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WATER POLITICS

Via HeinOnline, a helpful online resource on U.S. water rights:

In 2022, water levels at Nevada’s Lake Mead reached historic lows. The largest reservoir in the United States, Lake Mead provides water to some 20 million people throughout Arizona, California, and Nevada. But increased demand for water has slowly diminished the reservoir’s resources, a situation only worsened by years of drought and poor snowfall in the Rocky Mountains, with snow melt providing most of the lake’s water. In May 2022, Lake Mead was at 26% capacity. While the lake’s low water levels made headlines for the discoveries unearthed in the now-exposed lakebed—including human remains—the real story was what would happen now as the lake ran dry. 

Water from Lake Mead is used for everything from irrigating farmers’ fields to flushing toilets, to watering suburban lawns to the drinking water flowing from 20 million people’s taps. The lake itself is a National Recreation Area, drawing boaters, swimmers and fishermen. But Lake Mead was originally formed by the Hoover Dam, completed in 1936 to provide water and hydropower for the southwestern United States. Today, Hoover Dam’s generators provide electricity to Nevada, Arizona, and California, but Lake Mead’s falling water level has meant the Dam has needed to be retrofitted to continue generating power. Lake Mead has not been at full capacity since 1983. 

Elsewhere in the Southwest, Utah’s Great Salt Lake has also reached historic lows. The largest saltwater lake in the Western hemisphere, the Great Salt Lake helps generate the lake-effect snow so coveted by Utah ski resorts and is an irreplaceable habitat for migrating birds. But as the lake dries up, a lakebed full of heavy metals is exposed to the air, creating dust clouds laced with sulfur and arsenic. 

Humans cannot survive without water. Water powers our cities, such as the electricity generated by the Hoover Dam, and it powers the cells in our bodies with each glass of water we drink. Water grows crops and raises the livestock we eat and plays a starring role in our beach vacation daydreams. Access to water resources fuels geopolitical tension all around the globe. As water becomes a rarer and rarer resource, these tensions will only increase as more and more people want access to a less and less available resource. 

For those of us who take for granted the ready availability of water flowing from our taps, the concept of water rights may seem strange or confusing. Water rights refers to the right of a user to access water from a particular source. It is one facet of the complex network of water laws that address a multitude of facets over water at both the state and federal level. In the United States, water law focuses on both water use and protection. Historically, the right to use water from a body of surface water (rivers, lakes, streams, etc.) has been tied to ownership of the land next to and under the body of water in question. Those who own land along a watercourse’s path have riparian rights to use the water. This can mean the right to draw water and right to access for swimming, boating, and to build docks. Riparian rights have their origin in English common law and govern water rights in the eastern part of the United States. In the western United States, the doctrine of prior appropriation regulates water rights. Under prior appropriation, water rights are granted to a person who uses water for a “beneficial use.” Each individual state can define what is meant by a “beneficial use,” but common covered uses include irrigation and for drinking. Unlike riparian rights, which last whether a landowner takes advantage of their right, those who do not use their appropriated water can lose their right to use. Prior appropriation also follows a “first come, first served” philosophy; while many users can have access to a source of water, senior users are granted priority to use their allotment. If there is not enough water for all users, senior appropriators are allowed to use their water allotment, leaving junior appropriators high and dry. 

Once the right to use water is granted, what about the quality of that water? The fragility of the United States’ water infrastructure was made horrifically clear by the Flint Water Crisis, which began in 2014 when the city of Flint, MI switched its municipal water supply source from Detroit Water and Sewerage (which pulls water from Lake Huron and the Detroit River) for the cost-effective Flint River. Improper and inadequate water treatment and testing of the historically polluted Flint River resulted in residents being supplied with discolored, smelly, and foul-tasting water. It would take 18 months for officials to confirm that residents had been drinking water contaminated with dangerously high levels of lead and the bacteria that cause Legionnaire’s disease; 12 people died from the disease. Work has been underway since 2016 to replace the city’s lead water service pipes, with the project projected to complete in September 2022. While multiple government officials, including former Michigan governor Rick Snyder were criminally charged over the crisis, only one—Corrinne Miller, from the Michigan Department of Health and Human services—was convicted. The Environmental Protection Agency estimates that there are between 6 to 10 million lead water service lines in America today. 

The Flint River is far from the only waterbody polluted by America’s industrial ambitions. The Gowanus Canal in Brooklyn was the dumping ground for coal plants, slaughterhouses, and chemical plants; by 1889, the New York State Legislature was already grappling with how to help the badly contaminated canal. In 1893, a botched new sewer designed to help ameliorate the canal’s woes ended in raw sewage being discharged into the canal, causing residents to give the putrid canal the sardonic moniker “Lavender Lake.” Attempts to clean up the canal were energized in the 1960s and 1970s but ultimately stalled by the monumental task of cleaning up one of the nation’s most polluted bodies of water. The canal was declared a Superfund site in 2010, with work to dredge up the canal’s 10-foot-thick toxic sediment layer finally beginning in 2020. 

Elsewhere in the east, the Cuyahoga River, running through Cleveland, OH and emptying into Lake Erie, was so badly affected by industrial pollution throughout the 19th and 20th centuries that it caught fire at least a dozen times. Its burning in 1952 caused over $1 million in damage, but it was the fire of 1969 that garnered nationwide attention for both the Cuyahoga and the plight of America’s befouled waters. As a result of the 1969 fire, several pieces of legislation at the federal level and state level were passed, most famously being the Clean Water Act. 

The Clean Water Act is the major federal law regulating water pollution in the United States. Enacted in 1972, the Clean Water Act regulates the discharge of pollutants into the waters of the United States and sets quality standards for surface waters (streams, rivers, lakes, and any other body of water above ground). While the Clean Water Act has had an undeniable and dramatic effect on water pollution levels in the United States, it never achieved its first grand ambition: “it is the national goal that the discharge of pollutants into navigable waters be eliminated by 1985.” 

HeinOnline’s Water Rights & Resources is dedicated to understanding the complex interplay of state and federal laws that govern all aspects of water in society, from municipal use to restoring its pristine condition. Collecting congressional documents, books, legislative histories on major legislation, and Supreme Court briefs on related cases, this collection touches on a wide range of water issues, including irrigation, hydropower, water conservation, drinking water quality, and tribal water rights, encompassing the unique water rights issues that span from the Eastern seaboard to the Great Lakes and across the arid West. In the wake of a twenty-year megadrought, water, long the most prized resource in the West, has become even more valuable. In 2021, intense debate over how to manage the mighty Colorado River, whose watershed serves seven states and parts of Mexico, reached a critical mass when the federal government declared the first shortage of water on the river. In 2022, tensions between California, Arizona, Nevada, Colorado, Wyoming, New Mexico, and Utah grew as the states faced drastic cuts to their water consumption to preserve dwindling reservoir levels, with differences between the states as to who should bear the brunt of the cuts. As the creator of the Grand Canyon falls lower and lower, the 40 million people who all depend on the Colorado River face a dire reckoning and drastic change to their way of life. In the face of so much uncertainty, water rights and how to use our water resources becomes even more vital to understand.