REFLECTIONS ON CONFLICTS OVER URBAN WATER SUPPLY IN THE EAST

Leonard Shabman
Resident Scholar
Resources for the Future
Washington D.C.

Context

Urban water supply expansion may result in a water transfer across the boundaries of political jurisdictions, often accompanied by construction of a new storage reservoir or well field. Water transfers across political boundaries accelerated with the rural to urban migration of the industrial era and transfer proposals will continue with future urbanization.

Citizens in the water's political area of the origin, as well as citizen's in areas downstream, long have opposed transfers. The source of that opposition may have been rooted in a sense of "ownership" of the water, in a belief that water abundance is central to economic prosperity or simply in jurisdictional antagonisms unrelated to water.

However, given the nature of eastern water rights under the riparian doctrine, a lack of demonstrable adverse economic effects of the transfer and the political power of cities versus more rural areas, such opposition was often ineffective. Water was transferred and the gains from the transfer accrued to the urban area.

In the eastern context, the very abundance of water has made it almost impossible to document economic harm from a transfer. Nonetheless, in recent times compensation has been offered to regions from which the water was removed. Such compensation was offered to accommodate and remove politically effective opposition to transfer. Sometimes compensation took the form of financial payments to governments. At other times, the compensation was to particular groups in the region. For example, boating access sites at a reservoir, a fish hatchery or a particular regime or reservoir releases might have been offered to satisfy local recreational preferences. These same actions have been especially attractive to depressed rural areas seeking to stimulate their economic development. In many cases recreational tourism associated with reservoir development has promoted significant local economic activity. In the end, however, if offered compensation did not mollify opposition to the transfer, the cities still had the legal authorities and the political power to prevail.

Today, a new environmental opposition to water transfer has joined with and empowered locally based opponents of transfer. It is important to understand two of the motivations of the environmental opposition to water supply transfer and storage expansion. First, some argue that we need to minimize disturbance to "natural" systems by keeping water in streams and lakes. This argument, often expressed as an ethical imperative, leads to an aversion to new storage reservoirs and a skepticism toward any action that disrupts the pattern and timing of river flows. Even projects such as flood skimming are opposed, based on the view that the total hydrologic pattern of flood and drought is essential to "ecosystem health". Second, some oppose eastern water supply expansion as a means to the end of limiting growth, or what they might characterize as sprawl. For them the control over water supply is a way to force new and more "sustainable" land settlement pattern. What is striking is that these two motivations often are non-negotiable positions and there is little in the way of compensation that a water purveyor can offer that will mitigate the environmental opponents concerns.

Meanwhile, these environmentally motivated opponents of transfer and their area of origin allies do not need to rely on eastern water law as the authority for registering their opposition. The opposition of environmental interests can be effectively expressed through legal mechanisms such as Section 404 permitting, Wild and Scenic River designations and other such federal and state laws enacted since the 1970s. Nor are the environmental opponents in an inferior political power position in expressing that opposition. Claims to occupying the "environmental high ground" on water transfer proposals are readily made by the opponents. As the legal venues for expressing effective opposition to transfer have expanded, and as the political power has shifted, the purveyors of urban water supply have found themselves frustrated in making the supply expansions they feel they owe their customers.

Presentation

To expand upon, and analytically present, the above arguments I will characterize the eastern water transfer as a negotiation game. I will describe the multiple players in the game, generalize about their preferences and then describe how the nature of their preferences affects the their willingness to negotiate and the outcome of the game. I will conclude that conflict over water transfers to eastern cities will escalate for the near term and "gridlock" will characterize the decision-making process. This increased conflict will occur despite the abundance of water (by all objective measures) in the eastern humid region where population concentrations continue to grow in number.

To move forward, I will propose an administrative process with binding arbitration powers charged with facilitating a mediated solution. That process would be initiated when there is a significant water transfer controversy. Depending on the geographic area of controversy, the administrative process would be either inter-state or intra-state. However, the currently hardened positions of the cities and the environmental as players of the water transfer game are such that they may resist supporting and agreeing to particulate in such a process. At present, decision gridlock may best serve the interest of the environmental player. At the same time cities remain convinced that their arguments about the "need for adequate and safe water supplies" will prevail.

John M. Olin Conference on Watershed Management

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