Climate Change: The Law, Politics, and Ownership of Water
“Climate change is a global problem. The planet is warming because of the growing level of greenhouse gas emissions from human activity. If this trend continues, truly catastrophic consequences are likely to ensue from rising sea levels to reduced water availability, to more heatwaves and fires.” Malcolm Turnbull
Water and Our Lives
Who provides your water today? Who owns it? Who’ll own it in the future? Answers to these questions are essential as we experience the effects of climate change, the increasing saltiness of coastal waters, more frequent hurricanes, and droughts that make the availability of clean water for sustaining life more problematic.
Just today, at the end of August, a hurricane made landfall in Louisiana, causing massive flooding, power losses, and a lack of clean water. The Colorado River Basin is drying up. Those relying on it as a source of water (40 Million people) will have to use less water until the drought breaks. And, of course, any manufactured solutions will cost the users and will take some time to put in place. On Wall Street, water is traded like oil and gold.
Where does our water come from?
Our water comes from rainfall, snowfall (surface water), and underground sources (aquifers). Climate change changes rainfall patterns, the depth of the snowpack in the winter, and the rise in temperatures and the time it takes for the snowpack to melt. All factors that don’t bode well for the future of the water in the western US. We can only expect continued drought.
Water Scarcity
Water scarcity is impacting every continent. As water becomes, scarcer more regions will become unable to provide water services to their populations. The Earth.org States that two-thirds of the earth’s population will face water shortages by 2025. And in California, 82% of the states’ population lives in drought.
From an engineering and scientific point of view, there’re many possible answers.
- In the US, we could move water from an area of excess water to another area that needs it. We could use existing pipelines or build new ones. However, this causes a few problems. Legal ownership issues, economic issues of moving and buying water from the owners are just a few. Another issue is who gets the water.
- Develop more ways to purify water at the household level. In the west, some systems exist to remove minerals from the water to make it softer, but the costs still limit the ability to provide it to everyone.
- Limit populations in certain areas that don’t have enough water. This, of course, flies in the face of our freedom to live where we want to move when we want.
- Become more proactive in co2 reduction efforts
- Become more proactive in land management so we can reduce the spread and impact of wildfires.
Water Law in the United States
Water law differs depending on where you live in the United States. Water rights developed around riparian law in the Midwest and east (areas with the most rainfall and snowfall). Under riparian law, landowners have the right to use water on their land.
In the west, water law differs from state to state. (Some states base their water rights on the concept of prior use.) If your family started using the water in the 1700s or 1800s, then your family has the first right to use any water that flows. Those that started using the water later may or may not get any water. Let’s look at two practical issues with this.
First, Phoenix, Arizona, was the eighth fastest-growing city last year. Their solution to finding enough water is to buy ranch land and repurpose the water rights to serve the city's needs. Second, In New Mexico, prior use is more difficult because the river flows by Texas and into Mexico. This has resulted in massive litigation, with the results still uncertain. The other states have either prior use or riparian-based water law.
Another complication is the layer of federal laws on top of the state laws. For example, federal laws reserve water rights for public and Indian lands. This further complicates the use of water in most of the western states even more.
How do we solve this need for water with these laws?
This article from the University of Utah Law School discusses water rights in more detail and delves into where we’re in finding solutions. The answer is we’re in the very early stages. Climate change will force additional solutions along with the engineering ones I identified above.
California is one of the more progressive states in trying to find solutions to their problems. Lawyers are discussing redefining such key concepts as beneficial use, reasonable use, and throwing in the economic impact on water usage. This will take a long time to resolve, and moving water will ultimately become part of the solution.
In the east, the largest problem is flooding because of the increasingly severe storm events. However, the east is starting to experience local drought areas that have threatened water supplies. As a result, litigation increases between the eastern states as rights in shared water resources become more important.
What do we do?
Any solution will have to be dynamic, changing as the impacts of climate change increase. It will have to include not only legal solutions but engineering solutions as well. As individuals, we must be aware of the issues and look for ways to reduce our water use; simultaneously, we’re advocating with our local and state governments to find legal and other uses.
“The secret of change is to focus all of your energy, not on fighting the old, but on building the new.” — Socrates.
