In recent years, there have been many signs that sustainability has a bright future. From individuals shifting to more sustainable life choices, such as composting household waste, to cities proposing city-wide bans on plastic bags, to America’s biggest companies making commitments to implement more sustainable practices. Despite these many efforts to implement more sustainable practices, for freshwater, one of our most precious natural resources, a sustainable future does not seem so certain. While water is technically a renewable resource, freshwater is nonrenewable, at least in terms of its accessibility in the foreseeable future. Usable freshwater is becoming scarcer as population grows and water quality decreases. For instance, UNEP’s Ecosystem Management Programme estimates that anywhere from 5 to 25% of global freshwater water use exceeds long-term accessible supplies, with current demand being met through overdrafts of groundwater or engineered water transfers. Achieving sustainability in freshwater will depend on society’s ability to conserve accessible freshwater in a way that ensures not only dependable and safe supplies of freshwater for current and future generations, but also healthy freshwater ecosystems.
Achieving freshwater sustainability in the United States will be challenging, because of the complex laws and regulations surrounding water. The National Reclamation Act of 1902 allocated federal money to expensive dams and delivery systems that would bring water to irrigators in the arid west as an incentive to settle the territory.[i] Since the Reclamation Act, both federal and state governments have given the American people the idea that “if you build it, water will come,” and that it will come very cheaply. Governments have continued to highly subsidize water. For instance, in the Central Valley of California, the Environmental Working Group has estimated farmers have received over $400 million in water subsidies from the federal water delivery system. These policies are unsustainable in themselves, because they encourage inefficient use rather than conservation of water. First, in actuality freshwater is becomes increasingly more expensive as the resource becomes scarcer, so skewing the price of water to make it seem cheap only gives incentives to individuals to waste water. Second, transferring water across regions from water-rich areas to arid areas of the country results in huge losses of accessible freshwater due to natural process such as evaporation and seepage and degrades the ecosystems from the water-rich regions.
To compound the problems created by these policy decisions, both of the major systems of water law in the United States, riparianism and prior appropriation, encourage unsustainable use of water. The riparian doctrine only recognizes water rights for landowners abutting a water body, giving them access to and reasonable use of the water.[ii] What is considered reasonable is determined on a case by case basis, but courts traditionally have not found wasteful water practices to be unreasonable.[iii] On the other hand, prior appropriation rights are based on “first in time”, “first in right,” giving an individual who first diverts water for a beneficial use a paramount right to that water.[iv] Most water uses are considered beneficial under the doctrine, including mining, irrigation, agriculture, power, industrial, municipal uses, instream flow,[v] and the doctrine does not compare the relative utility these uses. Therefore, prior appropriation enables inefficient allocation of water to relatively unimportant uses. Prior appropriation rights are also subject to “use it or lose it,” so if the appropriator does not use all his water, he loses the right to that water in the future,[vi] so there is no incentive for a prior appropriator to conserve water. These are just some of the many reasons why these water law systems inhibit sustainable freshwater consumption.
In order to achieve freshwater sustainability, laws and policies must change to give proper incentives to water users for implementing more efficient water practices, including the elimination of water subsidies and transformation of old laws that encourage waste. Two states have been in the news recently, because they are attempting to change water laws to make them more sustainable. In California, Craig Wilson, the Delta Watermaster, responsible for monitoring, reporting, and enforcing water action in the Sacramento-San-Joaquin Delta, has just released a report to the State Water Resources Control Board calling for the state to recognize inefficient use of water as unreasonable, thereby prohibiting inefficient water practices in California. California, which blends riparianism and prior appropriation limits all water allocation to reasonable and beneficial uses,[vii] so changing the definition of reasonableness to prohibit inefficient water allocation, would force all water use in the state to more sustainable practices.
In early January, Minnesota’s Water Resource Center formally submitted the Minnesota Water Sustainability Framework to the Minnesota House of Representative’s Environment, Energy and Natural Resources Policy and Finance Committee. The report, commissioned by the 2009 legislature, is intended to be a “legislative roadmap” for the future protection of the state’s water resources. If enacted, it will be the nation’s first comprehensive framework for long-term, statewide water sustainability. The framework includes recommendations for a complete survey of the state’s groundwater and determinations about the long-term effects of water withdrawals on supplies of freshwater and healthy ecosystems, overhauling the state’s water permitting system to make more efficient allocations of water, mandatory reductions in nutrient runoffs from agricultural sources, and restructuring municipal water pricing to more accurately reflect ecological and infrastructure costs of water.
Unfortunately, the efforts by these two states are not indicative of a shift in the nation’s water policy. While California is always 10 steps ahead of other states in terms of reforming its water law to address scarcity, even Craig Wilson’s simple and rational proposal has been met with a lot of controversy. Second, Minnesota is the “land of 10,000 lakes”, technically more like 100,000, and therefore the state does not struggle with a scarcity of water, making sustainability a much easier goal to achieve. Sustainable consumption of freshwater resources will be impossible without a widespread change to water laws and regulations that encourage efficiency on local, statewide, national, and even international scales. These two examples demonstrate how it is possible to move the country’s laws and regulations in a more sustainable direction.
[i] 1902 Reclamation Act, Pub. L. No. 57-161, 32 Stat. 388.
[ii] Robert E. Beck & Amy K. Kelley, Water and Water Rights § 7.02(a)–(d), 7-17, 7-38 (3d ed. 2009).
[iii] Herminghaus v. Southern California Edison Co., 252 P. 607 (1926) (finding a downstream riparian’s practice of using overflow irrigation reasonable, despite his ability to use irrigation practices that were much more efficient in terms of water use).
[iv] Beck & Kelly, supra note 60, §§ 12.01, 12.02(c) (3d ed. 2009).
[v] See, e.g., Cal. Water Code §1262–65 (2010); Cal. Water Code § 1243 (2010).
[vi] A. Dan Tarlock, The Future of Prior Appropriation in the New West, 41 Nat. Resources J. 769, 772, (2001).
[vii] Cal. Const., art. X, §2.
