WATER RIGHTS AND DYNAMIC WATER POLICIES

1. WATER RIGHTS AND DYNAMIC WATER POLICIES Roberta Haley Savage ENTREAT Conference Sewanee University of the South March 8, 2007

2. Introduction • All life is interconnected and the survival of humanity is dependent on a healthy ecosystem. • Even so, we tend to treat our natural resources as commodities to be bought and sold. • Within the context of our busy lives, it becomes easy to dismiss the world around us.

3. Introduction • The earth cannot continue to accept the environmental insults of our modern society. • It’s time to develop a global survival strategy based on science, technology, personal ethics and spiritual awareness. • It is our job to manage our water resources as best we can with the tools that we have and those that we can develop.

4. Water Use Water management is multi-objective: • Municipal Water Supply • Recreation • Transportation • Economic development • Flood control • Hydropower • Health and safety • Protection of endangered species • Spiritual and cultural rites and rituals

5. Water Use • For nearly 35 years we have been implementing programs, gathering data and reporting on our progress. Even so more than 50% of our nation’s waterways are polluted • Societal equity and ownership in environmental resource management is pivotal to any discussion of water policy.

6. Water Use • States own the water and have the authority to give those water rights away to individuals. • This distribution scheme often causes societal inequity because of this traditional interpretation of water ownership. • Many suggest that it’s time to rethink this policy to bring “We the People” back into the water policy discourse.

7. Water and History • 2000 BC – first wells dug by Chinese & Egyptians • Rise of Roman Empire • shifted emphasis to a system of aqueducts and cisterns • ~260 miles of aqueducts brought 200 million gallons of water to Rome each day

8. Water and History • For centuries, people have tried to remove debris from drinking water • Ancient Egyptians water purification: • boiling water in copper vessels • exposure to sunlight • filtering it through charcoal • cooling and settling it in earthen jars • US – Chlorination was first used in 1908 • to destroy harmful bacteria in drinking water supplies

9. Water Rights • Water scarcity in the western part of the US has necessitated the creation of a water allocation scheme vastly different from those that exists in parts of our country blessed with abundant rainfall. • Water rights are established by actual use of the water, and maintained by continued use and need.

10. Water Rights • Water rights are treated similarly to rights to real property (e.g. can be conveyed, mortgaged, and legally encumbered).  • The use of water is independent of the land on which it is used or originates. 

11. Key Components of Western Water Rights • Doctrine of Prior Appropriation • dictates the use of water in most western states • provides that no one may own the water in a stream • all persons, corporations, and municipalities have the right to use the water for beneficial purposes • allocation of water is based on "first in time, first in right," meaning that the first person to use water acquires the water right • Types of Water Rights • direct flow right = measured in terms of a rate of flow • storage water right = measured in terms of volume.

12. Key Components of Western Water Rights • Acquisition of Water Rights • to create a water right, an appropriation is made • appropriations = diversion of water and its application to a beneficial use • diversion = removing water from its natural course or location, or controlling water that remains in its natural course • Replacement Plans • schemes to balance new uses of water with the dedication of other existing water rights to the stream • the stream, as a whole, suffers no net decrease

13. US Water Policy in Development • Rivers and Harbors Appropriations Act of 1890 focused on preventing and removing obstructions to navigation by prohibiting the place of fill or other alterations in navigable channels without the permission of the Secretary of War. • TheRivers and Harbors Appropriation Act of 1899 further ensured safe navigation in navigable waters by prohibiting the construction of any bridge, dam, dike, causeway, wharf, pier, jetty, etc. without Congressional approval.

14. US Water Policy in Development • TheRivers and Harbors Act of 1938 broadened the scope of the Secretary of the Army and Chief of Engineers’ responsibility in conducting Federal investigations and improvements by specifying that wildlife conservation be given “due regard” • TheWater Pollution Control Act of 1948 emphasized assistance for municipal wastewater treatment facilities, research on industrial water pollution and last resort federal enforcement of pollution discharge problems.

15. US Water Policy in Development • The1956 Federal Water Pollution Control Act extended the Federal role in providing financial support for the construction of wastewater treatment works. • TheFederal Water Pollution Control Act of 1961 raised the cap on construction grants.

16. US Water Policy in Development • TheWater Quality Act of 1965 created the Federal Water Pollution Control Administration within the Department of Health, Education and Welfare and brought about the mandate for water quality • TheClean Water Restoration Act of 1966 increased the federal contribution for wastewater treatment. This act also required that each State planning agency receiving a grant develop a comprehensive pollution control plan for each watershed basin.

17. Public Outcry • Rachel Carson – Silent Spring (1962) • A revolutionary treatise • warned the public about the long-term effects of misusing pesticides. • challenged the practices of agricultural scientists and the government • called for a change in the way humankind viewed the natural world. 8 years later, a nationwide public protest of US environmental policy was held – this became Earth Day

18. A National Framework • July 1970 – President Nixon creates EPA by Executive Order • 8 years of Congressional hearings found that: • Many navigable waters were severely polluted • Major waterways near industrial and urban areas were unfit for most purposes • Rivers were the primary sources of pollution in coastal waters and the oceans • Many lakes and confined waterways were aging rapidly under the impact of increased pollution • Rivers, lakes and streams were being used to dispose of man’s wastes rather than to support man’s life and health • The use of any river, lake, stream or ocean as a waste treatment system was unacceptable

19. A National Framework • October 18, 1972 – The Federal Water Pollution Control Act Amendments of 1972 was enacted over a Presidential Veto. • Set three broad goals: • the biological integrity of receiving waters • the maximum use of available technology • the ultimate goal of zero discharge • Banned unlawful discharge of pollution to US waters • “fishable” and “swimmable” by 1983 • Zero discharge by 1985 • Preservation of natural habitat and other wildlife

20. A National Framework Congress revised and expanded the Clean Water Act in 1977, 1981 and 1987. The statute now includes provisions to address: • Point source pollution • Non-point source pollution • Marine ecology (oceans, estuaries, wetlands) • Toxic pollutant controls • Groundwater protection

21. A National Framework Tools utilized by the statue to implement the requirements of the Clean Water Act include: • Water Quality Criteria and Standards • Waste Load Allocations (WLA) • Load Allocation (LA) • Permitting though the National Pollutant Discharge Elimination System (NPDES) • Effluent Limitations and Guidelines (ELGs) • Total Maximum Daily Loads (TMDLs) • Best Available Technologies (BATs) • Best Management Practices (BMPs)

22. Water Resources Development Act • Water Resources Development Act of 1986 • 33 U.S.C. §§ 2201-2330 • November 17, 1986 (Amended 1988, 1990, 1992, 1995, 1996) • Authorizes construction or study of 270 US Army Corps of Engineers projects • Contains provisions covering all features of water resources development and planning (costs, environmental assessment, mitigation requirements)

23. Water Resources Development Act • Water Resources Development Act of 2005 • Senate Bill 728 [109th Congress] • To provide for consideration and development of water and related resources • To authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States, and for other purposes. • This bill never became law.

24. Water Marketing Many economists and water purveyors believe that water markets are the solution to water allocation problems, but there is little agreement about what a water market should really look like. Water resource experts are actively pursuing the concepts of water marketing and investigating the potential trades.  

25. Future Options • Asset Management - Asset management is a business process and a decision-making framework that covers an extended time horizon, draws from economics as well as engineering, and considers a broad range of assets. The asset management approach incorporates the economic assessment of trade-offs among alternative investment options and uses this information to help make cost-effective investment decisions. • Emissions Trading - Environmental credits generated through land-use changes. Most successful water quality trades have been point sources to point sources. Point to nonpoint source trades are more challenging and have great potential, especially in terms of nutrient run-off reductions. The intent is to meet environmental goals by using market-based incentives to encourage changes in land management practices.

26. Future Options • Privatization – Water is essential for all human life and is increasingly becoming a commodity and a great business opportunity. In that past decade large multinational corporations have assumed control of water supply systems throughout the world. Some estimate that more than 300 million people in every continent of the world are being served by such systems. The end results have been questionable and many municipal governments in the U.S. and other countries are rethinking their decisions to turn over their water management responsibilities over to high-powered corporate giants. • Membrane Technology - Water utility management is desirable because it has the potential for minimizing the physical footprint. Integration of membrane treatment systems presents a number of challenges, including technical, political, managerial, operational, and maintenance. Integrating membrane treatment into existing water treatment plants will consideration of regulatory compliance, desalination, protection against future threats including viruses and chlorine-resistant pathogens, reuse applications, or providing high-quality water treatment.

27. The Water Environment • Water is continually recycled. • The sun is the power pump that keeps it moving through the hydrologic cycle • Water can take many different routes • Oceans cover ¾ of the earth • Most of the water that goes into the air rises from the oceans • Most of it falls back into the ocean, some falls to the land where it is used by living things, seeps into the ground, fills the lakes, runs into rivers and streams and evaporates.

28. The Water Environment • The amount of water on the earth is always the same • The hydrologic cycle does not distribute water evenly around the earth. • Rain falls more frequently in areas closer to the equator or near large bodies of water. • Drought = low precipitation, groundwater levels drop • Flood = large amounts of water fall in a short time

29. Wetlands as Purification There are three major types of wetlands: • Marshes • standing water • soft-stemmed plants (cattails, rushes and grasses) • lily pads and submerged plans are found in the deeper water • Swamps • “flooded woodlands” or “shrub lands” • dominated by woody plants and trees (willows, ash, maple, cypress) • Bogs • contain rich organic matter made up of decaying vegetation – can form mats as thick as 40 feet that fills in old ponds and lakes

30. Wetlands as Purification • 300,000 acres of wetlands are destroyed annually • Wetlands reduce flooding, filter pollutants, recharge groundwater, trap silt and sediment and are home to endangered species and wildlife.

31. Water and Global Climate Change • About 1/3 of the world’s population live in countries suffering from moderate-to-high water stress – where water consumption is more than 10% of renewable freshwater resources. • Some 80 countries comprising about 40% of the world’s population were suffering from serious water shortages by the mid-1990’s • It is estimated that in less than 25 years, 2/3 of the world’s people will be living in water stressed countries.

32. Water and Global Climate Change • More than a half-billion people currently live in regions prone to chronic drought. • By 2025, that number is likely to have increased at least fivefold, to 2.4-3.4 billion. • 3 major factors causing increasing water demand over the past century: • Population growth • Industrial development • Expansion of irrigated agriculture

33. By the year 2025, as much as two-thirds of the world population may be subject to moderate to high water stress Note: water stress is defined as follows: Low = less than 10% of total available is withdrawn Moderate = 10-20% of total available is withdrawn High = more than 40% of total available is withdrawn

34. Water and Global Climate Change Water scarcity is exacerbated by global climate change (global warming) • The earth’s climate has always fluctuated, with periods of sustained warming and cooling. • Over thousands of years, changes in atmospheric conditions have caused climate change (e.g. gas concentrations, natural events such as volcanic eruptions) • Most scientists agree the world appears to be in a sustained and rapid period of warming.

35. Water and Global Climate Change • Some of the warmest years in recorded history (1861) occurred in the 1990’s. 2004 was the fourth-warmest year on record. • Increased temperatures coincide with the industrial revolution, increase of carbon dioxide from the over harvesting of forests and the burning of fossil fuels. • Change occurs over decades –– Ecosystems shift over generations. • For many, global warming is not their most immediate or pressing problem.

36. Water and War • People’s need for sustenance and sustainable water collide with global markets and corporate interests. • This global “tug of war” for water is intimately connected to modernity, social justice, democratization, private ownership vs. public resources, and the fight for self-determination. • Creating a national and ultimately a global water budget and finding the balance between need, want, fairness and survival is a role tailor-made for the community of believers.

37. Water and War • Ismail Serageldin, vice president of the World Bank (1995): “If the wars of this century were fought over oil, the wars of the next century will be fought over water.” These conflicts are already taking place, often camouflaged as ethnic and religious battles. • President Carter: “The majority of wars fought on this planet find their origins in the ownership of water. Water: who has it, who needs it, who wants it and who can get it, is often at the root of the conflict”

38. Global Water Budget • The US uses Total Maximum Daily Load (TMDL) to create our water pollution budget. • Authorized in the Clean Water Act since 1972, but virtually ignored • Litigation against the EPA kick-started the program (mid-1990s) • TMDL calculations should form the basis for performance measures for both point and non-point source clean-up activities.

39. Total Maximum Daily Loads • Comprised of: • Waste load allocations (sum of point sources) • Load allocations (sum of non-point sources & background pollutant levels) • Margin of safety (reflects uncertainty) • Focus on: • Point sources • Distributing grants for wastewater treatment plant construction • Critical elements of meaningful TMDLs: • Credible water standards & Comprehensive water monitoring • Must be supported by technically defensible water quality standards

40. Getting to Done • It’s time to move beyond the chatter and “get to done.” • This necessitates the creation of compatible or identical water goals and standards. • Standards based on: • sound science • comprehensive bio-monitoring • trends analysis based on credible data • development and implementation of total maximum daily loads.

41. Getting to Done • Create an integrated watershed approach for: • land and water • point and non-point sources • water quantity and quality for surface and ground waters • Create a patchwork of participation • public, private and non-governmental organizations. • these watershed concepts need to be imbedded in statute, regulation and global water policy

42. Getting to Done • Results should be measured, documented and made available for public review. • To develop a comprehensive global water strategy we need to reexamine our • Water rights and land use policies • Growth and development goals, and • Water use expectations

43. Getting to Done • In the US alone, this will likely require the integration of • The Clean Water Act • The Safe Drinking Water Act • Provisions of the Clean Air Act • Provisions of the Water Resources Development Act • No small task, but the template is there • The Europeans are leading the way