S.,  Kenneth, Gould

English

University of Arkansas at Little Rock: UALR Bowen Law Repository

University of Arkansas at Little Rock Law Review Volume 25 Issue 1 The Ben J. Altheimer Symposium: Water Rights in the Twenty-First Century: The Challenges Move East Article 1 2002 An Introduction to Water Rights in the Twenty-First Century: The Challenges Move East Kenneth S. Gould University of Arkansas at Little Rock William H. Bowen School of Law, ksgould@ualr.edu Follow this and additional works at: https://lawrepository.ualr.edu/lawreview  Part of the Property Law and Real Estate Commons, and the Water Law Commons Recommended Citation Kenneth S. Gould, An Introduction to Water Rights in the Twenty-First Century: The Challenges Move East, 25 U. ARK. LITTLE ROCK L. REV. 3 (2002). Available at: https://lawrepository.ualr.edu/lawreview/vol25/iss1/1 This Article is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. AN INTRODUCTION TO WATER RIGHTS IN THE TWENTY-FIRSTCENTURY: THE CHALLENGES MOVE EASTKenneth S. Gould[W]e have reached the time in our state when we have to start thinkingseriously in terms of a scarcity of water and of the competing interestsfor our water which must be fairly reconciled. No longer can we assumethere is an abundance of water there for everyone's taking for any andall purposes.-Arkansas Supreme Court Justice Darrell Hickman, dissentingin Nilsson v. LatimerJustice Hickman's warning from nearly twenty years ago is not spe-cific to Arkansas. Although until recently water scarcity was an issue ofconcern primarily in the West, the severity of the water crisis in Arkansasand other eastern states has now risen to the level of national concern, asindicated in the recent front page New York Times article Arkansas RiceFarmers Run Dry, and U.S. Remedy Sets Off Debate.2 Underground aqui-fers supplying water for agricultural, industrial, and municipal uses are be-ing depleted at alarming rates. 3 Drought conditions in recent years haveexacerbated the problem, significantly increasing demand on the aquifers* Professor of Law, University of Arkansas at Little Rock William H. Bowen Schoolof Law.1. 281 Ark. 325, 331-32, 664 S.W.2d 447,451 (1984) (Hickman, J., dissenting).2. Douglas Jehl, Arkansas Rice Farmers Run Dry, and U.S. Remedy Sets Off Debate,N.Y. TIMES, Nov. 11, 2002, at Al. Twentieth century water resource developments in theeastern states are traced in a leading water resources law text:Beginning in the middle of the 20th Century, as populations grew and adopteda more affluent life style, per capita and aggregate water usage soared and waterdemand came within hailing distance of water supply in several parts of theEastern United States. Droughts began to have a greater potential to cause dislo-cations in the economy and the way people lived ....Still more recently, the cycle of increased demand and drought intensified.Rapid population growth in some of the region's less water-rich areas, such asthe middle and southern Atlantic coastal regions, stressed available water sup-plies. The economically beneficial development of those areas was put at risk bylack of secure water supplies. Severe droughts during the 1980's caused billionsof dollars in crop losses in the East and led to increased irrigation water demand.JOSEPH L. SAX, BARTON H. THOMPSON, JR., JOHN D. LESHY, & ROBERT H. ABRAMS, LEGALCONTROL OF WATER RESOURCES 76 (3d ed. 2000).3. For instance, scientists warn that at current rates of pumping, aquifers underlyingthe Grand Prairie area of eastern Arkansas will effectively be depleted by 2015. Depletion ofthe aquifers will also likely destroy farming as it is presently practiced in the Grand Prairie.See Chuck Plunkett, Feud Grows on Grand Prairie, ARK. DEMOCRAT-GAZETTE, Sept. 12,1999, at Al.UALR LAW REVIEWwithout the compensating recharge that would come with normal precipita-tion.There is an irony in the crisis. Considered on a statewide basis, manyeastern states have sufficient water. However, because of practical and legallimitations, the "extra" water, in the form of lake and stream surface water,is not necessarily accessible to the areas of need.Solutions to the water crisis have focused on diversion of surface waterto areas of need and on water conservation measures. Arkansas's water cri-sis serves as a useful model for consideration of the water allocation issuesfacing many other eastern states. In Arkansas, the measure receiving thegreatest attention in recent years is diversion of surface water. A plan devel-oped over several years to divert White River water for use by non-riparianagricultural interests in eastern Arkansas at a projected cost of over threehundred million dollars, however, has itself been diverted, at least temporar-ily, in favor of conservation measures, including water storage in on-farmreservoirs.4 Almost certainly the conservation measures will not bring along-term solution to Arkansas's water resource problems, and proposalsfor diversion of surface water will again require serious consideration.To some extent the flexibility of eastern states to address water re-source problems may be limited by established riparian rights water alloca-tion doctrine. The central tenant of the riparian rights doctrine is that onlyriparians, that is, persons owning land abutting a waterway, may use waterfrom the waterway. 5 Common law riparian rights doctrine may limit diver-sion of surface water to property immediately adjacent to the water sourceand bar transmission of water to the non-riparian lands where the water ismost needed. In some states, this restriction is compounded by "the unity oftitle rule",6 by which the amount of riparian land is constantly reduced4. See Chuck Plunkett, Meeting Leads to Truce in Water Feud, ARK. DEMOCRAT-GAZETTE, Apr. 13, 2000, at Al; see also Kevin Freking, State Water Projects Likely Safe,ARK. DEMOCRAT-GAZETTE, May 4, 2002, at Al; Kim McGuire, Bush Again Slights Irriga-tion Work: President's Budget Plan Contains No Funding for Grand Prairie, ARK.DEMOCRAT-GAZETTE, Feb. 6, 2002, at B 1.5. Joseph W. Dellapenna, Introduction to Riparian Rights, in WATERS AND WATERRIGHTS § 6.01(a)(1) (Robert E. Beck ed., LEXIS Repl. 2001). The leading decision of theArkansas Supreme Court discussing riparian rights is Harris v. Brooks, 225 Ark. 436, 283S.W.2d 129 (1955).6. The effect of the unity of title rule was well-illustrated by Justice McFaddin of theArkansas Supreme Court:[The] riparian right is an ever contracting right and never an expanding right:that is, the riparian right may grow smaller by conveyances, but can never growlarger. Suppose the Sovereign of the soil conveys a tract of 160 acres adjacent tothe stream. The extent of the Sovereign's grant limits the riparian use of the wa-ter; and a tract lying immediately behind the 160-acre conveyed tract has no ri-parian rights because the grant has cut off such other land from the stream. If thegrantee of the 160-acre tract should convey the 80 acres immediately adjacent to[Vol. 25INTRODUCTIONthrough division of riparian tracts. However, changing water law doctrinemay run afoul of vested riparian rights to use the water, the change possiblyconstituting a "taking" for which compensation must be paid.7 In thetwenty-first century, challenges to established regimes of water allocationare indeed moving east.Solving the water resource problem implicates other concerns. Diver-sion of surface water to relieve demands on the aquifers has potential ad-verse consequences for the environment, recreational activities, shippingand transportation, water quality, and esthetic concerns. By definition waterdiversion reduces that amount of water carried by a stream or stored in areservoir. The result may negatively affect the habitat of fish and wildlife,the structure of stream banks, and the growth of useful vegetation along thewater source. In turn, fish and wildlife populations may suffer, potentiallyleading to violations of legal protections such as the Endangered SpeciesAct.8 Possible negative impact on shipping and transportation from a re-duced volume of water in the water source is obvious. A diminished volumeof water will likely reduce the water source's ability to dilute pollutants,possibly resulting in the water source failing federal water quality standardsand making the waterway less desirable for boating, fishing, swimming, andother recreational uses.9 Finally, diversion of water may degrade the estheticappearance of the waterway.Other options for solving the water scarcity crisis are experimental orunfamiliar to holders of eastern state water resources. In the experimentalcategory is the artificial recharge of aquifers by collecting surface water inthe stream, the riparian rights contract to the conveyed tract; and the remaining80-acre tract-not adjacent to the stream-loses all riparian rights. Should theriparian owner of the 80-acre tract on the stream later purchase the land behindthe 80-acre tract such purchased land would not re-acquire riparian rights.Harrell v. City of Conway, 224 Ark. 100, 108, 271 S.W.2d 924, 929 (1954).7. Professor Barton H. Thompson, Jr. has addressed the possibility that change inwater law doctrine by either legislation or judicial decision could constitute a taking of prop-erty for which compensation must be paid. Barton H. Thompson, Jr., Takings and WaterRights, in WATER LAW: TRENDS, POLICIES, AND PRACTICE 43-55 (Kathleen Marion Carr &James D. Crammond eds., 1995). In several cases the Arkansas Supreme Court has expressedthe view that, at least under some circumstances, riparian rights may be constitutionallyprotected vested rights. In its most recent expression of that view, the court stated that "[i]t isrecognized that in some instances vested rights may have accrued to riparian landowners andwe could not of course constitutionally negate those rights." Harris, 225 Ark. at 444, 283S.W.2d at 134; see also Thomas v. La Cotts, 222 Ark. 171, 177, 257 S.W.2d 936, 940(1953); Meriwether Sand & Gravel Co. v. State, 181 Ark. 216, 226, 26 S.W.2d 57, 61(1930).8. 16 U.S.C. §§ 1531-1534 (2000).9. The principal federal water quality standards are found in section 303 of the CleanWater Act, 33 U.S.C. § 1313 (2000).2002]UALR LAW REVIEWreservoirs for pumping directly into the aquifers.' 0 In addition to the ex-perimental nature of this proposal, the source of the surface water to bepumped into the aquifers is unclear; the suitability of particular aquifers forartificial recharge is uncertain; and the proposal may be burdened with legalconcerns similar to those that arise with diversion of surface water.An attempt is being made in some western states to shift water to areasof greatest need by creating markets for water rights. In a water market,owners of rights to receive ground or surface water sell their rights to thehighest bidder rather than make direct use of the water. In this way water istreated simply as a commodity and, according to advocates of water market-ing, is applied to its best economic use by the law of supply and demand aswith other commodities." Although to date not actively considered a part ofthe response to water allocation problems in the eastern states, perhaps wa-ter marketing should be added to the mix of possible solutions in thosestates. As with other possible solutions, however, the riparian rights doctrinemay be a barrier to the development of water markets in Arkansas.Since surface and ground water are not necessarily confined by stateboundaries, interstate control of water resources is also a matter of growingconcern. Alabama, Georgia, and Florida are currently involved in a bitterdispute over rights to the waters of the Apalachicola-Chattahoochee-Flintriver system that supplies more than seventy percent of metropolitan At-lanta's drinking water.' 2 Similar interstate disputes may arise over waterthought by Arkansans to be theirs. 13 Legal mechanisms for these disputesare uncertain.Because the immediacy of the water resource crisis in Arkansas andother eastern states has finally gained public recognition, the planningcommittee for the 2002 Ben J. Altheimer Symposium felt that few, if any,topics were more suitable for symposium consideration. Attendance of over10. In April of 2000 an Israeli water expert, Yosef Dreizin, proposed drilling shafts intothe alluvial aquifer underlying the Grand Prairie area of Arkansas. Reservoirs would beconstructed over the shafts and precipitation collected in the reservoirs would drain into theaquifer. Plunkett, supra note 4.11. See generally TERRY LEE ANDERSON & PAMELA SNYDER, WATER MARKETS:PRIMING THE INVISIBLE PUMP (1997); BONNIE SALIBA & DAVID B. BUSH, WATER MARKETS INTHEORY AND PRACTICE: MARKET TRANSFERS, WATER VALUES, AND PUBLIC POLICY (1987).12. Numerous stories in newspapers, magazines, and other media outlets have reportedthe dispute. See, e.g., Charles Seabrook, Florida Again Coaxed To Stay in Water Talks,ATLANTA J. & CONST., June 13, 2002, at 12A.13. The most recent perceived threat to water considered by Arkansans to be theirsstemmed from negotiations between interests in Texas and Oklahoma to divert water fromthree southeastern Oklahoma river basins, including the Little River which flows into south-west Arkansas, to Texas by way of a 100-mile pipeline. Residents were concerned thatpumping water from the Little River would diminish the downstream flow into Arkansas. SeeKim McGuire, Texas Thirst Unquenched: Arkansan Says Though Halted for Now, WaterSale by Oklahoma Worries Natural State, ARK. DEMOCRAT-GAZETTrE, Jan. 15, 2002, at Al.[Vol. 25INTRODUCTION170 at the symposium program held on April 12, 2002, confirmed the wis-dom of the planning committee's choice.Interest in the symposium was significantly enhanced by the out-standing reputations of the speakers who participated in the program. Evi-dence of the speakers' stature in the field of water resources law is reflectedin the process followed to extend invitations to participate. After determin-ing that the symposium subject should be addressed by the most highlyqualified experts whose participation could be secured, a list was compiledof persons satisfying that standard in both state and national reputation cate-gories. The "national reputation" list was composed of the fifteen mosthighly qualified eastern water resource law experts, prioritized based on thevalue those persons would bring to the symposium. We fervently hoped thatfrom among the fifteen we could secure the participation of three or four.To our immense satisfaction, the top four on the "national reputation" listand all of the Arkansas water resource experts agreed to participate.The resumes of the symposium participants having national reputationsas water resource law experts are replete with outstanding achievements.Each has authored books and numerous articles, been a member and officerof many significant water resource commissions and groups, and given ad-dresses having significant impact on water resource development. Profes-sors Robert Abrams and George Gould have each collaborated on two of theleading water law resource texts used in American law schools. 14 ProfessorJoseph Dellapenna is the primary drafter of the Regulated Riparian ModelWater Code and the co-author of the only book to comprehensively treat thesubject of water rights in the eastern states.' 5 He has also been actively in-volved with international water resource issues, especially in the MiddleEast.The qualifications and reputation of Arkansas's own Jake Looney fallwithin both the national and Arkansas groups of participants. Former Deanand Professor at the University of Arkansas School of Law and currentlyteaching at the University of Arkansas at Little Rock William H. BowenSchool of Law, Dean Looney is a nationally recognized authority in agricul-tural law as well as water law, and he is the source to whom all turn on thesubject of Arkansas water law. Alan Perkins, one of the most highly re-garded environmental lawyers in Arkansas and a former editor-in-chief ofthe University of Arkansas at Little Rock Law Journal,' 6 and James Good-14. See GEORGE A. GOULD & DOUGLAS L. GRANT, WATER LAW (6th ed. 2000); SAX,THOMPSON, LESHY & ABRAMS, supra note 2. Professor Abrams is also co-author of a leadingenvironmental law text. See ROBERT H. ABRAMS ET AL., ENVIRONMENTAL LAW AND POLICY:NATURE, LAW, AND SOCIETY (2d ed. 1998).15. See JOSEPH W. DELLAPENNA ET AL., WATER RIGHTS OF THE EASTERN UNITED STATES(Robert R. Wright ed., 1998).16. In 1998, beginning with volume 21, the name of the University of Arkansas at Little20021UALR LAW REVIEWhart, general counsel for the Arkansas Game and Fish Commission, alsomade superb presentations at the symposium program. As for all of the par-ticipants whose written contributions are part of this symposium issue, webelieve the quality of their articles will speak for themselves.Rock Law Journal was changed to the University ofArkansas at Little Rock Law Review.[Vol. 25

An Introduction to Water Rights in the Twenty-First Century: The Challenges Move East

https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1273&amp;context=lawreview

An Introduction to Water Rights in the Twenty-First Century: The Challenges Move East

Abstract

Similar works

Full text

Available Versions

University of Arkansas at Little Rock: UALR Bowen Law Repository