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The Arid West—Where Water Is Scarce - Water Rights, Water Fights

farmers land supplies irrigation

The early history of the migration of people to the American West in the latter part of the nineteenth century has been told in innumerable histories, films, and stories. Two important events in the process of settling the West led to laws for the allocation of the scarce water supplies in the extremely arid environment—the discovery of gold and silver in the western mountain regions and the widespread use of irrigation for crop production.

Miners searching for gold and silver diverted stream water into pipes. As a result, an informal code of water regulations started in the mining camps. The first person to file a claim to a gold or silver mine was allowed priority in getting water over any later claims. To remain the owner of a mining claim, the individual had to mark it off, take possession of it, and "work" the claim productively. This informal water law, conceived more than one hundred years ago, was called the "prior appropriation doctrine."

A few years later, this legal practice was adopted by farmers, whose absolute needs for water to irrigate the parched desert were similar to those of the miners. The "first in time, first in right" priority system gave the first farmers guaranteed water supplies in times of drought, which were frequent. This right to use water by both the miners and the farmers, who were the first nonnative settlers of the West, was exclusive and absolute. Where water was concerned, the early pioneers envisioned a dreamland with hundred-mile-long canals, emerald-green farms, and bustling cities. The prior appropriation and first in time, first in right practices conflict with the more traditional riparian rights (the right to use water, such as a stream or lake, that abuts one's property) used in the East. Riparian rights cannot be sold or transferred; water rights governed by the doctrine of prior appropriation can.

As the population of the West expanded and states began to write down their laws, the rules for water rights and use changed. The prior appropriation doctrine was modified. "Beneficial use" became the basis for a landowner's rights to water. Beneficial use has two components: the nature or purpose of the use and the efficient or nonwasteful use of water. State constitutions, statutes, or case law may define the beneficial uses of water. The uses may be different in each state, and the definitions of what uses are beneficial may change over time. The right to use water established under state law may be lost if the beneficial use is discontinued for a prescribed period, frequently summarized as "use it or lose it." Abandonment requires intent to permanently give up the right. Forfeiture results from the failure to use the water in the manner described in state statutes. Either requires a finding by the state resource agency that a water right has been abandoned or forfeited.

Priority determines the order of rank of the rights to use the water in a system: that is, the person first using the water for a beneficial purpose has a right superior to those who begin to use the water at a later date. Priority becomes important when the quantity of available water is insufficient to meet the needs of all those having rights to use water from a common source. Under a priority system, water shortages are not shared as they are under a riparian water rights system. Some western state statutes contain priority or preference categories of water use, under which higher-priority uses (such as domestic water supply) have first right to water in times of shortage, regardless of the priority date. There also may be constraints against changes or transfers involving these priority uses.

Water Projects

The federal government played a major role in encouraging the economic growth and settlement of the West. The Reclamation Act of 1902 (PL 57–161) began many years of federal involvement in constructing and subsidizing water projects in the West. The Reclamation Act was designed to provide subsidized water for small farmers who worked up to 320 acres. Over the years, however, farmers and corporations have used subsidized water to farm thousands of acres by entering into arrangements in which they lease (but do not own) farms.

Based on the existence of irrigated farmland guaranteed by federal subsidies, the West grew rapidly. Cities sprang up in the deserts, attracting a large array of support industries as people from the Eastern and Midwestern United States moved to the Southwest to enjoy the warm, dry climate, stark beauty, and sunshine.

Although some continue to argue that the American West is still a frontier—the total land area is sparsely populated, with an average of 29.4 people per square mile in New Mexico, Colorado, Utah, Nevada, and Arizona combined—the low average population density is deceptive. According to the Bureau of the Census (All Across the U.S.A.: Population Distribution and Composition, 2000), population growth in metropolitan areas in the West increased almost 20% between the years 1990 and 2000, while the population in nonmetropolitan areas in the West increased by almost 21%. (See Figure 8.4.)

UNANTICIPATED CONSEQUENCES OF IRRIGATION.

In much of the West, millions of acres of profitable irrigated land overlie a shallow and impermeable clay layer, the residual bottom of an ancient sea, that is sometimes only a few feet below the surface. Significant changes in the land can be caused by the interaction of irrigation water and this ancient seabed. During the irrigation season, temperatures in much of the desert fluctuate between 90 and 110 degrees, and much water is lost because of evaporation and plant transpiration. The water lost in "evapotranspiration" is relatively pure because chemicals are left behind to precipitate as salts and to accumulate in the soil. Evapotranspiration is the combined effect of evaporation of moisture from water bodies and land surfaces and the transpiration of plants.

Water retained in the soil seeps downward, carrying the salts with it, until it hits the impermeable clay layer. Because the water has nowhere to go, it rises back up into the plant root zone, increasing the salt content. The excessive salts can interfere with crop growth. Generally, high salt concentrations obstruct germination and impede the absorption of nutrients by plants and in some cases have rendered the soils unable to grow crops. The salts (dissolved solids) continue to accumulate as irrigation continues. A few thousand acres have already gone out of production because the soil is too salty; salt is actually visible on the ground.

To stop excessive buildup of the salts in the soil, extra irrigation water is required to flush out the salts, generally into surface drainage or groundwater. In locations where FIGURE 8.4
Percentage change in metropolitan and nonmetropolitan
populations, by region, 1990–2000

SOURCE: "Figure 2-1. Percentage Change in Metropolitan and Nonmetropolitan Populations by Region: 1990–2000," in Population Profile of the United States: 2000, U.S. Census Bureau, 2002, http://www.census.gov/population/popprofile/2000/profile2000.pdf (accessed April 13, 2005)
these dissolved solids reach high concentrations, the artificial recharge from irrigation return flow can result in degradation of the quality of groundwater and the surface water to which the groundwater discharges. In severe cases, the increased salinity renders the water useless for irrigation or drinking and contributes to degraded aquatic habitats.

Buying and Selling Water Rights

Prior to the mid-1980s, the preferred method of getting water was to develop a new supply. As new supplies became less accessible and environmental regulations made supply development more difficult and expensive, creating mechanisms for voluntary water reallocation as a component of managing the demand for water has become more important. Water marketing and demand management promote efficiency and allow a considerable amount of flexibility in water resource management.

In 1986 Aurora, Colorado, a growing suburb of Denver, went shopping for water to meet its ever-increasing needs. For $50 million, the city bought the water rights from 300 financially strained farmers in the Arkansas River valley and thus increased Aurora's water supply by 30%. At one time, this sale of water rights by farmers was considered unthinkable, but the growing water demands by the West are now forcing such sales to increase. While demand for water for growing cities is far outpacing the available supplies, federal money to finance huge water projects has all but dried up. Realizing that water scarcity will inhibit future growth, western cities and industries are looking to the agricultural community for water.

Agriculture has traditionally claimed the lion's share of the West's water supplies, accounting for 80% to 90% of consumption in most states. If farmers or ranchers, however, can earn more money selling water to a nearby city than spraying it on their crops or watering their stock, shifting the water from farm to city is in their economic best interest. If the city is saved from damming a local river to increase supplies or depleting an aquifer, it may also benefit the environment.

The value of water rights has varied enormously. Advocates of the sale of water rights maintain that a free market will allow for more efficient distribution of a source that is often subsidized and just as often squandered. Conservative politicians favor it because it reduces the federal government's role in developing new water supplies. Liberal politicians also like it because more efficient use of water could benefit the environment by lessening the need for dams, which are often environmentally harmful. Since 1981 and continuing into the twenty-first century, western state legislatures have been slowly changing the old laws dealing with water rights to make water right transfers more flexible.

Opponents, including some of the farmers who agreed to sell, claim that the sales are draining the life from small, rural communities and can cause irreparable damage to the environment in the long run as the now waterless land is left to crack, bake, and turn into dust. The farmers and ranchers who have refused to sell their water rights are concerned about not only their own water supplies but also the surrounding weeds, dust, and barren land. Once water rights are sold, the use of the land for farming is over. Nevertheless, in hard financial times, many landowners take whatever price they can get.

Whether water marketing continues or not, agriculture water rights will probably erode over time wherever water demands exceed the water supply because the value of crops is normally far less than the value of drinking water or industrial water supply. Urban dwellers do not identify with the needs or problems of agriculture in maintaining the food supply. Worldwatch Institute, a private environmental group, estimated that a given amount of water used in industry generates more than sixty times the economic value of the same amount used to produce food. This trend, however, could have consequences in the future as a growing national and world population has increased need for food.

Water Banks

Not all water right transfers require that water be shifted permanently away from agriculture. Voluntary market transactions can reallocate water on a temporary, long-term, or permanent basis. A water bank (a clearing-house between the buyers and sellers of water), acting as a water broker and usually subsidized by the state, can be authorized to spend money to buy water from farmers or other sellers who are willing to temporarily reduce their own use. The bank then resells the water to drinking water suppliers, farmers, ranchers, and industries that need the water. California, Idaho, Montana, and Texas are among the states that operate water banks.

Water Ranching

In Arizona, where state law prohibits buying the rights to water without also buying the land, a more drastic measure for obtaining water has evolved. Growing cities such as Tucson and Phoenix have purchased 575,000 acres of farmland to be used as "water ranches." Some of the land will be farmed until the cities actually need the water, but if rapid growth continues, as is expected, all of it will eventually be removed from farming. In Pima County, where Tucson is located, irrigated agriculture is expected to disappear by the year 2020 as the city expands and continues to buy even more land for its water needs.

Water Conservation and Transfers in the West

Under the doctrines of prior appropriation and beneficial use, water that is not put to beneficial use will be appropriated by those next in line. If less water is needed due to a change in crops or more efficient water use, the holder risks losing the full amount of the original right. There is little incentive to conserve water unless that water can be used to irrigate additional acreage on the same property or be transferred to another user for a price. Most experts believed that legislation was necessary to encourage conservation and permit the transfer of water to other uses. California, Montana, Oregon, Texas, and Washington have enacted legislation to accomplish this.

California, the first state to pass such legislation (1982), allows conserved water to be sold, leased, or exchanged. Under the statute, a person who conserves water does not risk loss of water if it is not put to immediate use, since conservation is now defined as beneficial use. Oregon (1987) also protects the holder's allocation, although the statute allocates 25% of the conserved water to the state to maintain or enhance flows for fish and wildlife protection. Washington (1990), however, also provides financial assistance to encourage conservation efforts. Water transferred to the state is placed in a trust program to enhance stream flows, irrigation, or municipal water supplies.

Montana (1991) authorizes holders who conserve water to retain that water right and transfer the water to another user, with approval of the state government. To encourage water conservation, Texas (1993) allows appropriated water saved through a documented conservation plan to be sold or leased without fear that the right will be lost or amended under the use it or lose it rule. Despite the legislation, it is difficult to attribute actual water savings to these laws. The states continue to study the practices and will likely pass further legislation.

The Arid West—Where Water Is Scarce - Desalination—a Growing Watersupply Source [next] [back] The Arid West—Where Water Is Scarce - Water Policies—states Lead The Way

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over 8 years ago

I'm a french documentary filmmaker preparing a film on water for french Tv and I would like to get in contact with a farmer who have sold his right to water and who is now a strong opponent to this practice.
Thank you for your help.
Best regards

Baptiste Rouget

Vote down Vote up

over 8 years ago

I'm a french documentary filmmaker preparing a film on water for french Tv and I would like to get in contact with a farmer who have sold his right to water and who is now a strong opponent to this practice.
Thank you for your help.
Best regards

Baptiste Rouget

Vote down Vote up

over 8 years ago

I'm a french documentary filmmaker preparing a film on water for french Tv and I would like to get in contact with a farmer who have sold his right to water and who is now a strong opponent to this practice.
Thank you for your help.
Best regards

Baptiste Rouget