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About the Author
Robert Jerome Glennon is Morris K. Udall Professor of Law and Public Policy at the James E. Rogers College of Law at the University of Arizona.
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Groundwater Pumping and the Fate of America's Fresh Waters
By Robert Glennon
ISLAND PRESSCopyright © 2002 Robert Glennon
All rights reserved.
The Worth of Water in the United States
"True conservation of water is not the prevention of its use. Every drop of water that runs to the sea without yielding its full commercial returns to the nation is an economic waste."
—Herbert Hoover (1926)
On July 4, 1997, NASA's Pathfinder landed on Mars, and its little rover, Sojourner, captured the hearts and the imaginations of people around the world. In succeeding days and weeks, NASA's Mars Web site was overwhelmed with hits from curious citizens who were captivated by the crisp images that Pathfinder returned to Earth. Among its most significant scientific discoveries, Pathfinder offered clear evidence of the past existence of water on Mars. The images suggested that Mars may once have been a warm, wet place. The rolling terrain and variety of rocks offered testimony to an ancient past when Mars was beset by massive floods. These discoveries tantalizingly raise the possibility that there was once life on Mars. Billions of years ago, a thick blanket of carbon dioxide clouds may have kept the surface of Mars warm enough for a long enough time that life could develop. The prerequisite of life is liquid water.
Water is the essence of life, the core of chemistry, the prime component of the human body; it covers two-thirds of the surface of the earth. Without it, life ceases. With it, life can flourish. In the American Southwest, Pueblo societies cherished water. Its scarcity led them to pray to water deities in hope of rain. Peoples such as the Anasazi and the Hohokam (between 1000 A.D. and 1300 A.D.) developed irrigation systems to harness this precious resource. They sought to cultivate sufficient food to subsist; they sought to adapt to the environment rather than to dominate it. Many native myths and traditions celebrated water as sacred, the lifeblood of Mother Earth.
In contrast, most Americans, even those of us living in the Southwest, take water for granted. Turn on the tap, and water flows for cooking and drinking. Jump in the shower, wash off the dirt, and feel refreshed. Turn on the hose to wash the car or water the lawn and garden. Most Americans' involvement with their water supply occurs once a month when they write a small check to the local water utility. Some cities do not even have a separate charge for water. In these cities, people are literally free to use as much water as they desire.
Why? We've been spoiled by excess. The European colonists of North America came to a continent with abundant, untapped natural resources, including water. Many settlers aspired to reap the economic value of those resources. To a considerable extent, the story of settlement involves the exploration, extraction, harvesting, and exploitation of these resources. It began with fur trappers and hunters, continued with gold and silver miners, then turned to mining copper, oil, and gas, to logging, and to commercial harvesting of salmon stocks. It has continued with water.
In the eighteenth century, the American colonists borrowed the English law of riparian water rights, the legal theory that owners of land abutting lakes, rivers, or streams were guaranteed the "natural flow without diminution or alteration" of the watercourse. The idea was that property was an estate to be enjoyed for its own sake and left undisturbed. In colonial America, surface water served mostly domestic needs that were relatively modest and did not involve large-scale diversion projects. By prohibiting consumptive uses or diversions of water, the natural flow doctrine served as a brake on economic development. Colonial entrepreneurs saw opportunities to harness the power of rivers for mills that would grind grain into flour or meal, but few in the American colonies wished to risk their capital without secure water rights. Recognizing this, legislatures and courts rejected the natural flow theory in favor of a rule of priority that protected the first entrepreneur against the claim of neighboring landowners to the natural flow. A river's water had become valuable as an instrument of economic development.
Although the rule of priority initially created an incentive to invest, it eventually threatened to retard economic development. In the nineteenth century, as the country began to industrialize, New England developed textile factories that relied on the powerful force of moving water to turn the gears that determined the rotational speed of spindles. This use involved impounding large amounts of water behind dams to produce sufficient force to operate the textile machines as the water was released. However, the priority doctrine protected the small gristmill against the subsequent textile mill.
Once again, the law changed course. Courts now embraced the "reasonable use" doctrine which allowed consideration of "the usages and wants of the community." In other words, the economic benefit of a textile factory to the town suddenly outweighed the prior interests of the gristmill owner. At each step in this history, the legal rules changed to favor economic development. Property rights evolved from a static concept to an instrumental component of the industrial revolution. Note, however, that the textile factories didn't permanently remove the water. After impoundment, the factories released it back to the river to flow downstream.
That was not true of mid-nineteenth-century California, where the discovery of gold bred new uses of surface water. Miners diverted water from rivers and creeks, built canals to transport the water to reach their mining claims, and constructed sluices to wash the gold ore. As the water washed over the gangue, the heavier ore settled out. Mining involves a consumptive use of water; only a small percentage of water diverted into these canals ever returned to the rivers and creeks.
Most gold mining involved unauthorized incursions onto federal property, and it is not an overstatement to suggest that the miners stole gold from federal lands. In 1848, the military governor of California, Colonel Richard B. Mason, told a group of miners: "This is public land and the gold is the property of the United States; all of you here are trespassers, but as the Government is benefited by your getting out the gold, I do not intend to interfere." In reality, the colonel had little choice, given his meager military force.
The miners lawlessly diverted water from the rivers and creeks. In the absence of legal rules or procedures, the mining camps relied on their own sense of frontier justice. Which miner had a right to divert water from which river or creek and in what quantity? The miners developed their own system of water rights, a set of rules that profoundly impacted the entire American West, not just in the nineteenth century but also to this very day.
They created the prior appropriation doctrine, a more sophisticated version of the New England priority doctrine. The essence of prior appropriation is "first-in-time, first-in-right." The first miner secured the right to divert from a stream however much water he needed. The earliest efforts to mine obtained superior rights, fixed as of the date of diversion; later miners took what was left. The diverters were "senior" or "junior" to each other based on the date each miner first turned the stream to his purposes. Unlike riparian law, this doctrine did not require the appropriators to own property on the river or stream. The prior appropriation doctrine was especially critical during years of low precipitation, when only the more senior users would receive water.
Although the prior appropriation doctrine arose in the gold mining camps, it soon spread to agricultural areas. In the East, farmers cultivated small farms, and natural rainfall provided ample water for their crops. However, as settlers moved west, the land became more arid and, as a result, growing crops was impossible without additional water. Moving water from rivers and creeks to a farmer's fields often required a major effort, particularly when the fields were several miles from the water source. Like the eastern mill operators, western farmers were understandably reluctant to undertake that effort without assurance that they would be rewarded by a consistent and reliable supply of water. The prior appropriation doctrine became a bedrock principle in agricultural communities throughout the West: it guaranteed water rights to those who invested the energy and capital to use the water productively. It fostered economic growth by encouraging farmers to construct massive canals to bring water to their lands. In some communities it stimulated joint enterprises, known as mutual water companies or irrigation districts, to share in the infrastructure costs and attendant benefits. This doctrine has been the unalterable rule of water allocation, and it still governs most uses of surface water in every western state.
One characteristic of the prior appropriation system deserves special mention. Unlike the riparian system, which treated water rights as "correlative," that is, contingent on the amount used by others on the river, prior appropriation granted the right to divert a specific quantity of water. How much water? As much as the appropriator wanted, limited only by the requirement that the water be used for a "beneficial purpose," which meant basically any use at all. In an arid region, rewarding appropriators with rights to as much water as they could divert created enormous incentives to maximize the diversions. Once the appropriator made the diversion, he now possessed a permanent legal right to that water.
Such an allocation system creates tremendous inefficiencies. It ignores the economic value of the activity, treating higher- and lower-value uses alike. It encourages economic speculation. It creates an incentive to hoard the resource because the appropriator need not pay for the resource. The government essentially gave away the water to anyone who could use it. Most importantly, allocating a specific quantity of water transformed water into a commodity, like gold or timber. The prior appropriation doctrine transformed water from a shared common resource into private property.
Over time, as western farmers irrigated additional lands with surface water, they diverted more and more water from rivers through their headgates, into their canals, and onto their fields. In many places, the farmers eventually exhausted the supply: the rivers dried up and remained dry until the next rainstorm. Additionally, many rivers became overappropriated, which means that the total quantity of water rights claimed by diverters exceeded the actual annual flow in the river. By 1898, diverters from the Boise River claimed rights to 150 times more water than the actual flow of the river. This anomaly led to the creation of the curious distinction between "paper rights" and "wet water." Perhaps only in the surreal world of western water is it possible to refer, with a straight face, to "wet water."
The prior appropriation doctrine had horrific effects. It allowed, for example, the complete dewatering of a river or creek. To early miners and farmers, the most important objective was the extraction of ore and the cultivation of land. If fish in a dewatered river died as a consequence, it seemed a small price to pay for progress. If dewatering caused the death of riverbank trees and shrubs or a decline in the number of animals and birds, those effects were accepted as inevitable by-products of the conquest of nature by human effort. Nineteenth-century settlers were not concerned with environmental protection, ecosystem management, or riparian habitat, nor did they have an aesthetic appreciation for the value of water in a free-flowing river or creek. To them, nature was to be explored, conquered, and tamed. Indeed, water law developed a curious doctrine of waste. A diverter could lose his prior appropriation right by failing to divert the water. Leaving water in the river did not conserve the water. It wasted it.
Remarkably, this system endures, though our interests and values have changed. We allocate enormous quantities of water to senior appropriators so that they can grow low- value crops. They receive this water even though others could make better use of it. The prior appropriation system is so entrenched that courts and legislatures have not yet developed the final stage of the history of riparianism: a reasonable use system that balances the utility of new water uses against those of senior appropriation rights.
The rise of the prior appropriation doctrine is often attributed to the natural aridity of the American West. The hundredth meridian runs through the middle of North and South Dakota, Nebraska, and Kansas, divides the Oklahoma panhandle from the rest of the state, and continues down through the middle of Texas. The annual precipitation west of that line ranges between five and twenty inches per year (except for the Pacific Northwest), compared with thirty to sixty inches per year east of the hundredth meridian. Aridity alone, however, cannot account for the rise of the prior appropriation system because other, equally tenable, competing systems emerged in these arid lands.
Quite tellingly, several different ethnic groups in the West recognized water rights that differed profoundly from the prior appropriation system. In some Native American communities, including the Anasazi and the Hohokam during the first millennium A.D., and the Tohono O'odham, the Hopi, and the Western Shoshone more recently, water was a sacred element of their religions. Pilgrimages, songs, and ceremonies celebrate the regenerative power of water. These tribes conceived of water in communal, not individualistic, terms. In New Mexico and California, a unique form of water rights, called "pueblo water rights," developed during the period of Spanish and Mexican domination. Under pueblo water rights, the town, or pueblo, holds water rights in trust for the benefit of the entire community. To this day, in many Hispanic communities in northern New Mexico, the allocation of water through irrigation canals, called acequias, is administered by an elected official, called the majordomo, who assures that all members of the acequia association receive an adequate supply of water. The allocation is according to need, not according to priority. In Utah, the Church of the Latter-day Saints, whose members are better known as Mormons, developed a system of water rights that served religious interests. A centralized system of decision making led to the cooperative construction of thousands of canals that produced a flourishing agricultural community in the late nineteenth century. According to the church, the water belonged to the group, not to specific individuals.
So why did prior appropriation come to dominate water rights? Rather than being an inevitable function of aridity, the prior appropriation doctrine reflects the values that European settlers embraced concerning the role of government, the legal system, and the environment. In this nineteenth-century democratic society, government encouraged free enterprise, the legal system fostered private property rights, and the environment was used as an instrument of economic development. In the context of this set of values, the prior appropriation system served beautifully. It stimulated economic activity by rewarding entrepreneurs with secure property rights; it also encouraged the maximum utilization of water resources.
Aridity was nonetheless important. In the United States, political boundaries seldom conform to the boundaries of watersheds, which are ridges of high land that divide an area drained by one river from areas drained by adjoining river systems. In the West, many states are simply rectangular swatches of prairie, lines drawn on a blank map in utter disregard of topographical features. The first person to protest such an odd system was John Wesley Powell. Though best known as the first white explorer of the Colorado River through the Grand Canyon, Powell is equally important to history as an early director of the U.S. Geological Survey (USGS). In 1878, Powell prepared a report for Congress that explained the folly of attempting to dole out federal lands to settlers based on the Homestead Act's assumption that 160 acres was sufficient land for a family farm. In the West, everything turns on water. If one had access to water, 160 acres was an enormous amount of land, but without water, 160 acres would prove sufficient only to graze a few head of cattle. Despite the soundness of his reasoning and report, Congress disregarded his advice, and the country has ignored him ever since. Instead of honoring or respecting the boundaries of watersheds, we have engineered various projects that flout or challenge hydrologic reality.
Excerpted from Water Follies by Robert Glennon. Copyright © 2002 Robert Glennon. Excerpted by permission of ISLAND PRESS.
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Table of Contents
Introduction Chapter 1. The Worth of Water in the United States Chapter 2. Human Reliance on Groundwater Chapter 3. How Does a River Go Dry? The Santa Cruz in Tucson Chapter 4. A River at Risk; The Upper San Pedro River in Arizona Chapter 5. Tampa Bay's Avarice; Cypress Groves, Wetlands, Springs, and Lakes in Florida Chapter 6. The Tourist's Mirage; San Antonio's River Walk, the Edwards Aquifer,and Endangered Species Chapter 7. Suburban Development and Watershed Initiatives; Massachusetts' Ipswich River Basin Chapter 8. A Game of Inches for Endangered Chinook Salmon; California's Cosumnes River, the Army Corps of Engineers, and Sacramento Sprawl Chapter 9. Wild Blueberries and Atlantic Salmon; Down East Maine Chapter 10. Size Does Count, at Least for French Fries; Minnesota's Straight River Chapter 11. The Black Mesa Coal Slurry Pipeline; The Hopi Reservation in Arizona Chapter 12. Is Gold or Water More Precious? Mining in Nevada Chapter 13. All's Fair in Love and Water Chapter 14. The Future of Water; Tourism and Grand Canyon National Park Chapter 15. The Tragedy of Law and the Commons Appendix Glossary List of Acronyms Bibliography Acknowledgments Index
Most Helpful Customer Reviews
In Water Follies, by Robert Glennon, groundwater has its moment in the spotlight. Through several real life case studies and historical stories Glennon gives us an overview of what effect humans have had on groundwater around the world. The overarching theme of his narrative is apparent in the title of the book. Follies by humans have brought the state of groundwater in most populous areas to a breaking point. Each case study presented in the book results in a profound impact on some other, more noticeable, facet of life. In some cases, the more recent ones, the impact is only speculated by environmentalists, but without knowledge and thought into the consequences there could be catastrophic effects in many places.
Groundwater rights have been a controversial issue for many years. Since water pumping began, the rights of the water have been disputed. This disputation has become increasingly important as people begin to realize just how valuable it is. The balance between human and natural need has been shaken, because of uneven distribution and corporate exploitation of communal resources. Robert Glennon does a great job of explaining these relationships in his book, Water Follies. Glennon takes the readers on a trip around America, showing various misuses of our most precious resource. He satirizes the American way of exploitation at the cost of society, and points out ways that our country should change. Glennon has many arguments about the mistreatment of our countries' water resources. One argument is that of water companies pumping enormous amounts of water is having a perverse effect on the environment. To understand this, we must understand that all groundwater is tied together. When the groundwater level is high, it adds water to streams, but when groundwater is low, the streams lose water. This water adds to the groundwater. When a water company begins pumping water out of the ground, it lowers the water table, which causes rivers and streams to lose their water. When this happens, the bodies of water change. These different conditions make it difficult for animals to survive because they depend on the water environment for their home. If the changes are too drastic, the animal population threatened will suffer and may be forced to relocate. Glennon also rips into the fact that water companies take groundwater, which is basically a public resource, and pumps huge quantities of it. This causes many problems for the population. The same water that city utilities sell for a fraction of a penny per gallon is sold by private water companies for $4.50-$7.50 per gallon. Another problem arises when the huge amount of pumping causes the water table to drop, eventually below the current well depths. This means that private homeowners, who use an incredibly small amount of water compared to the water companies, have to foot the bill to drill a deeper well. Another problem that comes along with the dropping water table is the subsidence of the ground. Without the water to support it, the ground collapses upon itself, causing cracking of buildings, roads, and infrastructure. The government does not have a good way of regulating water use, which makes it very easy for companies to take much more than their fair share and get away with it. The author is an advocate of water reform in America. He brings up a lot of very good points and issues that need to be addressed. Glennon does a good job of explaining that everything is interconnected, a concept that a lot of people do not understand. This entire book summarizes many of the problems that we have with water. He places a lot of emphasis on things needing to change, but does it in a way that makes it seem obvious. Glennon also does a good job of adding a hopeful spin to his message, which can come across as a bit ominous. He leaves the reader with some steps that can be taken to help fix this problem that we have. This book was a solid, interesting, down to earth read that everyone should take a good look at.