Rumblin’ – Bumblin’ – Stumblin’

Showdown of Water Policy at the ‘Hooch

Donn Rodekohr

James Hairston

Auburn University

Water is a constraining resource

• Federal Water Policy is summed up in 6 words:– It is up to the States– Differing water policies

originate from differing assumptions

– Differing assumptions originate from differing objectives

Eastern Water Doctrine

• Basic Assumption – Water is a nearly

inexhaustible

– Based upon English Law of Riparian Rights

• 13 Colonies codified “Riparian Rights”– Water right is tied

to land ownership

– “Reasonable Use”

– Conflicts settled through mutual consent

RESOURCE

Eastern Water Doctrine

• Objective of the Doctrine -- Protection

– Surface water was protected as a power source for mills.

– Transportation is well supported• Stream volumes allowed heavy loading

– Consumptive uses were restricted to human consumption

Western Water Doctrine

• Colorado codified western water law– All use of water

requires an allocation that is granted by the State

• Temporal order of allocation

• Type of use • Conflicts settled

by rule

• Assumption– There is NOT

enough water to go around.

– Based upon Spanish Law of prior appropriation

– Water is treated as a

COMMODITY

Western Water Doctrine

• Objective of the Doctrine – Fair Distribution– Water was viewed as a commodity– Development involved moving

water– Large scale western water

developments caused a massive migration of agriculture

Mutual Problems

• Riparian Doctrine views water as a publicly held RESOURCE

• Western Doctrine views water as a publicly managed COMMODITY

• Water evades the categorical definitions and in fact is part of each.– COMMODI-source– RESOUR-dity– CROEMSMOOUDRICTEY

So what’s this got to do with the ‘Hooch?

(The 100th meridian approaches. Aridity takes on many forms…)

Time marches in cycles

• Droughts have marched across the US since …

The 100th Meridian approaches…

• 2004

• 2005

• 2006

• 2007

What happens when assumptions are incorrect?

(Aridity takes on many forms…)

My assumption has been violated!

• Western Doctrine Assumption– There is not enough water

• What happens when there IS enough water?– All allocated users get to use the water as

needed. – Water flows meet instream needs– “Excess” water is commonly captured and

stored for later allocation• Western interpretation of “conservation”

– Hydrologic data are updated– Lawyers lease the house in the Bahamas

My assumption has been violated!

• Eastern Doctrine Assumption– Water abundance is inexhaustible

• What happens when water supplies are stressed and rivers can’t deliver?– Wait (and pray) for rain– All water withdrawals are supposed to

reduce their uses equitably– Injured parties have to document their

damage and prove the case• States scramble to develop hydro databases• Preference is given to mass

– Lawyers pay for the house in the Bahamas

My assumption has been violated!

100th Meridia

n

– Virtually every population model shows continued growth in the SE

– Climate prediction models show decreasing rainfall in the SE

– Several “wet” states (VA, OH, MO) are “westernizing” water code

• The Riparian Doctrine does not react well to these scenarios

What happens if the abundance does not or cannot return?

(Major climate shifts are coincident with new releases of Microsoft Windows…)

Results of Increasing Stress on Water Supplies

• The Federal Water Policy is “hands off” until– Endangered species impacts

– Interstate conflicts arise

• Interstate Compacts– ACF: Apalachicola – Chattahoochee – Flint

– ACT: Alabama – Coosa – Tallapoosa

– Both are agreements to come to an agreement

Verbiage in the Compact legislation• for the purposes of promoting interstate

comity, removing causes of present and future controversies, equitably apportioning the surface waters of the ACF, engaging in water planning, and developing and sharing common data bases.

• (b) `Allocation formula' – al·lo·cate 1 : to apportion for a specific

purpose or to particular persons or things : DISTRIBUTE

– 2 : to set apart or earmark : DESIGNATE– ap·por·tion : to divide and share out

according to a plan; especially : to make a proportionate division or distribution of

Western Water Doctrin

e!!

Alabama Water Code

• “allocate” is used 56 times, all referring to distribution of funds.

• “apportion” is used once, referring to taxes.

• The Alabama Water Code has no mechanism to address allocating or

apportioning water.

Water Doctrine Shootout at the ‘Hooch

• The Tri-State Water War is a natural outgrowth of the Riparian Doctrine when the assumptions have been violated.

• Interstate compacts assume that the States have controlling authority over water.

• Comity among the states does not exist

Is there a solution to this problem?

(..please ObeWon Kenobe, we need your help)

Where is this Water War going?

• No where– Wait for rain– Nothing will change but the litigation

continues– Lawyers pay for the yacht in the

Bahamas

Where is this Water War going?

• No where

• Feds are forced to take control– Nobody wants this but it is an option for

the courts– Implement Water Basin Controls

– Lawyers pay for the 2nd yacht in the Bahamas

Where is this Water War going?

• No where• Feds are forced to take control• One TriState westernizes water policy

– Accumulate data on hydrology and flows

– Develop a water use plan

– Implements allocation and appropriation

– Comity among the states is no laughing matter

– Lawyers buy the Bahamas

Rumblin’Bumblin’

Stumblin’

What’s in it for The Water Conference?

(who wants to go the Bahamas?)

Water Conservation is more than Hydrology

• Importance of Water Policy increases proportionately with the stress applied to water supplies.– Need Consistency and certainty– Need to address market forces and

incentives– Need to be able to reallocate water

• Need a “12-Step” program to initiate new water policy.

Water Policy 12 Step Program1) Admit that I am addicted to water.2) Believe that a Power greater than ourselves requires us to be good stewards.3) Decide to manage the waters of the State of Alabama.4) Make a searching and fearless inventory of water resources within the state.5) Admit to ourselves that we can do a better job of stewarding these resources

by producing a comprehensive Water Plan for Alabama.6) Develop the political will to remove shortcomings identified in the Water

Plan.7) Convene teams of experts to develop mechanisms to overcome shortcomings.8) Make a list of all the water users (stakeholders) in the state and educate them.9) Preserve the rights of instream uses, except when doing so would injure them

or others.10) Continue to diligently monitor and manage the allocated resources.11) Continuously seek improved ways to conserve, preserve, and restore water

quality and quantity.12) Having awakened the Sleeping Giant of Alabama’s water resources, assume

the leadership role of water management within the Tri-States.