by:
University of Colorado at Denver, ENGR 3400, 24 October 1995
W ater development in the United States has
been a primary factor in the settlement of peoples and the emergence of economic
evolution. That which is of particular interest, is the technology that has been
developed to control and provide irrigation for a variety of applications such as
agriculture, recreational, domestic, and industrial water uses. As is the case
with any resource issue, governing factors are implemented to control and monitor
the resource applications and to ensure proper and legitimate use by all affected
persons, namely the public. Basically, the water laws for the various parts of
the United States are based upon two general doctrines. The basis for each of the
doctrines deals mostly with the geographic location. That is to say, the state
laws are created to protect resources but the application of a specific law is
determined by the specific condition of water in the region.
The aim of this project is to compare and contrast the doctrines of Prior
Appropriation and Riparian Rights. These are considered by most to be the two
general doctrines that currently comprise the use of water in the United States.
In order to illustrate the affects the governmental regulations and guidelines
have upon culture and the technology used to facilitate water, case studies are
examined. Specifically, we look at the arid region of Northern New Mexico and wet
region of Florida. By this examination, clearly there is a direct link between
the geography and the laws that preside over those regions and the cultures and
the technologies that are utilized.
The law of "prior appropriation" is usually associated with
regions that are generally considered "arid". The midwest region of the United
States from Montana in the north and New Mexico, and Arizona in the south, is
subject to the law of prior appropriation. This law emerged from the practice of
gold miners diverting water from nearby streams to their diggings. It became an
accepted practice through time that whoever first used the water earned first
right to the water. However, as the miners moved out and the farmers moved in a
"system of priorities was established." (1) Thus, the
law was adopted by the agricultural settlers as a means of water supply for
farming.
Through various court proceedings and governmental planning, the doctrine itself
has been developed to address relevant issues to the people of the time. For
example, the law was modified to specifically state that, the water must first be
diverted from a stream and put to beneficial use in order to qualify for prior
appropriation. However, even at this point the law is considered "salable",
because the specific uses of water can be based upon the "preferred use".
Preferred use means that the water is not being used in a way that would harm the
public. The preferred use has first claim to the water over non-preferred uses.
The doctrine specifies as example, agricultural uses are generally "preferred"
over industrial uses. An interesting aspect of this notion is that you do not
need to own the land to appropriate the water. At any rate, the law of prior
appropriations has been primarily adopted as a means to end conflicts in the use
and control of water in areas where population exists.
A particular area in the United States where the issue of water evolved to
encompass a whole culture is in Northern New Mexico, at a point where the Rio
Grande River originates but which extends into the far southern part of the state
of Colorado. The region exists on the east slopes of the Continental Divide in
the basin formed by the San Juan and the Sangre de Cristo ranges of the Rocky
Mountains in Colorado. This region is shown on a map on the following page.
A semiarid to arid climate with low humidity and erratic rainfall are
characteristic of the region. Average annual precipitation ranges from 30 inches
in the high mountains and lower Rio Grande coastal plain to only 8 inches in the
middle valley area where most of the precipitation occurs as intense
thunderstorms. Winters can be severe in the high mountains as blizzard conditions
are often experienced in the region. And yet, snow seldom falls in the lower
areas. Summer days are warm with cool nights , resulting in the enchanting sun
country climate, yet the growing seasons vary from a few days per year in the
high mountains to a few months in the lower plateaus.
The people of the area are of Spanish heritage by either Spanish decendents of
the original settlers or migrants from Spanish conquerors who came to the region
from Mexico in 1540. However, it was not until 1598 that the Spanish invaders
seriously settled in the region. In that year, Don Juan de Onate took formal
possession of the area. At about 1610 the Spanish established head-quarters at
LaVilla Rael de la Santa Fe de San Francisco de Assisi, now called Santa Fe, the
capital of New Mexico. This is the oldest seat of government in the United
States. An effort is being made to blend the early Spanish heritage with the
modern setting. The Spanish culture heritage, by contrast, presents a unique
environment attractive to the sun-country migrants and tourists.
There also are 18 Indian pueblos and two Indian reservations within New Mexico
with a population of about 30,000.The Indians in the region also have a rich
historical heritage. Many of the Indian pueblos were here when the Spanish came
and much of the Indian culture has been preserved on the reservations and in the
pueblos. There is no doubt that the Spanish and Indian heritages have an impact
upon the culture and the economy of the region.
The region is blessed with an enchanting sun-country environment, but it does not
have the natural resources to support a vigorous economy. With a per capita
income of only $4,761 , the area ranks within the bottom 10 percent nationally.
Only 35 percent of the total population is employed, which is systematic of the
economy.
Due to the arid region, water is a precious resource and habitation reflects its
conser- vation. Homes and cities adapt to minimal use of water with small lots
and dry garden land-scaping. From the initial Spanish settlement it was
recognized that use of water had to be administered by appropriate laws. The
roots of the region's water laws emanate from Mexico and Spain.
Agricultural production relies upon irrigation. There is more than enough
irrigable land, but the limited water supply will irrigate only about 2 million
acres along the entire Rio Grande Valley which extends the entire length of the
state. There is a very small use of land for dry-crop farming in this arid area,
in the northern part of the state. Livestock grazing utilizes 72 percent of the
land area and dominates the agricultural industry. Much of the rangeland is
fragile and requires careful management to maintain productivity. Crops produced
are generally livestock feed or high-yield truck crops such as alfalfa and hay.
The region's water supply depends almost entirely on ground water supply. Nearly
all of the region has been designated a declared an underground water basin.
Ground-water aquifers in the region consists of both valley fill and bedrock.
Valley fill includes sediments that have been deposited along tributary streams
and that have filled the Rio Grande Trough. These aquifers generally are
stream-connected and are recharged mainly from surface flow. In closed basins
where ground-water sources have been developed, the supply is being mined; that
is, withdrawals exceed recharge. Ground water quality from the Rio Grande Trough
is of acceptable quality not exceeding 500 parts per million (ppm) dissolved
solids.
Quality in the closed basins is highly variable , ranging from acceptable to
brackish. Some waters exceed 2,000 ppm dissolved solids and withdrawals of
acceptable water must be carefully controlled to prevent encroachment of brackish
water into the fresh water pools.
Some of the available ground water come in limited supplies because it is
generally too saline for municipal and industrial uses. Use of this marginal
quality water for irrigation has resulted in severe soil salinity problems
therefore restricting its use. Water is used and reused. Each use adds to the
salinity, as the salts, in general, must be returned to the stream system. Water
quality is a serious problem and precludes or inhibits expanded use of the region
under present conditions.
Manufacturing generally relates to light water-using industries, such as
clothing, electronics, and assembly-type plants. Manufacturing is looked upon as
a solution to improve per capita income and the employment situation. It is
projected that employment must about double in the manufacturing sector by the
year 2000 to accommodate the in-migration to the sun-country environment.
Therefore water is a key problem to support the manufacturing base.
Water is a vital necessity for human habitation within the region and is
carefully administered. The primary problems in the region are associated with
providing a water supply to accommodate an increase in population from 1.6
million people in 1975 to 1.9 million by the year 2000. No additional water
supply is currently available for the majority of this population increase.
Therefore it is necessary that all waters are legally administered through the
appropriation doctrine. Currently, all waters are legally committed to use.
Indians in the region have water rights, and these rights are protected by the
U.S. Federal Government.
It is perceived that neither the state of New Mexico nor the U.S. Federal
Government are taking any type of measures to enhance the availability of fresh
water for this arid region. Under the current laws that govern the allocation of
water the culture in this area will continue to survive under 400 year old
charters .
In contrast to the arid regions governed by appropriation, the riparian doctrines
are associated with the wet regions of the U.S. In order to understand what has
happened over the decades and even centuries with riparian laws, riparian rights
must be explained and how they were influenced by the organization or United
States legislature.
As people moved inward off of the east coast towards the west, the land was being
claimed. People would claim land next to rivers, lakes and ponds in order to have
access to the water which is vital to human existence. By owning the banks of the
rivers, lakes, and ponds, attached certain rights to those owners which are
called riparian rights. As long as an owner's land was part of the banks of these
waters, owners had the right to use the water for the purpose of gain or pleasure
which gave the land its chief value. They had the rights to the access of the
fish in the waters and to divert the water for irrigation purposes. It is the
right of the riparian land owner to use the waters to serve his animals and serve
his family. Under the common law, riparian rights are called natural rights
arising from the laws of nature. The laws of nature says that certain rights are
given because of the natural position of lands, adjoining to a natural stream
flow, giving owner's rights to use the water and the fish within.
As more and more people populated the area in the east there became more and more
riparian land owners. This called for legislators to monitor and even referee the
uses of the waters so that riparian land owners were not deprived of their rights
because they were further down stream to other riparian land owners. This along
with the population increasing, influenced legislators to change and make new
laws concerning water rights and what was considered appropriate use of the
waters. As the need for water increased, so did the laws that defined the uses of
it. Riparian land owner's rights to use the waters became well defined. A
riparian land owner could use the waters as long as they did not deprive or
injure the rights of other riparian land owners downstream. They could not divert
the water in a lot of cases for irrigation or block the fish that would otherwise
continue downstream to other riparian land owners.
A point that is being left out or has not been addressed is the need of the water
for the general population. The general population which had no riparian rights
still needed to be a factor in the laws that governed and shaped how the waters
were used. While the rights of the riparian land owners could not be destroyed by
the general population rights without just compensation they are subordinate to
the general population rights. The state has the power to regulate the water uses
in the interests of the general population. As the law states that a riparian
land owner cannot use the water in a way that will deprive or injure another
riparian land owner, it also includes not using the water in a way that will
injure the general population.
In the following, examples of riparian doctrines are provided as they evolved
over time. Early Eastern American doctrine in the case of Perkins v. Dow by the
Supreme Courts of Connecticut decided that a riparian land owner may take the
water from a stream to fertilize his meadows, provided that he does not deprive
adjoining riparian land owners lower than a sufficiency of water for kitchen and
cattle purposes and that the unused water must be diverted back to the stream. As
Eastern States became more thickly settled and the demand for water became
greater, the same States which had formerly allowed a very liberal use of the
waters for the purpose of irrigation, gradually restricted that use, until the
state had practically adopted all the common laws. In a later doctrine in the
Gillett v. Johnson case, the court charged the women with an illegal act of
diverting the water for the purposes of irrigation. Again as time went on and
people moved westward even firmer laws regarding water had arose which lead into
the appropriation laws and doctrines.
Out of this section on the riparian land owners and doctrines, it should not be
overlooked that as the culture became more and more populated it definitely
influenced the legislature and moved them to make laws regarding the waters. In
return, the legislative laws affected the culture in the east. For just a brief
example, imagine being a riparian land owner who had irrigated his land for as
long as he was able to and then one day being told that the water was no longer
to be used for irrigation. Now imagine all the riparian land owners being told
the same thing. This would definitely change a culture tremendously. It is
apparent that culture influences organization and organization influences culture
and that there is not a one way path of influence. In accordance with discussing
the organizational laws the culture should also be discussed.
To examine the cultural aspects of a riparian society, a case study was done on
the wettest of the wet states: Florida. Although some aspects of Florida might
not be typical of all riparian states because of its geographical location and
climate, it does provide a good example of a worst-case scenario for a riparian
society.
In researching Florida and its culture, lots of problems were encountered.
Mainly, material on this subject was hard to come by. Articles and books on
Florida's water problems and water systems were frequent, but nothing on the
culture of Florida. Then it became apparent that this is their culture. Florida
is a state built of water. Water makes Florida what it is today; a state that
thrives on agriculture and tourism, both of which are heavily dependent on water.
Florida's other two economic bases, industry and the inflow of senior citizens,
can also be related to water.
Florida's water comes from an aquifer system that runs underneath nearly the
entire state. This aquifer system is primarily composed of limestone, a permeable
rock that allows for absorption of water. This seemingly endless supply of water
feeds all of Florida, creating its lakes in lower regions and supplying
groundwater for agriculture and industry. This abundance of water is what allows
land owners their riparian rights and also helps to explain Florida's rapid
growth.
Before 1920 Florida's main economic activity was agriculture. Citrus fruits,
sugar, and tobacco are three of its bigger exports. After World War I, when
automobiles and highways were developed, tourism began to boom. World War II
spurred the manufacturing industry which continues to thrive today in the form of
paper mills, food-processing plants, and electronics. Of all this, though,
tourism brings in the biggest dollars: over $20 billion each year, with
agriculture close behind.
Population growth in Florida is enormous, especially in south Florida, where over
1000 newcomers arrive each day. The economic success of Florida spurs this
growth. There is no state income tax in Florida and the attractive retirement
plans offered by the state entice retirees to find their home there.
The growth and economic success of Florida can nearly all be
tied to water. It is this growth, however, that is causing the demise of this
water. What was once a balanced ecosystem is now an ecosystem thrown into
turmoil. "Few areas in the United States have been so intensively drained, diked,
developed, and otherwise bent to man's use. The paradise of south Florida is
almost totally under the manipulation of man." (2)
Agriculture is chiefly to blame. The drainage of swampland to make way for
agriculture is causing massive erosion to the land. Rechanneling of river water
is costing the lives of many marine animals and subsequently the birds that feed
on them. Lake Okeechobee, Floridaís largest lake, now sees 1.5 tons of
phosphorous flow into it each day, the result of fertilizers, pesticides, and raw
waste from the many dairy farms scattered throughout Florida.
Development has seen the disappearance of 60% of Florida's wetlands. The flow of
people moving to South Florida causes a need for an additional 200,000 gallons of
fresh water daily. This heavy burden on the aquifer causes rapid drainage,
resulting in the seepage of saltwater into the water system. Heavy mercury levels
in the water have made some fish unfit for human consumption. The Everglades has
seen a 95% decline in wading birds native to that area, all attributed to poor
water management.
The 1980's saw improvement for land and water protection.
Legislation regarding leakage and disposal of contaminants are steps toward
Florida's goal of restoring wetlands and protecting wildlife. Protection of
groundwater costs money though, something no one wants to spend more money on. As
John Degrove, professor at Florida Atlantic University states, "You can't be
fourth in growth and rank 47th in taxes. Sooner or later we're going to have to
bite the bullet and pay the taxes to protect our resources." (3) If Florida wants to protect the lifestyle and culture
that they now have, they will indeed have to bite the bullet for better water and
land management.
Florida's water problems may not be typical for all riparian states, but they do
demonstrate what can happen when riparian laws are taken for granted. The
abundance of water in Florida led to centuries of haphazard use by its
population, leading to the problems they face today. The economic convergence of
industry to areas with large water resources is typical for a riparian culture,
as is the convergence of its people. This is evident in Florida and most other
riparian states.
In most of the history books when they talk about a culture or society they never
gave any significance to water. The fact that a society had irrigation or
aqueducts was cited only in reference to their technological advancement. It
never made any allusions to how the use and subsequent control of water could
have had a significant impact on the society as a whole. However, Worster states,
"Water has been critical to the making of human history. It has shaped
institutions, destroyed cities, set limits to expansion, brought feast and
famine, carried goods to market, washed away sickness, divided nations, inspired
the worship and beseeching of gods, given philosophers a metaphor for existence,
and disposed of garbage. To write history without putting any water in it is to
leave out a large part of the story." (4) Whether it
is plentiful or scarce water has the ability to affect a society as few things
do.
There is a connection between water and the societyís customs and organizational
structure. How a society views and uses all resources including water has a
direct impact on how the society forms and in what direction it takes. Worster
identifies three different types of hydraulic societies: the local subsistence
mode, the agrarian state mode, and the capitalist state mode. The local
subsistence mode Worster characterizes by having temporary structures or small
scale permanent works. This society interferes very little with nature or with
the natural water flow of streams. There is direct personal consumption of water,
and products grown with water with no surplus for exportation. In arid areas this
society is not a cohesive whole. Instead of cities they live in small bands or
even single families. As such there is no system of structured government. The
individuals have sole autonomy and authority stays within the local community.
Because the entire society is spread over large areas to be able to use what
water is available there is little interaction between different bands who
identify themselves with a society. Due to the lack of interaction between these
different bands there may be some standardized beliefs and customs, but the
overall practices of each tribe may vary. This group is self-sufficient,
self-managing, and self-reliant. Nature controls their lives, and is the ultimate
ruler in this type of society. Perhaps more than the other two types of societies
the local subsistence mode requires that the people of this society understand
nature and all its workings and to live in harmony with it, because nature can be
merciless to those that do not heed it.
The agrarian state mode imposes itself more on nature and the natural flow of
streams then the local subsistence mode. Once the society starts to try to
control water the structure and organization for that society starts to change.
The economy is redistributed. The money or goods come into the city as payment of
taxes and goes back out as resources to support the irrigation and other projects
in the surrounding areas. Still some of the money stays within the city for
luxuries and also to start supporting the government and their institutions like
the military and education. The military becomes necessary to protect the
interest of the people of the city that includes whatever dams or irrigation
canals it has built. With the increase in the needs of the society there becomes
a need for someone to control the power and to unify the city. Though not clearly
defined whether a society first starts controlling water and then needs a system
of government or if centralized power comes first and focuses the energies of the
society into controlling the water the fact remains that water control and
organizational hierarchy are connected. The emergence of power and a society
hierarchy requires a contract between those in power and those who work for the
good of the people in power and the good of the society.
This society is not without drawback. The individual loses some of their autonomy
in exchange for protection and a share in the wealth, albeit a small share. The
ecological damage done by the society can have long reaching effects. Over time
salt builds up in the soil and salinity poisoning occurs. This causes the soil to
be infertile. Also the fisheries are depleted. Schistosomiasis, a disease caused
by worms in the intestines of humans, rises in people working the fields or the
water if sanitation goes unchecked.
The last society that Worster defines is the capitalist state mode, which he
defines with the American West. It requires a complete domination over nature,
and creates a modern capitalist state. To differentiate it from the agrarian
state mode that develops out of the local state mode requires that there is
already a structured organization in place before water domination occurs. There
are two sectors the private sector consists of agriculturists and the public
sector that consists of bureaucrats and city planners. Its hierarchy is similar
to what Marx sees as the capitalist structure with the engineers or the
politicians, who have the knowledge or the resources, having the power and the
workers, who do the actual work, have no power. All money and hence all power
goes to the those with the knowledge or the capital. There is not an equal
distribution of the wealth, and so there is no equal distribution of the power.
There is even less autonomy of the individual then in the agrarian state mode.
Water is a commodity to be bought and sold, and therefore to be owned. Water has
no intrinsic value except in what it can produce. The capitalist state mode needs
modern technology and since the capabilities of technology are unlimited the
domination of water is unlimited.
Although there may be many factors that go into the creation of a society the
importance of water should not be overlooked in the history of that society. The
amount of water available to that society has a direct influence on the society's
laws governing water and the culture it produces. Also, not to be ignored is the
fact that the geography of the land calls for specific laws to be made in
relation to its use and requires specific technology to tame it. future and
repercussions
The United States is now beginning to discover the repercussions of the laws
passed during its infancy. Worster allows that other hydraulic societies may
emerge, but whatever happens society will meet those challenges with new laws and
new innovations. Nature in turn will create new challenges to overcome.
NOTES:
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