Better Regulation of Water Issues Requires Federal Oversight

Better Regulation of Water Issues Requires Federal Oversight

After prior appropriation had become the dominant doctrine for determining water rights in the arid region west of the ninety-eighth meridian, Webb (1931) argues for federal preemption because he believes prior appropriation will exasperate conflict over water issues.¹ The discourse about water issues has developed around prominent themes such as ownership doctrines, irrigation, agribusiness, federal paternalism, and regulation. Although the books do thoroughly discuss the problems embedded in the above themes and society’s responses to governmental solutions, some of the historians are particularly fearful about greater federal intervention where other historians believe local control of water remains untenable. The books made me question how water should be regulated in our postmodern country and persuaded me of the need to create a federal department with adequate powers to allocate water responsively just like the Department of Energy does with America’s energy.

Environmental historians emphasize the development, control, and the environmental ledger. Worster (1985) asserts that capitalism--which flourished in the post-war military-industrial complex--controlled western water, causing class conflicts, misuse of technology, and environmental degradation.² Although Opie (1993) as Worster advocates for the environmental movement, Opie does find hope for the small farmers in the High Plains because of the irrigated water supplied by the gigantic Ogallala aquifer.³ Whereas Opie reasons that irrigation sustains agriculture in an arid region, Reisner (1986) thinks that pork barrel politics, fostered by the rivalry between the Bureau of Reclamation and the Army Corps of Engineers, drove needless, environmentally destructive dam projects instead of the necessary ones that were cost effective for the masses who depended on crops and the city services.⁴ Twelve of the sixteen chapters in the Miller (1993) anthology suggest that modern arguments find their genesis in 500 years of conflict illuminated by Native American and Spanish cultures.⁵ In the final chapter, Hal Rothman’s perspective focuses on Las Vegas; and he argues that this new service economy not only saves water, but also necessitates a reallocation of water from agrarian and extractive industries to urban and recreational uses. The dialogue among legal historians centers on doctrinal issues about the ownership of water. Although my focus herein is on the American West after the Civil War, Horwitz (1977) after analyzing cases having to do with mills and dams at the end of the eighteenth and beginning of the nineteenth centuries, asserts that the “evolving law of water rights had a greater impact than any other branch of the law on the effort to adapt private law doctrines to the movement of economic growth” (p.34). It is important to note that Horwitz and his student, William Novak (The People’s Welfare (1996)), recognize “instrumentalism”—judges making policy—as activists promoting the dynamic uses of property. These proactive roles by some judges were described by Horwitz and Novak as “the release of capitalist energy in the market revolution” (p. 22 in Novak). As controversies unrolled in the twentieth century in the American West, private rights versus public regulation were a quintessential issue. Steinberg’s Nature Incorporated (1991) also discusses water rights as private property in nineteenth century New England. One of Steinberg’s goals is to contribute to legal history by exploring the relationship between law, water, and economic change (p. 13).⁶

Dunbar (1983) champions prior appropriation and disdains federal intervention into the states’ jurisprudence over water.⁷ In a similar vein, Pisani (1992) writes from what he calls, “the ground up, rather than from the top down” (p. 325), so his work depicts the effects of grass-roots interests and the effects localisms had on water development and law.⁸ The compilation of ten essays by Pisani (1996) points out that prior appropriation evolved and economic needs determined the course of law more than aridity.⁹ Pisani’s conclusions do not indict federal paternalism as much as Dunbar’s do, but rather speak to the contentious relations between the agencies perpetrating federal largesse. Two lawyers, Glennon (2002) and Hall (2002), augment the legal historiography with the following themes: using case studies, Glennon warns about the lack of groundwater management; Hall also bemoans the depletion of underground aquifers in his discussion of New Mexico’s failure to honor the Pecos River Compact (1948) with Texas when New Mexico increased its allocation of groundwater.¹⁰ These later two works acknowledge the interconnectedness of surface water to groundwater.

These nine writers all display environmental concerns; however, the legal historians look at water issues after policies had led to legal predicaments. For example, Pisani (1996) claims the local constituencies drive the state and federal; on the other hand, Worster believes the collusion between agribusiness and government officials built the greatest hydraulic society ever, “ruled by a power elite based on the ownership of capital and expertise” (p. 7). Pisani (1992) agrees with Worster and writes, “[T]he ruthless values of capitalism…know no regional boundaries” (p. xiv). Pisani (1992) also believes the Bureau of Reclamation operated haphazardly in a conundrum. Conversely, Reisner contends the Bureau believed the rivers were for irrigation and power, and along with the Corps of Engineers, exhibited a “nearly pathological unwillingness to let go of even one river” (p. 215). Although Worster charged that the Newlands Act of 1902 was a departure from nineteenth-century land policies¹¹ that emphasized individualism and self-reliance, Pisani (1992) disagrees and calls the federal law revolutionary, but not “radical” (p. 324). Of all the writers, Opie decries a federal solution and thinks Ogallala’s dependents will arrive at an understanding of the need to maintain an environmentally sustainable aquifer. Pisani lacks Opie’s optimism because Pisani insists that a fragmented morass of water laws and regulations bring different results to western sectors. I think water and energy require federal leadership because availability determines all processes of society.

Western historians have discussed irrigation extensively. Leading the way, Pisani (1984) recognizes California’s agricultural achievements because of irrigation, and more importantly, Pisani endorses extensive irrigation as the imprimatur of successful federal legislation.¹² Fiege (1999) treats the development of irrigated agriculture in Idaho’s Snake River valley.¹³ Fiege sees a human-nature partnership rather than a subjugation of nature by human bureaucracies because “nature is seldom if ever completely eliminated” (p. 9). According to Fiege, many farmers were in a contest with the elements, for example, “weather, failure, rodents, and the profiteers” aligned against them (p. 145). Igler (2005) argues that the ownership of land was power in California if the owners could also own or control the appurtenant water. In California, Miller and Lux were cattle barons and in Idaho, the land owners were farmers, yet in each scenario, the environment delivered its comeuppance in unforeseen and small ways, when combined the total effects of nature led to the demise of the enterprises.¹⁴ Sherow (1990) quoting legal historian, J. Willard Hurst, writes about Hurst’s “release of energy principle” where the law favored action. Therefore, Sherow confirms that the law had “an important functional role in the allocation of scarce natural resources” (p. 4). The residents in the Arkansas River valley attempted to resolve obstacles to growth by regulating water through their legal system. The residents tried to control water by building canals but in the end, they were not able to force nature to provide enough resources to ensure their market success.¹⁵ Hundley (2001) in his revised edition spans two centuries and provides scope with his overview of California’s “great thirst” for water from pre-contact times to the present era.¹⁶ Hundley discusses the values and priorities of a given society and how complexities led to conflicts within the society over the appropriation and use of water. Hundley explains choices about water in the context of the metamorphosis of American culture.

Western historians generally write with a broader perspective than environmental historians. For example, Hundley’s book describes how the conflicts left in their wake polluted aquifers and rivers, but this discussion constitutes a minor portion of his range of water issues. Reisner, on the other hand, concentrates his message around the large irrigation artifice created by dam building run amuck. Opie’s treatment of basically unregulated irrigation farming in the southern Great Plains relates to Pisani’s (1984) discourse on the use of irrigation districts in California to destroy water monopolies so that small homesteads could survive. Central Valley growers had taken advantage of federal agency rivalries, Pisani (1984) points out, but Hundley agrees with Pisani; Hundley further expounds upon how the irrigation districts finally succumbed to the growers because these special districts proliferated, fragmented, and lost public support. Who should control the water use in order to minimize environmental impacts? Should it be the local communities controlled by rural interests or should it be though interstate compacts and federal interventions? One could argue that western historians give readers the history of water use and legal historians explain the entangled public policies that attempt to address the diverse uses.

The works of legal and western historians involve more overlap than digression. Dunbar, Hall, and Hundley skillfully observe the prominent roles played by certain individuals. As two examples, Dunbar explains that Elwood Mead, state engineer of Wyoming, implemented administrative rights for preventing the over-allocation of surface water; and Hall explains how Steve Reynolds, state engineer of New Mexico, made sure that New Mexican irrigators controlled themselves. Both Dunbar and Hundley discuss water law, including the important lawsuits. Having worked as a lawyer for New Mexico on the 1948 Pecos River Compact, Hall understood the states’ actions that finally landed the controversy before the U.S. Supreme Court, and once again the federal government was forced to intervene. Fiege’s mythological “irrigated Eden” and the essays in Glennon’s book demonstrate how humans act upon nature and vice versa, so that developed irrigation systems are subject to rather than separated from nature. For Fiege, settlers came into Idaho and in the process of turning the land into Eden, they destroyed it. The western historians covered economic conditions better than the legal historians who favor law and policy. Pisani (1984), Fiege, and Hundley all illustrate that irrigation was the way for people to make money from the land, and simultaneously irrigation shaped social and economic reforms. However, Pisani (1996) observes that “legal history should be more than a matter of sorting out winners and losers” (p. 85) because legal implications extend far beyond the doctrines. Confrontations between North and South, urban and rural, and public and private clogged the courts. Dunbar’s and Hundley’s analyses of water laws report the difficulties jurisdictions encountered in their attempts to fashion workable water rules. Hundley’s detailed treatise explains incident after incident where one jurisdiction overlapped between local, state, regional, and federal agencies, and the overlaps engendered delays and gamesmanship.

After reading these books, I have realized how water issues in the American West have begged mundane resolutions. In the environmental perspective, where the emphasis rests on protection of surface waters and groundwater, there seems to be places where economic conditions are left out of the equation. For example, should America’s capitalism be stalled by expansive environmental constraints? Should water be allocated where it can do the most good for the most people? Legal historians trace the promulgation of the law in various western states. Should a water doctrine such as prior appropriation require an appreciation for economic dynamics and environmental factors before receiving legislative support and court interpretation? Has the legal history of water shown that localism mainly leads to fragmentation and something superior in the way of regulation needs to be achieved? Arguably, western scholars are still influenced by Frederick Jackson Turner’s frontier thesis. Is it time for them to accept the proposition that America’s military-industrial complex operates with equal intensity in the states lying east of the ninety-eighth meridian? These writers have made me see how important these questions are.

Reading these books made me strongly believe that localized regulation of water rights leads to fragmentation and inertia. In my study of the history of Texas groundwater, I have learned that local groundwater districts are called upon to govern and empower a well-governed hydraulic society for the people’s welfare by performing the difficult task of striking a balance between the powers granted by the legislature and the constraints on those powers from social and economic conditions. A regulating bureaucracy, as Hundley points out, must balance conflicts between cities and irrigators, between water-rich and water-poor areas; and among water users in general as supplies have been diminished because of population growth and sometimes uncontrolled withdrawals from aquifers. The dominant theme from Pisani (1984) is the persistent mismanagement and ineffectiveness of both private enterprises and government in the use of water (p. xi).

I am struck by the similarities of the problems of energy and water. Energy and water are scarce commodities that are non-renewable as to fossil fuels and groundwater, respectively. Using population statistics from national databases, economists declare that the lack of water in the American West will be catastrophic by mid-century. Oil was quantified so it could trade freely on the futures exchanges. Could not water rights be quantified and traded as commodities according to market forces of supply and demand?

Some of the historians view aridity as the decisive factor which has driven decisions on western water issues. Worster’s discourse claims the water regime will be shaped by the leadership and social control required by hydraulic agriculture. Therefore, Worster declares the problem to be how to get the authority without running the risk of setting up a tyrannical Leviathan (as per Thomas Hobbes). Pisani (1984) comprehensively covers agribusiness, but he also covers politics and economics. Pisani (1996) claims the contestants are battling each other for economic gain in a zero-sum equation. In Dunbar’s and Hundley’s books water rights are not explained as static legal doctrines but as legal systems that are adjusted to foster economic development. Nevertheless, legal and political barriers impede the desire to create mechanisms for addressing these critical issues.

I do not believe a wait-and-see approach will work in Texas or in the other western states where its citizens are facing water depletion. In 1991, a catfish farm near San Antonio began using as much as 40 million gallons of water per day; and this water drawn from the aquifer equaled approximately 25% of San Antonio’s total pumpage. The federal Endangered Species Act became the instrument that eventually brought state regulation to the Edwards aquifer in Texas. Since the passage of the Environmental Protection Act in 1970, the federal government has become more involved in state and local water issues. As the authors repeatedly emphasize, local control of water qualifies as a western legacy. Miller points out that John Wesley Powell, the intrepid nineteenth-century explorer, writer, and federal bureaucrat, after exploring the American West, recommended that the “entire arid region be organized into natural hydrographic districts instead of states, counties, townships, or other political units” (p. 232-233). Management by a state board, noted Opie, “was out of the question, federal control unthinkable” (p. 167). My research on Texas groundwater made me think that postponement of stronger regulation of water issues will be too late to overcome the sin of excessive withdrawals—uncontrolled and uncoordinated.

Beginning in both world wars, the federal government used rationing to safeguard and allocate the quantities of scarce goods and services. America’s energy crisis in 1973-1974 became a political crisis, and the western water crisis is also a political crisis. Maybe a presidential candidate will place water issues up high on his or her political agenda. The fact remains that Washington, D.C. has controlled the allocation of energy for the last fifty years. Water markets have big players, but can there be bigger players than the seven sisters of oil? A myriad of facets pertaining to energy policy are federally mandated. John Wesley Powell did argue for regulation of water according to natural hydrographic districts such as the Ogallala and Edwards aquifers. Perhaps legal scriveners can fashion federal oversight legislation that still retains prominent regulatory roles for the states, counties, townships, and other political units. The social, economic, political, and environmental groups will need to reach a consensus if both houses of Congress are going to approve federal legislation covering the regulation of water issues as at least a partial answer to U.S. water needs.