The Dominant Water Estate

The United States and other common law countries have a rich tradition of protecting property rights in land. In fact in earlier times these land rights included water as part of the right. Remnants of this are still visible in the riparian rights doctrine for surface water and in some ground water doctrines. Traditionally land use practices were protected even when they interfered with water usage. But in dry areas the dominance of land rights over water rights does not make sense. Water is more valuable than land in arid locations. Shouldn’t water be protected from land use practices that interfere with water uses? If water rights were dominate over land rights, would more water be conserved or would water be put to more efficient uses? Mineral rights can be severed from other land rights, and when they are the right to develop the mineral is included with the mineral right. This makes the mineral estate dominant. If water rights were dominant over land rights, land uses that impacted water would only be allowed if there was also an accompanying water right. The basis for this already exists in many western states where the state or the public is considered the original possessor of all water rights. Individual uses and rights are allowed but only under a state permit system. My paper examines the concept of the dominant water estate and explores what this would mean for increasing water supplies

The Commerce clause, interstate compacts, and marketing water across state boundaries.

Increasing competition for scarce water resources should lead to a re-examination of constraints on water reallocation. Some constraints are spatial in nature and reduce the areal extent of reallocation processes. Interstate compacts are an example. Proponents of state protectionism look on compacts as a permanent allocation of water between states. A willing seller is not allowed to sell their water to a willing buyer in another state. On the other hand, the U.S. Constitution\u27s Commerce Clause was designed to create an economic union that includes all states and all citizens. State attempts at economic protectionism through export bans are generally unconstitutional unless they can pass one of the limited exceptions to the Commerce Clause. One potential exception is through the use of interstate compacts. The question examined here is to what extent can interstate water compacts act as a constraint on water marketing? Allocations contained within an interstate compact should be looked on as an initial allocation of water, not a permanent one. In this article we examine the Rio Grande Compact in detail and interstate compacts in general to determine whether compacts place limits on water markets between states

The Economic Value of Water: Results of a Workshop in Caracas, Venezuela, November 2000

In November 2000 a small workshop of 14 people met in Caracas, Venezuela, to discuss the value\u27 of water. The meeting was sponsored by the International Water Resources Network (IWRN), the Organization of American States (OAS), The Nature Conservancy, the University of New Mexico, and the National Oceanic and Atmospheric Administration (NOAA). The meeting was hosted by Jose Ochoa-Iturbe, Director of the School of Civil Engineering at the Universidad Catolica Andres Bello. The participants represented a mix of academics, water administrators, government officials and NGOs (non-governmental organizations) from around the Americas. Although many of the participants are economists, multiple disciplines and perspectives were represented. The meeting occurred as part of a process for stimulating discussion about water issues in the Americas. During and after IWRN\u27s Dialog III in Panama, the participants at a session on water valuation discussed the need for an intermediate meeting that would keep the discussion moving forward. The feeling was that the time interval between Dialogs was too long and significant time was spent at each Dialog repeating conversations that had occurred before. An intermediate conference was organized in Caracas to fill that need. This document was produced as a result of the Caracas meeting and is meant to serve as an input to IWRN\u27s Dialog IV in Brazil. The document should not be looked on as the final word but as an intermediate step meant to stimulate additional discussion

Borderless Commons Under Attack? Reconciling Recent Supreme Court Decisions with Watershed scale Management

Water managers have long called for management at watershed scales, instead of using hydrologically arbitrary boundaries like political borders. Considerable effort has been made in recent years to manage watersheds more holistically, but efforts to transfer water across state boundaries have been problematic, thwarted by legal and political obstacles. In Tarrant Regional Water District v. Herrmann the transferability of water across state boundaries has been reviewed by the Supreme Court. Tarrant, a water district in Texas, attempted to reallocate water from Oklahoma. The U.S. Supreme Court interpreted the case narrowly, focusing on the wording of the Compact, and determined Congress and the signatory states allocated water between each state. While the end result was a setback for Tarrant, many questions remain about the overall reallocation of water across state lines. An increasing node within natural resource economics literature finds boundary-less water markets an equitable way to reallocate water in scarcity prone areas like the American West. Over twenty large river basins in the western United States are governed by interstate compacts. With water demand likely to intensify because of increasing populations and the impacts of climate change, understanding the transferability of these waters is imperative for water managers and city planners