Legal Challenges in Conserving Water in the United States

Climate change may cause significant long-term drought in parts of the United States and the rest of the world.  Water conservation is essential in assure adequate fresh water supplies.  Water withdrawals for thermoelectric power and irrigation uses currently account for most of the water diversions.  Implementing advancements in irrigation technology, lining irrigation ditches, and replacing leaking municipal pipe provide water savings.  Reducing water withdrawals, however, is also part of the solution.  Forced reductions in water use by government regulation, however, is difficult because of constitutional restrictions.  Water rights–the right to divert and use water for specific purposes–are property rights in the United States, whether the rights are “riparian rights” (based on land ownership along rivers and streams) in the humid eastern United States, or “appropriation rights” (first in time, first in right) in the arid West.  Property is protected against government takings without compensation under the Fifth Amendment to the United States Constitution.  “Takings” can include, besides direct eminent domain condemnation for public purposes, regulatory measures that reduce the value of one’s property beyond constitutionally acceptable limits.  These limitations make it difficult for regulators to force reductions in water use.  Some states, however, have overcome this difficulty to some extent. California has adopted the “public trust doctrine,” allowing water cut-backs.  Additionally, a California court has ruled that irrigators have no right to waste water.  Arizona legislation has achieved water conservation by requiring reductions of withdrawals in stages over four decades.  Kansas has created “intensive groundwater use control areas” (IGUCAs) and has promoted voluntary measures in two ways: a multi-party agreement among water users and government agencies to preserve the Quivira National Wildlife Refuge and legislation promoting “local enhanced management areas” (LEMAs), with voluntary water reductions initiated by local users.  Water conservation over the long run will require steps by water users, scientists, governments, and the public—technological advances to improve water use efficiencies, government policies that no longer encourage use of water in arid areas to grow unsuitable, water-loving crops, forced water use reductions within constitutional limits, voluntary measures by local governments and users, and recognition by the public that we have a serious problem to be solved.