written by Jeff Sinclair
The problem of water shortage is often framed technically: how to extract it, how to get it to consumers, how to purify it, etc. But what happens when we achieve all that? What do we do with the water that we can get; how do we distribute it? It turns out that there’s been a plethora of conflicts over water that have led to various schemes of distribution right here in the United States.
Historically, there have been three ways to solve interstate water disputes: adjudication by the Supreme Court, Acts of Congress, and Interstate Compact. Each method is used for different reasons and each makes important philosophical and political distinctions.
The problem of water shortage is often framed technically: how to extract it, how to get it to consumers, how to purify it, etc. But what happens when we achieve all that? What do we do with the water that we can get; how do we distribute it? It turns out that there’s been a plethora of conflicts over water that have led to various schemes of distribution right here in the United States.
Historically, there have been three ways to solve interstate water disputes: adjudication by the Supreme Court, Acts of Congress, and Interstate Compact. Each method is used for different reasons and each makes important philosophical and political distinctions.
Apportionment of interstate waters by the Supreme Court has followed several doctrines. One of these doctrines is the Riparian doctrine, which states that all those who own land adjacent to the water have equal rights to use the water in a reasonable manner, with no right superseding another. The primary alternative to this approach is the Prior Appropriation doctrine, which states that the right to use water is established as soon as it is diverted for beneficial use. Priority is given based on which rights were established first, and the earlier rights are entitled to full satisfaction before any water is provided to other projects. An alternative to both of these theories, developed by the Supreme Court in response to continuing litigation, is to quantify the gains and losses so as to develop an equal distribution of the water.
All of these theories are backed with different philosophical reasoning. In the case of the Riparian doctrine, the theory is very much redistributive and rooted in deontological thought; all landowners are entitled to some share of the water and they must consider whether or not they are harming the usage of others when they divert the water flow. On the other hand, prior appropriation is strongly rooted in entitlement theory: what is mine belongs to me, and no other individuals can infringe upon that. The Supreme Court Alternative, on the other hand, is egalitarian and utilitarian: it seeks an equal distribution, which is defined as an equal balance of benefit and burden on both sides.
There are clear philosophical assumptions that underlie the decisions of the Supreme Court. But what about the other methods of solving water disputes? Acts of Congress tread upon interesting moral ground: since such disputes are often between two or three states, why should the other states have any role in deciding the outcome. Perhaps that’s why this approach has only been used twice, most recently in a case involving the Truckee and Carson rivers and Lake Tahoe.
Interstate compacts have met with mixed success. The reasons for their success or failure often lie in how they are organized. Oftentimes they are governed by a commission made of a few representatives, most often the governors of each state and a federal representative. These commissions are in turn responsible for determining the allocation of water. One example of how the commission can cause a sub-optimal solution is in the case of the Pecos River Commission, where the Governors of New Mexico and Texas each have one vote, and the federal representative does not. Due to faulty data, there was a proposed change in allocation patterns—which currently favored Texas. Because New Mexico could not overcome Texas’ opposition, the case had to be brought before the Supreme Court, and was eventually declared outside of the court’s purview. In the meantime the status quo which favored Texas over New Mexico continued, without giving New Mexico a chance to get its fair share.
In other cases, a unanimous decision between all parties has been required. This is equally problematic, because any one member can object and thereby hold all other parties hostage to its own aims. States that benefit from an inequitable distribution will always objection, and it becomes impossible to reorganize the distribution along more equitable lines.
It is clear that certain forms of organization create serious problems with interstate compacts. But other forms are conducive to effective governance. Most simply, a majority rule with a federal representative provides both a way for opposition to be effectively overcome while at the same time providing a disinterested voter who can avoid tyranny of the majority should such a case arise. It is this method that has been most often and most effectively used.
Water disputes in the United States have a history dating back to the founding of the country. Water is so important that the Riparian and Prior Allocation doctrines have been included in state constitutions in many cases. Water, like money or healthcare, is a good whose distribution the government is involved in, and it is therefore critical that the philosophical reasons behind different distribution schemes are critically examined. This is just a short overview of a limited number of schemes which are available to adjudicate water disputes. But these and others are certainly worth keeping in mind as we go forward to tackle one of the most important issues in the modern world: water distribution.
All of these theories are backed with different philosophical reasoning. In the case of the Riparian doctrine, the theory is very much redistributive and rooted in deontological thought; all landowners are entitled to some share of the water and they must consider whether or not they are harming the usage of others when they divert the water flow. On the other hand, prior appropriation is strongly rooted in entitlement theory: what is mine belongs to me, and no other individuals can infringe upon that. The Supreme Court Alternative, on the other hand, is egalitarian and utilitarian: it seeks an equal distribution, which is defined as an equal balance of benefit and burden on both sides.
There are clear philosophical assumptions that underlie the decisions of the Supreme Court. But what about the other methods of solving water disputes? Acts of Congress tread upon interesting moral ground: since such disputes are often between two or three states, why should the other states have any role in deciding the outcome. Perhaps that’s why this approach has only been used twice, most recently in a case involving the Truckee and Carson rivers and Lake Tahoe.
Interstate compacts have met with mixed success. The reasons for their success or failure often lie in how they are organized. Oftentimes they are governed by a commission made of a few representatives, most often the governors of each state and a federal representative. These commissions are in turn responsible for determining the allocation of water. One example of how the commission can cause a sub-optimal solution is in the case of the Pecos River Commission, where the Governors of New Mexico and Texas each have one vote, and the federal representative does not. Due to faulty data, there was a proposed change in allocation patterns—which currently favored Texas. Because New Mexico could not overcome Texas’ opposition, the case had to be brought before the Supreme Court, and was eventually declared outside of the court’s purview. In the meantime the status quo which favored Texas over New Mexico continued, without giving New Mexico a chance to get its fair share.
In other cases, a unanimous decision between all parties has been required. This is equally problematic, because any one member can object and thereby hold all other parties hostage to its own aims. States that benefit from an inequitable distribution will always objection, and it becomes impossible to reorganize the distribution along more equitable lines.
It is clear that certain forms of organization create serious problems with interstate compacts. But other forms are conducive to effective governance. Most simply, a majority rule with a federal representative provides both a way for opposition to be effectively overcome while at the same time providing a disinterested voter who can avoid tyranny of the majority should such a case arise. It is this method that has been most often and most effectively used.
Water disputes in the United States have a history dating back to the founding of the country. Water is so important that the Riparian and Prior Allocation doctrines have been included in state constitutions in many cases. Water, like money or healthcare, is a good whose distribution the government is involved in, and it is therefore critical that the philosophical reasons behind different distribution schemes are critically examined. This is just a short overview of a limited number of schemes which are available to adjudicate water disputes. But these and others are certainly worth keeping in mind as we go forward to tackle one of the most important issues in the modern world: water distribution.