HomeMy WebLinkAbout01-30-24 Public Comment - D. Carty - Proposed Canyon Ferry Reservoir to Bozeman PipelineFrom:Daniel Carty
To:Agenda
Cc:Nicholas Ross; Shawn Kohtz
Subject:[EXTERNAL]Proposed Canyon Ferry Reservoir to Bozeman Pipeline
Date:Tuesday, January 30, 2024 11:25:02 AM
Attachments:Klein_2008.pdf
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Date: Jan 30, 2024
Time: 11:30 AM
To: Bozeman City Commission and Bozeman Department of Transportation and
EngineeringSubject: Opposition to proposed water supply pipeline from Canyon Ferry Reservoir to
Bozeman
I am writing to enter into the public record my opposition to the proposal by the City ofBozeman to build a water supply pipeline to pump water upriver from Canyon Ferry
Reservoir to Bozeman (as follows):
The City of Bozeman is thinking about building a 60-mile-long, water-supply pipeline at acost of $1.4 to $5.7 billion to pump water upriver from Canyon Ferry Reservoir to Bozeman.
Purportedly, the pipeline is needed to (1) respond to inevitable growth that could result in450,000 people living in the Bozeman-Belgrade-Four Corners (BBFC) area by 2070 and (2)
increase the BBFC area’s climate resilience. Although the Bozeman City Commission hasput the pipeline on hold for now, the idea is unlikely to go away without substantial and
substantive public opposition.
The City of Bozeman’s claim that the pipeline is needed to respond to inevitable human
population growth is debatable. More than likely, building the pipeline—or even announcing
a decision to build the pipeline—will induce rampant, high-density, residential-commercialdevelopment and fuel rapid human population growth, thus creating more demand for
water, more demand for development, and fueling more human population growth in anongoing cycle that will be environmentally unsustainable. As such, the City of Bozeman’s
claim that the pipeline will increase the BBFC area’s climate resilience is dubious at best.
In a 2008 critical review of large-scale, water-transfer projects in the U.S., author Christine
Klein cautioned that "...importing water from distant watersheds lulls growing communities
into a false sense of security, subsidizes unsustainable growth, and exacts significantsocial, economic, and environmental costs." (https://scholarship.law.ufl.edu/facultypub/2/;
pdf attached) The City of Bozeman would do well to heed Ms. Klein’s cautionary words andnot build a pipeline to pump water upriver from Canyon Ferry Reservoir to Bozeman.
Rather than build a pipeline, the City of Bozeman should strive to become a responsibleland-and-water steward and learn to live within its environmental means—with its existing
water supply being the primary limiting factor to its growth in residential-commercialdevelopment and human population.
Sincerely,
Daniel Carty
213 N. Third Ave.
Bozeman, MT 59715
dgc12@hotmail.com406-548-2810
University of Florida Levin College of Law University of Florida Levin College of Law
UF Law Scholarship Repository UF Law Scholarship Repository
UF Law Faculty Publications Faculty Scholarship
2008
Water Transfers: The Case Against Transbasin Diversions in the Water Transfers: The Case Against Transbasin Diversions in the
Eastern States Eastern States
Christine A. Klein
University of Florida Levin College of Law, kleinc@law.ufl.edu
Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub
Part of the Environmental Law Commons, and the Water Law Commons
Recommended Citation Recommended Citation
Christine A. Klein, Water Transfers: The Case Against Transbasin Diversions in the Eastern States, 25
UCLA J. Envtl. L. & Pol'y 249 (2008), available at http://scholarship.law.ufl.edu/facultypub/2
This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship
Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF
Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu.
Water Transfers:
The Case Against Transbasin
Diversions in the Eastern States
Christine A. Klein*
ABSTRACT
Water policy in the western states consistently has embraced a
nineteenth century, supply-side mentality, requiring cities and
other water providers to satisfy an ever-growing demand for
water at virtually any cost. As a result, the western states rely
upon thousands of engineered water transfers-even siphoning
water from one side of mountain ranges to the other-in an un-
sustainable attempt to support growth. This article challenges
the conventional reliance upon transbasin diversions as a re-
sponse to shortage. It argues that importing water from distant
watersheds lulls growing communities into a false sense of secur-
ity, subsidizes unsustainable growth, and exacts significant social,
economic, and environmental costs. Although this article recog-
nizes the infeasibility of reducing western reliance upon existing
large-scale transfers, it offers an alternative paradigm for the
eastern states, as many of them begin to face the limits of existing
water supplies. This article argues that communities could
achieve water independence by shifting to a demand-side model
and by nourishing the living rivers essential to both human and
natural ecosystems.
I. INTRODUCTION: MOVING WATER TO THE PEOPLE .. 250
II. THE CONTEXT ...................................... 252
A. Transbasin Diversions Defined ................. 252
B. Water Markets Compared ...................... 254
C. Bottled Water Compared ....................... 257
III. THE CRITIQUE ...................................... 259
* Associate Dean for Faculty Development and Professor of Law, University of
Florida, Levin College of Law. I would like to thank Ryan Baya and Jonathan Huels
for their invaluable research assistance.
250 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
A. The Human Drama ............................ 260
B. The Myth of "New" Water ..................... 263
C. Feeding an Addiction .......................... 264
D. Winners and Losers ............................ 268
E. Deconstructing Watersheds ..................... 272
IV. THE ALTERNATIVES ................................... 274
A. Changing the Default Presumption ............. 274
B. Living Within Our Means ...................... 275
C. Nourishing Living Rivers ...................... 278
V. CONCLUSION: WATER INDEPENDENCE ................ 281
I.
INTRODUCTION: MOVING WATER TO THE PEOPLE
"[A watershed] is that area of land, a bounded hydrologic system,
within which all living things are inextricably linked by their com-
mon water course and where, as humans settled, simple logic de-
manded that they become part of a community."
John Wesley Powell1
For more than a century, the default presumption among
American planners has been to bring water to the people, wher-
ever the people decide to build their cities or cultivate their
farms. Ignoring the advice of John Wesley Powell, water suppli-
ers have relied heavily upon transbasin diversions, pumping or
siphoning water from its natural source for use in distant water-
sheds. When some of the nation's most arid cities such as Los
Angeles and Denver experienced explosive growth, they wel-
comed their ever-expanding populations with "new" water wres-
tled from rural communities on the other side of the Sierra
Nevada and Rocky Mountain ranges, respectively. According to
one journalist, California has engineered a water infrastructure
so complex that it resembles something that "might have been
invented by a Soviet bureaucrat on an LSD trip."2
Transbasin diversions are ubiquitous, perhaps surprisingly so
to the casual observer. There are literally thousands of trans-
basin diversions in the United States.3 Although more numerous
1. Environmental Protection Agency, Watershed Information Network: What is a
Watershed (quoting John Wesley Powell, scientist geographer), http://www.epa.gov/
win/what.html (last visited Mar. 6, 2007).
2. See infra note 59 and accompanying text.
3. South Florida Water Management Dist. v. Miccosukee Tribe of Indians, 541
U.S. 95, 109 (2004) (noting thousands of "engineered diver[sions] of one navigable
water into another," particularly in the western states, "whose water supply net-
2006-2007]
in the western states,4 transbasin diversions also occur in the east.
New York City, for example, relies upon pristine, upstate sources
for its water supply, collecting water from a 1,972 mile watershed
spanning eight counties in New York and one in Connecticut.5
Although eastern riparian doctrines such as the "watershed rule"
purport to forbid the separation of land and water,6 those rules
are riddled with exceptions, particularly in the case of securing
urban water supplies.7
Despite heroic efforts, many American cities have not secured
reliable water supplies, and continue to seek more water.8 In-
creasingly, cities have turned their thirsty sights toward agricul-
ture, transferring water rights from irrigation to urban uses.9 But
this may not be enough. From a global perspective, water
shortage is not simply a problem that happens somewhere else.
In connection with "World Water Day 2007," the United Nations
declared "coping with water scarcity" as its theme.10 The UN's
five-color map of critically dry regions is not confined to impov-
works often rely on engineered transfers among various natural water bodies"). See
also South Florida Water Management Dist. v. Miccosukee Tribe of Indians, Brief of
Amici Curiae of the National Water Resources Ass'n et al. in Support of Petitioner,
2003 WL 22137029, at *8 (Sept. 10, 2003) (explaining that "in the Upper Colorado
River Basin alone there are at least 36 major transbasin conveyances that move
approximately 700,000 acre-feet of water per year from the basin of origin for use in
another basin").
4. From its inception, the western prior appropriation doctrine has endorsed
transbasin diversions. See, e.g., Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882)
(protecting prior transbasin diversion over subsequent riparian use within the basin).
5. New York City Dep't of Envtl. Protection, History of New York City's Water
Supply System, http://www.ci.nyc.ny.us/html/dep/html/history.html (last visited Mar.
18, 2007) (describing upstate network of 19 reservoirs, and 3 controlled lakes with
approximate storage capacity of 580 billion gallons); New York City Dep't of Envtl.
Protection, Watershed Protection, http://www.nyc.gov/html.dep/watershed/html/
whereprotect.html (last visited Mar. 18, 2007).
6. See, e.g., Stratton v. Mt. Hermon Boys' School, 103 N.E. 87 (Mass. 1913) (ob-
serving that "[i]n the main, the use by a riparian owner by virtue of his right as such
must be within the watershed of the stream, or at least that the current of the stream
shall be returned to its original bed before leaving the land of the user" but declining
to enjoin diversions out of the watershed or award damages unless there is proof of
"actual injury to the lower estate for any present or future reasonable use.").
7. Id. See also DAVID H. GET CHES, WATER LAW IN A NUTSHELL (West Pub. Co.
3d ed. 1997) at 36-38 (discussing exceptions to the riparian doctrine, including emi-
nent domain, to allow municipal use by cities not owning significant tracts of ripa-
rian land).
8. See infra Part III.C.
9. See infra Part III.D.
10. See UN Water, 2007 World Water Day: Coping With Water Scarcity, http://
www.unwater.org/wwd07/downloads/documents/wwdO7brochure.pddf (last visited
Apr. 12, 2007).
WATER TRANSFERS
252 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
erished sections of Africa or to the great deserts of the world.
Instead, a disturbingly bright swathe of orange-designating ar-
eas of physical water scarcity-sweeps across a large chunk of
the American southwest. Moreover, such shortages are likely to
be exacerbated by climate change, including global warming.11
This article challenges the conventional reliance upon new
transbasin diversions as a response to shortage. Although it rec-
ognizes the infeasibility of reducing western reliance upon ex-
isting large-scale water transfers, this article offers an alternative
paradigm for the eastern states, as many of them begin to face
regional water shortages. Part II sets the stage by defining trans-
basin diversions, placing them in context, and considering their
relationship to so-called "water markets" and to the bottled
water industry. Part III offers a critique of transbasin diversions,
pondering the consistently violent negative reaction that they en-
gender. Beyond the human drama, Parts III.B and C posit that
transbasin diversions lull growing communities into a false sense
of security with the myth that "new" water will always be availa-
ble, thereby feeding an unsustainable addiction to growth. Parts
III.D and E survey the negative social, economic, environmental,
and philosophical costs associated with large-scale water trans-
fers. Part IV provides an intellectual blueprint to help communi-
ties move away from a precarious dependence upon importing
water from increasingly distant sources by regulating demand
rather than supply, living within a water budget, and nourishing
living rivers as an essential prerequisite to protect both human
and watershed ecosystems from collapse. This article concludes
by placing water independence on a par with energy indepen-
dence, framing it as an easily overlooked pillar of national
security.
II.
THE CONTEXT
A. Transbasin Diversions Defined
For purposes of this article, "transbasin water diversion"
means the removal of water from its natural watershed for use in
a different drainage basin. Although most commonly associated
11. See, e.g., Peter N. Spotts, Latest Global Warming Report Urges World to Begin
Adaptitg, CHRISI'IAN SCIENCE MONITOR, April 6, 2007, http://www.csmonitor.com/
2007/0406/p25s01-wogi.htm (last visited Apr. 10, 2007) (summarizing findings of In-
tergovernmental Panel on Climate Change predicting 10-30% decreases in river run-
off in dry, mid-latitude regions).
WATER TRANSFERS
with diversions from surface water sources, the term might also
encompass the interbasin transport of groundwater. From the
perspective of the basin or aquifer of origin, transbasin diversions
have a consumptive use of 100% because excess water cannot
return to its natural source by gravity flow. The physical mecha-
nism supporting such diversions varies widely. In some in-
stances, water may be exported from its source through a
complex network of dams, reservoirs, pipes, canals, and aque-
ducts.12 Other transfers may be engineered more simply, incor-
porating natural stream channels to the extent possible as
conveyance structures.13
Transbasin diversions can involve either the small- or large-
scale movement of water, depending upon the scope of the drain-
age basin. As the scale of the relevant watershed increases, the
potential for significant impacts also grows. At one end of the
spectrum, transfers may be relatively minor, involving the move-
ment of water among drainage sub-basins just a few acres in size.
At the other end of the spectrum, transmountain diversions in
Rocky Mountain states such as Montana, Wyoming, Colorado,
and New Mexico, may divert waters destined for the Pacific
Ocean or the Atlantic Ocean to ultimate destinations at the op-
posite side of the continent.
As an important distinction, transbasin diversions can involve
either the initial removal of water from its natural source for a
particular use at a distant location, or the reallocation of water
from one place of use to another. In the case of the former, vir-
tually all states allow water users to extract the resource free of
charge, provided that the water is put to a use recognized by the
state as beneficial or reasonable, and provided that the water is
not wasted.14 In the case of the latter, the reallocation of water
for use in a different watershed-a change in the place of use-is
often accompanied by other changes. These include changes in
the type of use (as from agricultural irrigation to municipal use)
and time of use (as from the irrigation season to year-round use).
Reallocations may also involve changes in authorized water users
12. See Brief of Amici Curiae of the National Water Resources Ass'n et al. in Sup-
port of Petitioner, supra note 3, at *7-8 (noting that "[t]ransbasin conveyances may
be as mundane as the diversion of water from a river into a nearby (but hydrologi-
cally separate) stream bed for delivery to a nearby town or field, or as massive as the
transport of the vast waters of Northern California through the San Francisco
Delta").
13. Id.
14. GETCHES, supra note 7, at 3-7
2006-2007]
254 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
(the "owners" of water rights or holders of water permits). typi-
cally in states that allow water users to "transfer" their rights or
permits to others. The transfer generally takes the form of a
sale-particularly under the western prior appropriation doc-
trine-wherebv users who acquire water rights for free may sell
them to others at significant profits.'5
B. Water Markets Compared
Water transfers, as discussed above, may be facilitated by so-
called water markets, which depend upon the legal recognition of
secure property rights to the use of water, thereby allowing the
sale of water rights (or permits) from one private user to an-
other.16 Increasingly, the seller is an agricultural irrigator, and
the buyer is an urban municipality-potentially implicating
sweeping changes in the place of use, as well as ownership, type
of use, and time of use. The relationship between water markets
and transbasin diversions can be conceptualized as two spheres
of a Venn diagram. The area where the spheres overlap repre-
sents water rights that have undergone both a change of owner-
ship (by sale) and a changed place of use (to a new watershed).
The modern push for free trade and free markets has spilled
over into the realm of water markets. There is widespread and
enthusiastic support for the development of robust water mar-
kets in the western states.17 Proponents cite to the potential for
15. The sale of water rights through water markets is discussed in infra Part II.B.
16. See, e.g., Brian E. Gray. The Shape of Transfers to Come: A Model Water
Transfer Act for California, 4 HAST-INGS \V-Nw. J. EN\-[L. L. & POL'Y, 23, 24 (1996)
(asserting that "[s]ecure property rights are a prerequisite of all market-based sys-
tems of resource allocation." and noting the challenge posed by -'the reasonable and
beneficial use doctrines, forfeiture laws, the public trust, and the panoply of statutes
that protect water quality. instream uses, and endangered species [thereby]
render[ing] water rights (and contract rights to water) less secure than other forms
of property rights").
17. See Jedidiah Brewer et al., Transferring Water in the American West: 1987-
2005, 40 U. MICH. J.L. REFORM 1021 (2007): Robert Glennon & Michael J. Pearce,
Transferring Mainstein Colorado River Water Rights: The Arizona Experience, 49
ARIZON.A L. RE\. 235 (2007): Andrew P. Morriss. Real People, Real Resources, and
Real Choices: The Case for Market Valuation of Water. 38 TEN. TECH. L. REV. 973,
974 (2006) (arguing that "'markets provide the only way to value resources, including
water, which enables their use without provoking conflicts among those who com-
pete for their use"): Robert Glennon, Water Scarcity. Marketing, and Privatization.
83 TEN. L. REV. 1873. 1884 (2005) (arguing that water markets "would facilitate the
movement of \water from low-value activities to higher-value ones, thus resulting in a
more efficient deployment of the resource"): Gary D. Libecap, Chinatown: Owens
Valley and W'stern Water Reallocation-Getting the Record Straight and What it
Means for Water Markets, 83 TEx. L. REV. 2055, 2058 (2005) (arguing that decision-
WATER TRANSFERS
makers must "consider the societal benefits of cities and the reasons that water
transfers to urban areas so greatly serve the public interest"); Scott S. Slater, A Pre-
scription for Fulfilling the Promise of a Robust Water Market, 36 McGEORGiE L.
REV. 253, 256 (2005) (arguing that in California, "substantial progress must be made
* in creating an orderly process to measure and consider third-party impacts so as
to improve local support for inter-regional transfers"); Barton H. Thompson, Jr.,
Uncertainty and Markets in Water Resources, 36 McGEORGE L. REV. 117, 119 (2005)
(arguing that "to reduce the evils of uncertainty for water users, one of the strongest
steps that... [California and the federal government] can take is to further promote
the development of robust water markets"); James L. Huffman, Water Marketing in
Western Prior Appropriation States: A Model for the East, 21 GA. ST. U. L. REV. 429
(2004) (concluding optimistically "that the future will lead to more water marketing
and, as a result, to better use and protection of scarce water resources"); Janis M.
Caring & David L. Sundig, Emerging Markets in Water: A Comparative Institutional
Analysis of the Central Valley and Colorado-Big Thompson Projects, 41 NAT. RES. J.
283 (2001) (arguing that "[wlater trading is a potential means to improve the pro-
ductivity of developed water supplies and reconcile competing uses"); Andrew P.
Morriss, Lessons from the Development of Western Water Law for Emerging Water
Markets: Common Law vs. Central Planning, 80 OR. L. REV. 861, 864 (2001) (argu-
ing that "there ... will be an increased incentive for national governments to stymie
... [the] development [of water markets] by imposing state controls to appropriate
the increasingly valuable water resources," an action "likely to result in destruction
of valued local institutions and legal rules"); Charles W. Howe, Protecting Public
Values in a Water Market Setting: Improving Water Markets to Increase Economic
Efficiency and Equity, 3 U. DENV. WATER L. REV. 357, 358 (2000) (focusing upon
"the potential usefulness of extended water markets in which public values are ade-
quately protected"); James W. Boyd, Canada's Position Regarding an Emerging In-
ternational Fresh Water Market with Respect to the North American Free Trade
Agreement, 5 NAFTA L. & Bus. REV. AM. 325, 352 (1999) (arguing that "fresh
water is inequitably distributed throughout the earth" and noting "the plausibility of
the need for an international fresh water market"); Chris Seldin, Interstate Market-
ing of Indian Water Rights: The Impact of the Commerce Clause, 87 CAL. L. REV.
1545 (1999) (observing that in recent years Native American tribes and Indian law
commentators "note that, for many tribes, marketing tribal water for off-reservation
use can generate substantial revenue from a resource for which the tribes have little
present use on the reservation"); David W. Yoskowitz, Spot Market for Water Along
the Texas Rio Grande: Opportunities for Water Management, 39 NAT. RES. J. 345
(1999) (arguing that "[w]ater markets have become increasingly popular with water
managers and state officials as a means of allocating or reallocating [water] re-
source[s]"); Thomas J. Graff & David Yardas, Reforming Western Water Policy: Mar-
kets and Regulation, 12 WTR NAT. RESOURCES & ENVT 165, 166-67 (1998)
(concluding that "it is our view that needed water reallocations can best be accom-
plished through the development of water markets"); Ronald A. Kaiser & Laura M.
Phillips, Dividing the Waters: Water Marketing as a Conflict Resolution Strategy in the
Edwards Aquifer Region, 38 NAT. RESOURCES J. 411 (1998) (arguing that water
marketing "offers a means to minimize conflicts over the reallocation of water from
lower economic valued agricultural uses to higher valued domestic, industrial, envi-
ronmental and recreational uses"); Ronald A. Christaldi, Florida's Water Future: A
Legislative Proposal for the Distribution of Water Resources in Florida, 71 FLA. BAR
J. 88 (1997) (favoring interdistrict transfers of water, in context of initial allocations
rather than water markets); Santos Gomez & Penn Loh, Communities and Water
Markets: A Review of the Model Water Transfer Act, 4 HASTINGS W.-N.W.J. ENVTL.
L. & POL'Y 63, 63-64 (1996) (observing that "there seems to be growing agreement
among economists, environmentalists, urban water agencies and others that water
2006-20071
256 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
markets to efficiently reallocate water to its most highly-valued
use, relying upon willingness to pay as an acceptable proxy for
value.18 A second group of commentators stops short of endors-
ing western water markets, but generally accepts their develop-
ment as inevitable. Instead of challenging the fundamental
notion of water markets, this group seeks to harness their force
for environmental good,19 or at least to minimize the social
markets can and should help solve [the] problem" of conflicts over water); Ronald
A. Kaiser, Texas Water Marketing in the Next Millennium: A Conceptual and Legal
Analysis, 27 TEX. TECH. L. REV. 181, 185 (1996) (offering "suggestions for changing
Texas laws and administrative rules to encourage the reallocation of water through
market mechanisms"): Stuart L. Somach & Andrew M. Hitchings, Antitrust Consid-
erations in Water Marketing, 11 NAT. RES. & ENV'T 26, 67 (1996) (arguing that both"'excessive governmental involvement" and "monopolistic, anticompetitive behav-
ior" should "be avoided if the idea of free market allocations of water is to be given
a true opportunity to work"); Kevin M. O'Brien & Robert R. Gunning, Water Mar-
keting in California Revisited: The Legacy of the 1987-92 Drought, 25 PAC. L.J. 1053,
1056 (1994) (examining "the major unresolved issues that continue to hinder the
development of water marketing"); Richard W. Wahl, Market Transfers of Water in
California, 1 WEST-N.W. 49, 68 (1994) (arguing that "'California water agencies
should consider continuing the water bank in some form and/or allowing privately
negotiated transactions to serve the same function"); Barton H. Thompson, Jr., Insti-
tutional Perspectives on Water Policy and Markets, 81 CAL. L. REV. 671, 673 (1993)
(arguing that "[g]iven the significance of institutional obstacles to major interbasin
transfers, institutional rather than legal reform may have the greatest impact on the
future growth of water markets"): Zach Willey, Behind Schedule and Over Budget:
The Case of Markets, Water, and Environment, 15 HARV. J. L. & PUB. POL'Y 391,
424-25 (1992) (arguing that the "'overall gains from [water] trading systems are ap-
parent, and the emergence of diverse regional water markets is the sensible result"):
Kevin M. O'Brien, Water Marketing in California, 19 PAC. L.J. 1165, 1168 (1988)
(arguing in favor of legislation "that would remove unnecessary barriers [to water
marketing] while at the same time protecting legitimate interests").
18. Id.
19. Several scholars have begun to explore the use of market mechanisms to pro-
mote watershed preservation, as through the sale, lease, or donation of water rights
for the maintenance of water levels within natural stream channels. See, e.g., Janet
C. Neuman, Have We Got a Deal for You: Can the East Borrow from the Western
Water Marketing Experience?, 21 GA. ST. U. L. REV. 449, 455 (2004) (discussing use
of water markets as mechanism to preserve instream flows); Ellen Hanak & Caitlin
Dyckman, Counties Wresting Control: Local Responses to California's Statewide
Water Market, 6 U. DENy. WATER L. REV. 490, 491 (2003) (observing that in some
rural counties, "the advent of the [water] market has led to experimentations with
new forms of ... monitoring and mitigation systems" and noting that the rural reac-
tion to water markets may go from protectionism to "one of advancing groundwater
management at the local level"): Kelly A. Cole, A Market-Based Approach to the
Protection of Instream Flow: Allowing a Charitable Contribution Deduction for the
Donation of a Conservation Easement in Water Rights, 6 HASTINGS W.-N.W. J.
ENVTL. L. & POL'Y 325 (2000) (arguing in favor of water markets, at least in context
of preserving instream flows); Janet C. Neuman & Cheyenne Chapman, Wading Into
the Water Market: The First Five Years of the Oregon Water Trust, 14 J. ENVTL. L. &
LIrIG. 135, 184 (1999) (arguing in favor of water markets, at least in the context of
"building the market for in-stream water rights in Oregon, and by example, through-
2006-2007]
harms that they inflict.20 A third area of scholarship does not
oppose water markets, but doubts whether true water markets
actually exist under western prior appropriation,21 or even can
exist under eastern riparianism.22 In addition, a few commenta-
tors challenge the desirability of water markets.23 Rather than
enter the debate as to the value of western water markets, this
article simply notes their overlap with water transfers.
C. Bottled Water Compared
The water bottling industry has expanded dramatically over
the past few decades. By 2003, bottled water was second only to
carbonated soft drinks in volume of commercial beverage sales in
the United States.24 By 2005, the average American was drink-
ing more than twenty six gallons of bottled water annually, repre-
out the West"); Ray Huffaker et al., Institutional Feasibility of Contingent Water
Marketing to Increase Migratory Flows for Salmon on the Upper Snake River, 33
NAT. RESOURCES J. 671 (1993) (arguing for a resolution of "the potential institu-
tional and legal obstacles to superimposing a dry-year option (contingent) water
market between irrigators and hydropower utilities"); Paul R. Williams & Stephen J.
McHugh, Water Marketing and Instream Flows: The Next Step in Protecting Califor-
nia's Instream Values, 9 STAN. ENVTI. L.J. 132, 134 (1990) (arguing in favor of"utiliz[ing] the state's increasing use of 'water marketing' to [affect] reallocation of
water from diversionary to instream uses").
20. See, e.g., Joseph L. Sax, Understanding Transfers: Community Rights and the
Privatization of Water, 1 WEST-N.W. J. ENVTFL. LAW POL'Y THOUGHT 13, 16 (1994)
(arguing that states must recognize legitimate, third-party community claims in
water transfers, and must "institutionalize [these claims] .as part of the price of
water, rather than letting all the benefits flow to the formal owners of water use
rights and to the buyers of the water"). See also Robert Glennon, The Quest for
More Water: Why Markets are Inevitable, Perc Reports (Sept. 2006), at 7,
www.perc.org.
21. See Joseph A. Dellapenna, The Importance of Getting Names Right: The Myth
of Markets for Water, 25 WM. & MARY ENVTL. L. & POL'Y REV. 317, 327 (2000)
(arguing that "true markets for water [have] been rare" and that "certain adminis-
trative regimes ... have been misdescribed as 'markets'").
22. Joseph A. Dellapenna, Special Challenges to Water Markets in Riparian States,
21 GA. ST. U. L. REV. 305, 308 (2004) (arguing that "[w]hen a market works, it is the
most efficient 'mechanism for allocating resources to particular uses," but concluding
that "certain special challenges ... will make it difficult or impossible to use markets
as a water management tool in a riparian jurisdiction").
23. See, e.g., Clifford J. Villa, California Dreaming: Water Transfers from the Pa-
cific Northwest, 23 ENVTL. L. 997, 1000 (1993) (expressing desire that comment will
"'lay to rest any serious enthusiasm or concern for future proposals to transfer water
from the Pacific Northwest"); Robert C. Gavrell, Note, The Elephant Under the Bor-
der: An Argument for a New, Comprehensive Treaty for the Transboundary Waters
and Aquifers of the United States and Mexico, 16 CoLo. J. INT'L ENVTL. L. & POL'Y
189, 224-25 (2005). See generally sources cited in Part III infra.
24. International Bottled Water Association, Statistics: 2006 Market Report Find-
ings, http://www.bottledwater.org/public/marketing.html (last visited Mar. 20, 2007)
WATER TRANSFERS
258 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
senting an increase from 2004 of more than 10%.25 Increasingly,
bottlers have added sweeteners, coloring, flavoring, vitamins,
protein, calcium, electrolytes, and juices to bottles of water.
They have even added additional oxygen to a compound already
composed of one part oxygen to two parts hydrogen. This
doctored water has been marketed under labels such as "vitamin
water," "fitness water," "flavored water," or "enhanced water."26
Such products may cost almost five thousand times more than
ordinary municipal tap water.27
Bottled water raises many of the same issues and concerns as
transbasin diversions. With respect to the basin of origin, both
have a consumptive use of one hundred percent, as water is re-
moved from its source through pipes or in bottles. Moreover, in
the case where watershed and bottling facility are located in sep-
arate basins, the bottling process itself requires a transbasin di-
version of raw water prior to the extra-regional transport
connected with the sale of the finished bottled product. Of
course, many other bottled products incorporate water-includ-
ing soft drinks, beer, household and beauty products, and even
baby food. However, only bottled water has a readily available,
lower-cost alternative: municipal tap water delivered directly to
the home in numerous communities. As a result, it can be ar-
gued that in many cases bottled water is a mere convenience that
needlessly removes water far from its local source. As such, the
case of bottled water serves as one useful bellwether to gauge
social reaction to a highly visible emblem of transbasin
diversions .28
(listing volume and producer revenues of U.S. bottled water market 2001-2006). Ri-
val beverages include beer, soft drinks, and fruit beverages. Id.
25. Id. (listing volume of 2005 U.S. bottled water market as 7.5 billion gallons,
representing a 10% increase from the previous year, and listing 2005 average annual
per capita consumption as 26.1 gallons).
26. Nicki Britton, Bottled Water Makes a Splash With Flavors, Colors and Nutri-
ents, HOUSTON CHRONICLE, Mar. 12, 2007.
27. Id. (comparing Kellogg's Special-K20 at $1.50 per 16-ounce bottle to Houston
tap water at approximately .25 cents per gallon).
28. The bottled water industry has been a flashpoint for protests over out-of-basin
water uses. See, e.g., Christine A. Klein, The Environmental Commerce Clause, 27
HARV. ENVTL. L. REV. 1, 20 (2005) (describing public protest in Michigan over pro-
posed Perrier/Nestl6 Waters bottling facility).
WATER TRANSFERS
III.
THE CRITIQUE
"If the unrestrained engineering of water was original sin, it was
essentially a sin of scale. Anyone who wants to live in the west has
to manage water to some degree."
Wallace Stegner 29
The next two parts of this article offer, respectively, a critique
of the current reliance upon transbasin diversions and a sug-
gested alternative paradigm. The perspective aims to be realistic
and prospective. For the western states, this entails an acknowl-
edgement that it would be virtually impossible-and likely unde-
sirable-to go back and de-engineer existing transbasin
infrastructure.30 In the east, however, numerous states continue
to write on relatively clean slates in terms of both law and actual
practice. These states can learn from the past, and choose a fu-
ture course less reliant on large-scale transbasin diversions. Fur-
thermore, eastern states can choose to retain public ownership
over water resources, offering only renewable permits in place of
absolute water rights.31
This will have several consequences for the related area of
water markets. If states retain ownership of their water re-
sources, then pervasive eastern water markets will be less likely
to develop. Instead, allocations in excess of need will return to
the state for reallocation to other uses (developmental or envi-
ronmental).32 This will arguably produce at least three desirable
impacts. First, it will eliminate the redundancy of so-called free
markets in water, which are arguably nothing more than govern-
ment regulatory programs disguised beneath a thin veneer of
privatization.33 Second, it will eliminate private market profi-
teering, including water broker/middlemen and ordinary users
who acquire water rights for free and sell them at a profit.34 Fi-
29. WALLACE STEGNER, THE AMERICAN WEST AS LIVING SPACE 36 (1987), cited
in Lora Lucero & A. Dan Tarlock, Water Supply and Urban Growth in New Mexico:
Same Old, Same Old or a New Era?, 43 NAT. RES. J. 803, 803 (2003).
30. But see Christine A. Klein, On Dams and Democracy, 78 ORE. L. REV. 641
(1999) (considering appropriate cases for dam demolition, potentially impacting the
infrastructure necessary for transbasin diversions).
31. See, e.g., Fla. Stat. § 373.236 (providing for the issuance of 20-50 year renewa-
ble consumptive use permits).
32. See, e.g., infra notes 140-45 and accompanying text.
33. See generally Dellapenna, The Importance of Getting Names Right, supra note
21.
34. Id.
2006-2007]
260 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
nally, it will allow states to make efficient use of their existing
water allocation machinery by applying it to both initial alloca-
tions and subsequent reallocations of water. State personnel are
already well acquainted with their water laws and public interest
criteria, and may be better able to reallocate water to new uses
than any profit-driven market system.
A. The Human Drama
Law is deeply rooted in the human experience. In the case of
long-distance water diversions, the overwhelming social reaction
has been that of protest: consistent, visceral, and at times violent.
High drama is not uncommon, including street protests,35 and
even midnight dynamite parties to blow up aqueducts.36 This
strong sense of water protectionism is particularly remarkable
when compared to other natural resources. Logging, mining,
grazing, and other resource-extractive activities-although cer-
tainly subject to criticism and protest -have not triggered a com-
parable, consistently-negative reaction. The response to water
transfers has been surprisingly uniform, whether in the past or
present, in the east or the west.
For example, consider one recent conflict in the naturally
water-rich state of Florida. The state enjoys an average annual
rainfall of fifty-four inches, a wealth of precipitation that would
be the envy of numerous other states.37 Increasingly, however,
that generous water supply is stretched thin by an ever-growing
population, particularly in the south and southwestern portions
of the state. Moreover, hydrogeologic factors place constraints
upon the safe yield of aquifers, limiting the amount of ground-
water that Floridians can extract without causing saltwater intru-
sion into freshwater sources. In 2003, an event that would have
been considered minor in many western states-several
sentences in an advisory report to the governor-triggered an ex-
plosion of outrage in Florida. In particular, Improving Florida's
Water Supply Management Structure suggested that state water
managers simply study "the practicality of a statewide water dis-
35. See infra notes 39-50 and accompanying text.
36. See infra note 63 and accompanying text.
37. The Florida case study is adapted from Christine A. Klein, On Integrity: Some
Considerations for Water Law, 56 ALA. L. REV. 1009, 1037-40 (2005).
WATER TRANSFERS
tribution system" that would "enable[] water distribution from
water-rich areas to water-poor areas."'38
Reading between the lines, citizens and legislators from north-
ern Florida feared that their water would be exported to growing
urban areas in the southern and southwestern parts of the state,
including Miami, Tampa, and St. Petersburg. The response was
a bipartisan, grass-roots protest that divided north from south.
One newspaper reported "public outrage in water-rich but devel-
opment-poor North Florida,'39 prompting some one thousand
citizens to attend public hearings by "pil[ing] into pickup trucks,
church buses and vans ...driven by the one issue that unites
them all: water."'40
Furthermore, when state senators held a series of public hear-
ings across the state, they found few if any supporters for the
water transfer idea. The last hearing, at rural Chiefland High
School, drew an estimated 1,000 people, some wearing T-shirts
declaring, "Our Water is Not for Sale," and toting signs that pro-
claimed, "Not one damn drop!" One commissioner attending the
meeting reported, "There are people in [north Florida] right now
getting shotguns and buckshot."41
Three years later, the threat of transbasin diversions from
north to south continued to generate political heat. Campaign
flyers for the 2006 state elections focused on the protection of
north Florida's water resources, warning that, "South Florida is
growing beyond [its] means and needs our water resources to
support [its] development problems. And they have the domi-
nant political clout in the Legislature to take what they want."'42
38. Florida Council of 100, Improving Florida's Water Supply Management Struc-
ture, Sept. 2003, at 23 (recommendations 4 and 5), available at http://wwwfcl00.org/
documents/waterreportfinal.pdf (last visited Mar. 28, 2008). The Council of 100 de-
scribes itself as a "private, non-profit, non-partisan association whose members re-
present a cross-section of key business leaders in Florida." Id. at 2. See also Craig
Pittman & Julie Hauserman, North Has It, South Wants It, ST. PETERSBURG TIMES,
Aug. 10, 2003; Sounding the Water Alarm... Again (Opinion), Ocala.com, Jan. 11,
2007.
39. Craig Pittman & Lucy Morgan, Fierce Outcry Sidelines Water Distribution
Plan, ST. PETERSBURG TIMES, Jan. 22, 2004.
40. Amy Wimmer Schwarb, North vs. South: Plan to Transfer Water Meets Sea of
Protest, ST. PETERSBURG TIMES, Nov. 21, 2003, at B1.
41. Pittman & Morgan, supra note 39.
42. Fall 2006 campaign flyer paid for and sponsored by the Republican Party of
Florida (supporting three candidates for State Senate and State Representative) (on
file with author). Another flyer asked,
Why are South Florida Power Brokers Meddling in North Florida Primary Elec-
tions? Could it have something to do with helping South Florida get access to
2006-2007]
262 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
What does it all mean? How should this innate human aver-
sion to transbasin diversions be incorporated into the law, if at
all? Florida's experience with transbasin diversions is not an iso-
lated example: similar protests have taken place in numerous
other states, including California,43 Colorado,44 Georgia,45 Michi-
gan,46 New Hampshire,47 Nevada,48 North Carolina,49 and
Texas.50 At the very least, this human drama should give us
North Florida's fresh water? They're pouring money in, attacking candidates with
a solid record of protecting North Florida's natural resources. Why? We have
water. South Florida wants it!
Fall 2006 electioneering communication paid for by the Republican Party of Florida
(urging citizens to demand that south Florida organizations "keep [their] South Flor-
ida water rustlers out of North Florida elections!") (on file with author).
43. See infra notes 58-69 and accompanying text.
44. See States Face Flood of Water Issues, Topix.net, Jan. 2, 2007, available at http:/
/www.topix.net/content/newest/1508943627146191807826282704793396840689 [last
visited Jan. 28, 2007] (noting that "Western Slope governments have spent the last
decade vigorously defending their water supplies from the ever-growing Front
Range communities"); Theo Stein, West Slope Offers Plan to Ease Water Disputes,
DENVER POST, at A-01, May 27, 2005 (describing "decades of bickering across the
Continental Divide that has soured relationships between Colorado's big cities and
its scenic tourist spots").
45. See generally Stephen E. Draper, Sharing Water Through Interbasin Transfer
and Basin of Origin Protection in Georgia: Issues for Evaluation in Comprehensive
State Water Planning for Georgia's Surface Water Rivers and Groundwater Aquifers,
21 GA. ST. U. L. RE\. 329 (2004).
46. See Klein, The Environmental Commerce Clause, 27 HARV. ENVTL. L. REV. 1,
18-23 (2003) (describing protectionist response in the Great Lakes region to pro-
posed water bottling operation). See also Amy Lee, Michigan Is Ground Zero in
Groundwater War: Residents Fear Lower Water Levels as Nestle Taps into Western
Michigan Watershed, DETROIT NEWS, Jan. 29, 2007.
47. David A. Fahrenthold, Bottlers, States, and the Public Slug It Out in Water
War, WASHINGTON POST, at A3, June 12, 2006 (describing water bottler's victory
over local towns and activists). Upon winning a lawsuit to enjoin its bottled water
operation, USA Springs celebrated its victory:
By the time the [New Hampshire] state Supreme Court weighed in last month,
handing a victory to USA Springs, the fight had become so bitter that the com-
pany's attorney issued a one-sentence statement: 'Veni, Vedi, Vici.' The middle
Latin word was misspelled, but the reference to Julius Caesar was clear-in this
battle, the bottler felt it had finally conquered. Id.
48. See Glen Martin, Vegas Water Wars, THE SAN FRANCISCO CHRONICLE, at 4,
July 17, 2005 (describing Las Vegas as a "desperately thirsty town" and noting that
its search for new sources of water had made an enemy of ranchers).
49. Eric C. Deines, Last Interbasin Water Transfer Meeting Draws More Opposi-
tion, INDEPENDENT TRIBUNE (Charlotte, North Carolina), Sept. 20, 2006 (describing
recent round in Catawba River water war, with public meeting at "Charlotte high
school, filling the 1,000 capacity gymnasium" and featuring "signs of opposition,
reading 'No' [that] were held high when any speaker in favor of the proposal ap-
proached the podium").
50. Carlos Guerra, Latest Aquifer Pumping Skirmish Could Lead to Major Water
War, SAN ANTONIO EXPREss-NEWS, Jan. 4, 2007 (describing conflict over legislative
proposal to raise pumping limits on the Edwards Aquifer by 22 percent).
2006-2007]
pause, prompting a search for the roots of such unrest. Certainly,
little weight should be given to baser impulses-such as parochial
protectionism 51 or the hoarding of water for merely speculative
future uses. But after stripping away suspect rationales, the re-
maining motivations may serve as valuable signposts to guide the
formation of water diversion policy that is consonant with the
deep and heartfelt human connection with watersheds.
B. The Myth of "New" Water
The default presumption of traditional water managers can be
characterized as "moving water to the people." Under this sup-
ply-side view, water officials believe they have a duty to over-
come virtually any obstacle in order to support consumer
demand and continued growth. As that demand grows-and it
inevitably does-providers have looked to increasingly distant
sources for additional water supplies, referring to them in casual
shorthand as "new water."52 Such speech has alchemical over-
tones, belying a sobering reality:
There is essentially the same amount of freshwater on the planet
today as there was 2,000 years ago. Yet this supply, which was then
shared by no more than 300 million people, today must sustain a
population of over 5.7 billion that is projected to grow to almost 10
billion by 2050.5 3
51. See Christine A. Klein, The Law of the Lakes: From Protectionism to Sus-
tainability, 2006 MICH. ST. UNIV. L. REV. 1 (2006) (discussing potential protectionist
thrust of regional agreement).
52. See, e.g., John E. Thorsen et al., Dividing Western Waters: A Century of Adju-
dicating Rivers and Streams, 9 U. DENV. WATER L. REV. 299, 462 (2006) (discussing
conflict between Colorado irrigators and Ute Indian tribes, culminating in a settle-
ment involving "[n]ew water, seemingly pulled out of Colorado's thin air"); Answer-
ing a Call on the Colorado River Compact, 8 U. DENV. WATER L. REV. 732, 735
(2005) (reporting conference proceedings during which speaker "noted that reuse of
trans-mountain diversions will be an important aspect in long-term municipal water
planning because it reduces the amount of 'new' water that an agency must import
to meet increasing demands"); Gavrell, supra note 23 (noting risk that water mar-
kets ... create only temporary solutions that could have the effect of staving off
essential reforms in water-use patterns for too long, by creating the illusion of 'new'
water sources in a region that is rapidly using too much already"); Peter D. Nichols
& Douglas S. Kenney, Watering Growth in Colorado: Swept Along by the Current or
Choosing a Better Line?, 6 U. DENV. WATER L. REV. 411, 413 and 420 (2003) (sug-
gesting that "trans-basin cooperation can make additional supplies of new water
available to meet urban Front Range growth [in Colorado], at least where the basin
of origin has unmet needs"),
53. Pamela LeRoy, Troubled Waters: Population and Water Scarcity, 6 COLO. J.
INT'L ENVTL. L. & POL'Y 299 (1995). See also Timothy O'Neill, Water and Freedom:
The Privatization of Water and Its Implications for Democracy and Human Rights in
the Developing World, 17 COLO. J. INT'L ENVTL. L. & POL'Y 357, 358 (2006) ("While
WATER TRANSFERS
264 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
Reference to "new" water lends subtle credence to the notion
that somehow more water can be created, defying the actual lim-
its of the earth's finite water supply. As a result, water managers
and politicians are reluctant to impose water-based limits on re-
gional growth,5 4 thereby reinforcing the supply-side mentality.
C. Feeding an Addiction
Semantics aside, continued reliance upon "new" water or
sources may provide a type of water security that is more illusory
than real.55 History suggests that there can never be enough
water to satisfy unfettered demand, at least where users do not
bear the full costs of their water use. As an analogy, consider
another supply and demand problem: reducing traffic congestion
to acceptable levels. Today, transportation planners generally
agree that "we cannot build our way out of congestion.''5 6 That
is, as new roads are built, more drivers use the new roads until
traffic is moving no more quickly than before the construction.
In addition, new roads attract new development, which in turn
attracts more traffic.57 Likewise, water managers have begun to
recognize that they cannot "build" their way out of water
people continue to believe there is an infinite supply of fresh water on our planet,
such an assumption is tragically mistaken. .The amount of water on the planet,
fresh or otherwise, is finite, yet the demands made upon that supply are ever
increasing.").
54. Nichols & Kenney, supra note 52, at 416 (asserting that "municipal and indus-
trial growth decisions are rarely based on water availability").
55. See Denise D. Fort, Keep Your Money: Let the West Pay for Its Own Water
Projects, 27 PUB. LAND & RESOURCES L. REV. 15, 19 (2006) (arguing that federal
subsidies for additional water supplies "lead people to use water as though it were
freely available, to move to areas where there isn't sufficient water, and to plan for
future growth, lulled into a false confidence that water supplies are sustainable"); A.
Dan Tarlock & Sarah B. Van de Wetering, Western Growth and Sustainable Water
Use: If there are No "Natural Limits," Should We Worry About Water Supplies?, 27
PUB. LAND & RESOURCES L. REV. 33, 38-39 (2006) (noting that "water supply has
seldom been a factor in local government land use planning" which "reflects both
the longstanding assumption that humans can and should overcome any natural con-
straints on progress and the availability of large blocks of stored, cheap federal
water to buffer cities in times of shortage").
56. See, e.g., Testimony on Peak-Hour Traffic Congestion Before the Senate Com-
mittee on the Environment and Public Works (Anthony Downs, Senior Fellow,
Brookings Institution), May 19, 2002, http://www.anthonydowns.com/peakhourtes-
timony.htm (last visited April 1, 2007); but see Peter Samuel, How to "Build Our
Way Out of Congestion "': Innovative Approaches to Expanding Urban Highway Ca-
pacity, Reason Public Policy Institute (1999), http://www.rppi.org/ps250.html (last
visited April 1, 2007) (advancing challenge to conventional wisdom).
57. Testimonv on Peak-Hour Traffic Congestion, supra note 56.
2006-2007]
shortages by developing new infrastructure and new water sup-
plies, but this recognition is far from universal.
Los Angeles, for example, has exhibited an insatiable thirst for
water.58 To satisfy the water demands of Los Angeles and the
state as a whole, California has engineered what a New York
Times article described as something that "might have been in-
vented by a Soviet bureaucrat on an LSD trip."5 9 In the early
twentieth century, realizing that its water supply would soon be-
come insufficient, the growing city reached across the Sierra Ne-
vada Mountains to the remote Owens Valley. There, city officials
stealthily purchased water rights and options for land, pretending
to be ranchers and farmers.60 Completing a 233-mile trans-
mountain aqueduct through the Mojave Desert in 1913, Los An-
geles transported Owens Valley irrigation water across the
mountains for municipal use.61 As a result, the city drained
Owens Lake, exposing an area more than three times the size of
Manhattan.62 By 1924, bitterness in the Owens Valley had esca-
lated into violence, as dozens of valley residents dynamited the
spillway gate of the aqueduct and armed protesters took over
one of the intake valves.6 3 Even before the aqueduct had fin-
ished draining Owens Lake, it became apparent that Los Angeles
would require more water.64 In response, the city returned to the
Owens Valley in 1941, this time extending the aqueduct some
fifty miles northward to the Mono Lake Basin.65 Seeking yet
more water, Los Angeles completed a second Owens Valley
aqueduct in 1970-this time, 177 miles in length-to suck up ad-
58. See generally NORRIS HUNDLEY JR., THE GREAT THIRST: CALIFORNIANS AND
WATER, A HISTORY, rev. ed. (University of California 2001).
59. Brian E. Gray, Dividing the Waters: The California Experience, 10 HASTINGS
W.-N.W. J. ENVTL. L. & POL'Y 141, at 141 (2004) (quoting Peter Passell, Economic
Scene: Greening California, N.Y. TIMES, Feb. 27, 1991, at D2).
60. Los Angeles Dep't of Water & Power, Los Angeles Aqueduct Facts, http://
wsoweb.ladwp.com/Aqueduct/historyoflaa/aqueductfacts.htm (last visited Mar. 18,
2007). See also Louis Sahagun, In Owens Valley, Water Again Flows, Los ANGELES
TIMES. Dec. 7, 2006, at B1 (asserting that the "stealth and deception became grist for
books and movies that portrayed the dark underbelly of Los Angeles' formative
years").
61. Id.
62. Randal C. Archibold, In Los Angeles, Trying to Atone for Water Sins, N. Y.
TIMES, Jan. 1, 2007, at Al.
63. Gray, Dividing the Waters, supra note 59.
64. Archibold, supra note 62.
65. Id.
WATER TRANSFERS
266 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
ditional volumes of water from the valley.66 Meanwhile, Los An-
geles had been developing additional water supplies from the
Colorado River. In 1925, the city approved a two million dollar
bond for construction of the necessary infrastructure to tap the
river.67 By the end of the century, California (including Los An-
geles) drew so heavily from the Colorado River that in most
years the river "end[ed] in a puddle in the Mexicali Desert.'"68
By that time, the state had developed "a massive water supply
and distribution infrastructure that enables water managers to
move water from almost every region in the state to almost any
other region in California.'69
The Los Angeles saga should provide a cautionary tale against
a single-minded focus upon increasing water supply through
transbasin diversions, rather than taming demand. In retrospect,
Los Angeles's (and California's) twentieth-century water grab
was-at best-an inefficient approach, incorporating elements
that would later have to be "undone" at great expense and effort.
For example, California came to rely upon the use of more than
its share of the Colorado River, as determined through federal
legislation and negotiations with Mexico and with the six other
states through which the river passes.70 By the end of the cen-
tury, political and environmental factors forced the state to relin-
quish some of its water supply to other states and to the natural
66. See Los Angeles Dep't of Water & Power, Water Past & Present: History of
Water in LA, http://www.ladwp.com/ladwp/cms/ladwp000453.jsp (last visited Mar.
19, 2007); Los Angeles United School District, Los Angeles Water Time Line, http://
www.lausd.kll2.ca.us/ResedaHS/waterweb/aquilarwtr/lawaterpg.html (last visited
Mar. 19, 2007); American University, Trade & Env't Database (TED), TED Case
Studies: The Los Angeles Aqueduct and the Owens and Mono Lakes (Mono Case),
http://www.american.edu/ted/mono.htm (last visited Mar. 19, 2007); National Audu-
bon Society v. Superior Court ("Mono Lake"), 658 P.2d 709 (Cal.), cert. denied, 464
U.S. 977 (1983). For additional 20th century proposals to import water into Califor-
nia, see Villa, supra note 23, at 997.
67. Id.
68. Gray, supra note 59, at 141-42.
69. Id. at 145. As Professor Gray observes,
[California's water infrastructure] make[s] it possible today ... for businesses in
the Silicon Valley to produce computer chips using the runoff from Mount Lyell in
the Yosemite back country, for Budweiser to brew beer in the San Fernando Valley
with groundwater from the Eastern Sierra Nevada, and for the residents of San
Diego to drink water that originated as snowfall outside of Pinedale, Wyoming.
Id. at 141-42.
70. See United States Dep't of the Interior, Bureau of Reclamation, The Law of
the River, http://www.usbr.gov/lc/region/glOOO/lawofrvr.html (last visited April 1,
2007) (explaining that the Boulder Canyon Project Act of 1928, inter alia, "appor-
tioned the lower basin's 7.5 maf [million acre feet] among the states of Arizona (2.8
maf), California (4.4 maf) and Nevada (0.3 maf)").
WATER TRANSFERS
environment. In 2003, for example, the state agreed under politi-
cal pressure to wean itself from the Colorado River water that it
had been consuming in excess of its legal entitlement.71 Three
years later, the city agreed to return water to the Owens Valley,
initiating a $24 million river restoration project.72
Despite the lessons provided by the Los Angeles experience,
other cities refuse to learn from Los Angeles's mistakes. Instead,
growing communities today continue to look to distant water-
sheds for potential new sources of water as at least partial solu-
tions to projected water shortages. Particular hotspots are
Douglas County, Colorado (just south of Denver) and Las Vegas,
Nevada-two of the fastest growing areas of the nation. Be-
tween 1970 and 2004, the population of Douglas County grew
from 12,000 to 200,000: by 2030, the population is projected to
double to 400,000.7 3 The county relies upon groundwater, "min-
ing" the 6,700 square-mile, 10,000 year-old Denver Basin aqui-
fers at a rate that far exceeds the pace of recharge.74 As a result,
aquifer levels in some areas are dropping by up to thirty feet an-
nually, leading to predictions that the area will run out of eco-
nomically-recoverable water within several decades.75 By then,
those who profitably developed homes and strip malls will likely
be unavailable to help remedy the situation, leaving surprised
homeowners and government regulators with a difficult and ex-
pensive water supply problem. For example, one report proposes
to meet the shortage with measures that include conservation
and a three billion dollar network of pipes and reservoirs to im-
port surface water from Denver to the north.76
Las Vegas also refuses to learn from the experiences of cities
such as Los Angeles. Las Vegas faces an imminent water crisis,
71. See Gale A. Norton, Secretary of the Interior, Remarks at Formal Signing
Ceremony: The California Colorado River Water Agreement, Oct. 16, 2003, http://
www.doi.gov/secretary/speeches/hoover.html (last visited April 1, 2007) (describing
the Colorado River Water Delivery Agreement as "mark[ing] an historic turning
point for California and the Basin States" by requiring California to "honor the
commitment it made in 1929 by adopting specific, incremental steps to gradually
reduce its use of Colorado River water over the next 14 years to its basic annual
allotment of 4.4 million acre feet").
72. Id.
73. Wevtcrti Aquifers Under Stress: The Dwindling Denver Basin, GEOTIMES, May
2004, http://www.gc imes.org/may04/feature-westernaq.html (last visited Mar. 28,
2008).
74. Id.
75. Id.
76. Id.
2006-2007]
268 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
with projections that growth will stop by as early as 2013 unless
new water supplies are secured.77 In a scenario reminiscent of
Los Angeles at the turn of the twentieth century, the general
manager of the regional water authority has looked two hundred
miles to the north, advancing a plan to pipe groundwater to the
city from rural White Pine County.78 This unsustainable search
for new supplies of water is not confined to the west. The states
of Florida 79 and Georgia,80 among others, have begun to explore
the possibility of finding new water sources to support their most
rapidly-developing areas by importing water from less-developed
areas of the state.
D. Winners and Losers
Transbasin diversions impose significant social, economic,
and environmental costs upon communities in addition to
any benefits they may generate. According to an old adage,"water flows uphill toward money" (and, one might add,
toward voters and taxpayers). Relatively wealthy, urban
communities have a disproportionately greater influence
upon decision-makers than their poorer, less populated rural
counterparts. As a result, invariably cities and development
interests are the "winners," and agricultural communities,81
77. Launce Rake, Is Las Vegas Out of Water Options?, DESERET MORNING NEWS,
Aug. 27, 2006.
78. Id. (describing plan to pipe 200,000 acre feet annually from rural sources such
as White Pine County).
79. See supra Part III.A.
80. See Draper, supra note 45, at 340 (2004) (observing that "Georgia's largest
and most densely populated region is in North Georgia's headwaters region where
the State has the least amount of source water. The consequence of 50 years of
recent urban growth in this region presents the challenge of how that growth can
continue without augmenting the region's source water supply").
81. See generally Study: Climate Change Could Bring New U.S. Dust Bowl,
CNN.com, April 6, 2007, http://www.cnn.com/2007/TECH/science/04/06/
dust.bowl.ap/index.html (citing lead author of article published in Science on April 5,
2007 for proposition that southwestern water will likely be reallocated from rural to
urban use): UNITED STATES GENERAL ACCOUNTING OFFICE, FRESHWATER SUPPLY:
STATES' VIEWS OF How FEDERAL AGENCIES COULD HELP THEM MEET THE CHAL-
LENGES OF EXPECTED SHORTAGES, GAO-03-514 (2003): Teresa A. Rice, Moving
Agricultural Water to Cities: The Search for Smarter Approaches, 2 HASTINGS W.-
N.W. J. ENVTL. L. & POL'y 27 (1994): Wayne B. Solley et al., U.S. GEOLOGICAL
SURVEY CIRCUtLAR 1004, ESTIMATED USE OF WATER IN THE UNITED STATES IN
1985 (1988) (stating that approximately 80% of all withdrawals are applied to irriga-
tion use). See also supra notes 17-19 (listing scholarship favoring the marketing of
water, generally involving the transfer of water from agricultural to urban uses.
2006-2007]
economically impoverished communities,82 and natural eco-
systems 83 are the "losers."
In the case of transbasin diversions associated with the sale of
water rights, "losers" may also include third parties not associ-
ated with the buyer or seller.84 The scope of the win-loss divide
depends, in part, upon the ability of the beneficiary to accurately
predict the consequences of such diversions, and upon the bene-
ficiary's willingness to provide compensation for all losses im-
posed upon the basin of origin and upon third parties. In one
closely-watched case, for example, Colorado front-range cities-
including Aurora and Colorado Springs-bought up at least one-
third of the agricultural water rights from Rocky Ford, a farming
community renowned for its melons.8 5 Observers feared that the
entire community would dry up along with its farmland.8 6 The
result was forestalled only by the cities' willingness to mitigate
the adverse impacts of their purchase of water rights.87 In other
cases the farming communities may not be as fortunate, or the
proffered mitigation measures may be mere short-term band-aids
that do not fully compensate for the associated harms.
82. See WESCOAT ET AL., WATER, POVERTY, EQUITY, AND JUSTICE IN COLO-
RADO (2001) (analyzing conceptual framework for low-income water problems re-
lated to water quantity and water quality).
83. See infra Part IlI.E.
84. Such third-party impacts are well-documented by the existing literature. See,
e.g., Charles W. Howe, Protecting Public Values in a Water Market Setting: Improv-
ing Water Markets to Increase Economic Efficiency and Equity, 3 U. DENY. WATER
L. REV. 357 (2000) Joseph L. Sax, Understanding Transfers: Community Rights and
the Privatization of Water, 1 WEsT-N.W. J. ENVT'L L. POLCY THOUGHT 13, 14 (1994)
(arguing that "to treat water purely as a commodity, and transfers as two-party
transactions only, is to depart from a very deeply rooted tradition in the water field
and from consistent intuitions about water as a community resource"): George A.
Gould, Water Rights Transfers and Third-Party Effects, 23 LAND & WATER L. REV. 1
(1988) (suggesting methods to deal with third-party effects and to promote water
transfers).
85. See Joey Bunch, The Water is Much, Much, Much More Valuable Than the
Land: Cities' Water Needs Uprooting Colorado Farms, DENVER POST, JuIy 11, 2004.
at Al (noting fears that water sales "will hasten the erosion of whole farming com-
munities," and observing that "when farmers sell their water rights, take their
money and retire their land from agriculture, local tax bases and businesses don't
share the wealth").
86. Id.
87. See Todd Hartmann, Rocky Ford Finds an UnlikelY Savior: Thirsty Aurora
Helps Town Famous for Growing Melons. ROCKY MOUNTAIN NEWS, Sept. 26, 2005,
A4 (discussing initiatives by city of Aurora to "cushion the economic blow in the
Arkansas River Valley" including "leasing water instead of buying it as a way to
keep fields in farming, replacing dried-up cropland with native grasses, shoring up
Rocky Ford's property tax base and installing high-efficiency irrigation systems").
WATER TRANSFERS
270 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
Certainly no resource allocation system promotes perfect
equality in terms of results (or process), and a certain amount of
inequality is inevitable in even the most perfectly-designed sys-
tem. However, unequal patterns of water distribution should be
accorded less tolerance when they result from political pressure,
rather than from a rational discussion of the long-term public
welfare," 'There are many well-organized, but easily overlooked,
coalitions that stand to benefit from technology-intensive water-
transporting infrastructure. For example, the New Mexico
Ground Water Association operates under the slogan, We Water
New Mexico!9 The New Mexico state governor declared 2007
the "year of water," launching initiatives to conserve water re-
sources, preserve the natural environment, maintain local water
supplies, use water efficiently, and maintain water quality.90 In
response, the New Mexico Ground Water Association vowed to
oppose legislative efforts to limit ground water use, urging its
members to make donations and to contact state legislators.91
One advertising campaign, for example, asked readers to "urge
[the] Governor ... and your elected officials to learn the truth
about domestic wells before they push to deny you the right to
own and use one."2 An even more blatant political attempt to
capture the benefits of water use-including long-distance water
transfers-occurred in Florida. In connection with a multi-bil-
lion dollar effort to restore the Everglades, a subsidiary of the
failed Enron Corporation lobbied the state governor with an un-
usual proposal, essentially offering to buy vast quantities of water
88. See, e.g., Fort, supra note 55, at 19 (observing that the "politics of pork are
that the costs of uneconomical water projects are born by the taxpayers of the coun-
try as a whole, but the benefits are limited to a discrete interest group or region").
89. New Mexico Ground Water Association, Membership Page, http://
www.nmgwa.org/Membership/Membership.htm (last visited Mar. 20, 2007) (listing
as eligible group members contractors who drill wells, install pumps, or conduct re-
pair work: manufacturers of equipment or materials used in the water well industry:
suppliers who sell water handling equipment; and hydrologists, geologists, and engi-
neers involved in teaching, research, consulting, and government services).
90. See Consuelo Bokum and Lauren Ketcham, Commeitarv: Assured-Supply
Rule Crucial to 2007 Year of Water, REDORir Nt-ws, http://www.redorbit.com/mod-
ules/news/tools/php?tool=print&id=702592 (last visited Mar. 18, 2007) (commentary
written by members of environmental groups, 100 Friends of New Mexico and Envi-
ronment New Mexico) (asserting that "New Mexico's population is expected to grow
15.4 percent by 2030" and that "[o]ver-pumping [wells] has left some of New Mex-
ico's aquifers in serious decline," with groundwater levels dropping at a rate of 1.3 to
2 feet per year in some parts of Albuquerque).
91. New Mexico Ground Water Association, http://www.nmgwa.org/
HOT%20TOPICS/2007%20WATER.htm (last visited Mar. 18, 2007).
92. Id. at Citizen Alert: Your Right to Own a Domestic Well is in Jeopardy.
2006-2007]
in a state that does not recognize perpetual private rights in
water.9 3
Beyond political considerations, the choice to implement
transbasin diversions may be skewed by market distortions.
Commentators have noted that true free markets in water are
rare, or even non-existent.94 Several factors may contribute to
market failure. First, pricing mechanisms are impeded by state
systems that allow the first user to withdraw water at no cost, but
permit the sale of water to subsequent users at significant costs.95
Some reports, for example, cite charges of ten thousand dollars
for water rights to the use of a volume of water generally suffi-
cient to satisfy the demands of a family of four.96 Second, trans-
basin diversions generate significant externalities that are
difficult to identify and value. These externalities can be direct
(including changes in diversion and return flow patterns and in-
creased conveyance losses) or indirect (including environmental
impacts, reduction in tax base, and job loSS).9 7 This valuation dif-
ficulty is even more pronounced if the market attempts to quan-
tify long-term negative impacts and attempts to preserve
93. See Michael Grunwald, How Enron Sought to Tap the Everglades: Water Unit
Lobbied Jeb Bush on Privatization Bid, But Access Led Nowhere, WASHINGTON
Posr, at Al, Feb. 8, 2002. The article reports that in 1999, "while Florida was plan-
ning the most ambitious environmental restoration in history, leaders of an Enron
Corp. subsidiary called Azurix Corp. made Governor Jeb Bush an extraordinary
offer: They would help pay Florida's multibillion-dollar share of the effort to
replumb and revive the Everglades-if they could then sell water captured by the
project." Id. (concluding that the effort 'went nowhere" and that "[wiater still be-
longs to the public here").
94. See, e.g., Janet C. Neuman, Beneficial Use, Waste, and Forfeiture: The Ineffi-
cient Search for Efficiency in Western Water Use, 28 ENVTL. L. 919, 992 (1998) (argu-
ing that "there simply is no smoothly functioning market in western water, and
never has been"): Dellapenna, The Importance of Getting Names Right, supra note
21, at 327 (noting that "true markets for water [have] been rare" and describing
reasons for this rarity).
95. Dellapenna, The Importance of Getting Names Right, supra note 21, at 327
("In the first place, the basic core component of price is missing. No western state
charges water users for water. Even when there are middlemen ..they rarely
charge for the water itself, but rather for their service and delivery systems").
96. Charles W. Howe, Carolyn S. Boggs, and Peter Butler, Transaction Costs as
Determinants of Water Transfers, 61 U. COLO. L. REV. 393, at 393 (1990) (reporting
the sale of irrigation water rights for transfer to municipal use at $10,000 per acre-
foot in perpetuity).
97. George A. Gould, A Westerner Looks at Eastern Water Law: Reconsideration
of Prior Appropriation in the East, 25 U. ARK. LITTLE ROCK L. REV. 89, 112-13
(2002).
WATER TRANSFERS
272 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
opportunities for future generations.98 Third, this difficulty in
quantification has led some to conclude that it is not practicable
to provide compensation for third-party impacts, which in turn
triggers hostility toward water markets.99 Finally, even if mar-
kets can accurately value negative externalities and design appro-
priate mitigation measures, they will suffer from enormous
transaction costs in the process.'00
E. Deconstructing Watersheds
As a final argument against transbasin diversions, they are ca-
pable of deconstructing watersheds both literally and figura-
tively. In actual physical terms, removing water from its basin of
origin can have devastating environmental consequences. As the
National Academy of Sciences has documented, both aquatic
and terrestrial environments may be affected. With respect to
the former, aquatic degradation includes harm to instream flows,
wetlands, water quality, riparian habitat, and aesthetic quali-
ties.101 Perhaps one of the most striking examples has occurred
in the Florida Everglades. In the name of flood control, for over
half a century the state has diverted vast volumes of freshwater
from the Everglades basin to the ocean, choking off the lifeblood
of the Everglades.102 As a consequence, a staggering 90% of the
shorebird population has been destroyed, decimating flocks of
birds once so dense that their flight temporarily blocked out the
sun.10 3 Likewise, the Owens Valley experienced serious environ-
98. See Draper, supra note 45, at 351 (observing that "[p]arties seldom consider
intergenerational justice when justifying interbasin water transfers, but preserving
opportunities for future generations is an important value").
99. See Howe, supra note 17, at 357, 360-61:
Unfortunately. it is frequently not practicable to compensate the losers from water
transfers due to difficulties in identification and their potential existence in differ-
ent legal jurisdictions. The real and perceived existence of significant uncompen-
sated losses in areas-of-origin has stimulated resistance to large (and especially
out-of-basin) water transfers generally, and to the water market process in
particular.
100. See, e.g., Nichols & Kenney, supra note 52, at 420; Gould, supra note 97, at
114; Stephen E. Draper, The Unintended Consequences of Tradable Property Rights
to Water, 20 NAT. RES. & ENV i 49 (2005) (observing that -[t]ransaction costs can
severely distort the economic efficiency of private water allocation markets").
101. NATIONAL RESOURCE COUNCIL, NATIONAL ACADEMY OF SCIENCE, WATER
TRANSFERS IN THE WEsT: EFFICIENCY, EQUITY, AND THE ENVIRONMENT 38-39
(1992).
102. See Klein, supra note 37, at 1015-17 (discussing history and consequences of
flood control in Florida Everglades).
103. See generally Draper, Sharing Water, supra note 45, at 351 (describing "sig-
nificant or even catastrophic" long-term effects of interbasin water transfers).
WATER TRANSFERS
mental degradation as a result of decades of plundering by Los
Angeles.0 4 The exposed Owens lakebed developed into a
source of toxic air pollution. As one journalist reported, "[t]he
lake's salty, mineral-laced basin has been the largest single
source of particulate pollution in the country. It looks so other-
worldly that it doubled as a desolate planet in the movie 'Star
Trek V: The Final Frontier'."1 0 5
Terrestrial environments also suffer, leading to soil erosion,
blowing dust, and tumbleweeds.106 Moreover, in the case of
groundwater export, portions of the earth's surface may simply
give way:
In simple terms: The buoyancy of water underground helps hold up
the sand and clay subsurface-a liquid hand pressing upward.
When the water is gone, so is a key part of nature's underpinning,
not to mention nature's glue-the moisture in the ground that
holds loose soils together.'0 7
This phenomenon of "subsidence" has caused the earth's surface
to drop by nearly thirty feet in some locations.'0 8
Transbasin diversions may also do violence to widely-shared,
deeply-rooted beliefs-from spiritual to self-serving, from philo-
sophical to pragmatic-that the integrity of watersheds should be
maintained.10 9 Transbasin diversions and water markets "decon-
struct" watersheds in an intellectual sense by supporting the no-
tion that water is simply a fungible market good that should be
freely moved to the highest bidder.
104. See supra notes 58-69 and accompanying text.
105. Sahagun, supra note 60.
106. See NATIONAL RESOURCE COUNCIL, supra note 101, at 38-39 (describing im-
pacts of the sale of agricultural water rights and the concomitant retirement of irri-
gated lands).
107. See Robert King, Grounds for Concern, ST. PETERSBURG TIMES, July 21,
2001, at B1.
108. S.A. Leake, Land Subsidence From Ground-Water Pumping, http://ge-
ochange.er.usgs.gov/sw/changes/anthropogenic/subside/ (USGS report). See also
UNITED STATES GEOLOGICAL SERVICE, LAND SUBSIDENCE, http://water.usgs.gov/
ogw/subsidence.html (last visited Mar. 28, 2008) (stating that "[m]ore than 80 per-
cent of the identified subsidence in the Nation is a consequence of our exploitation
of underground water" and reporting that "more than 17,000 square miles in 45
states, an area roughly the size of New Hampshire and Vermont combined, have
been directly affected by subsidence"); Katie Carter, Big Concerns: Subsidence Ex-
pert Warns Area Residents of Water Overuse, HOUSTON CHRONICLE, May 3, 2001, at
1 (citing predictions that groundwater usage in parts of Texas may cause the land to
subside by as much as five feet by 2030).
109. See generally Klein, On Integrity, supra note 37.
2006-2007]
274 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
IV.
THE ALTERNATIVES
A. Changing the Default Presumption
The current default presumption-moving water to the people
and supporting growth at all costs-is no longer viable.110 Nev-
ertheless, it is a pervasive mentality. For example, even as for-
mer Secretary of the Interior Gail Norton issued her 2003
warning of an impending water crisis in the western United
States, she asserted, "We take growth as a given and try to deter-
mine how to proceed."111 Similarly, New Mexico continues to
drill up to eight thousand new wells annually and to plan for
thousands of new homes, even though aquifer levels are drop-
ping up to two feet each year in some parts of the state.112 The
presumption can be understood as a relic of the past; an offshoot
of the old manifest destiny doctrine that relies upon the hope
that "new" water will be endlessly available and that new growth
can and should continue indefinitely.11 3 The current default dis-
honors the affection of communities for their watersheds and pits
farm against city, rich against poor.114 It turns living rivers into
dry ditches and transforms lakebeds into toxic dustbowls.1 ,
As this article has argued, the default presumption has out-
lived its usefulness, and has failed to achieve its goal of providing
communities with secure water supplies. Relying upon trans-
basin diversions for roughly a century. many cities draw upon
water supplies whose security is more illusory than real.11 6 There
is still not enough water, at least in the places and at the times
that we demand it. The next two subsections argue that the de-
fault presumption should be replaced with a new demand-side
strategy that encourages communities to temper consumption so
they can live within their means and nourish their living rivers.
110. See supra Part III.
111. Deborah Frazier, Norton Warns of Water Crisis, ROCKY MT. NEWS, May 3,
2003.
112. Bokum & Ketcham, supra note 90. The authors argue, "To ensure a viable
water future, New Mexicans need to live within our means and balance water use
With a renewable supply. One way to do this is to focus growth where there is sus-
tainable, long-term supply of water and to monitor and plan for our current and
future use.- Id.
113. See infra Parts III.B and C.
114. See infra Parts II1.A and D.
115. See supra note 105 and accompanying text.
116. See infra Parts I1I.B and C.
2006-2007]
Before considering such an alternative paradigm, an initial ob-
jection should be addressed: If we do not continue to increase the
supply delivered to the people, it can be argued, then the people
will surely come to the water. There is little benefit, the argu-
ment continues, in denying northern California's water to Los
Angeles or San Diego, or in denying north Florida's water to
Tampa or Miami. The people will simply migrate to the water.,
the argument concludes, bringing the same environmental and
social harms to wet regions that have historically been exper-
ienced in drier areas. This argument is falls short in at least two
critical respects. First, it assumes that encouraging settlement in
more hospitable regions is bad policy; to the contrary, recogniz-
ing regional variations in carrying capacity might facilitate more
efficient resource use. Second, the argument posits a false di-
chotomy under which we must either move water to the people,
or the people will move to the water. It ignores a factor other
than population growth (whether from increased birth rates, in-
creased immigration, or shifting domestic population patterns)
that contributes to water scarcity: increased per capita consump-
tion (triggered by inefficient use and waste). Thus, reducing de-
mand may be an important third alternative to moving either
water or people to more propitious locations.
B. Living Within Our Means
"Conventional wisdom to the contrary, there is no place in the
United States where the physical supply of water is a limitation on
growth."
Watering Growth in Colorado (2003)117
The new presumption should be that we can and must "live
within our means," rejecting the view that never-ending growth is
desirable or inevitable. Overall, the current supply-side default
presumption should be replaced with a new demand-side para-
117. Nichols & Kenney, supra note 52, at 416. See also Tarlock & Van de Weter-
ing, supra note 55, at 38-39 (asserting that the "link between water availability and
urban growth is a new development in land use law" and that "water supply has
seldom been a factor in local government land use planning and controls in the West
and elsewhere," reflecting in part "the longstanding assumption that humans can
and should overcome any natural constraint on progress"): Holly Joe Franz et al.,
An Insatiable Thirst: The Impact of Water Law on Sprawl in the West, 15 NAT. RES.
& ENV'T 228, 228-29 (2001): Mary Jane Angelo, Integrating Water Management and
Land Use Planning: Uncovering the Missing Link in the Protection of Florida's Water
Resources?, 12 FLA. J.L. & PUB. POL'Y 223, 225-26 (2001).
WATER TRANSFERS
276 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
digm that views transbasin diversions with affirmative disfavor,
relegating them to a water management technique of last resort.
It also questions the assumption that growth is inevitable and
must be supported.118 In practical terms, communities should
plan to rely upon the resources supplied by their own water-
shed-reasonability delineated in scope. Beyond that, additional
growth, at least in terms of water demand and water use, simply
cannot be accommodated.
This is not merely an exercise in virtuous austerity, or a self-
imposed "regulatory drought."1 19 Instead, it is a cautious, con-
servative approach that is firmly rooted in hydrologic reality.
Furthermore, it is likely to prove a cost-effective approach, rely-
ing upon conservation as one piece of a demand-management
strategy. By analogy, the energy industry has recently begun to
advance this same mix of efficiency and conservation as a "fifth
fuel."1 20 The industry argues that this approach can "comple-
ment coal, nuclear, natural gas and renewable energy [and] help
deliver real economic and environmental benefits to consumers
and utilities alike."121 Moreover, the industry has recognized
that this fifth fuel is also the least expensive.122 Like the conser-
vation of energy, the conservation of water-in combination with
growth limits and other demand-management tools-provides an
alternative to transbasin diversions that is less costly in economic,
social, and environmental terms.
118. The general manager of the Southern Nevada Water Authority announced in
2006 that the Las Vegas Valley required new water to sustain its growth, and argued
that a new $ 2 billion pipeline was necessary to import water from distant water-
sheds. In response, one politician wrote,
Growth is a Ponzi scheme where requirements created by past growth have to be
financed with future growth. Other than for the developers and the politicians, you
would be hard pressed to find many residents who feel that our quality of life has
improved with the uncontrolled growth. According to Pat Mulroy, general
manager of the Southern Nevada Water Authority, growth will stop in 2013 with-
out new water. Why wait until 2013?
Bill Smith, Pipeline is Not the Only Solution: Curbing Growth Will Fix Water Prob-
lem, LAS VEGAS SUN, at A4, Aug. 19, 2006 (commentary by former City councilman,
Boulder City, Nevada).
119. See, e.g., Gray, supra note 59, at 144 (describing water-shortage created by
environmentally-protective regulations).
120. Duke Energy, News Release, Duke Energy Renews Commitment to Smart
Energy Use; CEO Rogers Unveils National Action Plan for Energy Efficiency, July
31, 2006, http://www.duke-energy.com/news/releases/2006/Jul/2006073101.asp (last
visited Apr. 7, 2007).
121. Id.
122. Id.
2006-2007]
Philosophical antecedents have begun to emerge, suggesting
that the time may be ripe to garner public acceptance for "living
within our means." In the context of water pollution, the Envi-
ronmental Protection Agency (EPA) has begun an educational
campaign to promote watersheds as a conceptual framework for
water resource management.123 The EPA asserts,
When children turn six, they learn about their place in the world-
their street address, city, and zip code. But there is another impor-
tant dimension to our lives that is also important to our sense of
place-our watershed or ecological address. The future of the
planet and the protection of the nation's water resources depend
on a universal understanding and appreciation of watersheds.124
State legislators have begun to recognize that water sus-
tainability may depend upon ending reliance on large-scale trans-
basin diversions. Florida, for example, requires water mangers to
consider "local sources first."125 Political candidates, too, have
begun to question the value of water imports. In a state senate
election in Florida, for example, one candidate campaigned on a
platform that promised to protect the water resources of north
Florida against potential demands from the south. The candidate
promised to promote the development of a statewide water re-
source management plan that would "replace unrestrained and
political water 'grabs' by ...accounting for all of the state's
123. Benjamin H. Grumbles, EPA, Assistant Administrator, Building Livable
Communities Starts With a Watershed Address, http://www.epa.gov/owow/watershed/
oped2007.pdf (last visited Mar. 28, 2008).
124. Id.
125. Fla. Stat. § 373.016(4)(a):
[T]he Legislature recognizes the need to allocate water throughout the state so as
to meet all reasonable-beneficial uses. However, the Legislature acknowledges
that such allocations have in the past adversely affected the water resources of
certain areas in this state. To protect such water resources and to meet the current
and future needs of those areas with abundant water, the Legislature directs the
department and the water management districts to encourage the use of water
from sources nearest the area of use or application whenever practicable. Such
sources shall include all naturally occurring water sources and all alternative water
sources, including, but not limited to, desalination, conservation, reuse of nonpot-
able reclaimed water and stormwater, and aquifer storage and recovery.
But see id. (creating exemptions from local sources preference, including exemption
favoring the bottled water industry): Fla. Stat. § 373.223(2) (permitting trans-county
and transbasin diversions under specified circumstances): Fla. Stat. § 373.2295 (per-
mitting interdistrict transfers of groundwater under specified circumstances).
WATER TRANSFERS
278 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
water resources, and ensuring each area lives within [its] own
means." 126
"Concurrency" (sometimes called "wet growth"127) is one par-
ticularly promising tool to encourage more thoughtful analysis of
growth, rather than instinctively facilitating growth at all costs.128
In essence, concurrency requires a conversation between land
use planners (typically local governments) and those who allo-
cate water resources (typically state agencies). It recognizes the
essential relationship between water and watersheds, like the two"sides" of a Mobius strip.129 In some instances, concurrency may
be simply a mechanism to promote more informed decision-mak-
ing. But in other instances, it may serve as an actual impediment
to growth when sustainable water supplies cannot be identi-
fied.130 Moreover, land use restrictions issued against a backdrop
of water shortage are less likely to be invalidated as regulatory
takings.131
C. Nourishing Living Rivers
"Living rivers provide clean, fresh water to quench our thirst and
feed our children. [They] nourish habitat for fish and wildlife ....
126. Steve Oelrich for State Senate (political advertisement paid for and sponsored
by the Republican Party of Florida for distribution fall 2006) (emphasis added) (on
file with author).
127. See, e.g., Michael Allan Wolf, Supreme Guidance for Wet Growth: Lessons
from the High Court on the Powers and Responsibilities of Local Governments, 9
CHAP. L. REV. 233 (2006); Craig Anthony (Tony) Arnold, Is Wet Growth Smarter
Than Smart Growth?: The Fragmentation and Integration of Land Use and Water, 35
ENVTL. L. REP. 10152 (2005).
128. See generally Adam Strachuan, Note, Concurrency Laws: Water as a Land-
Use Regulation, J. L. REs. & ENVTL. L. 435 (2001) (considering possibility that con-
currency law could freeze development in some arid states).
129. See OXFORD ENGLISH DICTIONARY (10th ed.) (defining "M6bius strip" as "a
surface with one continuous side formed by joining the ends of a rectangle after
twisting one end through 1800).
130. See Joellie Hervic, Water, Water Everywhere?, 77 FLA. B.J. 49 at 49 (2003)
(describing California law requiring developers to demonstrate a 20-year water sup-
ply before they can receive building permits for subdivisions of more than 500 units);
Growth Management, Concurrency and River Protections in Florida, 367 PLI/REAL
403, 419-20 (1991) (describing relevance of concurrency to the issuance of building
permits and to the acquisition of loans for long-term development projects).
131. Tarlock & Van de Wetering, supra note 55, at 67-68 (suggesting that "land
use policies that link growth restraints to water availability do not raise the unfair-
ness concerns that the Supreme Court's recent taking jurisprudence has identified"
because courts "have long recognized that the police power can be used to protect
land use consumers against risks that they may not fully understand").
2006-2007]
Life on Earth depends on rivers, and now they must depend on
US."
Living Rivers'32
As an alternative to nourishing unsustainable growth, commu-
nities might choose to nourish their living rivers. As early as
1897, Congress recognized the value of healthy watersheds, in-
cluding their surrounding forests:
The importance of [forest] conservation on the mountainous water-
sheds which collect the scanty supply for the arid regions of North
America can hardly be overstated. With the natural regimen of the
streams replaced by destructive floods in the spring, and by dry
beds in the months when the irrigating flow is most needed, the
irrigation of wide areas now proposed will be impossible, and re-
gions now supporting prosperous communities will become
depopulated.133
Contrary to this recognition, particularly in the west, it is not
uncommon to see a river "drained within an inch of its life."134
The fundamental paradigm shift toward living rivers-elevating
the status of watershed protection from after-thought to first pri-
ority of water law-would have important pragmatic, social, and
environmental consequences.
A variety of techniques could advance this goal. First, in-
stream flow programs should continue to evolve.35 In the west,
for example, Colorado has allowed water managers to purchase
senior water rights for instream purposes. This helps to over-
come the problem that new water allocations for environmental
purposes receive relatively late priority dates in states that follow
the western "prior appropriation" doctrine, requiring them to
wait in line until earlier-established water uses have been satis-
fied.136 In the east, states such as Florida provide statutory au-
132. Living Rivers, Mission (explaining that "[a]lthough unique to the US, the
name and concept of Living Rivers has been used in Latin America, Europe and
Asia"), http://www.livingrivers.org/mission.cfm (last visited Apr. 10, 2007).
133. United States v. New Mexico, 438 U.S. 696 (1978) (quoting Senate document
and recognizing the "securing of favorable water flows" as one of the two original
purposes of national forests).
134. Juliet Eilperin, Traditional Favoritism to Agricultural Interests is Challenged
as Demand Increases, WASHINGTON POST, at A3, Jan. 15, 2006.
135. See generally Charlton H. Bonham, Perspectives from the Field: A Review of
Western Instream Flow Issues and Recommendations for a New Water Future, 36
ENVTL. L. 1205 (2006).
136. See generally Fort, supra note 55, at 20 (noting that "[w]estern water law
encouraged the full utilization of western rivers long before the value of leaving
WATER TRANSFERS
280 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
thority for managers to elevate watershed (or aquifer) protection
to a first priority, establishing protective "reservations" that are
off-limits for consumptive use.137
Second, information disclosure and analysis requirements
could educate the public as to the importance of living rivers, and
to the negative consequences of degraded watersheds. One com-
mentator in Georgia, for example, argues that interbasin trans-
fers should not be allowed until proponents fund the preparation
of an "interbasin transfer impact statement," modeled after the"environmental impact statement" required under the National
Environmental Policy Act.138 At a minimum, the analysis must
evaluate the cumulative impact of all existing transfers on the
basin of origin.139
As an additional technique for the preservation of living rivers,
states should conceptualize agricultural water use in a new way.
Currently, farmers and ranchers in many western states may sell
their water rights to municipalities and other users.140 In some
cases, however, this may function as an unwarranted double sub-
sidy. That is, many farmers receive irrigation water for free
(through their own wells and surface diversions) or at rates heav-
ily subsidized by the federal government (through infrastructure
constructed by the Bureau of Reclamation),141 and then turn
waters in stream was recognized" and urging Congress to "assist western states by
purchasing flows for instream purposes").
137. See, e.g, Fla. Stat. § 373.223(4):
The governing board or the department, by regulation, may reserve from use by
permit applicants, water in such locations and quantities, and for such seasons of
the year, as in its judgment may be required for the protection of fish and wildlife
or the public health and safety. Such reservations shall be subject to periodic re-
view and revision in the light of changed conditions. However, all presently ex-
isting legal uses of water shall be protected so long as such use is not contrary to
the public interest.
Florida also recognizes minimum flows in surface watercourse and minimum levels
in groundwater aquifers, defined as "the limit at which further withdrawals would be
significantly harmful to the water resources or ecology of the area." Fla. Stat.
§ 373.042(1).
138. Draper, supra note 45, at 369.
139. Id. at 368-69.
140. See supra notes 17-18 and accompanying text.
141. See Mark Kanazawa, Pricing Subsidies and Economic Efficiency: The Bureau
of Reclamation, 36 J. L. & Econ. 205 (1993), http://links.jstor.org/ (visited Jan. 30,
2007) (observing that the "bureau's pricing policies have been highly controversial"
because they "shield farmers from the true social cost of the water"). See also
Eilperin, supra note 134 (asserting that "[u]nder longstanding federal and state poli-
cies reinforced by farmers' historic political clout, agriculture has laid claim to about
80 percent of those scant resources-at rock-bottom prices-on the grounds that
water is critical to the survival of crops and livestock").
WATER TRANSFERS
around and sell portions of their water rights at a profit. As an
alternative, states should consider the possibility of returning un-
used agricultural irrigation water to its natural source.142 This
includes a rethinking of the presumption that unused irrigation
rights should necessarily flow to cities through water markets.
Other alternatives exist. For example, unused water could be re-
turned to watersheds through vigorous enforcement of existing
laws against waste, and aggressive use of the authority to declare
unused water rights "abandoned" or "forfeited."'143 Still other
approaches ensure that at least some of the unused water will
sustain the environment rather than fuel excessive urban growth.
Under Oregon's "conserved water program," for example, a por-
tion of all water saved through new efficiency measures returns
to its source to support stream flows.144 As an incentive to pro-
mote conservation, users who improve their efficiency may also
keep or sell a portion of the water thus saved.145
V.
CONCLUSION: WATER INDEPENDENCE
"If the wars of this century were fought over oil, the wars of the
next century will be fought over water."
Ismail Serageldin, Vice President, World Bank (1995)146
During an era of unrest in Iraq, Afghanistan, and numerous
other nations, Americans have become increasingly cognizant of
the value of national security. Observers have begun to expand
the scope of their analysis, exploring long ignored connections
between homeland security and natural resources. As one politi-
cal advisor asserted, "energy independence ... [is] now the No. 1
142. See generally Fort, supra note 55:
A hundred years after the city of Los Angeles and San Fernando Valley farmers
battled neighboring Owens Valley for control over water from the Owens River.
there's a new kind of water war in the West. From Montana to Arizona to Califor-
nia and beyond, alliances of environmentalists, fishermen and city dwellers are
challenging the West's traditional water barons-farmers and ranchers-who have
long controlled the increasingly scarce resource.
Id. at 18-19.
143. See generally GETCHES, supra note 7, at 120-22, 176-79.
144. See Janet Neuman, Sometimes a Great Notion: Oregon's Instream Flow Ex-
periments, 36 ENVTL. L. 1125, 1150 (2006).
145. Id.
146. O'Neill, supra note 53, at 358 (quoting Serageldin).
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282 JOURNAL OF ENVIRONMENTAL LAW [Vol. 25:249
national security issue."147 In this context, one natural resource
remains largely overlooked-water. Unlike oil, coal, and natural
gas, water has no substitute as the most essential, life-sustaining
resource. This article offers an alternative to the paradigm under
which water is a fungible commodity that must be moved to the
people, regardless of the consequences. As the true costs of
transbasin diversions become increasingly apparent, perhaps we
will come to realize the wisdom articulated by John Wesley Pow-
ell over a century ago, that all life is "inextricably linked" by
bounded watersheds. 148
147. Thomas L. Friedman, The Energy Mandate, N.Y. TIMES, Oct. 13, 2006 (quot-
in- description by former Clinton campaign advisor James Carville of "the nexvcst
gut issue his polling was turning up for candidates in the 2006 elections").
148. See Powell, supra note 1 and accompanying text.