
both doctrines. The Pacific states of California, Oregon, and
Washington, and the states of North and South Dakota, Nebraska, Kansas,
Oklahoma, and Texas all tried to take advantage of the developmental
benefits of the new prior appropriation doctrine without upsetting the
expectations of citizens who based their water claims on the common law
riparian doctrine (Fischer and Fischer 1990).
The
accommodation of both doctrines was largely accomplished by applying
each within its own limited sphere of influence. For example, in
California, the state best known for its adoption of both doctrines, the
State Supreme Court decided in an 1886 case that common law riparian
rights—authorized by the state’s first legislature in 1850—would prevail
on lands the federal government granted to the state or to private
individuals, whereas appropriative rights—as authorized by the federal
General Mining Law of 1862 and the state legislature’s adoption of
appropriative principles in 1872—would prevail on the public domain
(Wilkinson 1992).
Texas, on the
other hand, segregated the domains of the two doctrines through
geography, passing legislation that authorized appropriative rights only
in the arid western half of the state, leaving the riparian doctrine as
the sole method of establishing water rights in the more humid eastern
half of the state (Gillilan and Brown 1997).
Over time, most
of the mixed doctrine states took steps to ensure the supremacy of the
appropriation doctrine, and that has become the primary means by which
the western states allocate and administer property rights in water.
The Lack of Federal Water
Law
Before 1890, the
federal government’s primary emphasis was on settling the West and
public land disposal. The transfer of public lands to private ownership
generated concern about the application of the riparian doctrine to
those lands. Under the assumption that there would be no lands retained
in federal ownership, Congress addressed this issue through a series of
laws passed in the 1800s that rejected the riparian doctrine, but did
not develop an independent, federal system for allocating water on
federal lands. Through laws such as the General Mining Law of 1862, the
Act of 1870, and the Desert Land Act of 1877, Congress passed the
allocation of water to the states (Rogers 1993).
Beginning in
approximately 1890, Congress changed its public land policy and
began to retain and develop federal lands by passing laws that
established the Forest Reserves, National Monuments, and added more
National Parks. It also started managing water resources and conducting
large-scale water development and allocation projects through the 1902
Reclamation Act and the 1920 Federal Power Act. Congress’s new policy
for retaining federal lands and actively managing them in a manner that
required water was not in keeping with its previous policy of leaving
water allocation to states and local users (Wilkinson 1992).
A fundamental
tenet of water law widely ignored or misunderstood was that a water
right gave someone the right to use water rather than actual
ownership of water; ownership resided with the public. As states
adopted water administration systems, many chose to clarify this fact.
In general, the creation of such administrative systems, though
supported by reformers, seems to have been more of an effort to make
existing priority systems work better, rather than to make substantive
changes in such systems. However, the shift to public administration of
water rights did result in some changes in the way water was allocated.
These changes were accomplished through the use of public interest or
public welfare requirements in state constitutions and statutes.
Constitutions or statutes of many western states emphasize the fact that
appropriations will no longer be valid just because they benefit
someone; rights will be granted only if proposed water uses are also
consistent with the public interest.
However, “the
public interest” is very difficult to define. Most states have left
questions of the public interest to the discretion of administrative
officials. Many of the western states have also established water use
preferences among beneficial uses.
Presently, water
for domestic and for municipal needs receives the highest priority in
all of the states that have established preferences, although there is
considerable variation in other preferred uses among the states. For
instance, the use of water for agriculture is favored over all but
domestic uses in most states because agricultural interests usually
dominated state legislatures in the early part of the twentieth century,
when preference statutes were written. Industrial, manufacturing, and
electrical generation purposes are usually less preferred, and the use
of water for recreation, fish, and wildlife purposes is usually at or
near the bottom of preference lists, if listed at all. The order of
these preferences may have changed with the implementation of the
Endangered Species Act of 1973 (Wilkinson, 1992).
Maintaining
supplies of clean water and protecting watersheds were major reasons why
public domain forests and rangelands were reserved by the federal
government at the end of the nineteenth century. Use and development of
water resources of the United States underwent major changes at that
time in response to the growing demands of a population that had
increased nearly twenty-fold since the founding of the country.
Westward expansion and the use of navigable rivers, canals, and harbors
for transportation transformed the nation’s economy. As the nation
experienced this period of massive development, major problems emerged
from overuse and poor management of its water resources: Urban water
supplies were a major source of disease; the capacity of many lakes and
streams to assimilate wastes was exceeded; the survival of people living
in arid or flood-prone areas depended on unpredictable precipitation
patterns (Sedell et al. 2000). The 1897 Organic Administrative Act
said these forest reserves were set aside to protect and enhance water
supplies, reduce flooding, secure favorable conditions of water flow,
protect the forest from fires and depredations, and provide a continuous
supply of timber. At that time, few federal forests were designated in
the East because of the relative lack of public domain lands. Public
demands for eastern National Forests resulted in passage of the 1911
Weeks Act, authorizing the acquisition of federal lands to protect the
watersheds of navigable streams. So, it was the headwaters of the
western rivers and the cutover and eroded lands in the East that became
the National Forest System.
Increasing
population and demographic changes in the U.S. will intensify public
concern about adequate future supplies of clean water. The population
of the West has increased 50 percent in the last 20 years and is
expected to increase another 30 percent by 2040 (Case and Alward 1997).
The U.S. population will nearly double within the next 50 years. While
irrigation remains the major use of water, especially in the West, the
population surge in the West is increasing diversion and consumption use
of water and, at the same time, the demand for water-based recreation
(Brown 1999). This trend will continue and intensify. Most recreation
in the U.S. takes place on National Forests and is associated with some
body of water such as lakes, reservoirs, or streams. Recent
publications (e.g., Gillilan and Brown 1997) have more closely linked
instream flow problems to recreational activities and have described the
complex relationships of recreation uses and water. For example, even
without incorporating many of the economic facets of the recreational
uses documented in the arid West, the value of instream flows for
recreational fishing is greater than the value of water for irrigation
(Hansen and Hallam 1990).
Considering the
existing challenges and the likelihood of increasing conflicts over
water policy in the future, the time has come for Congress to seek
solutions for how best to manage the nation’s water resources.
Findings of the Western
Water Policy Review Advisory Commission
In a 1989
report, the western governors identified some major causes of conflict
and frustration with current federal water policies:
A principal
characteristic of federal water policy is that policies are made in an
ad hoc, decentralized manner. No agency of the executive branch or
committee of Congress is responsible for keeping an eye on the “big
picture.” Thus, federal water policy lacks a unifying vision or even a
set of guiding principles. This state of events is not appropriate in
an era in which supplies are threatened by chronic drought . . . while
demand continues to grow. A host of on-the-ground problems are created
by, or at least related to, the absence of a unifying vision, including
redundance of functions across programs, protracted disputes,
interagency turf battles, absence of policies, and lack of finality of
many water disputes (Western Governors Association 1989, p. 1).
The Western
Water Policy Review Advisory Commission members learned that western
water planners would be addressing staggering population growth
projections in the twenty-first century. For the past two decades the
West had been experiencing the most dramatic demographic changes of any
region or in any period in the country’s history (Case and Alward
1997). The West is rapidly becoming a series of large urban clusters
(such as Denver, Salt Lake City, Boise, Portland, Phoenix, Albuquerque,
Dallas, Houston, and Seattle) arrayed across a mostly arid landscape.
Should present trends continue, by 2020 the West’s population may
increase by more than 30% with its attendant pressure on the West’s
limited water resources.
Part of the
impetus for establishing the commission was Congress’s finding that
current federal water policy suffered from unclear and conflicting goals
implemented by a maze of agencies and programs. Even Congress itself
adds to this confusion: Congress is the nation’s primary water
policy-making body and has 14 House committees with 102 subcommittees,
plus 13 Senate committees with 82 subcommittees, exercising
responsibility over various aspects of water resources. Seventy-six
separate congressional appropriation accounts for water have been
identified, resulting in legislative enactments that overlap, duplicate,
and are often inconsistent (Rogers 1993).
The Commission
concluded that these problems could not be resolved piecemeal, but
rather, had to be addressed by fundamental changes in institutional
structures and government processes. The Commission’s work led them to
an even more basic conclusion: That the geographic, hydrologic,
ecologic, social, and economic diversity of the West would require
regionally and locally tailored solutions to effectively meet the
challenges of 21st century water management (Report of the Western
Water Policy Review Advisory Commission 1998).
The Commission’s
recommendations included employing participatory decision-making and
emphasis on local implementation, innovation, and responsibility (Riebsame
1997, Rieke and Kenney 1997). Federal, tribal, state, and local
cooperation toward achieving national water standards should be the
basis of water policy, and where possible, responsibility and authority
for achieving these national standards should rest with non-federal
governing entities. The Commission also recommended organizing around
hydrologic systems—natural systems such as watersheds and river
basins—that would require conflicting jurisdictions to integrate their
institutional missions, budgets, and programs.
Seeking the goal
of sustainable use of water links the diverse elements of the water use
community together and provides for common dialogue and problem solving;
and seeks to achieve a balance between a system’s capability to meet
social needs and its biological and hydrological capacity. For example,
increased public awareness of the damaging impact of massive water
development in places such as the Sacramento River in California, the
Everglades in Florida, and others, is resulting in listings of aquatic
species as threatened or endangered. This is prompting the federal
government to file suits against regional management agencies for lax
enforcement of water quality standards, and reaching settlements that
call for mitigating impacts of excess nutrients from farmland runoff,
and increasing instream flows during critical times for sensitive
species. When Congress asked the U.S. Army Corps of Engineers (the
original builders of the massive water projects that led to ecological
degradation of the Everglades) to develop a plan for recreating original
water patterns, it prompted sugarcane growers and other agricultural
interests to become involved in developing alternative strategies (Postel
1997).
Conclusion
The Nation needs
to complete and implement a policy framework and operating system that
regularly and periodically integrates shifting water use priorities as
American megatrends evolve, measures changes in priorities when and
where they occur, and then creates and incorporates a concomitant
learning system that anticipates and makes changes in policies and
practices to meet newly emerged needs and uses. The new system must find
ways to prevent most current obstacles and conflicts along the path
toward new and more fitting policy—such as by assigning only a few, or
perhaps one, agency and committee in each body of Congress to
have jurisdiction over water. It must be able to modify, diminish, or
escape the constraints of historic priority uses as they become obsolete
or less significant and it needs to be a be able to correct itself with
sound hydrologic data and set sustainability and renewability as its
absolute constraint to prevent depletion of fresh water supplies or
damage to watersheds.
Solutions to
these problems need to be coordinated so that hydrologic, ecological,
social, and economic issues are appropriately addressed and tailored to
meet the water management challenges of the coming decades.
The opinions
expressed in this paper are those of the author and do not reflect
Forest Service policy. The author wishes to acknowledge the helpful
suggestions from James Sedell, Steve Glasser, Martin Apple, editorial
assistance from Norene Blair, and comments from anonymous reviewers.
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Daina
Dravnieks Apple, a natural resource economist with the U.S. Forest
Service, is Staff Assistant to the Deputy Chief for Programs,
Legislation, and Communication in Washington D.C. She recently served
as Administrator, Workplace Relations in the Pacific Southwest Region in
California; in the Washington Office she served as an economist on the
Policy Analysis Staff, as a strategic planner for the National Forest
System, and as an Assistant Regulatory Officer. She also was the
Regional Land Use Appeals Coordinator and on the Engineering Staff in
Region 5, San Francisco. She began her Forest Service career as an
economist at the Pacific Southwest Research Station, Berkeley. Apple
was elected Fellow of the Society of American Foresters and is Past
Chair of the National Capital SAF. She is a member of Sigma Xi
Scientific Research Society; was elected Fellow of Phi Beta Kappa, and
served as President of Phi Beta Kappa Northern California Association,
and served as National Secretary. She is a graduate of the University
of California at Berkeley, where she earned a B.Sc. in the Political
Economy of Natural Resources and an M.A. in Geography.