Water transfers: the case against transbasin diversions in the eastern states.

• Author: Klein, Christine A.

ABSTRACT

Water policy in the western states consistently has embraced a nineteenth century, supply-side mentality, requiring cities and other water providers to satisfy an ever-growing demand for water at virtually any cost. As a result, the western states rely upon thousands of engineered water transfers--even siphoning water from one side of mountain ranges to the other--in an unsustainable attempt to support growth. This article challenges the conventional reliance upon transbasin diversions as a response to shortage. It argues that importing water from distant watersheds lulls growing communities into a false sense of security, subsidizes unsustainable growth, and exacts significant social, economic, and environmental costs. Although this article recognizes the infeasibility of reducing western reliance upon existing large-scale transfers, it offers an alternative paradigm for the eastern states, as many of them begin to face the limits of existing water supplies. This article argues that communities could achieve water independence by shifting to a demand-side model and by nourishing the living rivers essential to both human and natural ecosystems.

1. INTRODUCTION: MOVING WATER TO THE PEOPLE II. THE CONTEXT A. Transbasin Diversions Defined B. Water Markets Compared C. Bottled Water Compared III. THE CRITIQUE A. The Human Drama B. The Myth of "New" Water C. Feeding an Addiction D. Winners and Losers E. Deconstructing Watersheds IV. THE ALTERNATIVES A. Changing the Default Presumption B. Living Within Our Means C. Nourishing Living Rivers V. CONCLUSION: WATER INDEPENDENCE I.

INTRODUCTION: MOVING WATER TO THE PEOPLE

"[A watershed] is that area of land, a bounded hydrologic system, within which all living things are inextricably linked by their common water course and where, as humans settled, simple logic demanded that they become part of a community."

John Wesley Powell (1)

For more than a century, the default presumption among American planners has been to bring water to the people, wherever the people decide to build their cities or cultivate their farms. Ignoring the advice of John Wesley Powell, water suppliers have relied heavily upon transbasin diversions, pumping or siphoning water from its natural source for use in distant watersheds. When some of the nation's most arid cities such as Los Angeles and Denver experienced explosive growth, they welcomed their ever-expanding populations with "new" water wrestled from rural communities on the other side of the Sierra Nevada and Rocky Mountain ranges, respectively. According to one journalist, California has engineered a water infrastructure so complex that it resembles something that "might have been invented by a Soviet bureaucrat on an LSD trip." (2)

Transbasin diversions are ubiquitous, perhaps surprisingly so to the casual observer. There are literally thousands of transbasin diversions in the United States. (3) Although more numerous in the western states, (4) transbasin diversions also occur in the east. New York City, for example, relies upon pristine, upstate sources for its water supply, collecting water from a 1,972 mile watershed spanning eight counties in New York and one in Connecticut. (5) Although eastern riparian doctrines such as the "watershed rule" purport to forbid the separation of land and water, (6) those rules are riddled with exceptions, particularly in the case of securing urban water supplies. (7)

Despite heroic efforts, many American cities have not secured reliable water supplies, and continue to seek more water. (8) Increasingly, cities have turned their thirsty sights toward agriculture, transferring water rights from irrigation to urban uses. (9) But this may not be enough. From a global perspective, water shortage is not simply a problem that happens somewhere else. In connection with "World Water Day 2007," the United Nations declared "coping with water scarcity" as its theme. (10) The UN's five-color map of critically dry regions is not confined to impoverished sections of Africa or to the great deserts of the world. Instead, a disturbingly bright swathe of orange--designating areas of physical water scarcity--sweeps across a large chunk of the American southwest. Moreover, such shortages are likely to be exacerbated by climate change, including global warming. (11)

This article challenges the conventional reliance upon new transbasin diversions as a response to shortage. Although it recognizes the infeasibility of reducing western reliance upon existing large-scale water transfers, this article offers an alternative paradigm for the eastern states, as many of them begin to face regional water shortages. Part II sets the stage by defining transbasin diversions, placing them in context, and considering their relationship to so-called "water markets" and to the bottled water industry. Part III offers a critique of transbasin diversions, pondering the consistently violent negative reaction that they engender. Beyond the human drama, Parts III.B and C posit that transbasin diversions lull growing communities into a false sense of security with the myth that "new" water will always be available, thereby feeding an unsustainable addiction to growth. Parts III.D and E survey the negative social, economic, environmental, and philosophical costs associated with large-scale water transfers. Part IV provides an intellectual blueprint to help communities move away from a precarious dependence upon importing water from increasingly distant sources by regulating demand rather than supply, living within a water budget, and nourishing living rivers as an essential prerequisite to protect both human and watershed ecosystems from collapse. This article concludes by placing water independence on a par with energy independence, framing it as an easily overlooked pillar of national security.

II.

THE CONTEXT

1. Transbasin Diversions Defined

   For purposes of this article, "transbasin water diversion" means the removal of water from its natural watershed for use in a different drainage basin. Although most commonly associated with diversions from surface water sources, the term might also encompass the interbasin transport of groundwater. From the perspective of the basin or aquifer of origin, transbasin diversions have a consumptive use of 100% because excess water cannot return to its natural source by gravity flow. The physical mechanism supporting such diversions varies widely. In some instances, water may be exported from its source through a complex network of dams, reservoirs, pipes, canals, and aqueducts. (12) Other transfers may be engineered more simply, incorporating natural stream channels to the extent possible as conveyance structures. (13)

   Transbasin diversions can involve either the small- or large-scale movement of water, depending upon the scope of the drainage basin. As the scale of the relevant watershed increases, the potential for significant impacts also grows. At one end of the spectrum, transfers may be relatively minor, involving the movement of water among drainage sub-basins just a few acres in size. At the other end of the spectrum, transmountain diversions in Rocky Mountain states such as Montana, Wyoming, Colorado, and New Mexico, may divert waters destined for the Pacific Ocean or the Atlantic Ocean to ultimate destinations at the opposite side of the continent.

   As an important distinction, transbasin diversions can involve either the initial removal of water from its natural source for a particular use at a distant location, or the reallocation of water from one place of use to another. In the case of the former, virtually all states allow water users to extract the resource free of charge, provided that the water is put to a use recognized by the state as beneficial or reasonable, and provided that the water is not wasted. (14) In the case of the latter, the reallocation of water for use in a different watershed--a change in the place of use--is often accompanied by other changes. These include changes in the type of use (as from agricultural irrigation to municipal use) and time of use (as from the irrigation season to year-round use). Reallocations may also involve changes in authorized water users (the "owners" of water rights or holders of water permits), typically in states that allow water users to "transfer" their rights or permits to others. The transfer generally takes the form of a sale--particularly under the western prior appropriation doctrine-whereby users who acquire water rights for free may sell them to others at significant profits. (15)

2. Water Markets Compared

   Water transfers, as discussed above, may be facilitated by so-called water markets, which depend upon the legal recognition of secure property rights to the use of water, thereby allowing the sale of water rights (or permits) from one private user to another. (16) Increasingly, the seller is an agricultural irrigator, and the buyer is an urban municipality--potentially implicating sweeping changes in the place of use, as well as ownership, type of use, and time of use. The relationship between water markets and transbasin diversions can be conceptualized as two spheres of a Venn diagram. The area where the spheres overlap represents water rights that have undergone both a change of ownership (by sale) and a changed place of use (to a new watershed).

   The modern push for free trade and free markets has spilled over into the realm of water markets. There is widespread and enthusiastic support for the development of robust water markets in the western states. (17) Proponents cite to the potential for markets to efficiently reallocate water to its most highly-valued use, relying upon willingness to pay as an acceptable proxy for value. (18) A second group of commentators stops short of endorsing western water markets, but generally accepts their development as inevitable. Instead of challenging the fundamental notion of...