Long ago, clean water was abundantly available in the United States and water access was not a contentious matter. But as the economy and population grew, so did the water demand and water resources began to dwindle. Gradually a system of water rights came into effect to physically or legally establish one’s ownership or claim over a water source.
The term ‘water right’ refers to the right of a user to access and use water from a water source. There are numerous categories, but on a broad level, water rights can be classified as either use based or land based.
Land Based Rights
Also called the riparian doctrine, this approach is prevalent in the US east coast where early European settlers established this process. Water access is determined by land ownership and protected by property rights- only the owner of land bordering a water source has a right to the undiminished, unaltered water flow.
Use Based Rights
This water right is based on whether an individual has legal access to the water source, and it is transferable to anyone. In the United States, use based rights are most commonly seen in the guise of appropriative water rights. The first person or entity which lays claim to the water source and makes use of the water for beneficial purposes has exclusive right to the water source until the water is not being used for any beneficial purpose. The privilege is not contingent on the land (riparian or non riparian) where the water is used. This approach gathered steam in the dry west coast where water was a valuable asset for ranches and mining operations. During the California gold rush, water was a significant resource for mining. The miners worked out a process of “first dibs” rule which is still being followed in many parts of the west coast.
Conflicts over water rights
Question: What happens when a resource is becoming scarcer, but the number of people dependent upon it are consistently increasing?
Answer: Conflicts happen.
The United States west coast endures never ending droughts that have reduced the river flows. The people/ entities with lesser (newer) water rights are being asked to reduce or completely do away with their dependence on their water sources.
Consider the multiple stakeholders that are dependent on the Brazos River flowing through Texas, such as farmers, cities, and power plants. With the river flow shrinking, the farmers were asked to shut down their pumps while the cities and power plants continued to receive water. This has led to series of court battles led by the farmers. Persistent droughts and growing thirst is increasing the struggles over water.
Similarly, in Colorado, farm towns are becoming anxious about Denver’s increasing water requirements that are fed from the Arkansas river, thereby blocking the sale of water rights to the Denver suburbs. These are just a few highlights among the many instances of conflicts that have played out over the last few years.
The ownership rules of surface water (rivers and streams) are very clear – the oldest claimant has the longest privilege of using the water. In comparison, ground water rules are quite adhoc. For instance, though the groundwater beneath your land is your property by law, it does not prevent your neighbor from extracting the water from the same aquifer through a bore well in his property. Clearly, underground water does not adhere to man-made land boundaries.
The way forward
The rights based approach based on land ownership or oldest claimant will work until water becomes more scarce. Eventually, such an approach is a recipe for severe conflicts. Instead, entitlement based on the type of use could be considered as an alternative. It is not a fair deal for farmers with no water rights to be deprived of a water supply while urban settlements continue to get water, where it is used for washing cars, grooming golf courses, or pampering water guzzling lawns (albeit on a reduced scale).
Curbs on non-essential water use coupled with exploring incentives for effective demand management may be the way forward. Conservation measures like rainwater harvesting and gray water recycling should become commonplace. To reduce wasteful water usage, water tariffs may be introduced, or a slab based tariff system may see exponentially increasing rates.
What’s become clear is that the population is vastly larger than it was when water rights were originally formulated. Water demands will only increase- water management policies must change to meet this challenge, or conflicts will only grow in number and frequency.