WATER RIGHTS AND DYNAMIC WATER POLICIES

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WATER RIGHTS AND DYNAMIC WATER POLICIES

• Roberta Haley Savage
• ENTREAT Conference
• Sewanee University of the South
• March 8, 2007

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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.

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Introduction

• The earth cannot continue to accept the
  environmental insults of our modern society.
• Its 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.

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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

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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 nations
  waterways are polluted
• Societal equity and ownership in environmental
  resource management is pivotal to any discussion
  of water policy.

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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 its time to rethink this
  policy to bring We the People back into the
  water policy discourse.

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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

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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

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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.

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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. 

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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.

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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

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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.
• The Rivers 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.

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US Water Policy in Development

• The Rivers 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
• The Water 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.

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US Water Policy in Development

• The 1956 Federal Water Pollution Control Act
• extended the Federal role in providing financial
  support for the construction of wastewater
  treatment works.
• The Federal Water Pollution Control Act of 1961
• raised the cap on construction grants.

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US Water Policy in Development

• The Water 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
• The Clean 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.

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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

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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 mans wastes rather than to support
  mans life and health
• The use of any river, lake, stream or ocean as a
  waste treatment system was unacceptable

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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

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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

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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)

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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)

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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.

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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.  

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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.

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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.

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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.

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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

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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

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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.

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Water and Global Climate Change

• About 1/3 of the worlds 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
  worlds population were suffering from serious
  water shortages by the mid-1990s
• It is estimated that in less than 25 years, 2/3
  of the worlds people will be living in water
  stressed countries.

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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

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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
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Water and Global Climate Change

• Water scarcity is exacerbated by global climate
  change (global warming)
• The earths 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.

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Water and Global Climate Change

• Some of the warmest years in recorded history
  (1861) occurred in the 1990s. 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.

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Water and War

• Peoples 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.

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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

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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.

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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

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Getting to Done

• Its 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.

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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

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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

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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