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  1. The Hydrologic Cyclehttp://nd.water.usgs.gov/ukraine/english/pictures/watercycle.html

  2. Water as Property • Water is unique. Why? • It is “a moving and cyclical resource” • Water is a common pool resource • States generally claim ownership over water • But, States have a trust responsibility to manage water resources to protect the public interest • Water rights are usufructuary • Private persons obtain the right to use water • They don’t own it in the classic sense of property

  3. Managing Water is Complicated • The amount of the resource is not fixed over time like other resources • Unpredictable seasonal cycles and variations make the availability of water at any given time uncertain • But, water is essential to society • We have plenty of water, but… • We don’t always have it where we need it • Some of it is contaminated or unusable • And our legal system does not always lead to the efficient and fair distribution of water • The global water crisis is a management crisis

  4. Water and Geography • Plentiful water in the East made it possible to radically transform the Eastern United States • “Reclaiming” the West has been much harder (and much more expensive) • Despite hundreds of dams, some of an almost unthinkable scale, much of the West remains a vast undeveloped landscape

  5. Variability of Rainfall • From rainforests to deserts • Scarcity may occur even with abundant supplies if you cannot get water where it is needed • Global rainfall • http://www.cpc.ncep.noaa.gov/products/fews/ globe/anomalies.html

  6. Water and Pollution • 1.1 billion people lack access to an improved water supply • 2.4 billion lack access to improved sanitation • In 2000, there were an estimated 2.2 million deaths due to water-borne diseases • In the United States, we take clean water for granted • But note that our water systems are susceptible to terrorist attacks

  7. Cadillac Desert • Water has made the development of the Western United States possible • But, water isavailable where it is needed in the West only because of elaborate reclamation projects • Projects capture spring snowmelt • The scale of mountain runoff during the spring is hard for Easterners to imagine • Consider the political importance of water projects • Still, it is a myth that the West is running out of water • In many states 95% or more of the water is going to irrigate low value crops

  8. The 100th Meridianhttp://www.geography.about.com/library/weekly/aa011402a.htm

  9. Precipitation Map of the U.S.http://www.doi.gov/water2025/precip.html

  10. Uses for Water • Instream • Fish and wildlife; recreation; ecosystem services (like water purification); navigation; hydropower; dilution • Out of Stream • Irrigation; municipal water supply; industrial uses

  11. The Colorado River Basinhttp://biology.usgs.gov/s+t/imagefiles/e063f01.htm

  12. What Can the Great Lakes Basin Learn from the West? • How is the Great Lakes Basin like the Colorado River? • How is it different? • Are the differences so great that the Colorado River system cannot offer relevant insights?

  13. Water Institutions • From whom do people get water? • Compare farmers with industrial users with small domestic users with city residents • Note that quasi-governmental institutions play a significant role in many parts of the country • From drainage districts to irrigation districts to water and power districts to sanitation districts • Ball v. James holds that these districts are generally not subject to a one-person, one vote standard! • Voting is often done by acreage.

  14. The Nature of Water Supplies • People who use water either have their own water “right” or they may rely on someone else’s water right • Water “rights” are sometimes an incident of property ownership, and are sometimes granted by government agency through a permit • Generally, no one pays for water. Water is free. Our water bill pays for the infrastructure needed to clean the water and bring the water into our home. The same is essentially true for farmers

  15. Water Institutions • Where do people get there water? • Urban and suburban residential users typically get their water from government or quasi-governmental agencies • Municipalities, water districts • Rural users often have private wells • Farmers usually get their water from various types of water districts, including conservancy and irrigation districts • Industrial users sometimes tap into municipal with small domestic users with city residents or sometimes have their own water supplies

  16. Water Institutions • Joint ditches (informal; contractual) • Mutual ditch companies (typically non-profit corporations) • Private companies (e.g., Ohio American) • http://www.oawc.com/awpr/ohaw/start/index.html • Special purpose districts (quasi-governmental) • Irrigation districts and water conservancy districts (like snowflakes—no two alike)

  17. Special Purpose Water Districts • Advantages—Preferred entities for federal contracts • Powers of eminent domain • General fee assessment powers (Tax power?) • Sanctioned by court order • Special purpose districts are typically approved by order of a local district court • Those who prefer not to be included can object on grounds that they will not benefit (but it can be tough to opt out) • Fallbrook Irrigation District v. Bradley (Maria Bradley lost her land for refusal to pay assessment

  18. Ball v. James, 451 U.S. 355 • Salt River Project District • Officials elected by voters who receive one vote for each acre of land they own in the district • District includes more than one half the population of Arizona • Persons who own less than one acre do not receive a vote • District subsidizes water works with electricity sales • Is it a public utility? • Can issue tax exempt bonds; • Property is not taxed; • Has eminent domain authority • Is it subject to one person, one vote rule? • Would it matter whether the district has ad valorem (property) taxing power. Why?

  19. Irrigation Schematichttp://www.doi.gov/water2025/irrigation.html

  20. Center-Pivot Sprinkler Patternshttp://www.ars.usda.gov/is/graphics/photos/k4904-20.htm

  21. Center-Pivot Sprinklerhttp://www.ers.usda.gov/Briefing/WaterUse/Images/cp-spray3.jpg

  22. Furrow Irrigationhttp://www.ers.usda.gov/Briefing/WaterUse/Images/furrow1.jpg

  23. Earthen Ditchhttp://www.co.union.oh.us/soil-water-conservation/ditch_maintenance.htm

  24. Parshall Flumehttp://wwwrcamnl.wr.usgs.gov/sws/fieldmethods/Images/instflum.jpg

  25. Siphon Irrigationhttp://www.ers.usda.gov/Briefing/WaterUse/Questions/glossary.htm

  26. Gated Pipehttp://www.ers.usda.gov/Briefing/WaterUse/Images/gated-pipe2.jpg

  27. Valuing Water • Consider the value of water to community at Put-in-Bay Toledo Blade August 25, 2004 Put-in-Bay's predicamentAN OUTBREAK of gastrointestinal illness that seems to have South Bass Island and Put-in-Bay as a common link is in its second week without a definitive explanation or answer. Hopefully, the public can be reassured that an "A team" of investigators appears to be closing in. The number of people who say they became ill after visiting the popular resort island in Lake Erie off Port Clinton passed 750 on Monday, some of them from as far away as California, Florida, and Texas….

  28. Externalities and the Cost of Water • Consider the vast costs that are imposed by externalities on our water supplies • The bill for making our water clean enough to drink is in the trillions of dollars • But the majority of these costs are imposed by humans. Society accepts pollution from a wide range of sources -- farms, factories, wetland removal, development – and none pay for the costs they impose on water supplies • They don’t pay for the direct costs of treating the water to remove the pollution • And they don’t pay the indirect costs associated with lower value for the water resources as a recreational resource • Why?

  29. U.S. Dam Policy • 5,500 large dams; 100,000 small dams • 95% of all dams are private; but the largest are all public • Why build dams? What are the benefits? • Hydropower • Irrigation (store water for when needed) • Flood control • Flat water recreation

  30. Environmental Cost of Dams • Severe ecosystem disruption • Seasonal flows disrupted • Flow itself disrupted • Temperature changes • Trap stream sediment • Consider the Colorado River • Adverse impacts on wildlife and riverine habitat • Disruption of fish runs • Salmon in Pacific Northwest

  31. Other Costs • Promotes rent-seeking behavior • Dams are often built even when they cannot possibly be justified on economic grounds • Disrupts markets and interferes with “efficient” choices • Decommissioning costs

  32. Government Role • The big dams are all subsidized by the government • Bureau of Reclamation • Army Corps of Engineers • Tennessee Valley Authority • Consider the “public works” nature of many of the projects • Why were subsidies necessary?

  33. Bureau of Reclamation • Reclamation Act of 1902 • Allowed interest free loans for water projects to be paid over ten years • Available to farmers who owned no more than 160 acres and lived on the land (residency)

  34. 1939 Amendments • Extended pay back period on interest free loans to 50 years, which amounted to a 90% subsidy • Rollover policy allowed the Bureau to extend the 50 year period to the time the last unit of a project was completed • The result has been that in some cases the pay back period extends out for nearly 100 years • Specifically authorized shifting costs from irrigators to electrical consumers • Broad authority for further subsidies (water service contracts) which allow Bureau to share construction costs • 160 acre limit honored in the breach (By 1979, more than 75% of water furnished from Bureau projects was going to farms exceeding 160 acre limit.)

  35. Central Valley Project Example • Rollover policy: CVP first authorized as a federal project in 1937. Repayment has been extended through 2030 • According to Natural Resources Defense Council study, subsidies for CVP amount to $300 million/year -- $183/acre . Highest subsidies going to Westlands which was fouling Kesterson Wildlife Refuge • Subsidies for surplus crops. In 1980's 59% of CVP land was growing surplus crops.

  36. 1982 Reform Act • Abolished residency requirements • Extended acreage limit to 960 acres • Allowed leased lands, but "full cost" pricing for tracts in excess of 960 acres • Farmers had to renegotiate under the new law by 1987 or be subject to full cost pricing for all lands in excess of 160 acres. • Peterson v. United States,899 F.2d 799 (9th Cir. 1990): Court upheld the "hammer" clause in Reform Act. Court found that water users did not have a vested contract right to the water (beyond 160 acres) at the contract price.

  37. U.S. Army Corps of Engineers • Much more prominent in the East and Midwest, but some presence in the West as well • Projects not so much for irrigation, but rather for flood control, hydropower, and navigation • As with the Bureau many Corps projects cannot be justified economically • Corps introduced “river basin accounting” whereby the vast subsidies to one project could be hidden by lumping it together with other projects (like hydro) that make a lot of money

  38. Colorado River: Grand Canyonhttp://www.nps.gov/grca/grandcanyon/maps/

  39. Bureau of ReclamationPhoto: The Glen Canyon Damhttp://www.usbr.gov/power/data/sites/glencany/glencnyn.jpg

  40. Lake Powell (2003)The white area shows the high-water mark from 1980http://varnum.org/utah/day07-pix.html

  41. The Proposal to Drain Lake Powell • Pros • Ecology • Fish • Waste • Silt • Risk of spillway failure • Cons • Silt threat is overstated • Restoration will take centuries • Waste is overstated

  42. Denver Post: July 5, 2004 • “Plummeting water levels in Lake Powell have drastically slashed electricity generation at the reservoir's Glen Canyon Dam, forcing power authorities to cut deliveries to utilities from the Front Range to Provo, Utah.” • “Federal officials fear that $100 million worth of hydropower generated annually by Lake Powell could dry up completely by 2009 - if dam managers continue releasing water at pre-drought rates.” • “The five-year drought has already drained Lake Powell to 43 percent of capacity ….That lost … "hydraulic head," has slashed the dam's generating capacity by some 30 percent….” • Lake Powell was 95% full at the beginning of 2000!

  43. Santa Fe New MexicanSeptember 10, 2004 • “$20 million plan for generating station in drought-stricken Lake Powell” • The article discusses a $20 million proposal to drill new tunnels into the sandstone walls to divert water to the Navajo Generating Station for cooling water. The plant helps run the pumps needed to deliver Colorado River water to the Phoenix area • Current tunnels may go dry if Lake Powell drops another 100’. If the drought continues the water may drop that much by 2006. This would also force closure of the hydro station.

  44. Water Allocation Law • Riparian systems have historically dominated the Eastern United States • Prior appropriation systems have historically dominated the West • Many Eastern states are moving toward permit systems that arguably have more in common with prior appropriation law than riparian law • And Western states now clearly recognize instream uses as deserving of protection

  45. Harris v. Brooks • Mashburn (Harris’ lessee) operates a boating and fishing camp • Brooks irrigates a rice crop • Brooks’ use of water dropped lake levels to the point that Mashburn had to give up his business • Suppose that Brooks is required to give up farming to provide water for Mashburn • Who wins? Is this the best result? The most “efficient” result?

  46. Classic Riparian Doctrine • Who is entitled to riparian water rights? • What limits, if any, apply to the place of use? • “On-tract" limitation, but most states allow off-tract use if no objection by other riparians, or if no harm, or if reasonable • Rights must be used in watershed of origin • How much water can a riparian use? • Natural flow theory evolved to reasonable use/correlative rights theory • More recently, some states follow Restatement (2d) of Torts test • Rights do not depend on extent of riparian frontage, but that may affect what is deemed reasonable • For what purposes? • Absolute right to use water for domestic purposes

  47. The Nature of Riparian Rights • Right to make reasonable use of water (correlative with all other riparians) • Right to use surface for recreation, fishing, boating • In most jurisdictions extends to surface of entire water body, not just frontage or wedge • Right to wharf out • Requires federal permit on “navigable waters” • Surface rights and wharfing rights apply across the United States regardless of water allocation doctrine

  48. Restatement of Torts § 850 • Liability Rule: Riparian is liable for unreasonable uses that cause harm • No cause of action unless harm occurs

  49. Restatement of Torts § 850A(A balancing test) • (a) reasonableness of use; • (b) suitability to watercourse; • (c) economic value; • (d) social value of use; • (e) extent and amount of harm; • (f) practicality of avoiding harm by adjusting uses or methods; • (g) practicality of avoiding harm by adjusting quantities used; • (h) protection of existing uses; • (i) justice of requiring person causing harm to bear cost. (Coase would say these are reciprocal harms.)

  50. What’s wrong with the riparian doctrine? • It lacks certainty. How so? • It imposes artificial limits on place of use. How so? • It is inefficient. Consider how conflicts are resolved in riparian jurisdictions. • Should the entire doctrine be scrapped? • What are the alternatives?