Coordinating Water Resources in the Federal System

Members of theU.S. Advisory Commission on Intergovernmental Relations

(October 1991)

Private CitizensDaniel J. Elazar, Philadelphia, Pennsylvania

Robert B. Hawkins, Jr., Chaimzn, San Francisco, CaliforniaMary Ellen Joyce, Arlington, Viginia

Members of the U.S. SenateDaniel K. Akaka, Hawaii

Dave Durenberger, MinnesotaCharles S. Robb, Viginia

Members of the U.S. Hour of RepresentativesDonald M. Payne, New Jersey

Craig Tbow WyomingTed MUSS, New York

Officers of the Executive Branch, U.S. GovernmentDebra Rae Anderson, Deputy As&ant to the Resident,

Director of Intergovernmental AffairsSamuel K. Skinner, Secretaq of Transportation

vocaney

GovernorsJohn Ashcroft, Missouri

Booth Gardner, WAshingtonGeorge A. Sinner, North Dakota

Stan Stephens, Montana

MayorsVictor II. Ashe, Knoxville Tbnnessee

Robert M. Isaac$ colorado springs, ColoradoJoseph A. Leafe, Norfolk, Viginia

*f=Y

Members of State LegislaturesDavid E. Nething, North Dakota Senate

Samuel B. Nuneq Jr., President, Louisiana SenateTed L. Strickbmd, Colorado Senate

Elected County OffkialsAnn Klinger, Merced County, California, Board of Supervisors

James J. Snyder, Cattaraugus County, New York, County LegislatureD. Michael Stewart, Salt Lake County, Utah, County Commission

CoordinatingWater Resources

in the Federal System:The Groundwater-Surface Water Connection

U.S. Advisory Commission onIntergovernmental RelationsOctober 1991 l A-l 18

U.S. Advisory Commission onIntergovernmental Relations

800 K Street, NWSouth Building

Suite 450Washington, DC 20575

(202) 6533640FAX (202) 653-5429

ii U.S. Advisory Commission on Intergovernmental Relat ions

Executive Summary

Groundwater appears in basins throughout theUnited States. It serves half of the nation’s populationwith drinking water and provides significantamounts of the water used for irrigation, livestock,and industry. In addition to being an importantsource of water supply, groundwater basins are alsosources of storage capacity In fact, undergroundstorage has greater capacity than surface storage andis more desirable in several respects.

The value of groundwater basins as sources ofwater supply and storage has been increasing forseveral reasons: (1) increasing water use; (2) greaterpast development of surface water supplies; (3)increasing concerns about water quality; (4) needs forprotection of instream flows of surface streams; and(5) increasing reliance on groundwater supplies forthe more highly consumptive uses of water

A crucial factor in the determination of the valueof groundwater supplies-and, hence, the perceivedneed for improved management - is the very unevendistribution of supplies and use, even within regions.Groundwater availability and types of basins alsovary throughout the country As a result, most ground-water management has been initiated by state andlocal governments, despite increased calls for activefederal management

In many cases, state and local governments havepursued conjunctive management of groundwatersupplies together with available surface water sup-plies Conjunctive management-the coordinationof conjunctive use - exploits the different characteris-tics of surface and groundwater, and coordinates useand storage so as to increase the total water yield overtime; increase reliability of water supply; reduce risksof total loss of supply from quality degradations; andlower the costs of construction, transmission, distribu-tion, and maintenance. Conjunctive management(managing surface and groundwater supplies togeth-er) is distinguished from integrated management(managing groundwater supplies and groundwaterquality together).

Management is defined in terms of functions,notin terms of the types of organizations that performthose functions, thereby recognizing that multipleorganizational and interorganizational forms maybeeffective. The functions of conjunctive managementare: control of overdraft, which in turn involveslimitations on water withdrawals and assuring suffi-cient replenishment regulation of storage capacity;protection of water quality from degradation result-ing from management practices; the assignment ofmanagement costs; and maintaining adaptabilityand error correction capabilities.

Most planned conjunctive management com-bines public and private institutions to coordinate theconjunctive use of surface and groundwatersupplies.Debates over the proper models of organization-privatization versus centralized public authority-overlook the experience of groundwater manage-ment and the desirability of a noncentralized,public-private management setting. This helps todefine and represent different communities of inter-est, with real advantages in conjunctive manage-ment, particularly for enhancing efficiency andequity while maintaining adaptability.

The United States has a complex and regulatedwater economy, involving provider and producerorganizations (importers, wholesalers, retailers,and regulators). This complex water economy in-volves hundreds of thousands of organizations andinterorganizational relationships, which can beunderstood using the organizing concepts of ourmixed political economy.

Conjunctive management calls for the coordinateduse of surface and groundwater supplies This does notnecessarily mquiie organizational integration The lar-ge+cale physical facilities and capital investmentsrequired for surface water development call for adifferent scale of organization than groundwater devel-opment This is demonstrated by the fact that most smallwater systems rely on gnnmdwater while the very largesystems mly primarily on surface water

U.S. Advisory Commission on Intergovernmental Relations iii

Coordination is achieved through a variety ofinterorganizational arrangements, including con-tracting. Dispute resolution also is achieved by sever-al means, including negotiating., bargaining andadjudication. Special districts frequently have beenestablished because their jurisdictional boundariescan be adjusted to communities of interest, becausetheir separate existence increases their financialautonomy, and because they can act as functionalspecialist organizations.

State and local initiatives to improve manage-ment of groundwater supplies range from central-ized administration of state statutes to local specialdistrict operations without statewide authority, andalso include interstate and interlocal cooperation andcoordination. It is impossible to distill a model forstate or local groundwater supply management fromamong the many options.

Nevertheless, important barriers to more effec-tive conjunctive management remain. Most of thesebarriers are institutional, having to do with the rulesgoverning behavior and the incentives facing waterusers. Many states’ water rights rules inefficiently tiewater rights to land ownership, leave water rightsunquantified, generate disincentives to conservewater supplies and to use underground storage, andinhibit transfers of water rights from lower valued tohigher valued uses. Federal laws have created un-specified “reserved water rights,” generating addi-tional uncertainties for state and local decision-makers. More effective management requires waterrights characterized by certainty and flexibility. Mostexisting systems impose obstacles to both.

The continued underpricing of water, whether asa result of local pricing practices, state and federalsubsidies, or both, reduces incentives to use waterconservatively. In many cases, local water users have

organized as much to seek state and federal watersubsidies as to improve management The subsidiza-tion game, whereby local beneficiaries attempt tospread costs to the residents of larger jurisdictions, hasencouraged the overuSe of cheap water supplies andinhibited improved management

The federal government has considered severalgroundwater management initiatives during the pastdecade. Most of these are mandates and conditions offederal assistance to state and local governments,despite the fact that the scope of direct federal actionwas expanded by the Supreme Court’s ruling thatgroundwater is an article of interstate commerce(Sporltnse v. Nebmskn, 1982). Mandates and conditionsmay inhibit innovations. In particular, conditioningfinancial assistance for water projects on federalapproval of state or local groundwater managementprograms is likely to be counterproductive if anapproved project develops subsidized and under-priced water supplies

Some pending federal action would help toremove barriers to effective groundwater manage-ment Increased research, especially on institutionalarrangements, appropriately organized on a nationalscale, aids state and local decisionmakers in devisingand implementing effective programs. Increasedinformation sharing programs among state and localgovernments would also improve the base for man-agement decisions.

This report concludes with a set of recommenda-tions for federal, state, and local contributions to theimproved management of groundwater supplies.The recommendations do not include the develop-ment of additional water supplies, but emphasizeimproving the institutional arrangements for allocat-ing, managing, and protecting groundwater suppliesin a federal system.

iv U.S. Advisory Commission on Intergovernmental Relat ions

Preface

Water supply and water quality emerged asimportant issues during the 1970s. Early in the 198Os,former Environmental Protection Agency Adminis-trator William Ruckelshaus described groundwatermanagement as “the environmental issue of thedecade.” Both decades were characterized byincreas-ing groundwater use, multiple (and sometimes con-flicting) claims to existing water supplies, greaterconcerns about protecting environmental qualityand aesthetic values of surface water supplies, andrestricted availability of public sector funds for addi-tional water development During this period, theattention of concerned citizens and policymakersturned toward improved management of groundwa-ter supplies. This has led to a general consensus insupport of the idea of conjunctive management, thecoordinated use of groundwater and surface watersupplies, where possible, Coordinated use can in-crease total water supply, with greater reliability andlower costs, while protecting water quality

This kind of coordination entails active manage-ment and high information requirements. Moreover,availability of and dependence on groundwatersupplies differ widely from one location to another.This combination of factors prompts a considerationof institutional arrangements and intergovernmen-tal relations in water resources, an important concernfor the 1990s.

This report contains contrasting perspectives ongroundwater use and management Among otherthings, the report encourages consideration of gover-nance of groundwater resources in a federal system insubstantive rather than organizational terms.

Among the findings in the report is that theinvolvement of several governmental and non-governmental bodies does not necessarily precludeeffective water resource coordination. In severalinstances, it reflects the coordinated activity of func-tional specialist organizations, with extensive inter-governmental cooperation in dealing with the multi-ple attributes of groundwater resources. Differentorganizational forms have been effective,suggesting

that a federal system such as ours in fact has greatorganizing and coordinating strengths.

All types of governments in the Americanfederal system have roles to play in facilitatingimproved water resource coordination. The severalfunctions involved have different appropriate scalesof operation. Some, especially the development ofbasic research, applied research capability, and theproduction and dissemination of information, areappropriately organized on a national scale, whetherthrough direct federal activity or support for universi-ties, water resources research centers, and the waterresources associations and organizations. Other func-tions, such as the improvement of institutional capac-ity for regulation and conflict resolution, the estab-lishment of incentive-compatible laws governingwater rights and transfers, and technical and finan-cial assistance to groundwater management institu-tions, are appropriately organized by the states Stillother functions, such as appropriate water supplypricing, and activities requiring close knowledge ofthe groundwater resource and its users, such ascontrolling overdraft and regulating undergroundwater storage, are organized on a local scale, often byspecial governmental units. Many of these functionsare performed by these governments, and this reportcontains several examples of their work and thecoordination among them.

One of the more important roles that govern-ments could play is to change laws and policies thatobstruct more efficient water use. This report identi-fies important barriers and suggests changes that thestate and federal governments could make to reduceincentives for water user behavior that is inconsistentwith water resource coordination.

The Advisory Commission on Intergovernmen-tal Relations is pleased to offer this contribution to theconsideration of how to improve the management ofgroundwater supplies in the United States.

Robert B. Hawkins, Jr.Chairman

U.S. Advisory Commission on Intergovernmental Relations v

Acknowledgments

William Blomquist, Assistant l?mfessor of PoliticalScience at Indiana University was the principal investi-gator for this project and the author of this report

ACIR is grateful to the following individuals whoreviewed and commented on the study: Roy Arnold,Julie Baker, Bruce L Bandurski, Ray Beurket, EnidBeaumont, Judith Burrell, Don Chery, Jr, Jo Clark,William G. Colman, Tom Curtis, James B. Hyland,Louise Jacobs, Kent Jeffreys, Rick Kuhlenberg, SteveLight, E. Blaine Liner, William Lord, Daniel R.Mandelker, Ardith Maney, Marian Mlay, Debra Nes-bitt, Edith Page, Eugene Patten, Ken Rubin, MichaelRubino, R. I? Shimer, Ethan T Smith, Tom Schwa&erg,Alex Varela, and Thomas Wehri.

Others who read and commented on portionsof the report include Ronald J. Oakerson, ElinorOstrom, Vincent Ostrom, and reviewers from theU.S. Army Corps of Engineers and the U.S. Bureau

of Reclamation. Staff members of U.S. Rep. AndrewJ. Jacobs, Jr., of Indiana and Rep. George Miller ofCalifornia, and Sen. Richard Lugar of Indianaprovided information on legislative develop-ments. Their assistance is appreciated.

At ACIR, the project was directed by Bruce D.McDowell, Director of Government Policy Research.Joan Casey edited the report for publication, andsecretarial assistance was provided by Lori Coffel andSuzanne Spence.

The Commission and its staff are grateful toProfessor Blomquist and to all who provided assis-tanceon the report,but retain full responsibility for itscontents

John KincaidExecutive Director

vi U.S. Advisory Commission on Intergovernmental Relations

U.S. Advisory Commission on Intergovernmental Relations vii

Contents

Findings and Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1 .

2.

3.

4

5 .

6 .

7 .

8 .

Significant Water Supply Problems Exist in the United States, and GroundwaterIs an Element of Many Such Problems. . . . . . . . . . . . . . ..a........................United States Water Problems Are Largely Problems of Coordination and Incentives,Rather than Problems of Scarce Natural Supplies. . . . . . . . . . . . . , , . . . . . . . . . . . . , . . . .Groundwater Potentials for Helping to Meet America’s Water NeedsHave Not Been Fully Considered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Coordinated Management of Underground and Surface Water ResourcesOffers Great Potential for Helping Solve Many of America’s Water Supply ProblemsSuccess in Coordinating Surface and Underground Water Supplies Rests,to an Important Degree, on Adequate Protection of Water Quality. . . . . . . . . . . . . . . . .Properly Coordinated Water Resource Management Requires Intergovernmentaland Interagency Cooperation, and Does Not Necessarily Require “Consolidation”of Responsibilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .There Are Several Barriers to Improved Water Resource Use and Coordinationin the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Despite Many Barriers to Success, There Are Promising Examples of Water ResourceCoordination in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 . Encouraging Better Coordinated Governance of Water Resources . . . . . . . . . . . . . . . . .2 Providing Incentives for, and Removing Institutional Barriers to, the Coordinated

Use of Water Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 . Facilitating Improved Water Resource Use and Protection through Research,

Information, and Broadly Trained Water Resource Managers . . . . . . . . . . , . . . . . . . . . .

Chpter 1 - Groundwater and Intergovernmental Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Scope and Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Conjunctive Management and Integrated Management: An Important Distinction . . . . . 10Other Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10The Plan of this Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Chpter 2 -The Value and Use of Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13The Value of Groundwater Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Groundwater as a Source of Water Supply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Groundwater Basins as Sources of Water Storage and Distribution . . . . . . . . . . . . . . . . . . . 16

“Quality is Quantity”: The Importance of Protecting Groundwater Resources . . . . . . . . . . . . . 17GroundwaterUse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A “National Groundwater Problem”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Where Is Improved Management Most Needed? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

1

1

2

2

2

3

3

444

5

6

viii U.S. Advisory Commission on Intergovernmental Relations

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapfer3-The Concept and Practice of Conjunctive Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The Concept: Maximizing the Value of Water Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Variability of Surface Water Supplies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Regulating Surface Variability with Underground Storage . . . . . . . . . . . . . . . . . . . . . . . . . .Uniting Alternative Sources of Supply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Underground Transmission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conjunctive Use and Conjunctive Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Defining Conjunctive Management in Substantive Terms . . . . . . . . . . . . . . . . . . . . . . . . . . .Controlling Overdraft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Regulation of Storage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Protection of Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Distribution of Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Adaptability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Practice of Conjunctive Management: Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Centralized State Administration: The 1980 Arizona Groundwater Management Act . . .Interjurisdictional Coordination: Los Angeles County California . . . . . . . . . . . . . . . . . . . .Intergovernmental Contrads: The Solano Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Appropriation Permits, Offsets, and a “Water Czar”: The New Mexico State Engineer . . .Interstate Competition and Interstate Coordination: The Delaware River Basin . . . . . . . .Interlocal Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Additional State and Local Innovations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Lessons Learned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 4- Understanding the Organization of Water Resource Management . . . . . . . . . . . . . . . . . . . . . .A Complex Water Economy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The Role of Special Water Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Private Suppliers in the Water Economy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The Role of Associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Adjudications and the Rights of Providers and Producers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Regulators in the Complex Water Economy: The Protection of Water Quality . . . . . . . . . . . . . .TheRoleoftheStates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

StatesasRegulators.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .States as Water Suppliers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .States as Rulemakers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .States as Policy Innovators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Role of the Federal Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A Supportive Federal Role: Information and Technical Assistance . . . . . . . . . . . . . . . . . . . .The Federal Government as Water Supplier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The Federal Government as Regulator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 5- Water Resource Management: Problems and Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Lack of Definition and Transferability of Production and Storage Rights. . . . . . . . . . . . . . . . . . .

State Water Rights Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Legal Separation of Surface and Groundwater Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Rights to Store and Recapture Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Authority for Conjunctive Management Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Problems of Unspecified and Latent Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Lack of Transferability of Production Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Distortions Created by Water Subsidies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Lack of Information Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23

U.S. Advisory Commission on Intergovernmental Relati ions ix

2727

27272828

28

2929303 13 13 1

3 132364042444547

49

5555596 16 1626365

65676767

68

687 17273

7980808283848489959899

Chapter 6-Modifying Intergovernmental Relations in Water Resources Management:Whether,Why,andHow............................................................ 105Applying Concepts and Lessons Learned . . . . . . . . . . . . . . . . . . . ..a....................... 105

The Concept of Scale, the ‘lhsks of Conjunctive Management, and Multiple Jurisdictions . . . 1 0 6Protection of Groundwater Quality A Different Set of Roles and Relationships? .s..... 110

Ending Subsidies, Increasing Information, and Supporting Quality Protection:What the Federal Government Can Do . . . . . .* . . . . . . . . .* . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Changing Water Rights Laws, Encouraging Basin Management,Setting Quality Protection Policy. What the States Can Do . . . . . . . . . . . . . . . . . . . . . . . ...* 123

Getting the Prices Right: What Local Public and Private Water Organizations Can Do . . . . . . 124Summary . . . . . . . . . . . . . . . . ..*...................................................... 125

Appendix A - Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 9Table A-l - Groundwater Withdrawals as a Percentage of All Water Withdrawals, 1985 . . . . 1 3 0T’bZe A-2 - Groundwater Withdrawals Per Capita Per Day, in Gallons, 1985 . . . . . . . . . . . . . . 130Table A-3 -Percentage of Population Served by Groundwatel; 1985 . . . . . . . . . . . . . . . . . . . . . . 131TubleA4-Percent of Public Water Supply from Groundwater Withdrawals, 1985 . . . . . . . . 1 3 1TubleA-5- Percent of Withdrawals for Industrial Use from Groundwater, 1985 . . . . . . . . . . . 132Table A-6-Percentage of Withdrawals for Irrigation from Groundwateq 1985 . . . . . . . . . . . . 132

Appendix B-Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

FiguresFigure 21 -Underground Aquifers in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4Figure 22 -Average Annual Precipitation in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0Figure 2-3 - Groundwater Dependency in Selected States, 1982 and 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Figure 2-4-Simplified Water-Resources Budget for U.S. Water-Resources Regions, 1980 . . . . . . . . . . . . . . . 22Figure 3-1 -Active Management Areas and Irrigation Non-Expansion Areas in Arizona . . . . . . . . . . . . . . . 34Figure 3-2 -Simplified Pictorial Representation of Conjunctive Management

in Los Angeles County, California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9Figure 4-Z - Groundwater Research Expenditures, by Federal Agency and Program Category . . . . . . . . . . 70Figure 5-l -Comparison of Annual Utility Bills, 1950-1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4

x U.S. Advisory Commission on Intergovernmental Relations

Findings and Recommendations

FINDINGS

1. Significant water supply problems exist in theUnited States, and nroundwater is an element ofmany such prbblem;.

In the West, there are many arid areas and majorpopulation centers supplied from large water im-poundments created by the federal government Asdevelopment pressure has been placed on this finitenumber of impoundments, competition for this waterhas grown to great intensity At the same time, most ofthebest opportunities for impounding surface watershave been developed already, and efforts to expandsurface water storage capacities arr subject to increas-ing costs and growing environmental objections.

In areas with rapid growth and high dependenceon groundwater, such as Florida, the land sometimessubsides when too much water has been withdrawn.Excessive ratesof groundwaterwithdrawal lower thewater table and increase pumping lifts, energy use,and expense. In addition, coastal areas may experi-ence infiltration of the groundwater by sea water asthe groundwater table is pumped down.

In New England and certain other places, therehave been highly publicized cases of groundwatercontamination by toxic chemicals and other pollut-ants Contamination can leave groundwater suppliesunusable or subject to the need for treatment, whichgenerally has not been provided for groundwatel Asa consequence, new federal groundwater qualityprotection regulations have gone into effect, requir-ing state groundwater planning and regulation.

In most parts of the nation, groundwater andsurface water resources are usually managed sepa-rately. Most communities have only a single source ofwater supply, and are highly vulnerable in times ofdrought or other catastmphe. Alternative supplies on anadequate scale would not be available in the short run

Most water supply planning has been done forsurface waters. Most places that use groundwater

assume that they can continue to do so withoutplanning.

Asmostofthebestopportunitiesforimpoundingsurface waters have been developed, and as environ-mental objections to new impoundments havegrown, it has become increasingly difficult to expandsurface water storage capacities.

Despite these problems, many regions of thenation and many communities enjoy abundant watersupplies relative to current and projected needs.Groundwater supplies, in general, are much largerthan surface supplies, and groundwater supplies amsatisfying an increasing share of water needs in theUnited States However, water resou~es differ so muchfromplacetoplacethatwaterneedsmustbeconsideredwithin the context of each region and each communitybased on current and long-term prospects

2. United States water problems are largely prob-lems of coordination and incentives, rather thanproblems of scarce natural supplies.

Overall, the United States is blessed with abun-dant water resources. Surface supplies of water aregreat and have been augmented massively over theyears. In addition, the nation’s groundwater suppliesare many times as great as its surface supplies.

In areas where adequate water supplies havenot been available naturally, public works projectshave brought water from great distances to meetgrowing needs, and even to create new uses forwater in those areas.

Still, demand for water sometimes outruns supply.Crops that need great amounts of water are grown inarid areas Urban dwellers fail to conserve water:Irrigation techniques too often let a high portion of thewater escape into the air or ground without benefitUnderground and surface waters are seldom managedin conjunction with one anothe4 despite the potentialfor these supplies to augment and complement eachother: Abundant gmundwater supplies, in some cases,have been polluted to the extent that they have had to

U.S. Advisory Commission on Intergovernmental Relations 1

be left unused. Water rights, under present laws in someplaces, allocate abundant amounts of water to certainuses while denying it to others

If these problems are to be addressed, waterresources must be managed effectively and effi-ciently. Intergovernmental and interagency coor-dination mechanisms and processes, as well asincentives for cooperation, have been useful inaddressing these problems.

3. Groundwater potentials for helpingto meet Ameri-ca’s water needs have not been fully considered.

Groundwater resources are of irreplaceable val-ue to the United States. Groundwater now providesapproximately 20 percent of all U.S. water withdraw-als, and supplies part or all of the drinking water forapproximately 50 percent of the nation’s population.In addition, underground water basins provide alow-cost, high-quality means of water storage andtransmission with potentially increasing value asabove-ground water storage and transmission facili-ties grow more costly, both economically and envimn-mentally Even in areas where surface water providesan adequate primary supply, groundwater may beavailable for use as an alternative supply in cases ofdrought, pollution, or other primary supply loss

If groundwater is accurately quantified,allocatedamong users, managed well, and replenished faith-fully, it could become even more significant inmeeting America’s water needs. Unfortunately manygroundwaterbasins have been neither quantified norallocated among the users with a claim on them,including the reserved rights on federal and Indianlands. In addition, sound planning and managementof groundwater is more the exception than the rule.

4. Coordinated management of underground and sur-face water resources offers great potential for helpingsolve many of America’s water supply problems.

The overall goal of coordinating the allocation,storage, conservation, and use of underground andsurface waters is to optimize the performance of totalwater resource systems in meeting the needs of apopulation and sustaining the natural environment.This type of management requires multi-objectiveperformance goals and performance measures toguide the actions of multiple providers and users ofwater. These goals and measures should apply equal-ly to groundwater and surface water resources.

The following performance goals apply to watersupply management systems generally: (1) efficiency inresource use and in administration of the managementsystem, (2) equity in the distribution of costs andbenefits, (3) maintenance of acceptable water quality, (4)ensuring long-term sustainable yields, and (5) adapt-ability to meeting changing conditions and needs

Where groundwater and surface water supplies can bephysically interconnected, a broad consensus has devel-oped in favor of optimizing efficiency in resource usethrough the coordinated management of surface watersupplies and storage with groundwater supplies andstorage. This coordination takes account of the valueand the limitations of both sources of water

The following performance goals are part ofcoordinated water resource management systems: (1)control of overdraft, (2) regulation of storage capacityand water in storage, (3) assignment of costs, (4)adaptability, and (5) protection of water quality. Wellperforming water resource management systemsthat meet these goals contribute strongly to theattainment of the general performance goals ofefficiency, equity, adaptability quality, adequacy, andsustainability of supply.

Coordinated management of groundwater sup-plies necessarily broadens management consider-ations beyond those of managing the supply of waterin a groundwater basin alone. Water storage and useof the storage capacity of surface and undergroundreservoirs, surface water availability and use, and waterquality protection all become elements of the manage-ment system As a result, the information requirementsof coordinated water resource management are espe-cially high, and include not only hydrologic informa-tion but close knowledge of changes in resourceconditions as well as information on water qualityconditions and risks associated with contamination

5. Success in coordinating surface and undergroundwater supplies rests, to an important degree, on ad-equate protection of water quality.

The importance of water quality protectiondeserves special mention because of its relationshipto effectivesupply management. While surface waterquality has improved over the last two decades,groundwater contamination is a serious and growingproblem in many communities in the United States.Groundwater quality degradation not only poses risksto human health and to the animal and plant life ofwater ecosystems, it also creates imposing challengesfor the coordinated allocation, storage, conservation,and use of surface and underground water supplies

The relationship between water quality andwater supply is captured by the expression “quality isquantity”; that is, deterioration in the quality of watercan render it unusable as a source of water. There hasbeen considerable federal, state, and local activityover the last two decades intended to protect andrestore groundwater quality, but much remains to bedone. The information requirements of groundwaterprotection are high-especially with respect to riskassessment that relates levels of contaminants to effectson human health Capital and technical requirementsof water quality protection also are high.

2 U.S. Advisory Commission on Intergovernmental Relations

The appropriate configurations of intergovern-mental roles and relations for protecting groundwa-ter quality may be different from those involved inmanaging water supplies. The leadership role of thefederal and state governments has been, and is likelyto remain, greater than local governments in protect-ing groundwater quality. Still, coordinated use ofsurface and groundwater supplies cannot proceedwithout taking account of water quality protection.Coordinated water resource management must, at aminimum, ensure that water quality is not harmed; ata maximum, it should contribute to the protection andenhancement of water quality. Nevertheless, as theexperience of several states demonstrates, waterquality protection and water supply management donot have to be completely integrated organizational-ly for each to perform well.

6. Properly coordinated water resource manage-ment requires intergovernmental and interagencycooperation, and does not necessarily require “con-solidation” of responsibilities.

Attention to the coordinated management ofsurface water and groundwater supplies,with a viewto improving the performance of water resourcesystems, requires a recognition of “the boundaryproblem.” The boundaries of existing political juris-dictions- especially general purpose jurisdictions,such as municipalities, counties, states, and thenation-often do not match the boundaries ofgroundwater basins or of interrelated surface waterand groundwater systems. This is an inherent charac-teristic of natural resource systems.

Fortunately, the American federal system pro-vides opportunities for instituting public decision-making processes on scales more nearly conformingto those of a given natural resource system and itsconstituent elements. In many areas of water supplymanagement, new jurisdictions have been created toencompass some part or all of a water supply system.In other cases, intergovernmental arrangements -such as compacts, commissions, agreements, andstipulated adjudications - have been devised amongexisting jurisdictions that share a water source. Often,both the creation of new jurisdictions and the devel-opment of intergovernmental arrangements havebeen employed in the design of water supply man-agement systems. This degree of public entrepreneur-ship has been coupled with considerable privateentrepreneurship in the water supply field. Altogeth-er, the many organizational forms (private as well aspublic) and interorganizational arrangements forwater provision, management, and regulation havecome to constitute a complex “water economyF

Although none of these various forms and arrange-ments axe cost free, problem free, or error fme, there isconsiderable scperience on the record that such institu-

tional innovations can contribute to improved waterresource coordination. There is no presumption in favorof any one organizational form or set of interorganiza-tional agreements for improving the performance ofwater management systems everywhere. Indeed, whenthe opportunities provided by a federal system fordevising decisionmaking pmcesses are coupled withthe variety of water supply conditions across the UnitedStates, there is a presumption in favor of diversity in theorganizational forms and intemrganizational arrange-ments for managing water supplies This findingreinforces the importance of maintaining a focus on theperformance of management systems, rather than onparticular organizational forms

7. There are several barriers to improved water re-source use and coordination in the United States.

The principal barriers to successful coordination ofwater resources are lack of institutional flexibility andleadership for effective participation in intergovem-mental management processes, the diversity and inflex-ibility of water rights laws, inadequate and dysfunction-al incentives for efficiency in water use, and inadequateresearch, information, and training support for im-pmved water resource coordination practices

With respect to institutional inflexibility and lack ofleadership, it is important to recognize that tesponsibili-ties for water supply generally are separated fromresponsibilities for water quality Within the realm ofwater supply, institutional responsibilities for ground-water and surface waters are also generally separate. Inaddition, the interests of water providers and users maybe different Finally the local, state, and federal govem-merits have separate responsibilities with respect toboth water supply and water quality

These divisions have advantages and disadvan-tages. The advantages lie in promoting the entrepre-neurial spirit, advocacy for better service provision,and maintenance of a program focused on control ofthe source of pollutants. The disadvantages are in thelack of coordination and long-term respect for sus-tainable supplies and ecologies.

The diversity of jurisdictional boundaries multi-ply the divisions of basic interests. Groundwaterbasins and surface watersheds do not always exactlycoincide, while city, suburb, and rural districts com-pete politically for the use of the same water re-sources. Single-minded water districts sometimespromote one concept of water use, while generalpurpose governments support another

The larger coordination issues too often lead toconfrontations over who is right-win or lose-ratherthan to efforts to accommodate diverse interestswithin a shared water resource basin. Arenas forresolving water issues include the courts, politicalforums, and administrative processes, Strong politi-cal leadetship often is necessary to resolve key issues


It is clear in many water resource basins thatbasinwide intergovernmental coordination bodieswith real governing authority over surface andunderground water resources, sometimes sharedwith state and sometimes with federal authority, areneeded. Interstate cornpads -such as the Delaware,Susquehanna, and Potomac compacts -offer a rangeof models to consider in establishing additionalcompacts where there are recognized needs for them.

With respect to water rights, some rights run withthe land as a property right others are appropriatedproportionately in accordance with established agree-ments and pmcedurrs; and still others aw relativelyilldefined. Sometimes, water rights determinations arra matter principally for the courts; at other times, theyare regulated in accordance with planning pmcessesand administrative determinations Thus, water rightsare more flexible and more amenable to adjustment andcoordination in some cases than in others

Water use incentives also vary considerably Somepromote greater use, while others promote conserva-tion. Often, existing incentives werr established manyyegrs ago under different cimnnstances, and may bedue for reevaluation In many cases, however, theseincentives are established by law, reinforced bylong-time practices, and difficult to change.

Many water supply policies in the UnitedStates - federal,state,and local -were designed fordifferent phases of the nation’s history. Those weretimes when policies promoted water development,agricultural expansion, and the settlement of newlands, times when the nation’s population andcommerce were concentrated in the humid East,andtimeswhen highqualitywaterwasavailableinsuch abundance that little attention was given tometering its use and pricing it according to itsreplacement cost. Although past investments andsettled expectations cannot and should not beignored, improved water resource coordinationrequires, as a first step, acknowledgment by allpartners in the federal system that times havechanged. Present policies that directly or indirectlyencourage water consumption over water conser-vation may need to be revised. Water supplysubsidies, in particular, need to be reconsidered. Inaddition, water policies that favor solving prob-lems by using construction and technology to alternatural phenomena - rather than by altering laws,policies, and institutions-need to be examinedfurther as to their efficiency, cost effectiveness, andability to meet the dual goals of environmentalprotection and adequate water supply.

Particular note should be taken regarding cur-rent and potential federal roles in water resourceallocation, conservation, and use. Generally, feder-al laws have shown great deference to state laws inappropriating water rights and interstate transfers

of water. Howevecrecent U.S. Supreme Court casesmake it clear that water is an article of interstatecommerce subject to preemptory regulation byfederal law, and that state constitutions and lawsmay not burden the transfer of water across statelines except in certain narrow respects. On thisbasis, groundwaters in Nebraska and New Mexicohave been allowed to be exported to neighboringstates in contravention of the laws of Nebraska andNew Mexico. In addition, the U.S. Supreme Courthas upheld conditions attached to federal spendingon water projects as valid exercises of the Constitu-tion’s spending power. Bills have been pending inCongress since 1987 that would impose compre-hensive federal groundwater management re-quirements on state and local governments. Al-though these requirements would apply only to the17 “reclamation states” in the West, hints havesurfaced that such requirements might be extendednationwide at a later time. If such legislation, or itsimplementing regulations, were to require inflex-ible institutional and regulatory forms and practic-es,itcouldsubstantiallyrestrict theauthorityofstateand local governments to find innovative and practicalsolutions to their water resource problems

8. Despite many barriers to success, there are prom-ising examples of water resource coordination inthe United States.

This report has reviewed a number of precedentsfor enhancing coordinated management of surfaceand underground water resources. Cases studiedinclude the 198OArizona Groundwater ManagementAct, interjurisdictional water resource coordination inLos Angeles County, California, coordinated man-agement of surface and underground waters bycontract in Solano County, California, appropriationpermits and controlled water mining in New Mexico,interstate coordination in the Delaware river basin,and interlocal coordination in two California loca-tions as well as in metropolitan Washington, DCNone of these examples are perfect, or even compre-hensive, but each offers practical potential for im-proving the coordination of water resource alloca-tion, storage, and use to meet current needs.

RECOMMENDATIONS

Recommendation 1ENCOURAGING BETTER COORDINATEDGOVERNANCE OF WATER RESOURCES

The Commission finds that substantial benefitsin water resource availability, efficiency, quality, andequity can be gained in many cases through thecoordinated allocation, storage, and use of surfaceand underground water resources. However, the


boundaries of water resource systems (whether sur-face water systems, groundwater systems, or hydro-logically interconnected surface and groundwatersystems) often do not coincide with the boundaries ofexisting general purpose governments.

Several innovations have been undertaken inrecent decades to coordinate the use of surface watersupplies and storage with groundwater supplies andstorage. These innovative cases of coordination haveemployed admini&ative and nzgulatory approaches,intexjurisdictional compacts and contracts, and thecreation of specially organized jurisdictions. Nosingle model appears to be preferable in all respectsand under all circumstances for improving the coor-dination of water resources. Relatively self-govern-ing systems developed by water users and local andstate governments appear most likely to achieve thehigh levels of participation and compliance neces-‘sary for successful implementation.

A, State Action on Water Resource Coordination

‘Ilre Commission recommends, therefore, that stategovernment ofJicials support and encourage coordinateduse of water Tesources within their borders. Coordinationmechanisms, which may include inferjurisdictional ar-rangements as well as the creation of new public jurisdic-tions, should be empowered to undertake the range offunctions necessary to coordinate the allocation, conserva-tion, storage, and use of surface and underground watersupplies, where coordinated use is appropriate. To themaximum extent feasible, in order to ensure sustainableprograms of water resource developmenf, use, conserva-tion, and protection, these coordination mechanisms shouldbe self-governing, directed by the water users themselvesand the affected local and state officials. To fhe extentfeasible, thesegovernance strucfures should be serffinanc-ing, with costs assigned among the bent$ted water usersand localgovernments, and withfinancial participation bythestates to the extent that benefits are statewide.

B. Interstate Regions for Water Resource Coordination

Because many systems of sur/ace and undeqroundwater ESOUIWS extend beyond state boundaries, theCommission recommends that the Congress authorizeand approve the creation of interstate regional mecha-nisms, including joint federal-infers ta te compacts, forgoverning the coordinated use of suTface water suppliesand storage with groundwater supplies and storage,where such coordinated use is appropriate. These inter-state mechanisms, which will necessarily include inter-jurisdictional arrangements as well as new public jurisdic-tions, should be empowered to undertake the range offrt nctionsmcessaq to achieve coordinated use and conseruntion.Federal agencies involved in the operation offederal surfacewater pn$cts should be directed to cooperate with the

coordinated use programs of these interstate mechartisms.Except in clear instances of violation of federal laws or theUnited States Constitution, no fideral ofjicial or agencys!wuld be autlwrized to withhold participation in or to veto acoordinated water resource use prqram established byinterstate agreement. bztersfafe water resource coo&nationmechanisms should be(a) established pursuant to negotiationsamong the parties affecten; (b) selfperning: (c) dided byrepresentatives of affected state and local governments, thefederal governments, and water users; (d) self-financing to theextent possible; and (e) empowered to fake ef@tive actionwithin the scope of responsibility agreed to. 7Ie Congn?ss andthe President should encourage the negotiation and -alofftieral-interstate compacts in wafer resource basins wherefhe states quest them.

C. Independent Groundwater Systems

Because not all groundwater systems aye physicallyinfercunnected with sur@ce wafer systems, or capable of beinginterconnected, the Commission recommends that state gov-ernment oficials support and encourage the Aevelopment ofmechanisms for governing isolated groundwater basinswithin the states, and that Congress authorize and app”Tue thecreation of interstafe mechanisms for governing isolatedgroundwater basins that cross stateboundaries. Thesegovern-ing mechanisms should be empowered to take all actionsnecessary fo regulate basin yield and storage capacity, andshould be self-governing and selffinancing.

LX Aderal Restraint

Because of fhe diversity of state and local governmentstructures and responsibilities, as well IIS the diversify ofwater rights and water resources situations, the Congressand the Execu tive Branch should not imposeanyparticularmanagement form on states and local governments,whether through mandates or through condifions onparticipation in federal programs. Furthermore, the Con-gress and the President should not preempt the waterresource programs of local, state, or regional governingmechanisms, and should not institute direct federal man-agement ofgroundwater supplies and storage capacify.

Recommendation 2PROVIDING I NCENTIVES FOR ,

AND RE M O V I N G INSTITUTIONAL B ARRIERS T O ,T H E C OORDINATED U SE O F WA T E R RESOURCES

The Commission finds that, in most cases, whatstands in the way of providing adequate watersupplies is not so much the absence of water as thepresence of legal constraints and inflexible or inap-propriate administrative practices that hinder theconservation of those supplies, the coordinated all@cation of surface and underground waters in accor-dance with changing needs, the protection of impor-tant water-based environmental values, and the


resolution of conflicts over water use. In most cases,marginal adjustments in patterns of water use couldsignificantly help alleviate shortages, resolve con-flicts, and protect environmental values.

The Commission recommends, therefore, fhefollowingactions designed fo remove institutional barriers to coordi-nated allocation, use, storage, and conservation of surfaceand underground water resources:

A. Systematizing State WaterRights Provisions

Sfates not currently employing water managementsystems that assign and qua?ttify zznter rig1rts sltozrldconsider doing so as soon as possible in order to facilitateimproved use, monitoring, and conserzlation of surface andundqound wafer supplies.

States that do not allozo wafer users to store, conserzle,and recapture quantified amounts of water undergroundshould consideraddingsuchprovisions to their waterrightslaws, in order to improve the coordinated use of surfacewafer supplies and storage capacity with groundwatersupplies and storage capacify. Appropriafestate, local, andregional governing au Niorifies should be empowered, eithersingly orjointly, to monitor undqound wafer storage, toregulafe water storage and zoithdrawals taken ther#rom,and to establish conservation-oriented prin’ng policies toprotect the interests of all users of the water supply system.

States that hazje not united their su$ace water andgroundzoater rights systems should consider doing so inorder to establish coordinated rights throughout uratersupply sysfems and to facilitate the coordinated use ofsurfizce water and groundwater supplies.

In addition to quantifying zoater rights, states thathave not already done so should consider making waterrights transferable for compensation, within water supplysystems, in order to enhance fhe efficient use of waterresources by rewarding water rights owners for conserva-tion rather than maximum use. The local, state, orregionalgoverning authorities responsiblefor the coordinated use ofwater resources should oversee and administer suchtransfers in order fo minimize adzterse impacts on privateproperty. In order todiscollragespeczllntion in waterriglzts,transfers should be approved only upon a showing ofdemonstrable needs of the trmsferee.

B. Quantifying li?deral and Indian Water Rights

The Congress and the President should direct theSecreta y of the Interior to complete the quan fijication offederal reserved water rights pursuant to state proceduralIaur, in order t/tat water resources coordinntion may proceedin an atmosphere of certainty rather than uncertainty.

‘Lhe reserved water rights of the Indian tribes thatremain unquantified should be quantified through directnegotiations betzoeen tribal representatives and affrctedparties, including local users, states, and the federalgovernment, and other parties at if&rest.

C. Resolving Disagreements among Meral Agencies

The Cangress and the President should legislate a processfir n?solm’ng disagnxments among federal agencies concern-ing local, state, or rt@onal pmgrams for the use of surfacwater supplies and storage as well as groundwater suppliesand storage, including proiect to facilitnte coordinated use.This dispute resolution process should be az~ailable uponquest by an affecten state, local, or regional itnit ofgoziernment tJtnt is a parlicipant in the planned mm orpmject. The Congress should designate the [Attorney General]to convene the aff2ctedfederal agencies and oversee the dispu tetffolution process. Tile disptc fe resolution pmcess should bemnpleted within a specified numberof days established by theconzlenor in consultation utith the a#&d parties.

D. Authority for Interjurisdictional Arrangements forFederally Contracted Water

The Congress and the Executive Branch should removere&ictions in new or existing federal contra& with localirrigation and other water districts flat prPuent those localwater districts j?om enteting info interjurisdictional ar-rangements for the coordinated use of water resourceszoithin the project area.

E. Water Use and Conservation Incentives

The federal goz~ernment should continue to decreasethe subsidization of the water it supplies. Ultimately, waterusers should pay the full construction, mainfenance, andoperation costs of federal water supply projects. Whenwater supply contracts are renewed by the Bureau ofReclamation, they should contain provisions to decreasesubsidies over time in order to allow for manageableadjusfments in water use practices by irrigators.

State and local governmenfs that finance and operatewafer supply projects should place the construction andoperation of such projects on a “user pays” basis to theextent practical.

Local water suppliers should implement full-costpricing of water to consumers to the eaten t practical. Wheremetering of water use by households and businesses does notoccur it should be institutedso that households and businessescan be charged water rates that bear a direct relntionship totlreir zoater use. Where necessary, “lifeline rates” should beinstituted to protect lozi+inane households.

Recommendation 3FACILM-ATING IMPROVED

WATER RESOURCE USE AND PROTECTIONTHROUGH R ESEARCH, I NFORMATION,

A N D BROADLY T RAINEDWATER RESOURCE MANAGERS

The information and technical requirements ofcoordinated water resource use are substantial. Tech-nological developments and innovations in water


resource use, conservation, and protection are devel-oping rapidly, and the dissemination of informationdoes not always keep up with the pace of change.Many water resource managers are inadequatelytrained and equipped to use the most current con-cepts and techniques of coordinated water resourcesmanagement Programs of research and technicalassistance to water system managers concerningcoordinated use practices and groundwater qualityprotection requirements would help raise the level ofcompetence in water resource programs.

The Commission recommends, theref0re, continuationof federal programs that increase knowledge concerningwater supply and water qualify, and that extend informa-tion to state and local oficials and to other citizens. Theseprograms should include research, data management,assistance with problem identification and policy analysis,technology transfq and training.

Federal and state agencies should continue theirextensive and successfil cooperation in developing infor-mation about water conditions, and should also collectinformation concerning mechanisms and prac tices govern-ing the coordinated use of surface and underground watersupplies and storage.

The federal government should continue to pursue anaggressive program of research info the extent and effects ofgroundwater contamination, including the determinationof safe levels of contaminants in drinking watet; and fheprogram of support and technical assisfance to states in thedevelopment and implemenfafion of groundwafer qualityprotection policies.

States should require assessment of thegeological andhydrological propriety of proposed or possible landjill sites,in order to provide the information base for responsiblesiting decisions based on thean ticipafed effects of a proposedlandfill on water quality.



Chapter 1

Groundwaterand Intergovernmental Relations

Waterpolicy and organizatiotl is basically a problem in inteqqnwrnmental relations. . . . [P]oUcyand organization issues posefundamental problems thatstrikeat thevery heart of ourfederal sys-tem of government.1

Issues of groundwater management have re-ceived increased attention in recent years. Despite anabundance of water resources nationwide, there areproblems of scarcity and contamination in manyplaces. These problems have generated dramaticfights over water rights involving cities, industries,farmers, state and federal agencies, and Indian tribes.Increased reliance on groundwater for consumptivewateruses has been accompanied by projections thatunderground supplies in several places either will bedepleted or will become too expensive to reachwithin a few decades. Some states have developedregulatory and other efforts to shift water suppliesamong uses. Competition for additional water re-source development projects has intensified whilefunding has been restricted, cost-sharing require-ments have been raised, and concern about theenvimnmental impact of large-scale projects hasreached new heights. As the repoting of incidents ofwater contamination has mounted, one alarming caseon anotheq gmundwater quality protection has alsoem@ into the limelight

In the past decade, several changes have beenmade or proposed concerning federal and state rolesand actions with respect to the management andprotection of water resources, and of groundwater inparticulac Suggestions have included calls for federalleadership through enactment of a national ground-water policy, calls for the federal government to actwith state and local governments in a “new partner-ship,” and several federal legislative and regulatoryproposals to address specific aspects of water re-source management Proposals introduced in recentsessions of the Congress include the establishment of

a nationwide nondegradation standard to replacevariability in state programs, and federal require-‘merits of major new statewide planning efforts for theallocation and management of groundwater sup-plies. In 1982, the United States Supreme Courtopened the door to direct federal regulation ofgroundwater supplies, ruling that groundwater is anarticle of interstate commerce and striking downcertain state regulations restricting its export

These issues and trrnds share two common themesThe first is that there has been and remains an acuteneed to develop and implement improved techniquesand institutional arrangements for the management ofgmundwater resources The second is that the develop-ment and implementation of any such improvementsmust occur within the federal system, thereby engagingadditional considerations of the roles and relationshipsof the federal, state, and local governments

Charles Corker, a professor of law at the Universi-ty of Washington and long-time participant in west-ern water issues and struggles, once wrote of “two ofthe most difficult problems with which people in theUnited States must live. One is water, the other isfederalism.“2 He continued, “Water, even uncompli-cated by federalism, nurtures controversies which areboth long and bitter . . . [I]t has frequently been nipand tuck whether differences of opinion would beresolved by briefs or by bulletsu3 Groundwater inparticular, with its uneven distribution, irregularboundaries, and multiple attributes as source of supplyand storage, “will test our federal system of govem-ment”4 Coordinating gmundwater use, allocation, andpmrvation is a challenging task, which “may includeinternational, national, inteM.ate-rtzgional or majorriver basin, state, intrastate river basin, county, and localboundaries and jurisdictions”5

While federalism complicates the water re-source management picture, this report attempts tolook beyond the complexities and search for the


opportunities created by a federal system. Ourinterest is not only in whether and in what ways thefederal system presents obstacles, but also inwhether and in what ways the system providesadvantages for tailoring institutional arrange-ments forwater management to enhance perform-ance, accountability, and citizen control.

On the other hand, much of the structure ofintergovernmental relations in the water resourcefield evolved during a period when the primarypolicy emphasis was on the development of suppliesIn the past two decades, the emphasis has shifted tosupply management and water quality protection.This shift in emphasis raises questions of whether theroles and relationships among governments thatmay have worked for development are advantageousfor management and whether the appropriate inter-governmental relationships for water quality protec-tion might be different from either of these.

SCOPE AND P URPOSE

Two principal approaches for improvingwaterresource management have come to the forefrontof national attention, each of which presents com-plex engineering and management challenges“even uncomplicated by federalism.” The first ofthese is the conjunctive management of groundwa-ter supplies together with surface water supplies.The second is integrated management of ground-water supply and quality.

This study focuses on the institutional arrange-ments and relationships involved in the conjunctivemanagement of groundwater and surface watersupplies. Although there will be attention to inter-governmental arrangements for protection ofgroundwater quality, this report has to do primarilywith maximizing, allocating, and preserving thesupply yield of gmundwater resources It is hoped thatthis focus may contribute to an understanding ofintergovernmental roles and relationships in ground-water management and that such an understandingmay help in adapting some of the information gainedfrom hydrologic investigations, environmental man-agement studies, and water supply plans to improvedresource management

Conjunctive Managementand Integrated Management:An Important Distinction

As is the case in any specialization, terminologyin water resources management can result in confu-sion. In this report, the terms “conjunctive use” and“conjunctive management” designate the coonii-nated use of surface water supplies and storagecapacity together with groundwater supplies and

storage capacity. The terms used here do nof refer tothe management, protection, or restoration of waterquality (except to the extent that management practic-es should not result in the deterioration of waterquality, a sort of “first, do no harm” criterion).

In the literature reviewed for this report, the term‘integrated management” was used in a couple ofsources and “unified management” was used inanother source to convey what is described here andelsewhere as conjunctive management Integratedmanagement, as used in this report (and elsewhere)refers to the attempt to manage groundwater supplyand groundwater quality as one effort. The termunified management is not used in this report Ground-water supplies may be managed together with surfacewater supplies or not, and water supplies may bemanaged together with water quality or not (There are,of course, other possibilities: for instance, surface waterquality and quantities could be managed togethes butgnnmdwater supplies and groundwater quality man-aged independently, and so on)

Other Studies

In recent years, there have been numerousstudies devoted to groundwater supply conditions,management,quality protection, and water resourcespolicy, of which the following are only a few. In 1985,the Urban Institute published a report on several stateinitiatives in improving community water supplies,6which described the changing role of state govern-ments in the water supply industry.

In 1986, the Conservation Foundation’s NationalGroundwater Policy Forum produced its influentialreport Grourrdwnter: Sming tlte Unseen Resortrce, whichfocused principally on protecting quality.7 The forumwas attended by representatives from the academiccommunity; persons with technical and administra-tive experience in groundwater development andmanagement and local, state, and federalpolicymakers. The forum’s report, which called for“Action Now” in groundwater quality protection,recommended a “new partnership” among govern-ments in the federal system.

Also in 1986, the National Research Council’sCommittee on Ground Water Quality released itsreport on state and local activities in the protection ofgroundwater qua1ity.r’ That report attempted to relatethe characteristics of groundwater resources to theproper roles and activities of state and local govern-ments in their protection. It also highlighted individ-ual state and local programs

In 1987, reports were prepared for the NationalCouncil on Public Works Improvement on waterresource and supply! Each of these reports containedconsiderable information on the organization of water


management and the water supply industry, along withfindings, conclusions, and commendations

In 1988, the United States General AccountingOffice (GAO) produced reports on its review ofgroundwater quality protection among the statesJOThese reports focused in particular on the drinkingwater standards set by the U.S. Environmental Protec-tion Agency (EPA), states’ use of those standards inwater quality protection programs, and states’ adop-tion of their own additional drinking water standards.

Since 1983, the United States Geological Survey(USGS) has published a NafionaI Wafer Summary,with each issue focusing on a particular concern.There has been one summary on groundwater sup-ply and on on groundwater quality

In 1989, The Urban Institute, in cooperation withEPA, conducted an extensive assessment of the ground-water protection strategies being developed by thestat= The project was guided by a national advisorycommittee composed of state officials and experts in thefield The project also included a National Forum onGroundwater Protection in October 1989 and produceda report entitled State Management of Groundwafer:Assessment of Practices and Progres~.‘~

As these reports indicate, much of the attentiongiven to groundwater management in the literaturein the past decade has focused on contamination andthe problems of protecting and restoring quality.Studies that have attended primarily to the provisionof water supplies-such as the ones prepared for theNational Council on Public Works Improvement andthe USGS National Water Summaries-have inven-toried and assessed the state of water resources,including their sources, distribution, and use patterns.

The Plan of this Report

Chapter 2 contains a discussion of the value ofgroundwater resources as sources of supply and ofstorage and distribution. There also is an examinationof groundwater use, including dependence of variousareas of the United States on groundwater for differ-ent uses, and where-and why-the limits of renew-able water supplies are being reached.

Chapter 3begins with a discussion of the conceptof conjunctive management of surface and ground-water supplies as a method for maximizing the yieldand the value of water resources, and (at leastpotentially) alleviating some of the problems causedby occasional shortfalls of supply. The chapter alsoreviews and discusses several conjunctive use ar-rangements by and between governments, and someof the advantages of a multijurisdictional system inimproving water resource management

Chapter 4 presents an organizing concept formaking sense of the tremendous variety of interor-ganizational arrangements for managing groundwa-

ter resources, especially conjunctive managementThe chapter pays particular attention to the role of thestates and the national government

There follows in Chapter 5 a discussion of someof the barriers that remain to effective conjunctivemanagement of water supplies in the intergovern-mental setting. Again, particular attention is given tostate and national government practices that mayinhibit improved allocation and management

In Chapter 6, possibilities for modifying the practic-es and relationships of the national, state, and localgovernments are considered, applying the conceptsdeveloped in Chapter 4 and the lessons learned fromcases presented in Chapter 3 to some of the problemsidentified in Chapter 5. Chapter 6 also includes the issueof groundwater quality protection, in order to engagethe question of whether intergovernmental Elation-ships for protecting groundwater quality in the Ameri-can federal system should be the same as or differentfrom those for managing groundwater supplies

Notes’ Lyle Craine, “Intergovernmental Relations in Water De-

velopment and Management.” Presented at the South-ern Poli t ical Science Associat ion Annual Meeting. Gat-linburg, Tennessee, 1959, p. 1.

‘Charles Corker, “Water Rights and Federalism-TheWestern Water Rights Settlement Bill of 1957,” C~lijororninLaw Review 45 (December 1957): 604.

3 Ibid. (emphasis added).4Neil S. Grigg, “Appendix: Groundwater Systems,” in

Kyle Schiing et al., ne Nution’s Public Works: Report onWater Resources (Washington, DC: National Counci l onPublic Works Improvement, 1987), p . B-5.

5 Stephen J. Burges and Reza Marnoon, A Systematic Ex-amination ofIssues in Conjunctive Use ofGround and SurfaceWafers. Water Resources Information System TechnicalBulletin No. 7 (Olympia: Washington Department ofEcology, 1975), p. 6.

6 Nancy Humphrey and Christopher Waker, InnovativeState Approaches to Community Wafer Supply Problems(Washington, DC: The Urban Insti tute, 1985).

’ National Groundwater Policy Forum, Groundwater: Sav-ing the Unseen Resource (Washington, DC: ConservationFoundation, 1986).

* National Research Council , Committee on Ground Wa-ter Quality, Ground Water Quality Protection: State and Lo-cal Strategies (Washington, DC: National Academy Press,1986).

9 Schilling et al., Report O?I Water Resources; Wade Miller As-sociates, 7’he Nation’s Public Works: Report on Water Supply(Washington, DC: National Council on Public Works Im-provement, 1987).

lo U.S. General Accounting Office, Groundwater Qual i ty :StateActivities to Guard against Contaminants and Ground-water Protection: The UseofDrinking Water Standards by theStates (Washington, DC, 1988).

I1 See especially The Urban Institute, Proceedings oj the Na-tional Forum on Groundwater Protection (Washington, DC,1990), and State Management of Groundwater: Assessmentof Practices and Progress (Washington, DC, 1989).



chapter2

The Value and Use of Groundwater

The United States relies increasingly on ground-water resources for water supply Groundwater ba-sins also have value as underground storage reser-voirs and distribution systems, especially where theycoexist with surface water supplies

Patterns of groundwater use and dependencevary widely from one place to another Althoughresidents of some water-short regions have engagedin groundwater supply management since the earlydecades of this century, the relative abundance ofsupplies in most places delayed attention to manage-ment issues Recently, emerging localized shortages,growing awareness of threats to quality, and increas-ing recognition of the irreplaceable value of ground-water resources have drawn greater attention toissues of management and protection.

TH E V ALUE O F G ROUNDWATER RESOURCES

Understanding the value of groundwater re-sources involves placing them in the overall pictureof water resources and use. Trends in availability anduse are enhancing the significant value of under-ground water supplies, storage, and distribution.

Groundwater as a Source of Water Supply

Underground water basins appear throughoutthe United States (see Figure 21). Generally, only themountainous (and least populated) areas lack signifi-cant groundwatec The vast majority of the nation’spopulation lives and works in areas with readilyaccessible groundwater supplies

Groundwater supplies far exceed surface watersupplies, constituting over 90 percent (perhaps asmuch as % percent) of the total fresh water supplypotentially available.’ The amount of “economicallyaccessible” groundwater (i.e., within reasonablepumping distance from the land surface) is estimatedto be as much as 17,250 trillion gallons2 Estimates ofthe amount of groundwater within 2,500 feet of the

land surface range from 33,000 trillion gallons to59,000 trillion gallons.3

To place this in perspective, the long-term renew-able water supply available (most of which is directlyrenewable surface water supplies) is about 1.4 trilliongallons per day4 Total fresh water withdrawals as of1985 were estimated at approximately 340 billiongallons per day, or about one-quarter of long-termrenewable water supplies.5 Groundwater withdraw-als comprised about 73 billion gallons, or just over 20percent of this daily totaL

Furthermore, the bulkof the water withdrawn foruse each day (whether from surface or groundwatersources) is not actually consumed. Nearly three-fourthsof the withdrawals come back as mtum flows6 Totalconsumptive use of water is estimated to be about 92billion gallons per day, or appmximately 6.6 percent oftotal renewable supplies’

Clearly from a simple input-output, nationwideview, there is no lack of water supply8 Particularly withreference to the nation’s vast supply of groundwatecthere appears to be real abundance. Total gmundwatersupplies are hundreds of thousands of times greaterthan total daily consumptive use of water The thou-sands of trillions of gallons of gnnmdwater availablenationally are tapped each day for less than 75 billiongallons, not all of which is consumed

Groundwater clearly represents an enormoussourceofsupply,butinordertoassessitsvalueseveralconsiderations must be taken into account besides theabsolute quantity of water available and total use.Trends in total water use and consumption, ground-water use and consumption, surface water availabil-ity, and concerns about quality all affect the value ofgroundwater supply

Increasing Water Use and the Growing Role ofGroundwater. Fresh water withdrawals have in-creased substantially relative to population growthsince 1950. From 1950 to 1985, the population of theUnited States grew by about 60 percent During thesame period, total fresh water withdrawals rose by


slpM 0) u!w/@ @ se qmw se pls!A Al~e~Ouat3~I!M isq~ rm)!nbe Aq u!e)Jopun eq 01 UMOU)( 80~ 0

nearly 100 percent, from about 175 billion gallons perday to about 340 billion gallons per day9 Daily waterwithdrawals per capita increased from just over l,KKlgallons in 1950 to about lb50 gallons in 1980. There isevidence that water withdrawals and consumptive usestopped growing between 1980 and 1985,‘O but the over-all trend has been an escalation in total water use.

Surface water supplies have been developedmore intensively than groundwater, and they arebecoming increasingly scarce relative to the demandsplaced on them. One-fourth of the available freshsurface water supply each day is withdrawn forof&ream uses When this is combined with concernsabout water quality, the preservation of instmamflows, and the environmental impact of new waterimpoundment projects, it appears that the UnitedStates is drawing relatively nearer to the limits of itssurface water development

Therefore, groundwater supplies are being reliedon to a greater degree. Since 1950, groundwater supplieshave been developed more rapidly than surface watersupplies, and withdrawals are increasing at a relativelygreater rate than surface water withdrawals for allpurposes other than electric power pmduction.ll From1950 to 1985, surface water withdrawals increased by 85percent, but groundwater withdrawals grew by 115percent As total water supplies remain fairly fixedwhile demands increase, groundwater will continue togrow in value as a source of water supply

Water Quality Concerns and the Value of Groundwa-ter Supplies. The greater development of surface watersupplies; the location of major urban and industrialconcentrations adjacent to rivers, lakes, streams, andestuaries; and the more direct vulnerability of surfacewaters to discharges and runoff containing harmfulsubstances have rendered a greater proponion ofsurface water subject to repotted pollution and degrada-tion than has been the case for groundwater Indeed, thecontamination of lakes and rivers was the focus ofpublic attention as well as legislation and regulationduring the 1960s and 1970s

By contrast, groundwater supplies remain morenearly pure. As of 1983, it was estimated that contami-nation had reached between 1 percent and 4 percentof the usable groundwatei? A 1988 report by the U.S.General Accounting Office (GAO) stated that in 92percent of water well locations studied the quality ofthe groundwater exceeded federal safe drinkingwater standards for every constituent element” TheGAO finding does appear to confirm that knowngroundwater contamination has been relatively lim-ited. (This in no way denies the severity of groundwa-ter contamination where it does occur, or that itsoccurrence is increasing.)

Greater concern over water quality during the pastthree decades has incmased the value of gmundwater

as a less commonly contaminated soume of watersupply Reliance on gmundwater has gmwn for certainuses, especially for safe drinking water This trend maybe expected to continue in light of constraints on surfacesupplies As a 1989 publication observed, “Groundwateralready supplies over half the nation’s drinkingwater. . . and its share is rising as standards promulgated bythe U.S. Environmental Protection Agency eliminatemany surface ~ources.“~~

Protecting Surface Flows and Habitats. The UnitedStates is also nearing the limits of surface waterdevelopment because the supplies are subject toinstream uses and demands that limit their availabil-ity for offstream and consumptive uses

First, hydroelectric power demands require ap-proximately 3,050 billion gallons per day, dwarfingthe total daily withdrawals of water for offstream andconsumptive uses15 and dictating that much of thenation’s surface water remain flowing in its channels

Second, and of growing significance, instreamflows are desired to meet demands for recreation,habitat preservation, and scenic areas. Only surfacewater provides recreational opportunities, and thosewho use the nation’s waters for those purposes areinterested in maintaining them. Diversions of surfacewaters to offstream and consumptive uses also candisrupt the natural environments of various forms offish and wildlife. Greater appreciation of this fact inrecent decades has prompted actions directed towardmaintaining sufficient stream flows and lake levelsfor aquatic life and surface animal habitats. Further-more, the scenic beauty of some of the nation’swaterways has been recognized as a value worthpreserving. Legislative action to protect scenic water-ways can limit the diversion of waters

This set of social values that has emerged in thelast three decades affects water resource manage-ment16 Groundwater resources,being outof sightandnot per se the habitat of aquatic life, play an incmas-ing role in water supply nationwide.

Groundwater and Consumptive Use. These limitson surface water development and use mean thatgroundwater, while representing about 20 percent ofwithdrawals,constitutesconsiderably higherprwpor-tions of the supply for offstream consumptive uses Inaddition to scenic, recreational, and habitat needs,surface water supplies are relied on to a greater extentfor less consumptive purposes

Hydroelectric power, for example, is generatedwith surface water and requires tremendous amountsof it, but the water that turns the turbines returns to thestreams. In addition, water withdrawals for coolingpurposes in thermoelectric power production consti-tute about one-third of the 340 billion gallons of dailyfresh water withdrawals, but nearly all of the waterused in thermoelectric power production is surface


water, and only 2 percent of it is consumed. Whenwithdrawals for nonconsumptive thermoelectricpower cooling are subtracted from the total freshwater withdrawals, the surface water share for con-sumptive uses declines to 65 percent and the ground-water share increases to 35 percent

Groundwater constitutes a greater share of with-drawals for the more highly consumptive uses ofwater Groundwater constitutes 15 percent of with-drawals for industrial uses, for which the consump-tive use rate is about 16 percent,” but 33 petrent ofwithdrawals for irrigation and livestock watering forwhich consumptive use is about 54 percent (withanother 17 percent lost in conveyance).1B Irrigationaccounts for 80 percent of the consumptive use of watecwhile industrial uses account for only about 8 percent

Another 11 percent of the consumptive use ofwater comes from domestic use for drinking water andother purposeslq Gmundwater supplies accounted for40 percent of total water withdrawals by public watersupply systems as of 1985 (up from 34 percent in 1980)and nearly all (98 percent) of the water withdrawn fordomestic uses by the nation’s rural population20

Groundwater supplies serve fully half of thepeople of the United States with drinking water?According to a 1987 study for the National Council onPublic Works Improvement, groundwater is the pri-mary source of water supply for 80 percent of the58,530 community water systems, and for 96 percentof the 144,800 non-community water systems?2

Groundwater’s share of water consumption is 36percent and rising, considerably higher than its 20percent of water withdrawals. Furthermore, ground-water supplies are not generally as rapidly replen-ished as are surface water supplies In fact, in someareas, replenishment rates to groundwater basinsfrom surface water flows and precipitation are smallto virtually nonexistent Of the estimated 17,250trillion gallons of groundwater within economicallyaccessible range of the land surface, only about 2percent (345 trillion gallons) isavailableon a continu-ing basis (i.e., is replenished at a rate roughly equiva-lent to rates of withdrawal) and much of that is in themore humid regions of the country.”

As surface water is devoted increasingly to noncon-sumptive uses, the nation is drawing on its compam-tively more plentiful but less renewable groundwaterfor a rising share of consumptive uses Over the longterm, this pattern of withdrawals and consumption islikely to continue to increase the relative scarcity andvalue of groundwater as a source of water supply.

Groundwater Basins as Sources of Water Storageand Distribution

Groundwater basins function as undergroundstorage reservoirs and distribution systems, and in

many places are connected with surface water sup-plies The advantages of natural underground storageand transmission, coupled with the limitations ofsurface reservoirs, have increased the value of thisuse of groundwater basins Indeed, in economicterms, there is evidence that this is the more valuableuse of an underground water basinx These addition-al potential uses of groundwater resources havegiven rise to new management possibilities

Total Capacity and Usable Storage Capacity. Asnoted, the underground reserves throughout thecountry contain immense amounts of groundwaterand have a total storage rapacity equivalent to manythousands of times our annual consumptive use. Ofcourse, some of this groundwater is at depths so greatthat its recovery is not economically feasible, and notall of the storage capacity is equally valuable.

“Usable storage capacity” is limited to thatwithin economic pumping lifts and, in coastal‘basins, above sea level.% Nevertheless, the amountof usable underground water storage capacity ishuge relative to surface storage. According to the1986 report of the National Groundwater PolicyForum, the amount of groundwater stored withineconomic pumping lifts of the land surface is atleast six times greater than that of all of the watersstored in all of the surface lakes and reservoirs .26

In addition to their storage capacitygroundwaterbasins can be operated as water distribution systems,depending on their physical characteristics. Wellssunk into a groundwater basin can provide waternear the point of use for a community of usersextending over hundreds (sometimes thousands) ofsquam miles The groundwater basins throughout theUnited States, therefore, represent a large and valuableresource as water storage reservoirs and distributionsystems that is lily to become more significant asdemands for water use continue to rise while surfacewater availability and storage capacity remain limited.

Advantages of Underground Storage and Distribu-tion. The construction of surface storage reservoirs,above-ground water tanks, and surface distributionsystems for capturing, retaining, and conveyingsurface water supplies is a very costly undertaking. Itis becoming even more difficult and costly in metro-politan regions, where land is becoming scarcer andmore expensive. Moreover, most of the best surfacewater reservoir sites have been developed, and thesustained yields of these reservoirs are decreasingdue to accumulation of sediment”

Thus, a major advantage to be gained fromunderground water storage capacity is less need toconstruct costly surface storage and distributioncapac$P Aquifers can store and release water anddistribute it to multiple points of use, as can surfacereservoirs and pipelines, while saving the substantial


costs of building and maintaining the 1atteP Con-versely, underground water storage capacity is valu-able from a replacement standpoint; if an aquifersystem is damaged or destroyed by depletion ordegradation, then surface water storage facilities willneed to be constructed in its place.3o

Underground water storage and distribution aremore efficient because water is not lost to evaporationas it is from surface water impoundments andaqueducts31 Evaporation losses can be significant forlong-term surface storage, especially in the more aridparts of the United States where evaporation rates arehigh. In New Mexico, for example, the state engineerestimated evaporation losses from surface reservoirsduring 1985 to be 423500 acre-feet or 20 percent of thestate’s total consumptive use. In Montana, the Depart-ment of Natural Resources and Conservation re-ported evaporation losses from surface reservoirs tobe 3.9 million acre-feet or 54 percent of the state’s totalconsumptive use of water=

Surface water storage and distribution facilities,whether large-scale dam and reservoir operations orcommunity water tanks, require maintenance, Whileit is possible to damage an underground aquiferthrough dewatering, groundwater basins do notrequire actual maintenance and do not breakdown orwear out, although recharge facilities, such as spread-ing grounds, do require maintenance. Surface waterstorage and distribution facilities are also morevulnerable to damage from earthquakes, flooding,and sabotage than are underground supplies”

Surface water storage displaces existing or other,possible uses of land. In recent years, this issue hasbeen the source of a considerable amount of litigationconcerning the impact of proposed new surfacewater projects Use of existing underground storagecapacity can allow for continued use or development.of land. Certainly, land uses in groundwater rechargeareas need to be controlled, but storage of waterunderground does not foreclose as large a range ofsurface uses as does storage of water above ground.

This is a point of particular significance for theeastern and midwestern United States While thewestern states contend with perennially low rainfalland runoff, the eastern states are more likely toexperience infrequent, unpredictable, but severedroughts (as witnessed in the Southeast in 1986 and inthe Midwest in 1988). To prepare for such exigenciesthrough the construction and maintenance of surfacewater storage facilities requires a large investment inphysical facilities that are unneeded most of thetime% Underground water storage can be especiallyvaluable in circumventing the need for such facilitiesand their associated costs

In addition, while it is important to recognize thatsurface water quality has improved somewhat duringthelasttwodecadesandthattherraresomeseriousand

persistent groundwater contamination pmblems, waterstomd underground is exposed to a smaller range ofcontamination risks, both natural and human% Bothunderground and surface waters in storage areexposed to contamination from hazardous wastedisposal, storm runoff, and a variety of nonpoint-source threats However, such threats are more likelyto reach surface water relatively unimpeded, whilethe soil through which recharge waters pass beforereaching an aquifer may provide some partial filter-ing of pathogens, and absorption of low concentra-tions of nitrates and phosphates.% Surface water alsofaces eutrophication problems (such as “algaeblooms”) during times of low replenishment.

The advantages of underground water storagefrom a quality protection standpoint may be seen inthe plans of some water agencies in the United States(and elsewhere) to cover surface water reservoirs TheLos Angeles Department of Water and Power, forexample, is installing covers over its smaller reser-voirs at an estimated cost of several hundred milliondollars. The purpose is “to keep out bird and rodentdroppings, prevent human pollution of innumerablesources and block out sunlight that promotes thegrowth of troublesome algae,” which combines withchlorine in water treatment to form potentiallycarcinogenic trihalomethanes3’

QUALITY IS QUANTITY:THE IMPORTANCE

OF PROTECTING G ROUNDWATER R ESOURCES

Any contemplation of the use of undergroundwater basins for water storage and retrieval must atleast consider the old water adage that “quality isquantity.” If water quality is sufficiently degraded torender it useless for its intended purposes, then from apractical standpoint that quantity of water may aswell not exist This relationship between quality andquantity holds true for waters underground as well asat the surface. Once contamination of an under-ground aquifer occurs, its value is impaired or lost fora long time. Therefore, the preservation and maximi-zation of the value of groundwater resources requirerigorous attention to quality protection.

Unconfined aquifers and aquifer recharge areasare vulnerable to transmitting contaminants into thewater supply Land uses and waste disposal overlyingsuch locations must be carefully guarded. Moreover,there are naturally occurring sources of water con-tamination to which an underground water supplycan be susceptible. For instance, along the extensivecoastlines of the United States, fresh undergroundwater supplies lie adjacent to the salt waters of theoceans If the extractions from and replenishment tothe underground water supplies are not kept inbalance and groundwater levels decline sufficiently,

U.S. Advisory Commission on intergovernmental Relations 17

salt water intrusion can occur and can render waterpumped from underground essentially unusable.

The “quality is quantity” adage underlies theargument that both elements must be managedtogether because they are essentially inseparable.There can be no gainsaying that attention must bepaid simultaneously to groundwater supply man-agement and quality protection. There remains,however, a question of whether the intergovern-mental relationships and organizational arrange-ments for protecting groundwater quality ought tobe the same as for managing supplies. It is possiblethat the roles of federal, state, and local govern-ments and nongovernmental organizations maybe different in each case. This question is consid-ered at greater length in Chapter Six.

GROUNDWATER USE

The trends and concerns identified above-in-creasing reliance on groundwater supplies for con-sumptive water uses, limits on surface water avail-ability and diminishing prospects for additionaldevelopment, the importance of groundwater basinsas alternatives or supplements to surface waterstorage and distribution, and growing concerns aboutwater quality - have been noted by several observersand have prompted calls for improved groundwatermanagement In and of themselves, calls for im-proved management are unlikely to be contradictedor even controversial. However, the translation of“improved manageme&’ into a set of roles andrelationships for the national, state, and local govern-ments in a federal system can involve considerabledifferences of opinion. The recommendations ofobservers and advisors vary concerning the alloca-tion of responsibilities for improved managementwithin the federal system. These differencesderive, atleast in part, from different perceptions of the natureof the issues involved.

For example, is there a “national groundwaterproblem?” If there is, a different set of recommenda-tions concerning the allocation of responsibilitieswithin the federal system will emerge than if there isnot If there is not, then what are the problems withrespect to the management of groundwater re-sources? Are they primarily problems of localizedresource shortages, and if so, where? Are they prob-lems that derive from different degrees of depen-dence on groundwater supplies? Are the problemsthat do appear generated by a lack of water availabil-ity or by allocation and management practices? If thelatter, which governments within the federal systemare best situated to redress the deficiencies? Theremainder of this chapter focuses on patterns ofgroundwater use and availability, including thequestion of whether supply problems appear to begenerated primarily by natural resource availabilityor by resource allocation and management practices.

A “National Groundwater Problem”?

Arguments in favor of assigning principal re-sponsibility for improved groundwater resourcesmanagement to the federal government build onsome of the information presented above. For exam-ple, groundwater supplies provide half of the na-tion’s drinking water. This establishes the importanceof groundwater resources to the United States as awhole. To this one can add that groundwater re-sources appear everywhere, that some aquifers ex-tend across state boundaries, and that groundwaterproblems have appeared throughout the country.

These observations have led some analysts to theconclusion that groundwater, or “the groundwaterissue,” is a “national issue.” And a national issue needsa “national policy.” Consider the following statementfrom the codirectors of the National Center forGround Water Research in Oklahoma:

The people also know that with its as-tounding abundance and its predominantlyexcellent quality, our National grourrdwnter re-sources are endangered. They are constantly re-minded of this Nufional issue by documenta-ries, articles, reports, discussions and serieswhich accompany all of the information me-dia to which they are constantly subjected.. . .

It is imperative that n nntiortal policy be is-sued at the earliest possible time. It shouldprovide a kinetic approach to addressing ourground-water problems in the coming yearsby providing the foundation for honest de-bate among experts representing the legal,philosophical, and technical aspects of tileground-wnterissue. It is to be expected that thispolicy will continue to be adjusted as wecome to grips with near term problems.38Yet, equally incontrovertible national statistics

can be used to contend that, at least from a de-mand-supply standpoint, there is no nationalgroundwater problem. It was observed earlier in thischapter, for instance, that the potentially availablegroundwater reserves are enormous compared to userates, and that available renewable fresh waterresources are several times fresh water withdrawalsand consumptive water use. In the Nationnl WaterSummary 2983, the U.S. Geological Survey made suchan observation, and suggested that groundwaterproblems were more likely to be localized problemsof availability and quality:

Thus, considering only the overall supply ofwater without regard to development, distri-bution, or quality, t\fere is 110 crisisfficirtg tlteNrr-tion; the resource fnr exceeds fhe preset t level oflrse. However, this in itself does not guaranteethat adequate water supplies of an accept-able quality will be available where andwhen they are needed in the years to come.39


The italicized portions of the two quotationsabove illustrate some of the drawbacks to usingnational data to assessthegroundwateravailabilityand quality challenges. Concluding either thatthere is a national problem or that there is noproblem could miss important local variations inthe availability, use, and scarcity of groundwater,and of water resources generally

As a result, other analysts have been less receptiveto the idea of groundwater resounx management as anational issue or national problem.” They stress thediversity in availability scarcity, and use, and questionwhether something that can be accurately labeled “theground water issue” exists They emphasize that thebalance (or imbalance) of water demands and gmund-water supplies is determined locally, not nationally

Just how diverse are the use, availability, andscarcity of groundwater resources? How much varia-tion is masked by the national totals and nationalaverages given above?

The groundwater supply and demand situa-tion is highly uneven, stemming in part fromvariation in precipitation and atmospheric humid-ity, which affect replenishment and evaporationrates. Figure 2-2 demonstrates that precipitation issubstantially lower in most of the West than in mostof the East. This contributes to higher daily waterwithdrawals per capita,regardless of whether fromsurface or groundwater, in the western states thanin the eastern states.

Nine of the ten states with the highest total dailygmundwater withdrawals per capita (see Appendix A,Figure A-l) are west of the 100th meridian (the longitu-dinal parallel that runs roughly from the borderbetween Minnesota and the Dakotas south to the borderbetween Tscas and Louisiana, and that most nearlydefines the arid West and the more humid East). All tenof the states with the lowest per capita daily gmundwa-ter withdrawals are east of that division. It is alsoapparent that the variation in groundwater withdraw-als masked by national averages is huge: groundwaterwithdrawals per capita per day vary from RhodeBland’s 38 gallons to Idaho’s 6,281 gallons, while thenational average is 363 gallons

Beyond the sheer volume of water withdrawals,dependence on groundwater supplies does not varysystematically by region. Measures of groundwaterdependence include: groundwater share of totalwater withdrawals, percentage of the populationserved by groundwater, and groundwater share ofwithdrawals for different uses (public supply, indus-trial, and irrigation).

For purposes of illustration only Figure 23presents these measures in a sample of five states indifferent parts of the country, each of which adoptedsignificant new groundwater supply managementand/or quality protection policies during the 1980s (as

did several other states). The figures show howdifferent the patterns of groundwater dependencecan be. The figures presented in Figure 2-3 for the fivestates are presented for all 50 states in AppendixTables A-l, A-3, A-4, A-5, and A-6.

Arizona and Mississippi, an arid western stateand a humid eastern state (see Figure 22), both showhigh dependence on groundwater supplies across allmeasures By contrast, gmundwater mpmsents less thanone-fourth of water withdrawals for all types of use inConnecticut, and only about one-third of the popula-tion of Connecticut is served by groundwater supplies

Illinois and Washington illustrate how variedgroundwater dependence can be for different typesof water use within a state. In Illinois, groundwatercontributes a relatively small share of total waterwithdrawals, public water supplies, and watersupplied by industry for its own use, but contributesall of the water used for irrigated agriculture. Bycontrast, Washington relies very little on groundwa-ter for irrigation, and yet over half of the state’spopulation is served by groundwater supplies,whichmake up a third of public supply withdrawals.

As can be seen by referring to Appendix lkblesA-l through A-6, the states in Figure 23 do not representthe extmmes among the states For any measure ofgroundwater reliince, the variability from most depen-dent state to least dependent state is even greater Forexample, the gmundwater percentage of total waterwithdrawals varies from 91 percent in Kansas to 2percent in Montana (Figure A-l), with five westernstates among the ten least dependent states on ground-water for their total water withdrawals

Variations are also extreme in the dependence ongroundwater for different types of uses. Earlier in thischapter, it was noted that half of the U.S. population isserved by groundwater supplies, but that proportionranges from 95 petcent in Hawaii to 20 percent inColorado (Figure A-3). Groundwater comprises 40percent of withdrawals for public water supply systemsin the United States as a whole, but ranges from 92percent of publicsupply withdrawals in Idaho to 9pemnt in Maryland (Figurn AA).

Similar variability exists in reliance on groundwa-ter supplies for industrial and irrigation uses The largestquantities of water withdrawn for industrial uses amconcentrated, as would be expected, in the easternstatesql But dependence on groundwater supplies tomeet those industrial demands exhibits a variability ofits own. For instance,98 percent of water withdrawalsfor self-supplied industrial use in New Mexico comesfrom gnnmdwam but in neighboring Colorado thecorresponding figure is 6 percent (Figure A-5).

Reliance on groundwater for irrigation alsovaries widely across the states The greatest use is inthe western states, but dependence follows a differentvariation. In Illinois, Indiana, and Wisconsin, for


Fip re 22Average Annual Precipitation in the United States

Source: U.S. Geologicd Survey, hbtio~m~ b’afer SUJJJJJJ~J~ I%3 (Washington, DC, 1984).


Eiglcre 2-3Groundwater Dependency in Selected States, 1982 and 1985

1982’ 19852

ArizonaPementage of Water Withdrawals3 57 48Rrcentage of Population Served 65 64Percentage of Public Supply Withdrawals 54 62Percentage of Industrial Withdrawals3 88 98Percentage of Irrigation Withdrawals 58 45

ConnecticutPercentage of Water Withdrawals3 11 24Percentage of Population Served 32 32Pexentage of Public Supply Withdrawals 17 18Percentage of Industrial Withdrawals 3 10 12Percentage of Irrigation Withdrawals 8 7

Illinoispercentage of Water Withdrawals 3 5 35Percentage of Population Served 49 48Percentage of Public Supply Withdrawals 27percentage of Industrial Withdrawals 3 10 2Percentage of Irrigation Withdrawals loo 100

MississippiPercentage of Water Withdrawals 3 54 83Percentage of Population Served 93 92Percentage of Public Supply Withdrawals 82Percentage of Industrial Withdrawals 3 61 EPercentage of Irrigation Withdrawals 65 82

WashingtonPercentage of Water Withdrawals3 9 18Percentage of Population Served 71 52Percentage of Public Supply Withdrawals 37 35Percentage of Industrial Withdrawals3 15 19Percentage of Irrigation Withdrawals 4 13

1 U.S. Geological Survey, National Water Summary 1984 (Washington, DC, 1985).2 Wayne Solley, Charles Merk, and Robert Pierce, Estimated Water Usein the United States 1985, USGS Circular 1004 (Washing-

ton, DC, 1988).3Excluding withdrawals for thermoelectric power.

example, groundwater supplies nearly all of the wa-ter used for irrigation; in Montana, 1 percent: and inAlaska and New Hampshire, zero (Figure A-6).

As the states vary, use patterns in localities alsovary In Tstas, for example, slightly less than half ofthe population is served by groundwater,but the Cityof San Antonio is entirely dependent on groundwatersupplies, and the irrigation of High Plains agriculturecomes almost wholly from underground. Aboutone-third of New York state’s population is servedfrom gmundwatec which constitutes only one-quarterof the water withdrawals for public water supply, butLong Island’s communities depend almost entirelyon their underground aquifers

The uneven distribution of groundwater use anddependence means that the relative scarcity of sup-plies varies even more dramatically. Geographicdifferences in use are compounded by differences inavailable supply. The nation’s groundwater reservesare enormous relative to demand, but those reservesare very unevenly distributed. They are unequallyavailable everywhere and they are not most plentifuleverywhere they are most needed. In one location,dependence on gmundwater supplies might be highbut available supplies may be smaller and of limitedrenewability In another area, reliance on gmundwatersupplies may be low but supplies abound in quantity


Figme 2-4Simplified Water-Resources Budget for U.S. Water-Resources Regions, 1980

DepletionConsumptive Renewable Consumptive Use of Groundwater

Use SUPPlY as Percent of StorageRegion O-w0 O&9 Renewable Supply (bgd’)

New England 0.6 78.4 1 0.0

Mid-Atlantic 1.8South Atlantic 5.6

2ES 2 0”:;Great Lakes 1.6 74.3 ; 0.0Ohio 2.1 139.6 2Tennessee iv 41.2 1 i:;Upper Mississippi

Mississippi 4213

77.2 0.0

464.8

3

Sour-is-Red-Rainy 0.56;;

8 EMissouri 19.3 31 2:2Arkansas-White 11.0 68:7 16 3.6

Texas-Gulf 8.3 33.1 25Rio GrandeUpper Colorado ::;

5.4 213.9 ;; 0:o

Colorado (all) 10.8 10.3 105Great Basin 4.1 10.0 41 k!Pacific Northwest 12.6 276.2 5 0:oCalifornia 25.5 74.6 34Alaska 0.04 975.5 0Hawaii 0.7 7.4 9

1 Billions of gallons per day.Source: U.S. Geological Survey, National Wafer Summy 1983 (Washington, DC, 1984).

and renewability. Other possibilities exist betweenthese extremes-for example, locations of heavyuse but large quantities, or of lower quantities andlesser use. Dependence on groundwater also willbe affected by availability of surface water sup-plies, and vice versa.

Where Is Improved Management Most Needed?

Because they are driven by use and dependenceas well as by availability, water scarcity and shortageshave occurred in all regions of the United States*Nevertheless, there do appear to be some areas wherewater use is reaching the limits of renewable watersupply, and where groundwater in storage is beingdrawn down to meet demands.

Figure 24 presents illustrative, simplified com-parisons among water resources regions identifiedby the U.S. Geological Survey The amount of waterconsumption (as opposed to water withdrawals) iscompared with the estimated renewable supply(surface and groundwater) for each region. Theresults confirm previous evidence presented in thischapter, namely, that the nation as a whole is in nodanger of approaching the limits of its availablerenewable water supplieP and drawing down itsgroundwater resources,but that thereare areas where

the limits of renewable supplies are being reachedand groundwater is being depleted. Those regions arethe Arkansas, Colorado, Mississippi, Missouri, andRio Grande River basins, and parts of California andthe Great Basin.

The region of most rapid depletion of groundwa-ter storage, at a rate of nearly 6 billion gallons per day,is the Mississippi River region. In the Colorado RiverBasin, total daily water consumption now exceedsestimated renewable supply.

With the population of the western states ex-pected to grow by over 40 percent between 1980 and2000, and with the populations of Arizona andNevada in particular expected to more than doubleduring that brief period,“R expectations quite natural-ly arise that water shortages in the arid regions inparticular can only worsen. Such expectations havebeen at the heart of calls for swift and decisive actionto “manage” water supplies. And it is understandable,under the circumstances, that there is not muchpatience for those who suggest pausing to considerwhether perceived current and impending “short-ages” are real, whether there really is not enoughwater to go around. But water-scarce lands havegiven rise to mirages before, and, despite an under-standable impatience, it may be prudent to examine

&I U.S. Advisory Commission on Intergovernmental Relations

whether nature’s reality or human perception isdriving the “water crisis.”

Are these areas experiencing problems of wateravailability or allocation? In the areas where con-sumptive use is approaching or has reached the limitsof renewable water supply, is this occurring becausethere is not enough water or because of the way inwhich water is allocated and used?

As noted earlier in this chapter, some water usestend to be more highly consumptive than others.Consumptive use rates for irrigated agriculture (mostof which is located in the Midwest, Great Plains, andSouthwest) are in excess of 50 percent, while the ratesfor industrial use (most of which occurs in theNortheast and South) and public supply are less than25 percent, These differences translate into a simplecomparison of the eastern and western states pre-sented by the U.S. Geological Survey The overallconsumptive water use rate in the eastern states isabout 11 percent, and in the western states, it is 41percent The eastern United States accounts for 53percent of the nation’s water withdrawals,but only21percent of water consumption. The western UnitedStates accounts for 47 percent of the nation’s waterwithdrawals and 79 percent of the nation’s waterconsumption. Much of this difference is attributableto the different uses of water in different areas.

To illustrate the impact of highly consumptiveirrigation practices even more plainly, and to offer ananswer to the question of whether water shortagesare driven mainly by availability or allocation, con-sider the following analysis of the Colorado RiverBasin states, where water use has reached the limits ofrenewable supply. Below are the estimated 1988populations of some western states, alongside esti-mates of the populations that could be supported bythe water resources of those states at 150 gallons percapita per day, if all were devoted to municipal andindustrial u~es:~

Water-1988 Sustainable

State Population Population

Arizona 3,466,ooo 19,700,oooCalifornia 28,168,ooo 296,600,OOOColorado 3PJ,~ 39,800,oooNevada v%Qoo 27,100,OOONew Mexico 1#510,ooo 13,300,oooUtah 1,691,OOO 3fGw~Wyoming 471,ooo 39/2@qoo

Have the Colorado River Basin states reallyreached the limits of water development, or hasallocation and use in some of thosestates caused themto appear to be close to the limits? According to thesefigures, California has enough “room,” in terms ofavailable water resources, for a population largerthan the population of the United States. Arizona,

Nevada, and New Mexico, generally considered to bethe most arid states, could accommodate populationincreases of 6-fold, 25fold, and &fold, respectively.Incidentally, none of the populations of these states isprojected to come anywhere near these estimates bythe middle third of the 21st century

The vast majority of water rights, withdrawals anddiversions, and consumption in the western states(including the Colorado River Basin) is accounted for byirrigated agriculture. Agriculture holds the rights to anestimated 85 percent of the water in the West%Agriculture accounts for about SO percent of water use(self-supplied industrial use, 12 percent urban uses, 7percent; and rural domestic use, 1 petcent):7 and about90 percent of western water consumption.48

Where is improved management most needed?There do not appear to be too many simple answers tothat question. A simple regional answer, that improvedgroundwater management should be targeted at thewestern states (or the Colorado River Basin states, or theMississippi River states, etc) does not seem sufficient,because groundwater use and dependence is high insome states and low in some states in all regions On theother hand, a simple answer that improved manage-ment is needed everywhere overlooks the diversity ofwater msources and is so broad as to be essentiallymeaningless Clearly, continued improvements in wa-ter resources management are needed in pans of theSouthwest, but they also are needed in other placeswhere water scarcity and water quality problems haveoccurred on a variety of scales, from interstate regions toindividual local groundwater basins

SUMMARY

How does one reconcile all of this informationconcerning groundwater resources, their value, theiruses, the importance of protecting quality, and thepresence of abundance and shortages and differentallocations of water across the country? The UnitedStates has abundant water resources relative to itspopulation. This is true even of the relatively aridwestern states, where water consumption is pressingagainst the limits of renewable supplies and wherestored groundwater reserves are being drawn down.

On the other hand, potentially significant watersupply problems have been seen on the horizon fordecades. Current and projected imbalances betweenlimited or shrinking supplies and growing demandsare seen as certain attributes of the present and thefuture. There appears to be plenty of evidence, in theform of overdrafting of groundwater supplies, thedrying up of surface water supplies, and the compari-sons made in Figure 24 above, that in several locationsdemands for water are indeed outstripping supplies

What reconciles these perceptions is the recogni-tion of the role of institutional arrangements in the


allocation and management of water resources. In thewords of the National Wafer Summary 1983:

The actual availability and quality of wa-ter are determined, to a large degree, by theway in which the resource is developed andmanaged in the face of changing demandsThese matters are governed by human deci-sions regarding the engineering works m-quired to develop new supplies, the manage-ment strategies and operating policiesgoverning the use of &sting supplies amongusers or among States, and the policies or ac-tions employed to ensure the quality of watersupplies49

Recognition of the role played by institutionalfactors prompts us to inquire whether apparent watershortages are in fact the result of limits imposed byphysical conditions. It is hard to know the limitsimposed by physical supply conditions, if demandfor the resource is being conditioned by institutionalarrangements that freeze the ways in which suppliescan be used.

In fact, the physical characteristics of watersupplies and the institutional arrangements affectingwater use are both potential variables in the resourceequation. “[Mlany people do not realize that institu-tions, rather than physical conditions, are often thecause of shortfalls in water s~pply.“~ What appearson the surface to be a shortage of supply dictated bynature is often the manifestation of underlyinginstitutional factors that result in existing suppliesbeing overused or used inefficiently.

Given the overall abundance of water re-sources relative to population in all areas of thecountry, problems of supply availability and reli-ability may be viewed as problems of institutionsand management practices rather than of re-sources. The United States does not confront a crisisof natural water supply availability, or even a“national groundwater problem,” but many local-ized issues that differ in nature and severity.

How can the management of water resources beimproved in ways that take advantage of the value ofgroundwater resources and surface water supplies,allocate them wisely among uses, and preserve andprotect them for the future? What improved manage-ment options are available, how are they arranged,and how do they operate? What changes in intergov-ernmental roles and responsibilities would facilitateimproved water resource institutions and manage-ment practices? In the next chapter, we turn to theconcept and practice of conjunctive management ofsurfaceandgroundwaterresources,examiningsever-al examples of intergovernmental arrangements forimproving the allocation and management of waterresources, and maximizing their value.

Notes1 C.H.. Ward, N.N. Dunham, and L.W Canter, *Ground

Water-A National Issue,” Ground Wafer 22 (March-April1984): 138.

2 Warren Viessman and Claire Welty, Water Management:Technology and Institutions (New York: Harper and Row,1985), p. 17.

3 Wayne Solley, Water Use in tke United States, 1980 (wash-ington, DC: U.S. Geological Survey, 1983), p. 3. Thesequanti t ies may be placed in some perspective by notingthat the lower estimate of 33,OMl trillion gallons of wateris equivalent to the total amount of water deposited bythe Mississippi River into the Gulf of Mexico during theentire 200 years of the Republic.

4 United States Geological Survey, National Water Summa-ry 1983 (Washington, DC, 1984), p . 1 .

5 Wayne Soiley, Charles Merk, and Robert Pierce, Esti-mated Useof Water in the United States, 1985 (Washington,DC: U.S. Geological Survey, 1988), p. 59.

6 U.S. Geological Survey est imates the disposi t ion of wa-ter withdrawals as of 1980 to be: 72 percent return flow,23 percent consumptive use, and 5 percent conveyanceloss, irrigation. SoUey, pp. 4-5.

’ Solley, Merk, and Pierce, p. 1.a U.S. Geological Survey, National Water Summary 1983, p.

1 .9 Soiley, Merk, and Pierce, p. 1.

lo Ibidl1 Ralph C. Heath, “introduction to State Summaries of

Ground-Water Resources,” National Water Summary1984 (Washington, DC: U.S. Geological Survey, 1985)! p,121; James W Dawson, “State Groundwater ProtecttonPrograms-Inadequate,” Ground Water 17 (January-Feb-ruary 1979): 108.

t2 Wade Miller Associates, 7lie Natiolt’s Public Works: Reporton Water Sllpply (Washmgton, DC: Nat ional Counci l onpublic Works Improvement, 1987), p . 68.

l3 U.S. General Accounting Office, Groundwater Protection:7he Use of Drinking Water Standards by the States (Wash-ington, DC, 1988), p. 1.

l4 #Groundwater Contamination: Common Ground forthe Common Law,” Water Strategist 2 (January 1989): 1 + .

l5 Solley, Merk, and Pierce, p, 1.l6 Helen J. peters, “Groundwater Management,” Writer Re-

sources Bulletin 8 (February 1972): 197. This phenomenonis observed with reference to California in Susan M.Trager, “Emerging Forums for Groundwater DisputeResolution: A Glimpse at the Second Generation ofGroundwater Issues and How Agencies Work TowardsResolut ion,” Pacific Law Journal 20 (October 1988): 31:“While competi t ion for California’s l imited surface wa-ter supplies is increasing, the supplies available for agri-cultural , municipal , and industrial uses are decreasing,due to environmental demands.”

l7 Solley, Merk, and Pierce, p. 30.l* Ibid., p. 14.l9 Ibid.z” Ibid.21 Heath, p. 120.22 Wade Miller Associates, pp. 17-18.


23 Viessman and Welty, p. 17.

24 See for example, Cal i fornia Department of Water Re-so&es, California’s Ground Water (Sacramento, 1975), p.iii; and William Blomquist, Getting Out oftke Trap: Ckang-ingan Endangered Commons to a Managed Commons. Ph.D.Dissertation, Indiana University, 1987, pp. 524-528.

25 Helen J. Peters , “Ground Water Management in Califor-nia.” Paper presented at the American Society of Civi lEngineers Conference, Las Vegas, 1982, p. 3.

26 National Groundwater Policy Forum, Groundwafer: Sav-ing the Unseen Resource (Washington, DC: The Conserva-t ion Foundation, 1986), p. 9.

n Heath, p. 121.

za Stephen J . B u r ge s and Reza Marnoon, A Systemmntic Ex-amination of Issues in Conjunctive Useof Ground and SurfaceWaters (Olympia: Washington Department of Ecology,1975), p. 33; also, Peters, “Groundwater Management,l p.197.

29 Erwin Cooper, Aqueduct Empire (Glendale , Cal i fornia :Arthur H. Clark Co., 1986), p. 137.

%Neil S . Grigg, “Appendix: Groundwater Systems,” inKyle Schilling et al, 7ke Nation’s Public Works: Report onWafer Resources (Washington, DC: National Council onPubl ic Works Improvement , 1987), p. B-2.

3* Burges and Marnoon, p. 33; California Department ofWater Resources, p. 129.

g Solley, Merk, and Pierce, p. 52.

33 Cooper, p. 137. In August 1989, the Los Angeles Aqueduct,which conveys up to 75 percent of the water supplies ofthe City of Los Angeles , was blocked by debris fromheavy storms that caused flooding. Portions of the aque-duct structure were twisted! and concrete walls crackedand buckled. Although reparrs proceeded promptly andtook only two weeks, the incident illustrates the vulner-ability of surface water facilities. The aqueduct was alsothe target of vandals’ bombings in the 1920s and onceduring the 1970s.

34 Charles W. Howe and K. William Easter, Inferbasin ‘Bens-fers of Water: Economic Issues and Impacts (Bal t imore :Johns Hopkins University Press, 1971), p. 3.

35 Cali fornia Department of Water Resources, p. 129.

36 Burges and Marnoon, p. 34; Grigg, p. B-2.

37 Frederick M. Muir, “Drinking in the View,” Los Angeles‘hes, January 31,199O.

ss Ward, Durham, Canter, pp. X38-140 (emphasis added).39 U.S. Geological Survey, Nafional Wlzter Summary 1983, p.

1 (emphasis added).40 See, for example, Harvey 0. Banks, “Management of In-

terstate Aquifer Systems,” ASCE Journal OJ the Water Re-sources Plamling and Management Division 107 (October1981): 574, contending that a “specific set of guidelinesfor ground-water management cannot be applied uni-formly throughout the country”; and Frank Rayner,“Ground-Water Management -A Local GovernmentConcern,” Ground Water 10 (May-June 1972): 2-5.

41 Wade Miller Associates, p. 128; Solley, Merk, and Pierce,p. 30.

* Note the fol lowing observation from Wade Miller Asso-ciates, p. 8:

The problem of adequacy of supply has nowspread to east of the Mississippi River. . . . Watershortages, seldom encountered until the 1970seast o f the Miss iss ippi , promise to become moreprevalent in the future. Water will still be plenti-ful, but better management of the resource will benecessary to ensure an adequate supply for alluses.

rw The United States as a whole consumes about 7 percentof national renewable water supplies . Sol ley, Merk, andPierce, p. 60.

44 Rodney Smith, “A Reconci l iat ion of Water Markets andPublic Trust Values in Western Water Pol icy.” Transac-t ions of the Fifty-Third North American Wildl i fe andNatural Resources Conference, 1988, p. 328.

*Frank Welsh, How to Creafe a Wafer Crisis (Boulder:Johnson Books, 1985), p. 16.

46 Chr is t ine Olsenius, “Tomorrow’s Water Manager,“Jonr-nal of Soil and Water Conservation 42 (September-October1987): 312.

47 Smith , p. 329.* E Lorenz Sutherland and John A. Knapp, “The Impacts of

Limited Water: A Colorado Case Study,” Journal of Soiland Water Conservation 43 (July-August 1988): 294.

49 U S Geological Survey, National Wafer Smnmnry 1 P8.3, p.1: .

so Viessman and Welty, p. 49.



Chapter 3

The Concept and Practiceof Conjunctive Management

Groundwater supplies are part of a hydrologiccycle that includes surface water and precipitation.The notion that groundwater is separate from andunrelated to surface water is, as the National WaterCommission observed nearly two decades ago, amyth long ago abandoned by hydrologists’ Thewater supplies and problems of any given localeexhibit an “essential unity”2

The water stored underground in aquifers fre-quently is received from surface streams throughpercolation from their channels. Conversely, the baseflow of many surface streams is fed by undergroundwater sources outcropping onto the land surface orfeeding up through springs, And both surface watersand groundwater are fed by precipitation and runoffthat reach and traverse the land surface?

THE CONCEPT

MAXIMIZING THE VALUE OF WATER RESOURCES

Recognition of these attributes, combined withthe developments described in Chapter 2, has led tothe concept of conjunctive use of surface watersupplies and underground water reservoirs. Con-junctive use involves the use of underground waterstorage in coordination with surface water suppliesso as to increase the total water yield over time.4 Morecomplete and reliable use of the total water resourcesof an area is possible by employing surface andgroundwater supplies together, through “an operat-ing strategy that exploits the different characteristics”of surface and groundwater supplies5

The Variability of Surface Water Supplies

Groundwater and surface water supplies are notdistributed evenly throughout the United StatesSome places have plentiful surface and groundwatersupplies; others have a paucity of both. Still other

locations have plentiful surface water supplies butfewer groundwater sources, and others are underlainby substantial groundwater reserves though surfacesupplies are barely present

Surface water and precipitation are subject toconsiderable temporal variability. Rainfall and sur-face water flows can be erratic, unpredictable, andsometimes insufficient to meet all demands. Thisvariability of surface water supplies presents a chal-lenge in securing a reliable water supply, whether formunicipal, industrial, or irrigation uses

Groundwater supplies generally are containedwithin large aquifers and are available throughoutthe year Groundwater supplies respond more slowlyto variations in rainfall and runoff, and thus generateless uncertainty in planning.6

Regulating Surface Variabilitywith Underground Storage

Reliable water supply systems require storagecapacity to regulate the variability of rainfall andsurface water flows Storage provides for adequatewater deliveries during periods of deficient precipita-tion and runoff

This cyclic storage can be secured by use ofsurface reservoirs or the available storage capacity inunderground water basins’ Underground aquifers can“smooth the pulses of arrival and withdmwaP thatcharacterize the sounxs of water supply (precipitationand runoff) and the sequences of water demand

Conjunctive use can relate underground watersupplies and storage with surface water supplies toregulate surface supply variability. During periodswhen precipitation and runoff are plentiful, con-sumptive uses can be satisfied directly from surfacewatersources. Duringsuch periods,surplussurfacesupplies also can be used to recharge undergroundreservoirs. In times of scarce precipitation anddwindling surface flows, underground supplies can


be drawn down, providing relatively inexpensiveand reliable fresh water yields. These extractionscreate available storage capacity underground thatcan be recharged during the next wet period?

Extraction of groundwater during drier periodsalso can allow for the satisfaction of instream flowrequirements of surface water supplies. During timesof lowered surface water flows,communities may notbe forced into a losing choice between satisfyingneeds for offstream consumption on the one handand maintenance of aquatic life, wildlife habitats,and scenic values on the other

The pressure of increasing water demand has led towater storage in surface reservoirs that wem originallybuilt for flood controL This can have disastrous conse-quences Floods have occurred in several states becausepartially filled flood control sites were unable to holdadditional runofP Where underground aquifers ofsufficient capacity are available, their use for waterstorage could aid communities in meeting water de-mands while leaving flcodcontrol dams and reservoirsfree for their intended use.

Uniting Alternative Sources of Supply

There are several desirable aspects of havingalternative sources of water supply. Conjunctive useof alternative sources is possible and can generateeconomies.” This is especially likely when thesources of supply have different spatial, temporal,and quality characteristics, as is the case with surfaceand groundwatec

The use of groundwater basins as storage facili-ties saves the cost of constructing surface storage andconveyance facilities to handle “peak” demands.Surface water facilities can be constructed for meet-ing normal demands, and peak needs can be satisfiedby pumping underground yields. This can be anespecially valuable aspect of conjunctive use whensurface waters are being transported considerabledistances or conveyed from one watershed to anotheras part of an interbasin transfer”

The ability to draw on alternate water suppliesallows water purveyors to respond to limitationsimposed by quantity or quality. Groundwater supplies are a valuable supplement to surface waterflows, and conversely, access to surface water canextend the useful life of the groundwater source incommunities dependent largely on groundwater butwhere replenishment is small relative to demand(e.g., the Southwest and High Plains).‘3

Similarly, quality problems are less threateningto communities that can alternate between sources ofsupply. Groundwater quality degradation, for in-stance, can result in increased demand for surface watersupplies, which might be met by encroaching on floodcontrol storage or reallocating the rights to storage in a

surface reservoir*4As degradation problems continue toescalate, it can be of nearly inestimable value to acommunity to be able to switch to another source ratherthan lose its entire water supply (surface or under-ground) to a contamination incidenti

Underground Transmission

As noted in Chapter 2, groundwater basinsprovide a natural and practical water distributionsystem that can supplement or replace surface distri-bution works. Solitary reliance on surface waterrequires the construction and maintenance of anextensive system of waterworks to carry water fromits point of capture or storage to every point of usewithin the served community. An underlying aquiferprovides a water supply source throughout a servedcommunity, and water recharged into an aquifer atone point may be withdrawn in many places.16

For all practical purposes, anyone overlying agroundwater basin may be physically able to with-draw water by means of a well and (usually) a pump.This characteristic of groundwater basins is oftencited as one of its vulnerabilities,as multiple demandsplaced on a single ~psource am expe&d to leadfrequently to overexploitation and the socalled “trage-dy of the commons” It is worth noting, howevet; thatthis characteristic of an underground water supply isone of its advantages as well as one of its vulnerabilitiesAs part of a coordinated use program, a groundwaterbasin can be a source of water supply, a source ofstorage, and a means of transmission that complementssurface water distribution systems and allows them tobe built and maintained on a reduced scale.

CONJUNCTIVE USEAND CONJUNCTIVE M ANAGEMENT

Conjunctive use may occur without a deliberateplan or objective and without explicit coordination inan attempt to maximize the total yield of watersupplies. Conjunctive management may be definedas directed efforts to use available water supplysources and storage capacity together toward theobjectives of maximizing, allocating, and preservingsupplies.*7Conjunctive management of surface andgroundwater supplies can maximize efficiency, di-recting resources to their higher valued uses assources of supply and storage.

An example of the difference between conjunc-tive use and conjunctive management is contained inthe following excerpt from a 1962 engineering reportconcerning the use of the Main San Gabriel Basin insouthern California:

The ground water basin underlying SanGabriel Valley has been used for many yearsas a water storage reservoir and as a watertransmission system. As quantities of re-


charge and extraction have varied, water lev-els have fluctuated in order to balance thedifference between inflow and oufflow withchange in ground water storage. In otherwords, the ground water basin has been “op-erated” in a manner very similar to a surfacereservoir The main difference is that theground water basin has been operated unin-tentionally to a far greater extent than aremost surface reservoirs. As more expensivesupplemental water is brought into San Ga-briel Valley it will be important that the basinbe operated more intentionally than in thepast so that neither the local water nor thesupplemental water is wasted from the area.The operation of the basin is also importantto downstream users.16

In a period characterized by increasing water useand tight public financial resources, optimal resourceuse may only be obtainable by the coordinatedconjunctive use of surface and groundwatetlq Addi-tional development projects appear to be subject toincreasing problems and decreasing probability. Un-der these circumstances, attention turns more to im-pmved management As the author of a recent article onartificial mcharge put it, “If water purveyors can nolonger beat water supply problems to death withmoney, they must solve them with ingenuity”” Con-junctive management is part of that approach it hasbeen described as “a software tactic” that “can generatenew increments of water cheaper than can the buildingof hard~are,~ such as surface water projectszl

Defining Conjunctive Managementin Substantive Terms

Although conjunctive management has emergedas a consensus in the water resources managementliterature for decades, implementation of the concepthas been less than universal.22 Conjunctive manage-ment has a nearly lOByear history? and, while it is stillnot used in most of the largest population centers, thenumber of communities (e.g, Los Angeles, Phoenix,‘Albuquerque, and Houston) and water utilities investi-gating arranging, and adopting conjunctive use pro-grams is growing at an impressive rate. 24

Conjunctive management will not be feasible incommunities that do not have access to both surfaceand groundwater supplies Further, in areas wherewater use is relatively low and supplies (surface,ground, or both) are plentiful, citizens may choose notto pay the costs of managing supplies that areabundant relative to demand (this does not refer to theimportance of efforts to maintain the quality of thosesupplies). In most areas, however, there is access tosurface and groundwatersupplies,and water uses areincreasing relative to supplies so that scarcity either isa problem or looms on the horizon.

For those communities, pursuing conjunctivemanagement involves understanding what it entails.Some discussions in the water resources literatureapproach the issue of what constitutes “manage-ment” by identifying organizational forms. For exam-ple, some authors recommend a single,central publicauthority for “groundwater management,“% on thepresumption that the presence of multiple organiza-tions implies lack of functional coordination.% Such aview suggests that “groundwater management@ te-quires a “groundwater manageP authorized to per-form all functions This defines “management” orga-nizationally: one organizational form produces“management,” while others do not

Alternatively, the substance of groundwatermanagement may be identified in terms of thenecessary functions to be performed, leaving openthe possibility of a variety of organizational arrange-ments. This approach also leaves evaluation oforganizational performance primarily to the citizenswhose interests are to be served

Conjunctive management coordinates theamount and location of groundwater recharge andwithdrawals together with the withdrawal, use,return flows, and storage of surface waters. Thefunctional elements of conjunctive management arecontrolling overdraft, regulating storage, protectingwater quality from degradation, assigning costs, andadaptability and error correction.27 This is consistentwith the definition of conjunctive management asthe coordination of conjunctive use. With a view ofmanagement as coordination (with diverse institu-tions and jurisdictions involved in related activities),the questions for evaluation become whether func-tions are being performed, whether they are beingcoordinated, and whether citizens are satisfied.

Controlling Overdraft

The control of overdraft is a necessary element ofgroundwater management because of the threats toan aquifer and the overlying land from excessivewithdrawals. At a minimum, withdrawals in excess ofrecharge to the aquifer result in the lowering ofunderground water levels; this produces longerpumping lifts, which increase the associated energycosts and may necessitate lowering pumps anddeepening or replacingwells?s Excessive dewateringof aquifers (not to be confused with “controlledmining” as part of a management plan) can lead to:(a) soil compaction, which robs the aquifer of futurestorage capacity and thus decreases its value; (b) landsubsidence (as has occurred in several places), whichthreatens surface structures and residents;29 and (c) insome cases, salt water intrusion that threatens theusefulness of the fresh water supply

The dangers of overdraft dominated discussionof groundwater management through most of this


century. Groundwater supplies were recognized aslimited, and the aquifers were recognized as subject tothese threats. The resulting recommendation, follow-ing a prudent and risk-averse strategy based on thestate of hydrologic knowledge, was that long-termmaintenance of a groundwater basin required thatannual withdrawals be limited to the “safe yield” or“sustainable yield,” defined as the average annualamount of water that naturally recharges the basin.WSuch a strategy was directed at maintaining under-ground levels at an elevation sufficient to precludedamage to the water or the aquifer from compaction,subsidence, and contamination.

As information about and experience withgroundwater supplies and use have grown andconcepts of groundwater management have changed,31it has become apparent that in many cases previousstrategies may have been too rigid. Excessive dewater-ing of aquifers is still understood and accepted asinviting the kinds of damage described above, but thedefinition has been modified by stperience.

In many places, sediment compaction, landsubsidence (including sudden sinkhole appearance),and quality degradation have occurred. In manyother places, groundwater supplies were overdraftedby considerable amounts over extended periodswithout producing deleterious effects other thanincreased pumping lifts Dangers that were onceascribed to any overdrafting of groundwater suppliesare now recognized as being dependent on suchvariables as the rate, degree, and duration of theoverdrafting, and especially on the physical charac-teristics of the s~pply.3~ (Underground water incertain karat areas, for instance, may be considerablymore susceptible to the sinkhole phenomenon thanalluvium and bedrock valley-fill aquifers.)

Therefore, in defining the elements of conjunc-tive management, emphasis has been placed oncontrolling rather than eliminating overdraft Thedistinction is a deliberate and important one.

Conjunctive management requires the use ofunderground storage capacity. Using a groundwaterbasin for temporary or long-term storage implies thatthe capacity is available. This implication is inconsis-tent with an objective of maintaining a groundwaterbasin as full as possible at all times. The conjunctiveuse of surface and groundwater supplies in such amanner as to maximize the total water yield counter-intuitively demands that groundwater basins not bemaintained at their fullest possible levels. Mainte-nance of groundwater levels at their highest elevationwithin an aquifer leaves no available space to accom-modate any surplus of surface water A surplus ofprecipitation and runoff with full groundwater mser-voirs, produces the same result as with surface mser-voirs: water spills across the land surface, potentiallycausing surface damage and resulting in waste.%

Conjunctive management of groundwater andsurface water supplies, therefore, requires the cre-ation of “regulatory storage capacity”34 by temporarilyoverdrafting the groundwater basin during low-recharge periods and returning water to storageduring high-recharge periods. Conjunctive manage-ment is inconsistent with rigid safe-yield require-ments, which “often have limited the potential use-fulness of basins to offset variations in annualprecipitation and particularly to postpone or reducethe need for importations of water”% Groundwaterlevels are managed with the objective of maintainingthem within a desirable range defined in part by theregulatory storage capacity

Therefore, controlling as opposed to eliminatingoverdraft in a groundwater basin is a balancing prac-tice. Given the diversity of underground basins fromone location to another, it follows that the maintenanceof groundwater levels within a range that does notaggravate the tendencies toward compaction, subsi-dence, or contamination, provides for the cyclic storageof water underground, and maintains economic pump-ing distances, will involve considerably different de-sired ranges and targets among aquifers

Controlling overdraft requires some limitationon groundwater withdrawals. There are variousmeans of accomplishing this, including judicial oradministrative determinations of pumping rights, andthe imposition of surcharges on quantitie Assuranceand, where needed, enhancement of groundwaterreplenishment also are essential to controlling over-draft As with limiting withdrawals, there are severalmeans of implementation. Flows in stream channelscan be extended to allow for greater percolation, waterspreading basins can be operated with waters divertedfrom ordinary stream channels, and so OI-L~

Assuring and enhancing replenishment alsoinvolves maintaining a balance within a range ofparameters. Excessive recharge of an aquifer canproduce marsh-like conditions and move the watertable so close to the land surface that potentialflooding problems may be aggravated. Insufficientrecharge fails to take advantage of the aquifer’sstorage capacity, increases pumping lifts and costs,and may leave users with less than adequate suppliesfor peaking and dry-period withdrawals. The balanceto be achieved is one of sufficient recharge tooptimize the uses of the underground reservoir, whilemaintaining adequate storage space for future ex-igencies and sufficient depths to water

Regulation of Storage

The regulation of storage is necessary to ground-water management and, indeed, is of the essence ofconjunctive management3’ Part of the task has beenalluded to: the maintenance of sufficient regulatory


storage capacity to accommodate possible surplusflows while at the same time avoiding an excessivedewatering of the aquifer Another vital aspect ofmanaging underground storage capacity is allocat-ing storage space. Space within a single groundwaterbasin might be desired by competing users fordifferent uses such long-term storage, short-termstorage, peaking, and transmission.

Among the potential problems to be addressedin this element of conjunctive management is theissue of rights to stored water. No entity, public orprivate, is likely to undertake storing water under-ground without first being assured of the ability toreclaim the value of that water in some way. As willbe discussed at greater length in Chapter 5, not allstates have legal systems governing water rightsthat are conducive to such practices.

Protection of Quality

Protecting the underground supply from con-tamination is an obvious element of conjunctivemanagement Among the factors to be considered amthe initial quality of the surface and groundwatersupplies,and the impact of recharge and withdrawal.If, for example, water is to be recharged into anunderground aquifer for subsequent withdrawal fordrinking use, the water that is recharged must meetdrinking water quality standards. Moreover, a consid-erable distinction in the quality of recharge watersand naturally occurring waters could complicate theissue of rights to recapture and whether water ofequivalent value is being obtained by the entity thatstored water in the aquifei?

Water replenishment also must take account ofquality impacts. Raising water levels in one portion ofagmundwaterbasin can bring them into contact withcontaminated soils nearer the land surface. Replen-ishment in one portion of a basin also may aggravate

:the movement of an underground “plume” of con-taminated water, pushing it toward production wellsthat had previously been free of contamination.39

Distribution of Costs

Among the most challenging tasks to be met inthe conjunctive management of surface and ground-water supplies is the assignment of the costsaCoordination of conjunctive use must include provi-sions for sharing burdens and benefits Ideally, costswould be borne by beneficiaries in proportion to thebenefits obtained.” As will be discussed at some.Iength in Chapter 5, the distribution of costs isconnected with water pricing practices, whichthrough their impact on user behavior has tremen-duus significance for successful management

Adaptability

An essential element of conjunctive manage-ment is the capacity for adaptability and errorcorrection.” Adaptability involves responsiveness tochanges in conditions - shifting amounts and pat-terns of use, quality or quantity problems, advancedtechnologies of water production or consumption.43

Error correction involves a responsiveness tomistakes made by msoume managers and planners Forexample, use amounts and patterns may not havechanged, but may have been erroneously calculated orforecast Adaptability and error correction require thatany conjunctive management scheme be characterizedby institutions that encourage the development ofinformation and flexibility of management practices

THE PRACTICE OF CONJUNCTIVE M ANAGEMENT:CASE STUDIES

Conjunctive management, with its multiplefunctional elements, is likely to present a highlycomplex picture when conducted within a noncen-tralized, public-private system of organizational ar-rangements and relationships. To illustrate differentways of organizing the elements of conjunctivemanagement, this section presents examples of inno-vation and diversity, including

A centralized administrative apparatus im-plementing a comprehensive statewidegroundwater management statute;A set of intergovernmental provider-producerrelationships exhibiting significant divisionof labor, as a provider contracts for the ser-vices of several producers in a pair of adjudi-cated groundwater basins;A set of intergovernmental contractual rela-tionships whereby different service providerscontract with a producer agency that per-forms a whole range of conjunctive manage-ment functions in a nonadjudicated basinserved by a federal water projaA “water czar” who used the appropriationpermit scheme in his state to regulategroundwater withdrawals and surtace waterdiversions together;A federal-interstate compact that has re-sponded to groundwater depletion and con-tamination problems by developing conjunc-tive management plans on a river basin scale;andAgreements between local governments forthe use and operation of water storage in or-der to maximize available water yields.

These examples, some of which trace back to the firsthalf of the century, are followed by a discussion of


recent innovations in institutional design and man-agement methods from a number of states andcommunities

Centralized State Administration:The 1980 Arizona Groundwater Management Act

In 1903, the Congress authorized the Salt RiverProject to help develop reliable water supplies forcentral Arizona, which was then a territory The SaltRiver Project was one of the first federal waterprojects authorized under the Reclamation Act of1902,and one of the first projects completed.M In the 198Os,the Central Arizona Project (CAP) began to bring asupplemental supply of Colorado River water tocentral Arizona. Depending on the future course offederal water resource development policy, the CAPmay be one of the last federal water projects com-pleted under the Rec2mrzntiorzAct. The history of watermanagement and law in Arizona has been in-fluenced by federal-state relations perhaps as muchas by any other single factoc The development of the1980 Arizona Groundwater Management Act wascertainly no exception.

There are special reasons for the influence of thefederal government on water use and law in Arizo-na.* The stab&aridity and topography render it wellendowed with sites for reclamation projects TheUnited States also owns 71 percent of Arizona’sterritory, including Indian lands to which the federalgovernment is committed to supplying water Inaddition, the land irrigated by reclamation projectwater, :vhile accounting for a very small share offarmland, has produced a disproportionately largeshare of farm income. Thus, it is considered vital bythe state’s agricultural community, which has alwayshad a large influence on politics and policy Further-more, much of the controversy surrounding watersupply in the past half-century focused on theinterstate fight over rights to the waters of theColorado River, a case that involved the Congress andthe United States Supreme Court from the early 1920sto the mid-1960s. The determination of ColoradoRiver water rights delayed approval of the CentralArizona project for years.

Even while the Salt River Project was beingdesigned, water users envisioned a project to bringmore water to central Arizona from the ColoradoRiver At the time, the project was deemed technicallyand financially infeasible and was shelved. As SaltRiver Project waters became fully employed to bringnew lands into agricultural production, Arizonansturned to groundwater for additional supplies Devel-opment of groundwater in the Salt and Gila RiverValleys brought thousands of additional acres intoproduction from the 1930s to the 195Os.& Increasedpump efficiency and lower pumping costs resulting

from rural electrification and lower electricity costsspurreda rapid increasein groundwaterwithdrawalsin the 1930s. Groundwater also met increasingmunic-ipal and industrial needs. Groundwater pumpingcontinued to expand rapidly during the 1940s and195Os, and by 1960 the withdrawals were estimated at5 million acre-feet per year4’ Eventually, the staterelied on groundwater supplies to meet 60 percent ofits water uses.

Groundwater withdrawal rates were severaltimes greater than natural recharge rates, as much as11 and 12 times greater in Maricopa and Pinalcountiesa At some places, underground water levelsdeclined by as much as 400 feet from the 1930s to the1980s. Declines along the reaches of the Salt Riverwest of Phoenix were more modest, around 100 feet”Declining water levels increased pumping lifts andcosts, and caused localized problems of land subsi-dence, earth fissures, and quality deterioration.

By the 194Os, serious consideration was beinggiven to the idea of bringing Colorado River water tocentral and southern Arizona. The Central ArizonaProject was planned to carry Colorado River waterover some 300 miles. Bills to authorize the projectwere introduced in the Congress beginning in 1949.50Opponents from California resisted the authoriza-tion, claiming that Arizona did not have a right to thewaters The debate continued in the Congress and theUnited States Supreme Court until the Court deter-mined in 1964 that Arizona had the right to the waters.In 1968, the Congress authorized the Central ArizonaProject as part of the Colornllo River Bnsin A~f.5~

The feud with California doubtless helpedcoalesce support for the Central Arizona Projectamong the various interests, who otherwise wouldhave been in conflict with each other over theallocation of local water supplies. Among the basicconflicts was (and is) a division between the grow-ing demands of residential and commercial usersand the agricultural irrigation users.

Agriculture accounts for 89 percent of waterconsumption. Forty-six percent of all water consumedis from mining of groundwater stocks, This cannot beattributed to the 11 percent of water consumptionfrom mining and’municipal and industrial uses. As of1980,47 percent of irrigated cmpland was planted tocotton, a surplus crop; cotton production alone couldaccount for all of the groundwater mining Another 16percent of farmland was planted to alfalfa hay, whichconsumes more water per acre than any other crop.

The claims on the state’s water supplies byirrigated agriculture are so great that existing suppliesplus the water from the Central Arizona Project couldnot support them, even if every Arizonan not en-gaged in farming moved out On the other hand,existingsupplies plus CAP water could support a statepopulation of as much as 20-25 million people if all


irrigated agriculture ceased, and projections do notanticipate a population of even 10 million persons by2035. These facts led the first director of the ArizonaDepartment of Water Resources to state, ‘The conclu-sion that we have overexpanded our agriculture isinescapable.“52 The clear direction for Arizona ground-water management has long been to strike a balancebetween these extremes, so that some of the demands ofirrigated agriculture would be reduced to accommodatethe current and anticipated future population

Yet, efforts to reduce groundwater consumptionand to shift water away from irrigation towardmunicipal and industrial uses did not meet withmuch favor Efforts to reform groundwater law have ahistory as long as that of the Central Arizona Project,and the two have important points of intersection.

Two bills, both with the support of GovernorSidney Osborn, were introduced in the 1945 sessionof the Arizona legislature to regulate the use ofgroundwater That Spring, further impetus was givento reform when the federal Bureau of Reclamationindicated that it would not support any centralArizona water project unless the state acted to restrainagricultural consumption of groundwater. The legis-lature struck a weak compromise, producing theGroundwater Act of 1945, which provided for theacquisition of groundwater data and information onexisting wells but contained no regulation of use.%

In 1948, in a third special session called byGovernor Osborn in the midst of a prolongeddrought, the legislature enacted the GroundwaterCode of 1948, which remained Arizona’s groundwa-ter law until 1980. It authorized the designation ofcritical groundwater areas for the restriction of newirrigated agriculture development in areas experienc-ing severe overdraft54

After initially upholding the 1948 law against alegal challenge asserting the right to the use ofgroundwater as a private property right appurtenantto land ownership and limited only by the doctrine of“reasonable use,” the Arizona Supreme Court re-vetsed itself and restored the private property reason-able use doctrine to groundwater law. This decisionreflected the influence of agricultural interests.” Afterthe reversal in 1953, “interest in ground-water legisla-tion virtually ceased,“% despite a 1951 repetition ofwarnings from the U.S. Department of the Interiorabout the importance of reform to a favorabledisposition of the Central Arizona Project For the nextluarter-century, alterations in the understanding oftizonagroundwater law came only from occasionalourt decisions

The growing conflict between municipauindus-trial water demands and heavy irrigation use washeightened by two events in the mid-1970s TheArizona Water Commission, which was working on astate plan, reported the findings of a 1975 study

indicating that central Arizona faced a severe im-pending water crisis. That report, combined with the1976 decision of the state Supreme Court in Fmnershesfmmf Company (FICO) v. Beffwy, helped setcompeting water rights claimants against each other

The FICO decision upheld the superiority ofwater rights claims by overlying agricultural usersagainst the appropriation and transportation ofwater to nonoverlying lands for mining, municipal,and industrial uses. The FICO decision threatened thecities and mines that were dependent on appro-priated groundwater and precipitated a reexamina-tion of groundwater laws?’ The legislature and thegovernor responded with an amendment to the 1948Groundwater Code providing for the selective trans-portation of groundwater and the appointment of astudy commission.

The study commission began meeting in Novem-ber 1977. The cities and industrial interests, whichheld a combined majority on the commission, pro-duced draft recommendations in July 1979, with theagricultural interests sharply dissenting and issuing aminority report The conflict over the recommenda-tions was so sharp and their potential impact onagriculture so severe that the draft was considered tobe politically infeasible. A “rump group” of thecommission continued to try to reach compromisesand work out a framework for a more palatablelegislative proposal.

By all accounts, when these negotiations brokedown, the intervention of Governor Bruce Babbittprovided the initiative for arbitration.% The governorpersonally led negotiating sessions among the repre-sentatives of municipal, industrial, and agriculturalwater users over a six-month period. When a delicatecompromise was reached on the substantive issues ofa groundwaterlaw proposal, Governor Babbitt calleda special session of the legislature, where the Ground-water Management Act was passed in a seven-hoursession on June 11,198O. The governor signed the lawthe next day.

Just as in 1945, in 1979 a crucial federal push wasadded to the process Secretary of the Interior CecilAndrus stated that the department would not supportthe Central Arizona Project unless the state adopted anew groundwater law placing restrictions on use.

The magnitude of the influence of that federalcondition may be gathered from the anticipatedimpact of CAB The importation and use of water,when CAP is operating at its full capacity of 1.2million acre-feet per yeas is expected to reducereliance on groundwater supplies in central andsouthern Arizona enough to cut the overdraft by asmuch as two-thirds.

The master repayment contract between the U.S.Department of the Interior and the Central ArizonaWater Conservation District specifies that CAP water


Active Management Areas and Irrigation Non-Expansion Areas in Arizona

Philip C. Briggs, “Groundwater Management inArizona,“]ournal of WaterResources PlanningandManagement, July1 9 8 3 .

must replace, not supplement, agricultural use ofgroundwatec That is, no new agricultural lands maybe brought into production using CAP water (excepton Indian lands), and existing agricultural users ofgroundwater who receive water from the CAP mustreduce pumping by equivalent amounts.59 In times ofshortages, municipal and industrial uses of CAP wa-ter have an absolute priority over agricultural usesCompliance with these contract provisions alone “ef-fectively redirected Arizona water po1icyP

The remaining one-third or more of the statewideoverdraft is to be solved by management and conser-vation methods. The Groundwater Management Act,which repeals and supplants all previous legisla-tion,61 designates four active management areas(AMAs) and two irrigation non-expansion areas(INAs) with boundaries approximately coterminouswith those of major groundwater areas (see Figure3-l). Eighty percent of Arizona’s population and 70percent of its water consumption are located within‘the four AMAs. The goal of the legislation is toestablish a balance between water supply and de-mand within the AMAs by 2025 (except in thepredominantly agricultural Pinal AMA, where acontrolled mining operation willbe pursued). Withineach AMA, a director is responsible for the implemen-tation of the act, with the recommendations of afive-member AMA advisory council.

The provisions of the 1980 act apply within thedesignated areas. Outside of the AMAs and INAs,

groundwater withdrawal and use are essentiallywithout restriction (i.e., they are restricted only by thelegal doctrine of “reasonable usen), and even withinthe AMAs and INAs, operators of small domesticwells (less than 35 gallon per minute capacity) aregenerally exempt

The act established a formal decisionmakingstructure that centralizes authority in the governorand the Department of Water Resources (DWR) andits director and creates weaker authority in the localagencies d The law created “a highly centralized andauthoritative State Department of Water Resourceswith broad powers over management and policyissues,” and a “powerful director”@ The departmenttook over the activities of the Arizona Water Commis-sion and added groundwater management to them.

The governor appoints the DWR director as wellas the local AMA advisory council members. TheDWR director appoints the AMA directors and isresponsible for making a series of lO-year manage-ment plans for each AMA (with tighter water userestrictions during each period). The director is autho-rized to determine maximum water duties for irriga-tion and water conservation requirements for munic-ipalities and industries within the AMAs, review theplans of local authorities for reducing groundwaterwithdrawals in critically overdrafted areas, file forcivil and criminal penalties for violators of regula-tions promulgated under the act, set water withdraw-al fees, and, ultimately, take land out of agriculturalproduction if necessary

34 U.S. Advisory Commission on Intergovernmental Relat ions

The 45year period from 1980 to 2025 has beendivided into five management periods to establishstep-by-step control and eventual elimination ofgroundwater overdrafting. In the first period, from1980 to 1990, the Department of Water Resourcesregistered wells and defined groundwater rightsthrough an application-and-permit program, withdifferent classes of withdrawal rights but withoutmany requirements or restrictions. The intention wasto bring the implementation of the Code alongrelatively slowly at first, to try to heighten compliancewith the first stages before the more restrictiveprovisions are applied.

The act requires that groundwater withdrawalwellswithin designated areasbe registered regardlessof their use. Wells above domestic-use capacity in theAMA have to be metered and their annual productionreported.64These requirements will help to generateadata base that will be useful in all aspects of ground-water management

The first class of groundwater withdrawal rightsis “grandfathered irrigation rights,” which areawarded to persons who pumped or receivedgroundwater from a well used to irrigate two or moreacres of land prior to 1980. Lands that were notirrigated at some time between January $1975, andJanuary 1,1980, do not qualify for a grandfatheredirrigation right and may not be brought into irrigatedagricultural production.6 The clear intention is tofreeze the level of irrigated agricultural productionthat existed in 1980. Reductions in irrigated agricul-tural acreage and water consumption are reserved forlater management periods.

Grandfathered irrigation rights remain with theland and can be used by a new owner. The groundwa-ter may be used only on the overlying land, however,and the rights remain with the land. If lands withgrandfathered irrigation rights are sold for uses otherthan irrigated agriculture, the rights transfer at apredetermined rate of 3 acre-feet per year Theseprovisions of the law restrict the transferability ofagricultural water rights relative to some other statesthat use permit schemes for allocating groundwatecUnder the new law, farmers who manage to obtaingroundwater withdrawal rights may find their rightsless marketable.&

Municipalities, water companies, and irrigationdistricts apply for permits for service area rights towithdraw, transport, and distribute groundwater,provided they remain within percapita waterconser-vation requirements set by the DWR director Personsnot eligible for grandfathered irrigation rights orservice area rights may apply for groundwater with-drawal permits for non-irrigation purposes.

Within the irrigation non-expansion areas, nonew lands may be brought into irrigated agriculturalproduction. No new rights are created. Owners of

existing agricultural lands may continue those landsin production and may withdraw and apply as muchwater as they choose. Irrigated lands may be sold, andthe new owners are equally free to irrigate as were theprevious owners. Water withdrawal and consump-tion for other types of uses may develop withoutrestriction. INAs may be converted into AMAs shouldsuch conversion become necessary in order to eitherprotect the agricultural economy or preserve theavailability of groundwater supplies for municipaland industrial uses6’

Groundwater management activities are fi-nanced on a 50-50 basis with appropriations from thestate General Fund and funds raised from waterwithdrawal fees assessed against groundwaterpumping. Groundwater users who are required tometer their wells and annually report their pumpageare also required to pay the “pump tax.” The with-drawal fee is set by the DWR director within theguidelines of the law, with a cap of $5.00 per acre-footUp to $1.00 of the withdrawal fee may be used to meetoperating costs of DWR. Up to another $200 may beused for water supply augmentation after the directorhas established an augmentation plan for the AMA (thismay begin during the 1990s). The remaining $200 ofthe fee is for the purchase and retirement of agricul-tural land, and cannot be levied until after 2006.@

The 1990-to-2000 management period calls forthe implementation of a plan to augment watersupplies. The director may propose any means ofaugmentation from artificial recharge to weather modi-fication. The ZlO@to-2010 management period includesthe possibility, after 2006, of purchasing and retiringagricultural land to meet water conservation goals andensure a balance between demand and supply

The law did not specifically provide for conjunc-tive management, although it does require the aug-mentation of water supplies It does not provide for asystem of using both surface and groundwater sup-plies in ways that take advantage of each source. Theprovisions are designed more to encourage the use ofsurface water by denying access to groundwaterwhen surface supplies are available. For instance,some kinds of groundwater withdrawal permitswould be granted only if the applicant could demon-strate that no alternatives were available, and ifsurface water supplies subsequently became avail-able, the director could require the permit holder toswitch to surface water6g

In 1986, Arizona enacted an Underground WaterStorage Act that addresses more explicitly a purposeto “further the conjunctive management of the waterresources of this state.“70 Although the law does notdefine “conjunctive management,” it does authorizethe Department of Water Resources to issue separatestorage-and-recovery permits to applicants, on adetermination that other water users will not be


damagedn This permit scheme would provide thosewho stomd waters underground with considerableassurance that they would be entitled to recover thosewaters, A bill introduced in 1989 would further encour-age the use of underground storage capacity by offeringmunicipalities grants for up to 50 percent of the cost ofstoring surplus CAP water undergmundn

The Arizona Groundwater Management Codeenacted in 1980 was selected by the Ford Foundationin 19% as one of the ten most innovative programs instate and local government It has been praised byobservers and policymakers, not only for the compm-mise it reached between strongly entrenched politicaland economic interests, but for its structure and content

The 1980 Arizona Groundwater ManagementAct has withstood an initial challenge to its constitu-tionality The state supreme court upheld the act as aconstitutional exercise of the state’s police powers.73The activities of the first management period, al-though limited principally to the well registrationprogram and the determination of groundwaterrights and issuance of permits, presented a consider-ably more formidable task than was initially antici-pated, according to the deputy director for engineer-ing of the Department of Water Reso~rces.~~ Thewater conservation requirements of the law becomemore stringent over time, so additional tests ofcompliance and success lie ahead.”

Interjurisdictional Coordination:Los Angeles County, California

The approaches to groundwater management inArizona and California contrast sharply Californiahas not adopted a comprehensive statewide ground-water management law, but has pursued a policy ofencouraging local water users to develop governancestn~ctums for water management (usually through thecombined efforts of special water districts and waterusers’ aswciations) with the support of state agenciessuch as the Department of Water Resources (DWR).

The state has encouraged neighboring commu-nities sharing similar water resource problems toform special water districts to address areawidemanagement challenges. This policy has been fol-lowed in most of the inhabited areas of southernCalifornia, and in several areas in northern Califor-nia.76 The policy does not appear to indicate neglect ofthe importance of water management, but is adifferent approach to the development and imple-mentation of management programs:

The legislature has moved cautiously withrespect to groundwater problems and legisla-tion has focused on local solutions, with em-phasis on the importance of fashioning man-agement solutions to meet local conditions andlocal needs Nevertheless, water resources

management is treated as an issue of greatpublic interest and given high priority in largepart because of the scarcity of water resourcesin the areas with the greatest demandn

The absence of a state groundwater managementcode and state administration has been evaluated in anumber of ways. These assessments generally divideinto two categories, one quite critical of the absence ofcentral authority, and the other supportive of localdiversity and innovation.

The Critics. According to critics, the absence of astatewide code or administration means that “there isno groundwater management in California.” Al-though provisions concerning groundwater are“[slcattered throughout the state Water Code:. . . noneof these Code sections provides California with aneeded management program.“% The state’s ap-proach is described as “inaction,” “failure,” “inade-quate,” and “a ‘no action’ groundwater managementsystem.“79 A representative observation is the follow-ing “Groundwater meets 40 percent of California’sannual water needs, yet is essentially unmanaged.“@

The anticipated consequences of the lack of astatewide groundwater program, in the view of theseobservers, are severe. Current arrangements “canonly lead to disaster?i Because local managementtakes diverse forms in various groundwater basins, itis criticized as “piecemeal,” producing “inefficiency”and uuncertaintyH’82 Critics point to 42 groundwaterbasins in the state with some degree of overdrafting,11 of which were identified by DWR in 1980 as in“critical overdraft.”

Conversely critics promote statewide managementas good in and of itselc which “must be enacted topmtect that public interest,“B3 and “would ensm ejkiencyin the beneficial use of gmundwater”84 “Effective”statewide management of California’s hundreds ofgroundwater basins would “need to be simple, flexible,equitable, and inexpensive to administePs

The Advocates. There are other observers who viewthe absence of statewide groundwater managementas rational in light of the degree and variety of localinitiatives and activities. What is seen by critics as aninadequate and ineffective “piecemeal” approach isseen by others as “a relatively well-developed anddiverse system of local groundwater managementthat has evolved on a piecemeal basis over manyyears.“u This diversity developed for “good reason,”since”thehistoryofuseand theproblemsvatiedfrombasin to basin.@’

These observers view the legislature’s repeateddemurrer to adopting statewide management pro-posals as “justified because of the diverse nature ofgroundwater problems requiring different types oflocal solutions.“BB In fact, most of the “scatteredprovisions” in groundwater laws have been initiated by


water useIs seeking authorization to create or extend thepowers of an existing local governance structure. Thelegislature has usually responded affirmatively

Artificial recharge projects in southern Califor-nia, using groundwater basins to store surface watersfor later use, date back at least to the 1920sB9 Floodwaters were moved out of stream channels,diked andponded in permeable areas, and allowed to sink intothe underground strata. Temporary dams were con-structed in more permeable stream channels toobstruct surface flows and increase recharge togroundwater basins, which could then serve bothstorage and transmission purposes In the 198Os, over2 million acre-feet of water per year were placed inunderground storage by local water agencies

In some locations, extensive spreading groundswere constructed, some of which were designed torecharge the groundwater supply while providingsurface recreational opportunities for local residents.The Orange County Water District was a leader in thismultipurpose facility development Groundwaterpumping was taxed by local special water districts toprovide the funds for artificial replenishment pro-grams that primarily benefited pumpers and con-sumers. Later innovations included “in-lieu replen-ishment” (whereby water useis in basins with accesstobothsurface and groundwater supplies are encour-aged to take surface water in lieu of pumpinggroundwater when surface supplies are plentiful)and the use of reclaimed water for basin *charge andsea water barrier projects. Reviewing the develop-ment and implementation of these elements ofconjunctive management, one DWR observer wrotein 1982: “Many of California’s local water agencies usegmund water storage capacity in the same waysurface reservoirs are used to hold water from winterto summer and from wet years to dry years,“gO anddescribed the extent of employment of conjunctivemanagement of groundwatersupplies as unmatchedelsewhere in the United States.

In the latter half of the 197Os, the RockefellerFoundation supported a study by the RAND Corpora-tion of water use and conjunctive management insouthern California. While noting that the presenceof management activity does not necessarily mean thatoptimal management has been achieved, the authorscited the adaptability of existing local programs to theneeds of different locations and to changes in condi-tions over time,+” and concluded “Since there already isa locally developed management program in place inmajor Southern California basins, there is no need forthe state to impose yet another management scheme.. .local management in place should be retained, subjectto appmpriate state review?

Thmugh the 198Os, in the aftermath of the severedrought of the late 197Os, as population growthcontinued apace and as the allotment of Colorado

River water for California declined with the begin-ning of operations of the Central Arizona Project, stillmore emphasis has been placed on wiser watermanagement, conservation, and reuse of wastewa-tern. Environmental concerns and budgetary con-straints have largely eliminated the prospect of futurewater development projects. Local water agencieshave focused increasingly on the use of pricing toregulate the demand side of the water supply equa-tion,on reaping new supply availability from conser-vation, and on interlocal agreements and water rightstransfers to move water from wasteful and lowervalued uses to higher valued uses.

A 1985 report to the U.S. Army Corps of Engineerson the management of water resources in the LosAngeles County drainage area concluded: “Groundwater basins in the area are well managed.. . . Legallimits are placed on amounts of annual withdrawalfrom various basins, and extensive artificial rechargeprograms have been developed to augment thenatural recharge of the basins.n93 While noting thatmost regulation of groundwater withdrawals byspecial districts was concentrated in the southern partof the state, a 1987 report by the Institute of PublicAdministration acknowledged that California “leadsthe way” in the special district approach, “in thebelief that the complexities of groundwater manage-ment can best be dealt with by specialized units ofgovernment operating at the local or regional ratherthan the state leveL”%

The Evolution of Local Programs. Both critics andadvocates of California’s approach have observed thata lack of defined rights to specific quantities of ground-water has presented significant barriers to effectivemanagement95 It is not surprising then, that determin-ing those rights has been among the first steps taken bylocal groundwater agencies The evolution of watersupply management in California has relied sttonglyon the use of judicial institutions and proceedings

In many localities, associations of local waterusers, including municipalities, water service com-panies, local businesses, and agricultural interests,were organized to discuss ways to determine rights.Frequently, they employed adjudications in order totake advantage of a process that limited decisionmak-ing to the users affected, allowed for expert investiga-tions of hydrologic conditions, balanced total extrac-tions with the available groundwater supply, andproduced enforceable water rights for individualusers Stipulated judgments among the parties wereoften used to secure mutually agmeable allocations thatmight not have resulted from the strict application ofstate water 1awsVhe use of adjudicatory processes hasyielded such a variety of outcomes that “one couldalmost say that no two forms of gmundwater manage-ment am alike within the group of adjudicated basins@’


The conjunctive management of water suppliestypically also has involved the creation of specialwater districts or watermasters that control and limitoverdraft through monitoring and enforcement, ac-quire water supplies, replenish the undergroundsupply and regulate water storage, and protect sup-plies from degradation. Occasionally, a water districtwill produce these services itself; in other cases, thedistrict will act as a service provision unit contractingwith other specialist producers.” An example of thissystem of interjurisdictional relationshipscan beseenin the conjunctive management of water in the LosAngeles coastal plain in Los Angeles County?

The coastal plain extends from Los Angeles eastto the Whittier area, south to Long Beach, and alongthe coast up to Santa Monica. It is underlain by twomajor groundwater basins, the West Coast Basinalong the coast and the Central Basin inland (al-though the southeast corner of the Central Basinextends down to the coast in the Long Beach area).The dividing line between the two basins is theNewport-Inglewood Uplift, a northwest-southeastgeologic disjuncture parallel to the coast The WestCoast Basin is recharged almost exclusively by sub-surface flow across the uplift from the Central Basin,which in turn receives most of its replenishment fromthe forebay area in the vicinity of Whittier Narrows.

Rapid development of the Los Angeles coastalplain during the first half of this century generatedincreased demands for water. These demands weremet largely by use of the groundwater supplies of thecoastal plain, which lacks extensive and reliablesurface supplies. This resulted in declining under-ground water levels, which in the West Basin sankbelow sea level. At points of hydrologic contactbetween the West Basin and the Pacific Ocean, saltwater began to intrude, rendering water in somewells near the coast unusable by the 1920s and 1930s.The main source of local water supply for thecommunities of the coastal plain along the ocean was,therefore, severely threatened.

During the 192Os, the Metropolitan Water Districtof Southern California (MWD) was formed by aconsortium of municipalities in southern Californiato develop imported water supplies from the Colora-do River. MWD’s Colorado River Aqueduct wascompleted in 1941. This gave communities in the coastalplain the option of acquiring supplemental waterMWD’s construction and operations, and the tepay-ment of the substantial debt it incurred, were supportedthrough property taxes, so access to MWD’s waterrequired annexation to the district

Representatives of West Basin users-municipal-ities, water companies, local businesses-formed aWest Basin Water Association to determine how toacquire and pay for additional imported suppliesfrom MWD and how to gain control of the depletion

problem. The association chose two different ave-nues, one involving special district formation, theother involving adjudication of rights to groundwa-ter use. Through a special election in 1947, theseparate small communities within West Basinformed the West Basin Municipal Water District forpurposes of annexing to MWD, acquiring rights topurchase Colorado River water, and gaining a collec-tive representation on MWD’s board of directors.

Meanwhile, MWD faced a problem with its salesof Colorado River Aqueduct water, which was substantially more expensive than pumping localgroundwater or diverting local surface supplies.Pumpers and diverters throughout southern Califor-nia, faced with the choice between further overtaxinglocal supplies or paying the much greater purchasecosts, went on overusing the local supplies. Betweenthe completion of the project in 1941 and 1949, theaqueduct, which was capable of delivering 550,000acre feet of water each year, had delivered a total ofonly 146,000 acre-feet If that situation continued,MWD’s aqueduct stood a good chance of becoming a25@mile long “white elephant” Some mechanismwould be needed to shift users away from localsupplies to imported water

Through an adjudication begun in 1945, WestBasin water users sought to acquire quantified rightsto specific amounts of pumping and to limit the totalto the basin’s “safe yield.” That adjudication waspatterned after an earlier one among water users inthe smaller Raymond Basin to the north. Among thebeneficial outcomes in the Raymond Basin was that,by placing an upper limit on pumping, it forced theparties to meet additional needs from anothersource-i.e., through purchases of supplemental waterfrom the wholesaler, MWD.

The West Basin litigation involved extensivehydrologic investigations by the California Depart-ment of Water Resources as court-appointed referee,and considerable negotiation among the parties,resulting in an interim agreement to limit pumpingin 1955 and a final judgment in 1961. West Basin usersfaced two complicated and interrelated difficulties.One was that, in order to limit pumping to an extentneeded to stop the overdrafting, they would have tocut back by nearly two-thirds and replace the waterwith more expensive imported supplies. The second,and related, problem was that raising West Basinwater levels enough to halt sea water intrusion wouldincrease levels along the Newport-Inglewood Upliftto the point where water would no longer flow infrom the Central Basin because of lowered waterlevels there due to overpumping.

The West Basin Water Association, DWR, and theLos Angeles County Flood Control District (now adivision of the county Department of Public Works)constructed and operated a pilot project in the late


Figure 3-2Simplified Pictorial Representation of Conjunctive Management in Los Angeles County, California

Source: Warren Viessman and Claire Welty, Water Management: Technology and Institutions (New York: Harper and Row,1985)

1950s and early 1960s to create a barrier against seawater intrusion along the coast by injecting fresh wa-ter underground to form a pressure ridge. The pilotproject was successful, and a full-scale barrier projectwas constructed. Operation of the barrier was fi-nanced temporarily through the creation of an im-provement zone within the county flood control dis-trict The creation of the barrier allowed water levelsin the West Basin to be kept lower, thereby increasingthe amount of recharge flowing in from the CentralBasin and reducing the amount by which pumpinghad to be cut back

In the 195Os, partly at the instigation of WestBasin users who saw their fresh water supply threat-ened by continued overextraction upstream, CentralBasin users formed a Central Basin Water Associationand began to explore possibilities for reducinggmundwater withdrawals and securing additionalsupplies and a groundwater replenishment program.The Central Basin Municipal Water District wasformed and annexed to MWD in 1952, ensuringaccess to Colorado River watec As in the West Basinand Raymond Basin, Central Basin pumpers did notimmediately switch to imported watec However, alsoin the 195Os, sea water intrusion began to appear in theLong Beach vicinity, so Central Basin water quality wasthreatened as a nzsult of groundwater overdrak

Water users in the West and Central Basinsneeded to achieve several goals: limit groundwaterwithdrawals in the Central Basin; raise water levels inthe Central Basin and keep them lower in the WestBasin in order to maximize the subsurface flow intothe West Basin; find a means to finance and operate areplenishment program in Central Basin; and find apermanent means for financing and operating thesea water intrusion barrier projects. Through anotherspecial election in 1959,residents in both areas agreedto form the Central and West Basin Water Replenish-ment District under authority of the1955 state WaterReplenishment District Act.

Once formed, the replenishment district initiatedan adjudication of water rights in the Central Basin.This action began in 1962 and ended with a finaljudgment in 1965. At that point, water users in theWest and Central Basins had enforceable rights tospecific quantities of water, which could be (and havebeen) exchanged, leased, or sold. Both basins wereplaced on a modified safe-yield operation. A replenish-ment program was implemented, involving local n+charge and artificial recharge with imported andreclaimed watec Sea water intrusion was effectivelyhalted by the barrier pmjects

The total conjunctive management scheme forthe Los Angeles coastal plain is illustrated in thesimplified diagram in Figure 3-2. The Central and


West Basin Water Replenishment District, with itsstaff of three, is the public provision unit thatorganizes this program.

One question that arises about the coastal plainprogram is why the replenishment district wascreated when the West Basin and Central Basin waterdistricts existed. The districts, like many others inCalifornia, were formed to contract for the delivery ofsurface water Such districts generally do not haveartificial recharge programs or pumping assessments;@’ or correspond with the boundaries ofgroundwater basins. These districts typically repre-sent political jurisdictions and may be formed by thepeople of any county or portion of a county, and mayinclude incorporated and unincorporated areas (al-though if any part of a municipality is included, all ofit must be included).

Therefore, neither municipal water district wasin a position to finance and operate the replenish-ment of the Central and West Basins However, asspecialized agents and contractors for purchases ofsupplemental surface water, they were ideally suitedto. the acquisition of waters for recharge programs,The replenishment district had authority to financeand operate a recharge program, and the neededjurisdictional boundary fit The replenishment dis-trict became a customer for the supplemental watersecured by the municipal water districts The replen-ishment district purchases supplemental waterthrough the municipal water districts The waterpurchases are financed through taxation of ground-water pumping

The replenishment district owns extensive re-charge facilities, but it does not operate them. The LosAngeles County Flood Control District (now in theDepartment of Public Works) has specialized person-nel with extensive experience in operating reservoirs,and it operates the replenishment district’s spreadingprogram in the Central Basin forebay The Departmentof Public Works also operates the sea water intrusionbarrier project for the replenishment district

The Los Angeles County sanitation districtshave operated water reclamation plants at theWhittier Narrows and nearby San Jose Creek foryears. With authorization from the California De-partment of Health Services, the replenishmentdistrict purchases as much reclaimed water aspossible from the sanitation districts, which releasethe water to the spreading facilities. Locally re-claimed water is much less expensive than waterimported from northern California or the ColoradoRiver, so the replenishment district buys all it can.

The metropolitan water district, the major im-ported water wholesaler, also offers surplus replen-ishment water at a lower price than its treated, filteredregular water Conjunctive use of groundwater sup-plies lowers the demand for imported water and

reduces the capacity MWD has to construct andmaintain for dry periods, so the MWD board hasencouraged this practice thmugh the lower price ofreplenishment water Similarly, in Yeats when it hassurplus water in the State Water Project, the CaliforniaDepartment of Water Resources has offered water atreduced prices to local districts for artificial recharge.

Thus, each yeas the Central and West Basin WaterReplenishment District anticipates the approximatemix of surface water supplies and groundwaterpumping within the coastal plain (based on theanticipated availability of surface water supplies),estimates the amount of replenishment and barrierwater needed, and arranges the purchase of thatwater and the operation of the spreading facilitiesand barrier projects. It then assesses the purchase andoperations costs to the water users. The conjunctivemanagement program, now beginning its fourthdecade, is accomplished through a network of inter-governmental arrangements that coordinate the ac-tions of specialized producers.

Intergovernmental Contracts:The Solano Project

Relationships among governmental organiza-tions engaged in water supply can be arranged byintergovernmental contracting in a number of ways.A government such as the Central and West BasinWater Replenishment District may contract withseveral service producers. In other places, severalgovernments may make contractual arrangementswith a single producer that performs several manage-ment tasks. Solano County in northern California hasdeveloped arrangements between a federal agency, acounty district, several municipalities, and an irriga-tion district

The Solano Project captures the waters of PutahCreek, which drains the eastern slope of the coastrange of mountains in Napa and Iake counties.Monticello Dam impounds Putah Creek waters nearthe convergence of Napa, Solano, and Yolo countiesand forms Lake Berryessa. Waters from Lake Berryes-sa are released into a smaller reservoir, Lake Solano,from which water is diverted by means of the PutahDiversion Dam into the Putah South Canal, whichconveys water toward the farmland and cities ofSolano County, one of the fastest growing Californiacounties. As of 1980, the project irrigated about 60,000acres of farmland on about 900 farms, and providedsupplemental water for three U.S. military installa-tions and for urban and suburban areas with acombined population of about 300,000.

The county’s climate is semi-arid, with an aver-age annual rainfall of 17 inches, almost all of whichfalls in November, December, and January Duringthe summer months, Solano County residents (espe-


cially farmers engaged in irrigated agriculture) haverelied heavily on groundwater irrigation, whichresulted in a falling water table through much of thefirst half of this century The Solano Project had thesame purpose as most water development projects inthe West-to capture surplus waters when they wereavailable in order to increase the supply throughoutthe year (and across years), and to relieve some of thedemand pressure on local groundwatet

The Solano County Board of Supervisors formeda Solano County Water Council in 1940, whichworked on securing federal support for the projectThe project was authorized by the Congress inNovember 1948 under the Reclamation Act of 1939 aspart of the plans for development of the CentralValley area. In February 1948, the Solano IrrigationDistrict, covering most of the irrigable land, wasformed to finance and operate a distribution systemfor project water lo1 In 1951, the Solano County FloodControl and Water Conservation District was autho-rized by the state legislature and activated by thecounty board of supervisors to represent the variousentities desiring water from the Solano Project and tocontract with the U.S. Bureau of Reclamation (andsubsequently with the California Department ofWater Resources for water from the State WaterProject’s North Bay Aqueduct).lM

Construction began in 1953. Monticello Dam andthe Putah Diversion Dam were completed in 1957,and the Putah South Canal was completed in 1959.The Solano Irrigation District constructed the $15million distribution and drainage system, whichconsists of several miles of canals and pipelines andwas completed in early 1963. The system was fi-nanced with an interest-free loan from the U.S.Bureau of Reclamation, with repayment scheduledover a 40-year period ending in 1999. It is estimatedthat this arrangement saved the district approximate-ly$3 million in construction costs and about one-thirdin financing costs103

The U.S. Bureau of Reclamation entered into amaster water contract with the Solano County FloodControl and Water Conservation District for thedistribution of the waters developed by the SolanoProject The district provides water to the SolanoProject’s “member units” -the cities of Fairfield,Suisun City, Vacaville, and Vallejo, the Maine PrairieWater District, the Solano Irrigation District, theUniversity of California at Davis, and the CaliforniaMedical Facility at Davis (both of which are located inYolo County). The Solano Irrigation District is entitledto 74 percent of the waters developed annually by theproject Another 7 percent is estimated lost to evapo-ration and seepage, and the remaining 19 percent issplit among the other member units.

The Bureau of Reclamation contracted with theSolano County Flood Control and Water Conserva-

tion District for the operation of the Putah SouthCanal and the related distribution facilities Thedistrict subcontracted the canal operation to theirrigation district, which already operated and main-tained the distribution system.

Initially the Bureau of Reclamation operated andmaintained the headworks of the Solano Project-theMonticello Dam, Lake Solano, and the Putah DiversionDam. The irrigation district also has constructed andoperates an electrical power plant at Monticello Dam

As a result of contracting and subcontracting,neither of the parties to the Solano Project masterwater contract-the U.S. Bureau of Reclamation andthe Solano County Flood Control and Water Conser-vation District-performs any direct operation ormaintenance. The bureau monitors some projectoperations and publishes an annual report, and thecounty district accounts for the allocation of andwholesales imported water from the Solano Projectand the State Water Project Thus, in 1988, while theSolano Irrigation District had a staff of 66 persons,most of whom were engaged in water supply, the staffof the Solano County Flood Control and WaterConservation District, the main contractor for theSolano Project, consisted of one person in the countyDepartment of Public Works.

For the Solano Project, then, the irrigation districtoperates the dams and canals that comprise the watersupply and conveyance system, the electric pow-er-generating facilities, and sets of water wells-awide array of activities for an “irrigation district”These arrangements have placed the district in aposition to manage its own surface and groundwatersupplies conjunctively, and to enter into agreementswith water retailers in Solano County (such as themunicipalities and the Maine Prairie water district)for distribution and use.

The irrigation district and Suisun City have a jointpowers agreement whereby the district provides mu-nicipal and industrial water to newly annexed areaswhile the city agrees to keep those areas within theterritory (and thus the taxing authority) of the districtSuisun City therefore provides its residents with waterfrom alternative sources that include locally pumpedgroundwater, water imported from the Solano Project,and water imported from the State Water Ptojectthmugh the North Bay Aqueduct

The City of Fairfield, which relies almost entirelyon imported water, has an exchange agreement withthe irrigation district The district finds irrigation usesfor some reclaimed wastewater from the city andprovides the city with Solano Project water

As Solano Count urbanizes, water previouslydevoted to agricultural uses is being gradually shiftedto municipal uses With a service area that encom-passes much of the agricultural land in the county andreaches to some of the municipalities, the irrigation


district can assist with that transition. The City of Dixon,which has been supplied by a private water pmduwthe California Water Service Company, has arranged topurchase additional project watec The Maine Rairiewater district, which is located south of Dixon and hasan entitlement to project water but no conveyancefacilities, has given over part of its entitlement to the

’ district in exchange for delivery of tailwaters to itsservice area

The Putah Plain groundwater basin is located inSolano County, partially within the territory of theirrigation district, and has a sustainable yield of about140,000 acre-feet per yeat The irrigation districtcoordinates the conjunctive use of Solano Projectwater and Putah Plain groundwatet The districtreplenishes the groundwater basin with water fromPutah Creek uses more project water in wet years,and draws mom heavily on gmundwater from thePutah Plain basin in dry yeaq and operates deep wellsin the Putah Plain that produce gmundwater and drawmore surface water into the basin from unlined canalsand natural stream channels These practices enhancethe total long-term yield, helping meet the additionaldemands of a growing u&n population withoutalways being taken away from agriculture.

Conjunctive practices in Solano County in-volve a balancing act, however. It is possible tooverfill the Putah Plain basin, especially in theneighborhood of Putah Creek Depths to under-ground water there are not very great, and in yearsof surplus precipitation and natural percolation, itis possible for the water table to rise sufficientlynear the land surface to saturate and rot the rootsystems of crops. So,at times (especially in theearlyspring of years with above-normal rainfall), theirrigation district has to turn on its undergroundpumps, not because there is too little surface water,but because there is too much groundwater tooclose to the surface. Regulating conjunctive usethus involves keeping underground water levelswithin a range where storage values are takenadvantage of without damaging overlying uses.

Recently, the irrigation district and the munici-palities have formed the Solano Water Authority todiscuss with the Bureau of Reclamation the purchaseof the Solano Project The contractual arrangementsfor operation and maintenance of the project, com-bined with the district’s operation of the MonticelloDam power plant, have prompted consideration ofsimply “buying out” the ownership of the projectThe U.S. Bureau of Reclamation has expressed someinterest in turning over the operation and ownership ofwater projects to local users (although this wouldrequire congressional authorization). Thus, it is possiblethat the bureau may in the future be removed from theset of contractual arrangements for managing waterresources in Solano County

Appropriation Permits, Offsets,and a “Water Czar”:The New Mexico State Engineer

New Mexico relies heavily on groundwater fordomestic, industrial, and irrigation uses. The contin-ued availability of supply from this limited resource isan important concern. While recent attention hasfocused on a rash of serious water contamination andpollution incidents, sustaining sufficient water quan-tity has been a priority since before statehood.l04

New Mexico adopted the doctrine of prior appro-priation for acquisition of rights to groundwater usein 1931, the oldest “continuously employed priorappropriations system in groundwater in theWest.“‘Os Enactment of the statute was promoted byfarmers and other civic leaders in the vicinity ofRoswell, where the artesian groundwater basin thatsupplied the agricultural economy was exhibitingloss of pressure.

Several other western states also made ground-water subject to prior appropriation. The New Mexi-co legislation authorized the state engineer to desig-nate critical groundwater areas and to administerthrough appropriation permits the allocation ofgroundwater within a basin, on the petition of at least10 percent of the ~sers.1~ If unregulated exploitation“reaches a point where it threatens the rights ofexisting users, the petition mechanism can be used tocall on the engineer to assess and administer therights within the basin.“lmThe appropriation permitsrestrict pumping to a specific quantity and set priorityof rights in accordance with seniority (This patternwas adopted by other states with significant artesiangroundwater supplies, such as Utah and Nevada,since artesian basins exhibit problems from overuserelatively sooner). The New Mexico state engineeralso was made responsible for developing informa-tion about groundwater resources and promoting theexpansion of irrigation with groundwatec

In the Pecos Basin, an aquifer with significantrecharge where groundwater rights have been adju-dicated and quantified, appropriation permits limittotal annual extractions to around 400,000 acre-feet’@This limitation places the basin on a “safe-yield”operation, halting the decline in water levels and thelengthening of pumping lifts Within the basin, appm-priation permits are transferable among pumpers, thusmoving groundwater toward valued uses and avoidingthe retention of obsolete permits

However, it is impractical to attempt to managemany groundwater basins in New Mexico on aperpetual “safe- yield” basis because, as in neighbor-ing Arizona and the high plains of the Texas Panhan-dle, they receive little average annual recharge.Therefore, the state engineer reserves one-third of theestimated balance of water remaining in the basin


and allocates rights to pump (“mine”) the remainingtwo-thinls in such a way as to deplete the stock over a&year period.lo9 Individual appropriators are awardedpermits entitling them to the use of a specified quantityof water per year over the 40 yearsno

Individual use rights are protected from theimpact of pumping on the lateral undergroundmovement of groundwater by making sure that wellsare not placed too close together Lateral groundwatermovement is also taken into account through the useof artificial boundaries, such as those of townships, togeographically subdivide aquifers that extend be-neath a large land area. For purposes of exchangingappropriations permits, well owners and operatorswithin such an artificial subdivision are treated aspumping from a common aquifer The theory behindthis system is that the lateral movement of groundwa-ter means that extractions and return flows from wellsin close proximity will probably have a significantimpact on one another, while the effects of extractionsand return flows from wells that are widely separated(albeit using the “same” aquifer) are, as a practicalconsideration, negligible.111

Appropriation permits may be transferred be-tween pumpers within one subdivision of an artifi-cially subdivided basin. Well spacing regulationsavoid impairment of use rights, and the subdividingof basins keeps the benefits of return flows within thesame general area. Transfers of permits betweensubdivisions are allowed, but they are restricted to theamount of water estimated to be the original permitholder’s consumptive use, rather than the amountpumped. 112 To the users of a common aquifer (orwithin close proximity of each other, as in an aquifersubdivision), there is no material difference betweenlosing from the common supply the amount of waterconsumptively used (extracted net of return flows) onoverlying land, or having that amount pumped andexported to another location.

The state engineer’s office has faced its greatestconjunctive management challenge in the adminis-tration of the Rio Grande aquifer. The aquifer ishydrologically connected with the Rio Grande River,and extractions from the aquifer can lower the streamflow of the river There is very little rainfall in theregion and not much recharge to the undergroundsupply. There also is no readily available externalwater source from which to import water for artificialrecharge of the Rio Grande system,u3 so the sur-face-to-groundwater relationship is zero sum overthe long term: groundwater extractions have thesame ultimate effect as diversions from the surfaceflow, but with a longer time lag

In 1956, the state engineer designated the RioGrande Underground Water Basin as a critical basin,subjecting it to the appropriation permit process. Theadministration of the basin combines controlled

long-term mining of the underground stock of waterwith the conjunctive management of the interrelatedsurface and groundwater supplies The surface wa-ters have long been fully appropriated. Any diminu-tion of the river flow would invade the rights of somesurface water appropriators. On any permit applica-tion to appropriategroundwater from the Rio Grandebasin, the engineer analyzes the relationship of therequested pumping on the stock of groundwater andits effect on surface flows. Depending on the mmain-ing water stock in the basin, a permit may be grantedconditioned on the applicant purchasing and retiringsufficient rights from senior appropriators on the RioGrande to offset the diminution of stream flow causedby the proposed pumping.l14

The engineer offered to issue a conditionalpermit to Albuquerque when the city sought toappropriate 6,tXKl acre-feet per year from the RioGrande aquifer from wells located within 6 or 7 milesfrom the river. It was estimated that roughly half ofthe water extracted would come from undergroundstocks and the other half would diminish the surfaceflows. The engineer held that the requested pumpingwould impair the surface water rights of seniorappropriators and suggested the conditional plan tooffset the effects of the groundwater appropriation.The city challenged the ruling, but the New MexicoSupreme Court upheld the offset plani15

The offset system recognizes the connectionbetween groundwater and surface water and thatsurface water is fully appropriated, but nonethelessallows new pumpers to undertake water develop-ment from the Rio Grande aquifer if they purchasesurface water rights. This extends market principlestothe whole water resource,rather than treating surfacewater rights under one system and groundwaterrights separately

The New Mexico system has yielded importantbenefits and offers useful lessons. Surface andgroundwater development and use are being moni-tored and administered in 31 groundwater basinsu6Using designated basins shares an advantage withspecial districts of limiting “the number of peopleinvolved in the decision to those who are actuallyaffected by the decision.“l*’ The New Mexico agpreach also defers the activation of a rulemakingprocess “until there is a demand for rules by actualgroundwater users n118 Thus, communities of interestare defined and involved in rulemaking.

Allowing exchanges of use rights enhances effi-ciency by directing use of the resource toward thosewho value it more. A strict seniority system of waterrights lacks the flscibility to adjust to shifts in thevalue of uses of water Allowing transfers of pumpingrights has been described as approaching an optimalsystem of allocation.l19 The offset system brings tolight an important benefit of conjunctive manage-


ment This administrative variation on water ex-change systems, allowing junior appropriators to“buy out” the rights of their seniors, “might enablegreater productive water use without detriment to theremaining senior stream rights, except for a risk ofmiscalculation.“120

Three qualifications should be noted about theNew Mexico appropriation permit,offset, and “waterczar” system First, the state engineer’s office hasfunctioned with notable stability and expertise in partbecause one person served in that capacity for fourdecades. In Steve Reynolds, New Mexico had a true“water czar” His extensive experience and intensiveknowledge of water resources and use patterns wereinvaluable in the administration of the per-mit-and-offset system, minimizing the likelihood oferroneous calculation.

Second, New Mexico is not the only state to havesuch a system. The Nevada system includesappropri-ation permits issued by the state engineer, who alsodesignates overdrawn basins as critical basins And ina case in Colorado in the 197Os, an offset system wasused to resolve a controversy in which a subdividerproposed to pump groundwater that was tributary toan overappropriated stream. The stream users agreedto a plan whereby the subdivider would purchasesufficient reservoir water upstream to release into theriver to offset the loss in stream flow resulting fromthe groundwater extractions.‘21

Third, the state engineer’s office is not the onlyinstitution involved in the management of ground-water supplies. Various “state and local agencies(including political subdivisions) charged with wa-ter-related responsibilities have been modernized inorder to provide ample latitude for their function-ing.“12 Groundwater basin adjudications also haveclarified rights and relationships of users The originalrecognition in law of the hydrologic inseparability ofconnected surface and groundwater came, not from thelegislature or the enginee? but from the courts

Interstate Competitionand Interstate Coordination:The Delaware River Basin

As often noted, groundwater basins do not neces-sarily conform to the boundaries of state or localpolitical jurisdictions. When a single water resourcesystem stretches across two or more states, moreinterjurisdictional difficulties arise. The states aresovereign entities, and the laws of water rights andownership are state laws. The most fundamentalissues of water management (who has what kinds ofrights to extract and divert how much water) there-fore are potentially in dispute. Yet, the parties to thosedisputes often are reluctant to develop an interstatemanagement system or to accept practices imposedby the federal governmentm

While competition between jurisdictions cansometimes lead to better and more efficient servicedelivery alternatives, competition in the use of acommon resource can produce undesirable results.Persons on each side of a common boundary under-lain by a common aquifer may respond to incentivesto develop the msource as rapidly as possible in orderto capture most of its benefitsJx If persons on bothsides respond to the same incentives in the sameways, then the “race to the pumphouse” in theinterstate context can yield wasteful overexploitationand ultimate harm to the resource. In areas wherepopulation growth and other sources of water de-mand is greatest, these kinds of interstate competitionmay be expected to intensify However, the extent ofproblems of interstategroundwater depletion maybesomewhat ovetstated.‘25

Where interstate water problems do exist, themost common recommendation is to develop andimplement an interstate compact, described by oneauthor as “the primary means of coordinating andmanaging groundwater resources in several EasternstaksN1~ h-&&ate compacts are cited as preferable toresource depletion and destruction resulting from inter-state competition,and to alternative forms of resolution,such as equitable apportionment of a water supply byadjudication. n’ Compacts are preferred for their flexibil-ity finality, and use of experts, and as less timeconsum-ing and expensive than litigation.128

Interstate compacts can provide for the coordi-nated use of a common resource among states, as inthe example presented below. There also are somecautions to be observed. First, there is no guaranteethat a state whose residents are overexploiting agroundwater resource at the expense of another statewill enter into an interstate compact.12g Second,transaction costs of reaching an interstate compact,which not only involves the consent of the Congress butalso squires unanimous adoption by the affected states,can be very high. Thus, not every interstate compact isdeveloped with less time and expense than would beinvolved in an adjudication Development and ratifica-tion of the Colorado River Compact, for example,spanned five decades, and still ended up in the UnitedStates Supreme Court

Third, it is not obvious that the advantages citedfor interstate compacts over adjudication alwaysapply Flexibility, finality, and expert development ofsettlements can be advantages of the adjudicatoryprocess as well. Based on experience, there is noreason to believe that interstate compacts are lesslikely to become the subject of recurring litigationthan are equitable decrees.

Finally, there are circumstances in which anequitable apportionment of an interstate groundwa-ter resource is a reasonable alternative. The mostoften discussed interstate aquifer is the Ogallala


Aquifer of the Great Plains region. Yet,as one observernoted, “Clearly it would be impractical to consider theentire Ogallala Aquifer as one common aquifei?While users in all eight states that overlie thatresource derive water from a “common” supply, it isnot at all obvious (because of the physical characteris-tics of the aquifer) that withdrawals by residents ofsouthern South Dakota or Nebraska are contributingmaterially to groundwater decline in the Texas HighPlains, or that losses and gains from the depletion ofthe aquifer fall evenly across users.

As noted with reference to New Mexico’s stateengineer’sartificiallysubdividinglargegroundwaterbasins, while “the lateral movement of groundwaterwould render two wells 2 miles apart as pumpingfrom the same common aquifeer, this lateral move-ment may, for all practical purposes, be ignored if thetwo wells are 50 miles apart.“131 Where the physicalcharacteristics of an interstate aquifer warrant it,states can manage and use equitably apportionedshares of the water supply and storage capacitywithin their own legal and institutional frameworks.

These considerations suggest that neither interstatecompacts nor equitable apportionments are always asuperior institutional form of meeting the challenges ofintestate competition and coordination Different chal-lenges will call for different resolutions

An example of the use of a federal-interstatecompact (an interstate compact to which the federalgovernment is also a party) is the Delaware RiverBasin Commission (DRBC). DRBC and the Susque-hanna River Basin Commission are the only twointerstate water management institutions with exten-sive groundwater management powers.132

DRBC members are the governors of New Jersey,New York, Delaware, and Pennsylvania, plus apresidential appointee to represent the federal gov-ernment (usually the Secretary of the Interior). Thecommission’s management activities proceed accord-ing to a comprehensive plan, prepared by staffmembers and approved by the commission.

There is considerable interdependence of surfaceand groundwaterwithin the Delaware River basin,‘%and the commission is committed to meeting thewater supply needs of the coastal plain throughconjunctive use of surface and groundwatersupplies.The staff has identified problems within the plainresulting from excessively rapid depletion of parts ofthe Potomac-Raritan-Magothy aquifer group. Pump-ing in areas of this heavily urbanized corridor hasresulted in the appearance of cones of depression inthe underground water levels. These cones attractsources of contamination (most often organic com-pounds such astrihalomethanes and tetrachloroethy-lene) and sea water intrusion.‘34

Step One in DRBC’s conjunctive managementprogram, therefore, has been to attempt to relocate

some of the more concentrated areas of groundwaterextraction (such as those near Wilmington, Delaware,and Camden, New Jersey) away from the confinedareas of the underlying aquifers, where pumping ismost likely to form depressions that lengthen pump-ing lifts and aggravate quality degradation problems.Moving pumping to unconfined areas of the aquifergroups brings it farther from the threats to waterquality and into areas that can be more readilyrecharged with surface water supplies, which allowsgreater advantage to be taken of the groundwaterreservoir’s capacity

Step Two is to compensate areas where groundwa-ter withdrawals need to be curtailed with additionalsurface water supplies or with groundwater pumpedfarther upstream and imported.135 This is especially thecase in the areas of Camden, New Jersey wheregroundwater withdrawals ate to be phased out over thenext two decades

Step Three is to increase the utilization of under-ground storage capacity The commission’s policyoriginally restricted groundwater withdrawals tosustainable yield. While this goal is desirable overlong periods, within a given year it fails to provide theflexibility to use the groundwater supplies and stor-age capacity of the coastal plain to their fullestpotential in maximizing water supplies withoutendangering resource preservation.136

The commission depends for its success on thecooperation of the states The ability of the commis-sion to designate “pmtected areas” within the DelawareRiver basin requires that the states cooperate in enforc-ing pumping restrictions that are deemed necessary tosecuring an adequate supply for the region.

The commission also needs states’cooperation inmeeting information requirements. For example,New Jersey terminated an old statute that exemptedwater users who held permits issued before 1947 fromreporting their groundwater withdrawals. Thesegrandfathered permits clouded the accuracy of esti-mates of total groundwater extractions in the coastalplain. In 1980, the New Jersey Water Supply Manage-ment Act extended the reporting requirement to allpumpers, giving the state and DRBC better informationwith which to develop and implement water manage-ment 137 DRBC will need similar state assistance asproblems of water contamination are addressed.

Interlocal Coordination

The problem of groundwater resources crossingpreviously established local government boundariesis among the most commonly discussed managementchallenges. Certainly, local autonomy over watersupply decisions increases costs in multijurisdictionalcooperation in source development and allocation.‘38However, there are alternative arrangements for


coordinating resource use that do not match existinglocal jurisdictional boundaries. Special water dis-tricts, adjudications, and the designation of ground-water areas by a state agency are all possibilities forfitting decisionmaking processes to the resource andto diverse communities of interest.

The difference between the geographical distri-bution of groundwater supplies and governmentalbodies creates other challenges It is possible, forexample, that a groundwater basin with desirablestorage capabilities could underlie one communitybut not another contiguous or nearby community,even though both are located in a region wheredemands for surface and groundwaters approach orexceed supplies.‘39

Possibilities for ameliorating such disparitiesinclude:

a ) Regulatory resource redistribution by a re-gional or statewide agency;

b) Physical resource redistribution throughconstruction and operation of a project thatconveys water from where it is to where it isnot and creates storage capacity in placeswhere it did not exist and

c) Interlocal coordination, whereby communi-ty interaction creates arrangements thatmeet resource needs while preserving thepolitical independence of differently sit-uated communities of interest, and avoiding(or at least minimizing) the need for regula-tory or physical redistribution schemes andtheir attendant costs.

While considerable past stperience has focused on thefirst and second of these possibilities, interlocal coon&nation deserves attention for the benefits it can produce.

As three examples illustrate, even situations thatwould appear to be characterized by strong and deepconflicts between communities, or that seemed torequire heavy investments in public works projects,have been ameliorated by negotiated coordination.The Main San Gabriel Basin, the metropolitan Wash-ington, DC, area, and the Owens Valley-Mono LakeBasin provide cases of coordination in the use ofwater supply and storage to improve overall avail-ability and allocation and to avoid difficult problems.

The San Gabriel Valley. In the Main San GabrielValley Basin in Southern California, water storagecapacity is monitored by the Main San Gabriel Basinwatermaster, a court-appointed policymaking bodycomposed of nine representatives of water producersand local water districts. As the result of an adjudica-tion of water rights, the watermaster was givencustody and control of storage and (along withseveral other responsibilities) is authorized to enterinto agreements with other water supply jurisdic-

tions to store water underground. Staff assistance isprovided by the Upper San Gabriel Valley MunicipalWater District

Parties to cyclic storage agreements with theMain San Gabriel Basin watermaster can importwater into the basin and store it there for subsequentrecovery The watermaster has entered into suchagreements with the neighboring San Gabriel ValleyMunicipal Water District (SGVMWD), which man-ages water supply over the territory of four cities, andwith the Metropolitan Water District of SouthernCalifornia through its local member agency theUpper Valley district140 These are useful contractualarrangements for the districts because they must planyears in advance for importation of water from theState Water Project, and the variability of climaticconditions can result in considerable surpluses ofwater at some times and deficits at other times.141

In the preparation of the judgment settling theadjudicationof water rights in the Main San GabrielBasin, the users recognized that they had a valuableresource in the underground water supply and in thestorage space. They agreed to allow the use of thislatter resource under the regulation of their ownrepresentative policymaking body. Interlocal coordi-nation in this case generates a mutually beneficialoutcome from a disparate geographic distribution ofwater supply, storage, and demand.

Metropolitan Washington, DC. In what has beentermed the “state-of-the-art for supply manage-rnent,“l& agencies in the Washington, DC, metropoli-tan area worked out an arrangement for operation ofsurface reservoirs that reveals additional benefitsfrom interlocal coordination. Analyses and forecastsof supply and demand had for decades predicted awater crisis for the region by 1980. Plans for address-ing that crisis included the construction and opera-tion of several (in one plan, as many as 16) newreservoirs.‘43 Clearly, such plans involved consider-able expenses and environmental impacts.

A 1977 restudy by the U.S. Army Corps ofEngineers (authorized by the W&r Resources DeveZoym&Act of 1974) came to a different conclusion -thatthe region was not necessarily short of water ifexisting supplies and storage were used more effi-ciently. The solution lay in coordinating the supplyorganizations’ actions rather than in technology andconcrete.‘49 Over the ensuing five years, officials ofthe 25 water supply agencies in the metropolitan area(three of which account for 95 percent of the watertreatment capacity) formed a regional task force thatworked with the Corps of Engineers on improvingmanagement of storage capacity. In July 1982 (in afraction of the time needed for designing, financing,and constructing surface storage facilities), eightagreements were signed for maintaining flows of the


Potomac River, for allocating water in periods of lowflow, for coordinating operation of existing storagefacilities, and for sharing the costs of any futurestorage capacity expansi0ns.l”

As a result of these interlocal arrangements, onlyone small new physical facility was required, andadequate water supplies and storage are assured to2020J46 These arrangements are estimated to havesaved between $200 million and $1 billion over theprevious plans.r47

A special concern was the potential environmen-tal effects, especially on the tidal estuary downstreamfrom Washington, either from failure to act (resultingin the eventual loss of sufficient Potomac flows tomaintain the ecosystem) or from reservoir construc-tion. The interlocal coordination should maintainsufficient flow in the Potomac to preserve environ-mental values.‘@ These benefits have been achievedwithout the addition of a new regional managementinstitution or the elimination of community watersystems; without the construction of a great concretecomplex; and with increased emphasis on conserva-tion, efficient use, and environmental protection.

Los Angeles and the Owens Valley. One of the mostrenowned interlocal disputes concerning environ-mental protection and water supply managementhas persisted through most of this century betweenthe Los Angeles Department of Water and Power andthe communities of the Owens Valley and MonoLake Basin on the eastern slopes of the Sierra Nevada.Los Angeles began diverting surface and groundwa-ter from the sparsely populated region after 1910,extended the diversions to the streams feeding MonoLake in the 1940~5 and doubled its aqueduct capacityin the 1970s. Water levels in Mono Lake (a significantaquatic habitat for brine animals and migratory fowl)have declined markedly and signs of vegetation stressand decline have been noted in the Owens Valley14q

From the late 1950s to the 198Os, there wasconsiderable controversy over Los Angeles’ actions,followed by several lawsuits by environmentalgroups and local residents and officials, and occasion-al introduction of legislation to address the issues In1983,officialsof InyoCountyandLos Angelesformedthe Inyo/Los Angeles Standing Committee “to devel-op a groundwater management plan that wouldprotect the Valley’s environment while supplyingLA with water”*50

In March 1989, negotiators for the county and thecity announced a preliminary agreement to settlemuch of the dispute. After some initial local opposi-tion, revised agreements were reached in August 1989 toprotect the native vegetation and wildlife of OwensValley and to preserve the city’s ability to divert waterinto the Los Angeles Aqueduct and convey it to the city,where much of it is recharged into the undergroundbasin of the San Fernando ValleyP

At roughly the same time, Los Angeles, theMetropolitan Water District of Southern California,and the Mono Lake Committee (an environmentalaction group) agreed to support a legislative bill topreserve and protect Mono Lake. The agreementwould attempt to shift some of Los Angeles’ diver-sions away from the streams feeding Mono Lake,while providing financial support for waterdevelop-ment to help the city make up part of the resultinglossof water supply.152

The Mono Lake and Owens Valley controversiesseem to be some of the most intractable in thewater-management field. The implementation andoutcome of the interlocal agreements cannot yet beforeseen, but they signal the possibility that conjunc-tive management can emerge even in places facingdifficult issues of environmental preservation andrestoration, area-of-origin protection, and large-scaleinterbasin water transfers

In fact,according to one view, it is precisely whenwater management issues are complex and delicatethat interlocal arrangements are the most desirablealternative for intergovernmental relations. It may bethe case that

. . . negotiation among directly interested par-ties can develop more flexible and thoroughsolutions than court decisions, state agencies,or legislatures. Water resources and their re-lation to the environment are complex, anddepend on local characteristics People havewell-defined preferences that vary among lo-calities A court decision, administrativerulemaking or a legislative committee cannotdevelop water management programs basedon the integration of scientific information onlocal water resources and the environmentthat meet the needs of both the area-of-originand the water exporter efficiently153

Additional State and Local Innovations

In addition to the cases above, there are many morecases of institutional innovation by state and localgovernments Following are a few additional examples

Water Rights and Transfers. Some states aredevelop-ing and implementing statewide groundwater laws,while others have targeted specific issues154 Somestates are defining surface and groundwater rights toallow private and public suppliers to operate withboth kinds of rights or to substitute one source for theother, while other states are strengthening theirpositions as water wholesalers and regulators inattempts to encourage conjunctive management

In Mississippi, a state heavily dependent ongroundwater, some cities have witnessed under-ground water level declines of up to 200 feet in thiscentury A broadly representative Water Manage-


ment Council created in 1983 found several immi-nent and impendinggroundwater problems,rangingfrom rapidly accelerating declines in levels to theencroachment of sea water along the Gulf Coast Thecouncil’s recommendations and conclusions resultedin enactment of two statutes. The Omnibus Water Billof 1985 included the union of surface and groundwa-ters in a system with ten-year permits issued by thestate permit board. The Water Management DistrictsBill of 1985 provided statewide enabling legislationfor localities to create water management districtswith a broad range of powers for assuring watersupply and inducing conservation?56

Several states are making institutional changes toallow, or remove impediments to, the transfer ofwaterrights. There is a general trend toward reform ofstate laws to allow greater opportunities for thecreation of water markets, and to enable local orregional authorities toestablish conjunctive manage-ment. Such changes”are being established slowly, butlargely as needed on an ad hoc basis under authorityof state water 1aws.1’156 A review of state legislativeactivity during 1988 and 1989 reveals a pattern ofrejection of proposals to limitwater transfers,approv-al of some bills designed to encourage transfers, andapproval of about half of the measures intended toauthorize state agencies to appropriate groundwaterand establish water storage rights.15’

Idaho has recently undertaken the largest riverbasin adjudication of water rights in the history of thewestern states,l% involving approximately 185,000claims to the waters of the Snake River watershed. Ifthe adjudication results in specific quantified waterrights, Idaho’s largest water source could be madepart of a water exchange plan. Critical groundwaterareas also have been designated by the state Depart-ment of Water Resources Among the approaches is anattempt to stop excessive withdrawals by specifying aminimum groundwater level within critical areas In1989, the state legislature enacted a law directing thedirector of the Department of Water Resources to initiategroundwater adjudications to limit withdrawals inoverdraft areas15g

Water transfers have been used actively in Colo-rado, which, in its 1969 Water Rights Determinationand Administration Act, united in the same prioritysystem the appropriative rights to a stream systemand its tributary groundwater? This innovationencourages conjunctive management in watershedswhere surface and groundwaters are interrelated byeliminating the disjuncture between the priority ofrights of holders of groundwater pumping permitsand of surface diversion permits. Altering the mix ofreliance on groundwater and surface water is madeconsiderably simpler under such a system.

Colorado also has chosen to take advantage of thetendency of appropriative permit schemes to resolve

water challenges in judicial forums. The state isdivided into seven water divisions, the boundaries ofwhich accord with major river basins, each with itsown division engineer and water court. The watercourt consists of a district court judge and a court-appointed referee. i61 This set of administrative andlegal institutions facilitates the determination ofwater rights questions.

The Colorado system removed several impedi-ments to water transfers. Since the mid-196Os, much ofthe population growth of the front range cities, suchas Denver, Colorado Springs, Aurora, and Pueblo, hasbeen accommodated by purchases of irrigation waterrights from farmers and the conversion of thosewaters from agricultural to urban uses162

Planning. A majority of the states has either man-dated or authorized some form of comprehensivewater resources planning, and most of those stateshave a mandate to engage in continuous planningand review.163 Some states are exploring regionaland local water “banking” programs and othermechanisms for taking greater advantage of under-ground water storage capacity. In a banking pro-gram, water is stored during periods of surplus andsold during later periods of need.‘& Water bankingprojects have been implemented on an experimen-tal basis in California and Idaho.lfi

Water Wholesaling. States have used their position aswholesalers as leverage to encourage local initiative inmanaging water supplies Access to state water suppliescan be conditioned on efforts to reduce demand andimprove facilities Massachusetts, for example, raisedthe wholesale price of water from state-owned reser-voirs to local suppliers (as have several states) andrestricted access in order to induce local entities to focusmore heavily on maximizing the yield and improvingthe allocation of local water supplies166

A different tactic is employed by New Jersey,which mandates that local water suppliers in desig-nated critical groundwater areas either develop theirown surface water supplies or purchase them from astate-owned reservoir at wholesale rates substantial-ly above the cost of additional pumping. Communi-ties that do not acquire their own surface supplies touse conjunctively with groundwater, or developsufficient conservation measures, may be required“to purchase state water whether they use it or not.“16’This provides an incentive to reduce reliance onovertaxed groundwater supplies and begin the con-junctive use of surface water and groundwater, whilehigher costs provide incentives for conservation

Institutional Capacity, Districts, and Localities.State and local capacities for developing and imple-menting innovative strategies for groundwater man-agement have developed significantly over the last25 years. The “human capital infrastructure” of state


and local governments, the expert professional per-sonnel employed in water resounxs management,especially by the states, has grown over that period.‘@’

State and local governments are assuming great-er financial responsibility for water projects andresource management initiatives.‘@ Massachusettsbegan operating a grant-in-aid program in 1982,providing funds on a matching basis to local watersupply systems. New Jersey began a loan program in1983 to support rehabilitation of water supply facili-ties by their local operators.170 Similar financialassistance programs have been established in severalother states. Utah offers an entire range of water-supply financing mechanisms, including grants,loans, and credit enhancements.“’ In 1981, Montanaestablished a water development fund to make loansand grants for water development projectsJn Manyof the funding mechanisms involve the privatesector.

States have experimented with the design oflocal special districts and regional administrativeentities. Nebraska, for example, has consolidateddistricts for water conservation, soil conservation,and drainage into “natural resource districts” (irriga-tion districts were not included in the consolida-tion). lTJ Within critical “groundwater control areas”designated by the director of the Department of WaterResources, a natural resources district may promul-gate special rules and regulations governing ground-water withdrawals and use. Such regulations mayrequire installation of flow meters on every well,specify the duty of water for irrigation acreage, andset well spacing requirements.174 Natural resourcesdistricts also regulate, and have in the past sharplylimited, water transfers.

Florida has established five regional water man-agement districts to conform to the state water resourcesregions The districts are governed by boards appointedby the governor and ~IY responsible for managingwater supply, water consumption, and flood control,The districts play a vital role in facilitating and regulat-ing (or impeding) future water transfers through theirpermit authority,‘” and they also are authorized to levyad valorem taxes to finance local water projectsStatewide water planning and regulation of quality arethe responsibilities of the state Department of Envimn-mental Regulation. A state water use plan adopted in1985 focuses on the relationship between water re-sources and growth management176

Localities have tried to couple their need forinnovative approaches to waste treatment and dis-posal with their need to assure water supplies. Muchof the literature on water resource management overthe past four decades has advocated reuse of waterand reclamation of wastewater. Local governmentsare taking steps in this direction. The use of reclaimedwater for replenishment and injection by somespecial districts was noted above.

Denver has been treating wastewater into drink-ing water quality since 1968. A pilot plant wasdeveloped, and a demonstration plant using ozoneand reverse-osmosis technologies went into opera-tion in 1984. The goal of the project is to use treatedwater to meet a significant share of the city’s waterneeds by the close of the 1%“’

Kissimmee, Florida,used to deposit sewage efflu-ent into a stream feeding Lakes Toho and Okeecho-bee. The lakes began to show effects from thefast-growing city’s discharges, and the city in turnoutgrew its sewage treatment capacity Kissimmeehas built a new treatment plant, which will processsewage to a level of quality where some of it can beused for watering a nearby golf course, some sold forirrigation, and the remainder allowed to rechargeinto the groundwater strata. As a result of thesechanges, Lake Toho is being returned to its previousrecreational ~~554.~~

The diversity of state approaches and innovationin institutional design and groundwater manage-ment reflects different physical, economic, social,cultural, and political backgrounds and character&tics. Each state (and in many states, each community)is developing responses to its own “unique set ofenvironmental parameters and economic forces.“lD

LESSONS L E A R N E D

These examples illustrate some of the extensivestate and local innovation and experimentation withwater resource coordination. Some of these initiativesinvolve high degrees of cooperation and coordina-tion among several actors,including federal agencies.Other initiatives have been unilateral actions of astate, a city, or a special district seeking to address aperceived problem or to improve its water supply

Approaches togoverningwater resources exhibittremendous dive+ The examples cited above (andothers not included) have very little in common, savefor one crucial factor: each of the most efficient andequitable management appmaches demonstrates ahigh sensitivity and close tailoring to the specificphysical characteristics of the water resourceslso

Groundwater basins differ in the physical char-acteristics that most affect effective and equitablemanagement: rates of recharge, the degree to whichthey are connected with surface water supplies, therate and amount of lateral movement within thebasin, and the susceptibility of the basin to degrada-tion from salt water intrusion or other sources.Conjunctive management efforts have appeared ingroundwaterareas exhibiting nearly the whole rangeof these characteristics, and the list of communitiesconsidering options and developing plans is evenmore extensive.‘B1

As communities develop groundwater manage-ment schemes or seek to improve management, theyfind that they have many models to consider, with


experiences and rationales that point in differentdirections. For example, does conjunctive manage-ment require a comprehensive statewide law? Arizo-na and New Mexico have such statutes; Californiaand Colorado do not Yet, conjunctive managementoperations have appeared in all four of these states-for decades in some areas in southern California andsince the early 1970s in Colorado.

It does not appear that one can plainly declarethe superiority of any state “model.” Arizona haschosen to enact and implement statewide legislation;New Mexico has relied strongly on a “water czar”;and California and Colorado have relied on basinorganizations and adjudications for management

There also is a wide diversity of experiences increating and empowering regional and local watermanagement organizations. Florida has made re-gional districts responsible for water management,while Nebraska has formed regional districts respon-sible for “natural resources.” Mississippi’s newgroundwater laws authorize the creation of broadlyempowered water management districts on a geo-graphical scale as small as a pair of municipalities.Half of the states designate critical groundwatermanagement areas, but within those areas, somestates regulate water use directly while others createspecial districts for each designated basin and stillothers leave it to local residents to form a specialdistrict In Washington, groundwater managementdevelopment in designated critical areas can betriggered either by the state or by local residentsJa

Several years ago, the National Water Commis-sion found that groundwater management organiza-tion by the states could be grouped into two broadorganizational approaches. One was state designa-tion and regulation of critical groundwatec The othercategory of organization was the special water districtencompassing the groundwater basin. After review-ing experiences with these organizational alterna-tives, the commission decided to express “no strongpreference for one form of organization over theother;” observing instead that “the form of organiza-tion should depend upon the problems encoun-tered - hydrological, institutional,and legal.“lB Sincethe commission completed its work in 1973, the rangeof organizational forms and institutional arrange-ments for groundwater management has expandedeven further.

When innovation occurs in several locations inseveral organizational guises, the course of progressmay not appear to be very orderly. It may even appearat times to be chaotic. Nevertheless, in the words of IraClark, “Despite its erratic and unpredictable course,there has been progress. . . . Far away as the idealmaster water plan might be . . . there has been adecided trend toward more cooperative and coordi-nated handling of the nation’s water problems.“184

Among the reasons for that progress is the diversity oforganizational forms and management arrange-ments offered by a multijurisdictional system. Giventhe number and diversity of tasks involved in theconjunctive management of groundwater resources,“Many alternative institutional structures could beconsidered for the management vehicle.“‘& In addi-tion, “The extremely diverse hydrologic, geologic,economic, environmental, legal, political, and socialconditions affecting the occurrence, protection, anduse of ground and surface waters in the United Statessuggest that no single structure would be universallyapplicable nor politically acceptable.“‘&

The diverse and multifaceted arrangements bywhich groundwater supplies are managed, andmanaged conjunctively with surface water,are not,asmay sometimes be supposed, reflections of the weak-ness of American federalism, but constitute insteadone of its strengths. A polycentric, multijurisdictionalorder may in fact be well suited to the management ofcomplex water systems.

Notes’ National Water Commission, Water Policiesfor tlze Future:

FinalReport fo fhe President and fo the Congress offhe UnitedStates (Port Washington, New York Water InformationCenter, 1973), p. 233.

’ Ira G. Clark, Water in New h4exico:A History of Its hfanage-merit and Use (Albuquerque: University of New MexicoPress, 1988), p. xi. 3. Sidney?: Harding, Water in California(Palo Alto: N-P Publications, 1960), p. 58.

3 Sidney T Harding, Wafer in California (Palo Alto: N-PPublications, 1960), p. 58.

4 California Department of Water Resources, Cal i fornia ’sGround Water. Bulletin 118 (Sacramento, 1975), p. 121; Za-chary Smith, “Rewriting California Groundwater Law:Past Attempts and Prerequisi tes to Reform,” Cal i f o rn iaWestern law Review 20 (Winter 1984): 234; Susan M. Trag-er, “Emerging Forums for Groundwater Dispute Resolu-tion: A Glimpse at the Second Generation of Groundwa-ter Issues and How Agencies WorkTowards Resolution,”Pacific Law journal 20 (October 1988): 42.

5 Stephen J. Burges and Reza Marnoon, A Systemafic Ex-amination of Issues in Conjunctive hlanagement of Groundand Surface Wafers. Water Resources Information SystemTechnical Bullet in 7 (Olympia: Washington Departmentof Ecology, 1975), p. 1.

’ Ibid.’ Harding, pp. 116-117.s Erwin Cooper, Aqueduct Empire (Glendale, California;

Arthur H. Clark Co., 1968), p. 137.9 David L. Jaquette, Ejkient Water Use in California: Con-junctive Management of Ground and Surface Reservoirs(Santa Monica: RAND Corporation, 1978), p . 2 .

lo Jurgen Schmandt ,Ernest Smerdon, and Judith Clarkson,State Wafer Policies (New York: Praeger Publishers, 1988),p. 144.

I1 Burges and Marnoon, p, 33 .l2 Cooper, p. 137.


13Les K. Lampe, “Recharge Saves Water for aNot-so-Rainy Day,” American City and County 102 (June1987): 40.

r4 Kyle Schiiing et al., 131e Nation’s Public Works: Report onWater Resources (Washington, DC: National Council onPublic Works Improvement, 1987), p . 176.

l5 Ibid.l6 Burges and Marnoon, p . 34; Cooper, p. 137.I7 Thii distinction between Xconjunctive use” and #con-

junctive management” derives from the work of WilliamLord at the University of Arizona’s Water Resources Re-search Center.

l8 Stetson, Strauss and DresseIhaus, Compendium of Reporton a Supplemental Writer Supply@ UpperSan Gabriel VallyMunicipal Water District (Los Angeles, 1%2), p. VI-l.

l9 Burges and Marnoon, pp. l-2.20 Lampe, p. 40.21 Jaquette, p, 2.22 Burges and Marnoon, p. 32.23 Helen Joyce peters, “Groundwater Management,” Water

Resources Bulletin 8 (February 1972): 190. She observesthat artificial recharge to conserve waters that wouldotherwise have wasted began as early as 1895 in South-ern California.

z4 Lampe, p. 40.zs See, for example, California Department of Water Re-

sources, Bulletin 118, p. 126. See also, among others, Mi-chael MalIery, “Groundwater: A Call for a Comprehen-sive Management program,” Pacific Law Journal 14 (July1983): 1279-1307; Ian Carruthers and Roy Stoner, Eco-nomic Aspects and Policy Issues in Groundwater Deoelop-merit, Staff Working Paper 496 (Washington, DC: TheWorld Bank, 1981).

26 These arguments are reviewed in Advisory Commissionon Intergovernmental Relat ions (ACIR), 77te Orgunizu-tion of Local PubIic Economies and Metropolitan Orguniza-tion: 7be St. Louis Case (Washington, DC, 1987 and 1988).

r’ Examples of such definit ions (of “groundwater manage-ment” generally), are found in Harvey 0. Banks, “Man-agement of Interstate Aquifer Systems,“ASCEloumaloJWater Resources Planning and Management 107 (October1981): 565; and California Department of Water Re-sources, Ground Water Basins in Culifirnia. Bulletin 118-80(Sacramento, 1980). The definition given by Banks is:

Ground-water resources management involvesthe protection, development and use of theground-water resources of the particular aquifersystem concerned, generally in conjunct ion withavailable surface water resources possible indud-ing reclaimed water, in the most effective mannerto meet water resource development and use ob-jectives as those objectives are defined and rede-fined with changes over t ime.

The defini t ion given in Bulletin 118-80 is:Ground water basin management includesplanneduse of the ground water basin yield,stor-age space, transmission capabili ty, and water instorage. I t includes (1) protection of natural re-charge and use of artificial recharge; (2) plannedvariation in amount and location of pumpingover t ime; (3) use of ground water storage con-

junctively with surface water from local and im-ported sources; and (4) protection and plannedmaintenance of ground water quality.

zs CaIifornia Department of Water Resources, Bulletin 118,p, 129.

29 Neil S. Grigg, “Appendix: Groundwater Systems,” inShilling et at., p. B-2.

3o For example, California Department of Water Re-sources, Bulletin 118, p, 124.

31 Peters, “Groundwater Management,” p. 190.32 California Department of Water Resources Bulletin 118 ,

pp. 119-124.ss Smith, “Rewrit ing Groundwater Law,” p. 234.34 See, for example, John E Mann, Jr., “Concepts in Ground

Water Management,” Journnl of the Americnrr Water WorksAssociation 60 (December 1968): 1336-1344; also, its appli-cation to the conjunctive management of the San Fer-nando Valley groundwater basin in William Blomqui s t ,7he Perfirnmnce of Institutions for Groundwater Manage-ment, Volume 6: 7he San Fernando VIlly (Bloomington: In-diana University, Workshop in Political Theory andPolicy Analysis, 1988).

ss California Department of Water Resources, Bulletin 118 ,p. 124;see&oBurgesandMarnoon, p.4: “Operationun-der a tradit ional safe yield approach might incur largeopportunity costs because the wa ter resources cannot beput to optimal or near optimal use.*

ss California Department of Water Resources, Bulletin 118 ,p. 121.

sr Conjunctive use groundwater basin management plans“should include control not only over groundwaterpumping, but aho over the storage space of an aquifer.”Charles Phelps et al., Efictent Water Use in California: Ex-ecr&iue Summary (Santa Monica: RAND Corporation,1978), p. 26.

38 Lampe, p. 46.ss Such concerns are among the “second generation” of

groundwater issues identified in Trager.‘sIndeed, this aspect of groundwater management has

been identified by at least one observer as more diificuhto resolve successfuIIy than the supposedly intractablecommon-pool or Prisoner’s Dilemma problems that ac-company groundwater resources. Susan ChristopherNunn,‘?7tePoliticul Economyoflnstitutional Innovation: Co-alitions and Strategy in the Development of GroundwuterLaw. Ph.D. Dissertation, University of Wisconsin, 1986.

4* See aho Lampe, p. 40; David Jaquette and Nancy Moore,E&knt Water Use in Cali fornia : Groundwater Use andManagement (Santa Monica: RAND Corporation, 1978),p, 31.

&The importance of adaptability and error correction,and the difference between them, derives from the workof Vincent Ostrom of the Workshop in Poli t ical Theoryand policy Analysis at Indiana Universi ty.

a Banks, p. 565.y L WiIIiam Reedy, Water for the Valley of the Sun,” ASCE

Journal of Water Resources Planning and Management 106(July 1980): 477.

e These observations are made by NUM, p. 20.46 For example, “land devoted to cotton production alone

increased from 282,ooO acres in 1948 to 678,000 acres in1952. For the most part , the water necessary to support


this increased production came from the ground.” Za-chary Smith, me policy Environment,” in ZacharySmith, ed., Water and the Flcture of the Southwest (AIbu-querque: Universi ty of New Mexico Press , 1989), p. 10.

47 Philip Briggs, “Ground-Water Management in Arizona,”]ournal of Water Resources Planning and Management 109(July 1983): 195; and John Leshy and James Belanger, “Ari-zonaLaw:WhereGroundandSurfaceWaterMeet,’Ari-zona State Law Journal 20 (FaU 1988): 691.

48 Wesley Ste iner , “Publ ic Water Pol icy i n Arizona,” StateGovernment 55 (FaII 1982): 133.

49 Briggs, p. 197.5o Reedy, p. 488.51 Ibid., p. 489.52 Steiner, p. 133.53 Scott Hansen and Floyd Marsh, “Arizona Ground-Water

Reform: Innovations in State Water Policy,” Ground Wa-ter 20 (January-February 1982): 69.

54 Ibid.56 These cases, Bristor v. Cheatum, are known as gristor I”

and “B&or II” in Arizona law.56 Hansen and Marsh, p. 69.?’ Ibid.ss Tributes to Governor Babbitt’sleadershipinbringingto-

gether the 1980 Arizona law are to be found in virtuallyevery account of the process. For details, see Hansen andMarsh, p. 70; Kathleen Ferris , “Arizona’s GroundwaterCode: Strength in Compromise,” Journal of the AmericanWater Works Association (October 1986): 79-84; Leshy andBelanger; and Steiner .

59 Steiner, p. 133.@ Schmandt et al., p. 37.61 Hanzen and Marsh, p. 70.g Ibid., pp. 70-71.63 Ibid., p. 70; Ixshy and Belanger, p. 707.64 National Research Council , Committee on Ground Wa-

ter Quality Protection, Ground Water Quality Protection:State and Local Strategies (Washington, DC: NationalAcademy Press, 1986), p. 83.

65 Steiner, p. 134.66 James Corbridge, ?An Overview of the Special Water

District Workshop,” in James Corbridge, ed., Special Wa-ter Districts: Challenge@ the Future (Boulder: NaturaIRe-sources Law Center, 1983), p. 4.

67 Briggs, p. 199.68 Ibid., p. 201.@ Leshy and Belanger, p. 713.70 Ibid. , p. 724.n Ibid.n “Legislative Update,” Water Strategist 3 (April 1989): 15.73 Steiner, p. 135.74 Briggs, p. 201.75 Hansen and Marsh, p. 71.76 Alfred W. Jorgensen,A New Approach to Solving Water Dis-

putes : The rkrg Beach Case, Master ’s Degree Thesis in

Public Adminis trat ion , Univers i ty of Southern CaIifor-nia, 1967, pp. 105-106.

R Trager, p. 53.78 MaUery, p. 1295.79 There are many sources for such criticisms. For a couple

of excel lent examples, see Keith Knapp and H.J . Vaux,“Barr iers to Effect ive Grour.d-Water Management: TheCal i fornia Case,” Ground Water 20 (January-February1982): 61-66; and MaIIery, pp. 1279-1307.

8o Knapp and Vaux, p. 61.81 MaUery, p. 1286.az Ibid., p. 1281; Knapp and Vaux, p. 61.83 Ibid.04 Ibid., p. 1298 (emp hasis added).85 Knapp and Vaux, p. 61.86 Albert J. Lipson, Efficient Wafer Use ~JJ Cdif~~~li~ The Euo-

htion of Groundwater Management in Sorrfhern Caflforrria(Santa Monica: R A N D Corporat ion, 1978), p. 1.

s7 Elizabeth Rolph, Government Allocation of Property Rights:WhyandFfow (Santa Monica: RAND Corporation, 1982),p. 16.

sa Lipson, p. 18.89 Helen J . Peters, “Ground Water Management in CaIifor-

nia .” Presented at the American Society of Civi l Engi-neers Conference, Las Vegas, April 1982, p. 11.

9o peters , “Groundwater Management in California,” p. 3(emphasis added).

91 Phelps et al., p. 2.9z Lipson, p. 21.93 UINTEX Report to the Los Angeles District Office of the

U.S. Army Corps of Engineers on the Los AngelesCounty Drainage Area, 1985, p. E-39.

941nstitute of publ ic Adminis trat ion, Spec ia l Distr icts andPublic Authorities in Public Works Provision (Washington,DC: National Counci l on publ ic Works Improvement ,1987), pp. 66-67. Unpublished.

% MaIIery, p. 1291.% Lipson, p. 9.m Phelps et al., p. 21.98 The provisio n -p reduction dis t inct ion may be found in

ACIR, The Organization of Local Public Economies.99 More extensive descr ipt ions of the geology and his tory

of this area can be found in several sources , includingWiiam Blomquist, ‘The PerJormance of Institutions forGroundwater Management, Volume2: The West Coast Basin,and Volume 3: 7’he Central Basin (Bloomington: IndianaUnivers i ty , Workshop in Pol i t ica l Theory and Pol icyAnalysis, 1988).

rM Jaquette and Moore, p. 37.lo1 Harold Rubin, ‘IIre Solano Water Story (VacaviIIe, Califor-

nia: Solano Irrigation District, 1988).lo2 California Department of Water Resources, RecoIlI-

mended Water h4anagement Plan for SO117110 Colrrrf!! FloodControt and Water Conservation Disf-rict (Sacrament@,1982), p. II-l.

rM Association of California Water Agencies, iiCIZ!4’s7%Year History (Sacramento, 1985), p. 18.


*04 John S. Murk Engineers, Final Local Water ManagementAlternatives: Newberry Groundwater Basin (Victorville,California: Mojave Water Agency, 1984), p. m-14.

lo5 Nunn, p. 252.lo6 Ibid., pp, 14-16.lo7 Ibid., pp, 252-253.lo8 Micha Gisser, “Groundwater: Focusing on the Real Is-

su&’ Journal of Political Economy 91 (December 1983):

*09 National Water Commission, p. 232.*lo Gisser, p. 1012.11* Ibid., p. 1013.112 Ibid., p. 1014.

*I3 Ibid., p. 1024.114 Ibid pp. 1024-lU25; and Douglas Grant, me Complex i -

t ies 6f Managing Hydrologically Connected Surface Wa-ter and Groundwater Under the Appropriation Doc-trine,” Land and Water Law Review 22 (1987): 88-89.

lfi City of Albuquerque v. Reynolds, 379 I?226 73 (1%3).

‘16 John S. Murk Engineers, p. m-14.“’ Nunn, p. 253.lls Ibid.llg Gisser, p, 1014.

lrn Grant, p. 89.

lzl Cache Lal’oudre Water Users Associationv. Glacier ViewMeadows, 550 l?2d 288 (1976).

I22 Clark, p. xiv.l” National Water Commission, p. 245; Banks, p. 564.

‘%Smith, “Federal Intervention in the Management ofGroundwater Resources,” p. 153.

125 Morton Bit t inger, “Survey of Interstate and Internation-al Aquifer Problems,” Ground Water 10 (March-April1972): 44-54, identified 198 interstate and/or internation-al aquifers as actual or potential problem areas, of whichalmost 60 were described as “major.” This study and i tsresults were still being cited in the 1980s as evidence ofthe extent and degree of severity of interstate ground-water management problems (see, for example, Banks;and Smith, “Federal Intervention in the Management ofGroundwater Resources”).

Reliance on this survey should be kept in perspec-tive, however, if not forgone altogether, in making such

characterizations. Among its difficulties are: (a) aquiferproblems were classified as to degree of severity by themost severe ranking given to that problem by any ob-server (e.g., a problem was classified as “major” if any-one responding to the survey described i t as “major “),thus biasing the resul ts toward the most severe charac-terizations, and (b) almost half of the problems classifiedas “major” were described as such by one anonymousobserver from a university, who happened to rank as“major” every interstate or international problem he orshe identif ied. Rather than assuming that interstate andinternational groundwater management problemsmust be even worse now than they were then, analystsand policymakers should recognize that problems maynot have been that bad then, and that no better surveyhas been done since.

126 Smith, “Federal Intervention in the Management ofGroundwater Resources, pp. 157-158. See also Larry Fea-zell, “Interstate Water Agencies,” ne Book of the Strifes.1986-87 Edition (Lexington, Kentucky: Council of StateGovernments, 1986), pp. 420-423.

lz7 Ibid, and National Water Commission, p. 245, both ofwhich recommend interstate compacts or other forms ofinterstate agreements, such as administrative agree-ments or reciprocal legislat ion.

na National Water Commission, p, 245.yg Smith, “Federal Intervention in the Management of

Groundwater Resources,” p. 158.130 Gisser, p. 1012.13* Ibid.1p Banks, p. 564.133 David Noonan, Myron Rosenberg, and Duncan Wood,

“Constraints to Managing Interstate Aquifer,” Journal ofM’atPrResolrrcePlalrrtinSalld Management 110 (April 1984):191.

134 Ibid., pp. 194-198.lzs Ibid., p. 202.1x Ibid., pp. 198 and 204.13’ Ibid., p. 199.lss See, for example, Nancy Humphrey and Christopher

Walker, Innovative State Approaches to Community WaterSupply Problems Washington, DC: The UrbanInstitute,1985), p. vi. For a discussion of the “coordination costs”concept, see ACIR, The Organization of Local Pllblic Econo-mies, p. 11.

139 James H. Krieger and Harvey 0. Banks, “Ground WaterBasin Management,” Cal i fornia Law Review 50 (Winter1%2): 57.

144 ThomasStetson,“MainSanGabrielBasinGroundWaterManagement.“Presentedat the82ndAnnualMeetingofthe Cordieran Section of the Geological Survey ofAmerica. In Prem K. Saint, ed., Hydrogeolosy of Sou themCalifornia: VoIume and Guidebook (Los Angeles: GeologicalSociety of America, 1986), p. 9.

14* Ibid.142 Wade Miller Associates, 7he Nation’s Public Works: Report

on Water Supply (Washington, DC: National Council onPublic Works Improvement, 1987), p . 48.

lrw Ibid.; Frank Welsh, How to Create a Water Crisis (Boulder:Johnson Books, 1985), p. 35; and James Crews, “RegionalVersus Local Water Supply Planning” Journal of WaterResources Planning and Management 109 (April 1983):179-185.

144 Crews, p, 180.l* Welsh, p. 35; Wade Miller Associates, p. 116.146 Ibid., p. 48.lw Welsh, p. 35.14n crews, p. 185.14g There have been numerous descriptions of the Los An-

geles-Owens Valley-Mono Lake water disputes, some ofwhich are summarized in Blomquist, The San FernandoValley.

150 “Coming to Terms: A Proposed Agreement for theOwens Valley Dispute,” Water Strategist 3 @ly 1989).

U.S. Advisory Commission on Intergovernmental Relat ions 53

tsl Kevin Roderick, Water Rights Pact with L.A. Wins Ap-proval in lnyo County,” Los Angeles 7imes, August 16 ,1989.

152 Virginia Ellis, “L.A. Backs Legislative Plan to Cut Use ofMono Water,” Los Angeles ‘Emes, August 11, 1989, and“MWD May Back Bill on Mono Lake Water Dispute,” LosAngeles Emes, August 17,1989.

153 “Coming to Terms,” p. 13.

ls4 Schmandt et al., p. 22.

lss Marvin Bond, Jimmy Palmer, and Charles Branch, “Re-cent Experiences with Water Legislat ion in Mississippi,”Public Administration Survey 35 (Autumn 1987-Winter1988): 1-5.

ls6 Schilling et al., p. 176.

15’ “Annual Legislative Review,” W&r Strategist 2 (October1988) and 3 (October 1989).

lss Water Supply,” From fhe Sfafe CapifaZs 43 (January 1989):4 .

ls9 “Annual Legislative Review,” Wafer Strategist 3 (October1989).

160 Morton Bittinger, “Ground-Water Surface-Water Con-flicts,” ASCE journal of Wafer Resources Planning and Man-;lF7;f 106 (July 1980): 473; Leshy and Belanger, pp.

- .

161 E Lorenz Sutherland and John Knapp, “The Impacts ofLimited Water: A Colorado Case Study,” Journal of Soiland Wafer Conservation 43 (July-August 1988): 295.

16z Ibid., pp. 295-297. It is important not to overlook the factthat, in arid regions, the transfer of water away fromuseon agricultural land can, if abandonment of the agricul-tural land ensues, result in considerable soil erosion ef-fects. This has occurred in sections of the Arkansas RiverValley in southeastern Colorado. In response, Coloradowater courts have begun condit ioning their approval ofwater r ights t ransfers on commitments to the revegeta-tion of the land from which the water rights are beingtransferred.

163 Schiiing et al., pp. ix and 133.

164 Gary Weatherford et al., Acquiring Wafer/or Energy: btsfi-fufionaf Aspects (Litt leton, Colorado: Water ResourcesPublications, 1982), p. 14.

165 Early discussions of this planning appear in Cal i forniaDepartment of Water Resources, Bulletin 118, pp.127-128. See also Weatherford et al . ; and California De-partment of Water Resources, California Wafer: Looking fotheFuture. Bulletin 160-87 (Sacramento, 1987), pp. 47-48.

166 Humphrey and Walker, p. 36.16’ Ibid., p. 67.*68 Schilling et al., pp. 133-134; Humphrey and Walker, pp.

9-10.169 Schiimg et al., pp. x-xi; Schmandt et al., p. 12.170 Humphrey and Walker, pp. 23-35.ln Ibid., p. 84172 Schilling et al., p. 134.lrs Corbridge, p. 9.174 See, for example, the description of the activit ies of the

Upper Republican Natural Resources Distr ict in Spor-hase v. Nebraska, 458 U.S. 941(1982), 955.

175 Schmandt et al., p. 88.176 Ibid., pp. 90-91.lrr Wade Miller Associates, p. 9.178 Wiiam S. Foster, Wastewater Reuse Protects Kissim-

mee Water Resources,” American City and Counfy 102(June 1987): 46.

I79 Schmandt et al., p. 12.180 Jacque Emel, “Effectiveness andEquity of Groundwater

Management Methods in the Western United States.”Working Paper 3 (Tempe: Arizona State University, Cen-ter for Environmental Studies, 1984), p . 33.

la1 Lampe, p. 40.lsz Humphrey and Walker, p. 68.lss Nat ional Water Commission, p . 234.Is4 Clark, p. 422.a5 Banks, p. 575.186 Ib id .


Chapter 4

Understanding the Organizationof Water Resource Management

In previous chapters we have pointed out thatthere are different types of water managementproblems throughout the United States, several ele-ments to effective groundwater management, severaltypes of institutional arrangements for managingwater resources (including managing groundwatersupplies conjunctively with surface water), and awide diversity of interjurisdictional arrangementsbeing used. Conjunctive management is organizedneither as an ideal legal-rational centralized adminis-tration nor as a perfectly competitive market

When analysts begin with a conceptual ideal,they are bound to find actual patterns of intergovern-mental and public-private relationships to be defi-cient If, for example, the ideal is the perfectlycompetitive market, analysts finding governmentalinvolvement of any sort in decisionmaking aboutresource use will describe the situation as “politi-cized” and therefore “inefficient” Other analystspmceed “from a belief that a system of governmentcomposed of numerous, independent, specialized unitsof government is necessarily fragmented and ineffec-tive,“’ in which case their descriptions of multiple actorsin a noncentralized system will be followed by aprescription for centralization of authority.

But there are additional possibilities for analysisof intergovernmental relations. There is a tradition ofthought based on the idea that an understanding ofexisting arrangements is an important prerequisite toprescriptions for reform. That view, which informsrecent work on metropolitan area governmentalorganization,2suggests that analysts “begin to searchfor the nature of the order which exists in the complex ofrelationships among governmental units and abandonhe assumption that all of these relationships are uniquex randomn3 Description of “the nature of the order&ich exists” and “an analysis of how the system~orks”~ can be followed by discussion of shortcomingsmd recommendations for improvements The ultimate

evaluation of the performance of public officials andgovernmental structures is left to citizens

Observers who despair of the organization ofgmundwater management may simply lack an orga-nizing concept with which to look at it Instead ofmeasuring current arrangements against ideal types,“What is needed is the ability to compare and contrastvery diverse sets of water management instituti~ns”~ lbhelp understand the roles and relationships of thediverse organizations involved in gmundwater man-agement, we use the concept of a complex andregulated water economy The idea of a complex watereconomy, composed of providers, producers, importers,wholesalers, retailers, and regulators can help to orga-nize observation of the intergovernmental relations ofgroundwater management so that the kinds of coon%-nation that do occur can be seen

A COMPLEX WATER ECONOMY

The largest element in the complex water economyis the water supply industry, which consists ofpublicly and privately owned systems of varyingorganizational forms and sizes. It is “composed of avery large number of highly independent federal,state, and local governmental agencies operating sideby side with large numbers of private utilitycompan-ies, co-operative associations, and individual propri-etorships,q6 and “characterized by a long history ofself-sufficiency and local government control overmanagement and finances”’ According to a recentdescription of intergovernmental relations in waterresource management:

These patterns of intergovernmental wla-tions, in turn,take on the characteristics of in-dustry structures. Different agencies rangingfrom local suburban water districts to munic-ipal water departments, for example, mayfunction as retail agencies serving the ulti-


mate consumer of water services. But suchwater distributors may be supplied by inter-mediate water agencies such as county waterauthorities or metropolitan water districtsthat operate large-scale diversion works,aqueducts, and reservoirs to produce waterfor domestic, urban, and industrial uses.These agencies in turn work with thelarge-scale water development agencies ofthe state and Federal governments Togethertheir coordinated efforts might be viewed asa water industry.. . ?

Other recent reports have compiled and presenteddetailed information about the industry that providesa picture of the composition and organization ofwater supply provision and production.g

There are more than 200,000 water systemsserving the public. Of these, 58,530 (about 29 percent)are community water systems that serve primarilyresidential areas with a population of some 219million. The other 71 percent, or 144,800 public watersystems, are noncommunity systems that serve pri-‘marily nonresident or transient populations of 36million persons (parks and campgrounds, resortareas, hotels and restaurants, etc.)‘O

The water supply industry uses both surface andgroundwater sources. As would be expected, relianceon these sources differs according to theircharacteris-tics and geographic distribution. Noncommunitywater systems are more often reliant on groundwater(96 percent of them use underground supplies)”because these systems generally depend on waterthat is available at or very near the point of use and donot make large-scale investments in impoundmentand transmission facilities. Groundwater also is theprimary or only source of water for 80 percent ofcommunity water systems. These tend to be smallersystems that serve approximately 30 percent of thepopulation that uses community water systems. Theother 20 percent of community water systems rely onsurface water supplies and tend to be larger, serving70 percent of the population.”

Ownership, organization, and size of communi-ty water systems vary greatly There are 26,424publicly owned systems (45 percent). Of these, rough-ly 15,000 were municipalities directly providingwater, according to the 1982 Census of Govern-ments.13 Other publicly owned systems were publicauthorities and special districts. There are also about15,740 privately owned systems serving municipalcommunities, plus systems owned by and operatedfor small communities such as homeowners’ associ-ations, mobile home parks, and the like.‘4

Publicly owned community water systems in-clude local government water departments as well asautonomous and semi-autonomous providers Amongsmaller systems, the mom frequentiy encounteredorganizational form is the local water supply depart-

ment Among the larger community water systems,more autonomous organizational forms are found,including special districts, water authorities, andstate-chartered public corporation~~~

Privately owned community water systems alsovary in organization. They include mutual compan-ies owned by their customers, private proprietor-ships, and investor-owned utilities. The larger thepopulation served by a privately owned system, themore likely it is to be an investor-owned utility?

Most community Water systems are small, serv-

ing fewer than 3,000 people each. The number ofsystems classified as “very large” (i.e., serving 100,000or more people) is 279, about 0.5 percent of all thecommunity water systems. Thus, almost two-thirds(63.9 percent) of the nation’s community water sys-tems serve a combined total of about 3 percent of thepopulation, while 36 percent of the systems servethe other 97 percent of the population. The largest0.5 percent of the systems serve over 43 percent ofthe population.17 Combining the number of “large”(10,00@100,000 people) and “very large” systems, themajority of the nation’s population is served byapproximately 3poO community water systems, whichin turn vary by supply source, form of ownership,form of organization, and size.

The existence of more than 50,000 communitywater systems, and the involvement of more than25,000 local governments in one aspect or another ofsupply’* may still seem difficult to understand, espe-cially if the observer presumes that water supplyinvolves only one type of activity But the hundreds ofthousands of water supply organizations do not allperform the same function.

Within the complex water economy, thereexists an important distinction between the provi-sion and the production of a service or commodity.‘9Provision involves the decisions concerning theamount and quality that will be provided, thecosts,and how the costs will be distributed amongusers-in sum, the decisions translating prefer-ences for the service or commodity into demand.Production involves the decisions for acquiringand mixing production inputs in order to generateproduction outputs (services or commodities).

Provision and production decisions may be madeand executed by the same or different organizations.An organization may provide services or commodi-ties that it does not produce. For example, a generallocal government or a special district may providewater to residents by acquiring all or part of the waterfrom a supply that is produced by some other entityThe municipal water districts in the Los AngelesCounty case described in Chapter 3 are examples ofprovider organizations purchasing water from muchlarger producers, such as the metropolitan waterdistrict, the California Department of Water Re-sources, and the county sanitation districts.


The complex water economy may involve thou-sands, even hundreds of thousands, of organizationsand relationships, yet not be beyond comprehension.Some organizations are providers of water, others areproducers of water supply, others may be both, andthere are many provider-producer relationships.

Overlaid on the provider-producer distinction isthe difference in an economy between importers,wholesalers, and retailers. These functional differen-tiations and relationships are not surprising whenfound in other sectors of the economy, and should notbe surprising in the water economy Some organiza-tions import supplies to areas where water is insufficient demand. Others function as wholesalers,providing water supplies to more than one retailclient organization. The retailers distribute waterdirectly to users. Some wholesalers may be producersas well as providers; others may be providers only,purchasing (for example) imported water and distributing it among retailers. Similarly, water retailers maydirectly produce the supplies they sell, or purchasewater from wholesalers and deliver it to residents, orsome mix of these methods.

Regulatory functions (to oversee the operationof water suppliers and ensure safety to users) maybe performed by other organizations. In fact,throughout various sectors of the United Stateseconomy,theseparation of regulation fromproduc-tion and provision has been the arrangement ofchoice-quasi-independent and independent reg-ulatory agencies and commissions, and local, state,and federal legislative bodies and committeestypically review and mandate the safety of servicesand commodities. The entire concept of the “regu-lated utility” is based on the idea of the separationof regulation from production and provision.

If one looks at “water resource managemenr asone task, then the number and degree of specializa-tion of provision units and regulators is likely toappear as “duplication” and “fragmentation,” withseveral units “each dealing with a part of fhe probIerr~“~ On the other hand, if one acknowledges that“water resource manageme&’ consists of severalfunctional aspects, then one may anticipate somefunctional differentiation in its organization.

Of the special local governments identified bythe 1982 Census of Governments as engaged in one ormore aspects of “water resource management,” 85percent were single-function districts?1 These dis-tricts engaged variously in the provision of ports,drainage, irrigation, flood control, water and landreclamation, wastewater treatment and sewage dis-posal, and water supply. At one level of analysis, thesefunctions are all part of 44ater msource management”;at another level, they are distinct Having differentfunctions performed by different specialists is a notion

that is neither alien to many sectors of the U.S. economynor necessarily inappropriate to the water sector

Similarly,differententitiesmayperformdiffer-ent regulatory functions. Overseeing the costs andthe adequacy of water supply calls for differentinformation and expertise than overseeing andregulating water quality. Some communities maychoose one regulatory organization; others maychoose more than one.

When the organizing concept of a complex watereconomy, composed of providers and producers,importers, wholesalers, retailers, and regulators, isapplied to the management of water supplies, pat-terns of organizational development and interor-ganizational relationships begin to emerge. It is, infact, an organizing concept without which much ofthe activity involved in the provision and productionof all kinds of services and commodities would benearly incomprehensible.

The complex water economy concept, in particu-lar,may help us understand the apparent paradox of alarge number of small water suppliers in an industrycharacterized by many observers as involving largeeconomies of scale. Since most of the larger commu-nity systems have relied primarily on surface water,many analyses have been based, understandably, onthe scale economies present in surface water supplyThe capture, impoundment, and distribution of sur-face water involve large capital investments inphysical facilities (distribution systems, and damsand reservoirs in many cases), facilities to exploitopportunities for low-cost hydroelectric power gen-eration, and facilities to ensure the protection ofaquatic life (e.g., fish ladders).

Some local communities and private watersuppliers have made investments in developingsurface water supplies, including the constructionand operation of water projects. But many othersurface water projects have required the scale of awatershed, which contains several communities Insome cases, regional special districts have beencreated to finance and build surface water projects, toobtain funds from several communities that stood tobenefit,and to organize and implement the project onthe appropriate scale. In several cases, states havedesigned and constructed surface water projects. Stillother large-scale surface water projects have beenfinanced and built by the federal government

The participation of the United States has usuallybeen justified on one or both of two grounds: first, thatthe project, while needed for a particular communityor region, was beyond the financial resources of local,regional, or statewide public and private entities, andsecond, that benefits from economic development oravoidance of natural disaster would inure to thenation as a whole.=The second rationale in particular


supported the passage of the Reclantafion Act of 1902and the creation of the Bureau of Reclamation and theReclamation Fund to finance and build water projectsin the western states.

It is typically with attention to this one aspect ofwater supply-construction of a surface water project-that observers have noted economies of scale.Surface water projects with different scales of produc-tion and of benefits have been undertaken by differ-ent producers, and several of the largest projects havebeen undertaken by the federal government

However, construction and operation of a surfacewater project are two different functions. Throughoutthe western states, for example, while Bureau ofReclamation projects have generated more surfacewater storage capacity than U.S. Army Corps ofEngineers projects, the Corps has developed itsexpertise primarily in the operation of projects forflood control and, in several cases, the Corps may usebureau projects for the storage and release of floodflows to minimize flood damagesa Furthermore, thebureau has turned over the operation of its projects toirrigation districts or other special local governmentsthat represent the users,~ as is the case with theSolano Project described in Chapter 3.

The use of project water is also subject todecisionmaking that may be appropriately orga-nized on a scale other than that of the constructionof the project,oreven itsoperation. Water provisiondecisions (how much water of what quality toacquire at what times and for what cost) depend ona number of factors that tend to be local.

Therefore, a number of communities of interestmay exist within the service area of a large-scalesurface water project If they can organizerepresenta-tive collective entities-associations, municipalities,special water districts-that can bargain and contractwith a large-scale producer or operator, the waterproject operator may wholesale water to communi-ties needing different amounts at different times, andthe communities may function as retailers or users’cooperatives. These arrangements can allow forgreater flexibility and efficiency in water pricing.Project water prices may be varied according to usepatterns, so that demands for peak-period uses maybe priced higher, and off-peak surplus deliveries forstorage may be priced lowet Organizations can thenmake decisions about use and delivery in response tothe incentives signaled by pricing practices.

This concept of competition among entitiesrepresenting local water users runs counter to organi-zational integration models, and will appear to someanalysts to be “fragmentation” of decisionmaking,with “local parochial interests” being pursued at thesacrifice of “the general good” of the watershed.Nonetheless, this is how the complex water economy

operates, and this form of organization carries possibili-ties for efficient and equitable resource management

This form of organization also provides oppor-tunities for adapting to change. There is a consen-sus in the literature that the day of the large-scalesurface water resource development project iseither passing or gone. The emphasis now is, and islikely to remain, on improved management ofexisting water supplies rather than increasingyields through structural development?5

If the focus of water management shifts to thedemand side of the supply equation, then an economyin which relatively large numbers of smaller localagencies compete for resources may have benefitsthat are yet to be fully realized. The efficient andequitable allocation of any scarce resource requires(indeed, presumes) the availability of full informa-tion about the preferences of potential claimants.While a perfectly competitive market in water sup-plies does not exist,some benefits of competition maybe gained if users are required to reveal their prefer-ences and confront more nearly the real value ofthose supplies, rather than seeking to acquire abun-dant water for local use by persuading a largerjurisdiction to construct a water project for theirbenefit Pursuing these benefits through limitedinterlocal competition has been advocated for morethan 30 years,% but their realization depends on theexistence of multiple water-users’ enterprises.

Another consequence of the shift away fromsurface water development projects to meet futureneeds is the increasing reliance on groundwatersupplies. Groundwater supplies tend to be relied onmore often by smaller community systems and bynoncommunity systems Groundwater developmenthas resulted in the proliferation of special water districtsthat overlie basins Irrigation districts and conservationdistricts have been especially plentifuL

As more surface water supplies were developed,and then as the emphasis shifted from developmentto management, many of these groundwater supplyorganizations began to take on conjunctive manage-ment functions. Groundwater districts and associ-ations have contracted with surface water projectoperators for supplies, acquired authority to rechargeunderground water storage capacity with surplussurface flows, and in some cases acquired authority totax or limit groundwater withdrawals?’

Several watersheds contain multiple groundwa-ter basins. If jurisdictions representing users areempowered to engage in conjunctive managementand to contract with surface water suppliers, thenopportunities may exist to reap benefits from bothcompetition and conjunctive management. Competi-tion and bargaining can result in pricing practicesthat more nearly reflect the value of water to users


This not only improves the efficiency of allocation bydirecting water toward its higher valued uses but alsoinduces water users to conserve, reducing the needfor additional supplies. At the same time,conjunctivemanagement exploits the advantages of groundwa-ter basins more fully. This combination of effects canmean that surface water supplies are directed towardhigher valued uses while groundwater basins arealso more often employed for their higher valueduses as reliable, low-cost reservoirs

In some groundwater basins, where existingenterprises and agencies lacked the power or thejurisdictional boundaries (or both) to engage inconjunctive management,new agencies have beencreated to provide replenishment and water stor-age services while spreading the costs among allusers in proportion to the benefits obtained. Specialwater districts have been an especially active partof the complex water economy.

THE R OLE OF S PECIAL WATER DISTRKTS

Water districts are among the most numerousspecial-purpose local governments The 1982 Censusof Governments recorded approximately 9,400 special districts providing one or more water manage-ment services, of which the overwhelming majorityperformed a single function. About 1,000 specialwater districts are engaged in supply provision, and95 percent of these are located in the western states?8Most of these are irrigation districts, supplying waterto lands that are not within the jurisdiction of amunicipality. Special districts (1) distribute about halfof the water used in the West, where most of thedeveloped water supply is devoted to irrigated agri-c~lture,~~ (2) constitute 9 percent of all organizationsdelivering water but account for 47 percent of theirrigated acreage (nearly all the remaining acreagewas irrigated with water supplied by mutual watercompanies),30 and (3) range in size from the enormous(covering several counties and delivering millions ofacre-feet of water per year) to the tiny (formed by afew dozen residents to pump and distribute waterfrom a couple of wells).

The development of special water districts hasbeen encouraged to varying degrees by the states.Generally, states have been permissive in allowingthe creation of special districts under general acts, onthe satisfaction of certain conditions designed toestablish the desire of the local residents to form adistrict31 In recent decades, some state laws havebecome more restrictive, and the degree of statecontrol over the formation of special districts of allkinds varies considerably.

In the past, California has been the most liberal inthe creation of water districts, with 38 general actsestablishing water districts of different kinds with

different powers, and 100 special acts, each of whichcreates a single district for a specified area.= Califor-nia contains approximately 1,000 of all types of localwater districts engaged in all types of functions33 InArizona, special water districts are created by generallaw or special legislation. Arizona provides for fourtypes of special water districts in addition to those forflood control and soil conservation.34 New Mexicoprovides for different types of special water districts,such as conservancy districts, and some districts areauthorized to choose among alternative methods forvoting and representation and for generating reve-nue.% Nebraska and Florida have added the creationof regional “super districts,” which are multipurposeagencies under the supervision of the state.%

The Congress also contributed to the growth inthe number of special water districts, designating themas the contacts and contractors for federal water projectsand programs during the first three decades of thiscentury? In 1926, the Congress amended the 1902Reclamation Act to mquire local participation throughspecial water districts

Wa~rdistricts~subjecttothesameaiti~~andchallengesasarespecialdistrictgovernmentsgenerally.In 1964, the U.S Advisory Commission on Intergovem-mental Relations published a report entitled TlzePr~&Zemof Special Districts in American Government.38 The“problem” language that has been applied to specialdistricts of all kinds is extended to water districts

Special districts are at the heart of the criticisms ofthe struclure of American government The creation ofspecial water districts, especially basinwide in areaswhere communities within the basin also have districts,“results in layers of districts and a patchwork ofauthority over water in the same area,” according to arecent publication of the Institute of Public Administra-ti~n.~ Similar language can be found in other reportsp0

Water districts, like special districts generally, arecriticized as an additional expense for citizens, as districtboards and managers attempt to maximize their bud-gets and staffs in pursuit of their own professionalcareer goals Ye the 1982 Census of Governmentsreported that, of the 9,400 special diicts it identified asengaged in water supply and management services,only 350 (4 percent) were cla&fied as having “majorfinancial activity; meaning at least $3 million in annualexpenditures or $10 million in outstanding debt This 4percent accounted for 75 percent of the expenditures ofall special water disttick~ Among all types of specialdistricts, about two-thirds had less than one full-timeequivalent employee; about 6 percent had 20 or morefull-time employees42

Special water districts may be reluctant to partici-pate in cooperative ventures that involve the use ofgroundwater storage space by state agencies or otherdistricts, even though it may be an advantageous useof the basin Districts tend to feel that they owe their first


consideration to their residents and that storage pro-grams involving “outsiders” may compromise thoseinterests This reluctance can be overcome, however, ifthe anticipated benefits from conjunctive managementare shared with the district and the local residents@

Another criticism of special water districts is thattheir voting and representation procedures can beundemocratic. The boards of directors are oftenrelatively stable and, depending on the legislationthat created the district, there may be no need even toconduct uncontested elections. But it becomes diffi-cult to sort out the extent to which governing boardstability and uncontested elections indicate citizensatisfaction versus lack of understandingandengage-ment As one observer noted, special water districtsand their functions may not be well understood bycitizens, yet a certain “lack of public understanding”extends to the whole specialized field of water lawand administration. The 1980 Arizona GroundwaterManagement Act, for instance, is so complex that fewpeople understand how it works; the public is awareonly that there is a law? Other measures can beusedto determine how citizens evaluate special districtofficials (e.g., do they tend to support or oppose thecreation of additional districts when presented withthe choice). Survey research can ask citizens to offerevaluations aside from the electoral process.”

In some places, voting for the board of a specialwater district is based on land ownership rather thanon one vote per person. Although the constitutionalvalidity of such voting schemes has been upheld indistricts that provide water for irrigation, this practicecontinues to be criticized, especially in the few caseswhere one landowner controls a majority of the votes inthe district. The district then becomes a modernmanorial system in which the largest landholder maytax the property or assess the water use of smallerlandowners in order to provide water services thatinure mostly to the controlling landowner’s benefit?

As the Institute of Public Administration ac-knowledged, the advantages of special water districtsappear primarily by comparison with local govern-ments. Districts have the jurisdictional flexibility tocross other governmental boundaries, cover unincor-porated areas, and embrace a natural resource bound-ary or a community of resource users4’

Special districts create greater opportunities fordeveloping revenue and pricing systems that (a) linkthe imposition of costs to the distribution of benefits, (b)provide incentives for efficient mix and use of services,and (c) can make the district and its activities self-financ-ing? Special districts often can, and often do, employuser fees and service charges This is a more effectivelinkage of costs to benefits than are more indirectmechanisms, such as the income tax or the property tax.

While ideal-theoretical economic efficiencywould result from pricing policies that reflect both the

cost of services and the social costs of those services inother opportunities forgone, a move toward pricingthat reflects the full cost of provision would be a movein the direction of greater efficiency Implementingfull-cost pricing-which was the principal recom-mendation made in the report on water supply fortheNational Council on Public Works Improvement in1987-was deemed to require some degree of fiscalautonomy The special water district is the mostfrequently encountered type of autonomous organi-zational form. Other types are enterprise fund ac-counting systems and state-chartered corporations.”

When water supply and management functionsare commingled with other general governmentfunctions, two sources of inefficiencies arise.Decisionmaking involves multiple claims on offi-cials’ attention, and water decisions compete witheverything from public assistance to pothole repair.Financing water supply also becomes commingled inmost cases with other services and infrastructureneeds. The water enterprise can end up being tappedas a source of revenue for other programs and projects(water subsidizes other services) or vice versa. Bothsituations generate inefficient pricing signals toconsumers and inefficient levels of investment “Theendemic condition which results from commingleddecisionmaking is one of ‘public choice failure.“‘%While there are no guarantees that separate, self-sustaining special water districts will make optimalinvestment and pricing decisions, at least the institu-tional barriers that result from commingled decision-making are removed.

Another advantage of the special water district isthat users relate to it and use it for innovations, rules,and conservation measures they might be reluctant toaccept from a municipality or a jurisdictionally largergovernment (e.g., state or federal government). Forexample, the Soil Conservation Service of the U.S.Department of Agriculture has been engaged in anexperimental program with a nonprofit researchorganization, INFORM, and local conservation dis-tricts to encourage soil-moisture monitoring usinggypsum blocks in California’s Sacramento and SanJoaquin Valleys. The program increased farmers’yields while reducing their consumption of waterand energy inputs. This lowered farmers’ costs andincreased their incomes with a program that con-serves water by improving the efficiency of irrigationtiming and amounts. Such a program could reduceaquifer depletion and related problems where irri-gated agriculture accounts for most of the consumptiveuse of water The conservation district “is a naturalhome for an educational program about the gypsumblock method of irrigation management because adistrict enjoys the trust of local farmers as well as thesupport of technicians and government officials”51


Properly empowered, special water districtsprovide a framework for making water supply andmanagement decisions removed from the arrange-ments for other services. A district also provides alink to the state, region, and nation, and may serveas a representative or bargaining entity. Whilewater rights statutes can be produced by legislativebodies, conflicts decided by courts, and regulationspromulgated and implemented by administrativeagencies,“it appears to have been the experience.. .that some form of publicdistrictserves anirreplace-able function.“52

PRIVATE SUPPLIERS

IN THE WATER ECONOMY

Private suppliers play a significant role in thecomplex water economy Nearly 40 million citizensare served by privately owned community watersystems. Smaller private systems generally serveresidential developments and mobile home parks,and are usually owned by developers or homeown-ers’ associations. Larger suppliers more often areinvestor-owned utilities regulated by general govern-ments or by state public utility commissions.% Thenumber of investor-owned systems is increasing as thePopulation of the United States has grown fastest inareas that have a history of using that mechanism sucha6 Florida, Arizona, and California.

The range of private sector activity is broad. Itincludes supplying water for municipal and industrial uses and for irrigation,54 and, where markets forwater righk are developing in the V&t, functioning asbrokers who link purchasers with available waterrighk.56Private involvement does not always replacepublic involvement While private water enterprisesare growing in number and size in some areas, inother places (especially in some growing suburbanareas) private suppliers have been taken over bycondemnation or purchased by municipalities5s

There has been some discussion and debate overthe propriety of privatization in the water economy.Advocates cite advantages in flexibility and respon-siveness, lower costs, and more efficient pricingpractices Those who are critical or skeptical ofprivatization cite the broader availability of servicewithout regard to ability to pay that comes frompublic provision, and the advantages of more directpolitical accountability. As concluded in a 1987 reportto the National Council on Public Works Improve-ment, “Both philosophies merit consideration, but incertain circumstances privatization does offer realeconomic gains.“57 Private and public sector involve-rnent exist alongside each othec Neither exists as acomplete answer to water supply and managementchallenges Private suppliers, financing, and broker-ing provide additional alternatives for citizen choice.

THE ROLE OF ASS~UATIONS

Associations of water users, officials, and profes-sionals have played important roles in facilitatingeffective water management These roles generally fittwo broad categories: (a) mobilizing and organizingmembers in support of management initiatives, and (b)providing forums for communication and disseminat-ing information and technical assistance

Policy initiatives and coordination are some-times facilitated by associations of public officials,such as the Great Lakes Conference,an association ofthe governors of the eight Great Lakes states Anotheris the recently formed Upper Missouri River BasinGovernors’ Association, composed of the governorsof North Dakota, South Dakota,Montana, and Wyom-ing, which will provide a regular forum for thediscussion of water development, watershed con-struction, irrigation, and other issues..5B

Water quality management has been facilitatedby the American Water Works Association, whichpublishes ik monthly AWA Joaumul and holdsnational and regional conferences, and the Associ-ation of State and Interstate Water Pollution ControlAdministrators, which has organized conferencesdevoted specifically to innovations in managementand groundwater quality protection.

Associations can be especially important tosmaller water systems that do not have large enoughstaffs to include a broad range of professional exper-tise. The National Rural Water Association (NRWA),for instance, offers technical assistance in 34 states Aprogram begun by the Oklahoma Rural WaterAssoci-ation has been adopted by NRWA to help smallersystems retain their local organization and integritywhile complying with federal safe drinking waterrequirements. Among the services provided by thenational program are: one-day training sessions inrural areas; on-site technical assistance; monthly orquarterly newsletters with information and adviceon compliance with federal requirements; and emer-gency field assistance to systems expressing difficul-ties The association program features contact withsmall water systems throughout each state and afull-time “circuit rider” who travels the state toprovide assistance.*

Associations of water users have played impor-tant roles in groundwater management and oftenhave been forerunners of conjunctive managementprograms. Such associations frequently establish abroad-based forum for the discussion of water issues byindustrial users who produce their own water, munici-pal and private suppliers, citizens concerned aboutenvimnmental quality, and others Such associationshave appeared throughout the county and can be thefin% step toward the development of effective watermanagement plans, programs, and institutions


In Colorado, the South Platte Water Users’Associ-ation helped develop means for coordinating the useof surface and groundwater supplies. The role ofwater users’ associations in developing conjunctiveuse programs in southern California was summa-rized by a 1978 RAND Corporation report as follows:

Local producers organized themselves intowater user associations that were the drivingforce behind not only the design of manage-ment plans but also efforts to garner supportfor their acceptance and to create institution-al arrangements and management tools toimplement them. They pushed for creationof local water districts to import water andaided the process of arriving at negotiatedsettlements through the courts. They pro-moted state legislation to permit organiza-tion of [replenishment districts] and to re-quire recordation of pumping.@

In the Tucson metropolitan area, which is entire-ly dependent on groundwater supplies, the SouthernArizona Water Resources Association has played apivotal role. Originally formed asa broad-based localinterest group to ensure that Central Arizona Projectwater would be brought to Tucson, the associationsubsequently provided a vehicle for study,discussion,and development of responses to groundwater de-clines and quality problems, which engaged thewhole community. The association initiated a man-agement study in 1983 to determine the institutionalmechanisms that would help bring about a balance ofwater supply and demand in the Tucson basin.Although the Tucson area had been designated anactive management area under the Arizona Ground-water Management Act, there were no staff resourcesto conduct such a study, or any broad communitymembership to support such a study and act on theresults. The association also was instrumental insupporting a water-conservation program that hasreceived nationwide attention for bringing percapitawater use in Tucson down to 150 gallons per day?

ADJUDICATIONS AND T H E R I G H T S

OF P ROVIDERS AND P RODUCERS

Courts have been active in water rights and waterallocation for centuries. Courts in all states becomethe arbiters of water rights laws and conflicts.”Lawsuits have been customary means of assertingand protecting rights to the use of water@ Lawsuitsbetween surface stream users -particularly bydown-stream users against upstream users - have a longerhistory in most places than those between groundwa-ter users This reflects the fact that surface waterdevelopment preceded groundwater development

.

Adjudications of groundwater rights nonetheless goback more than one hundred ye&.

In several cases, adjudications have been expan-ded to include all of the pumpers drawing water froma common aquifer system. These basinwide adjudica-tions have drawn considerable criticism, and havebeen described as “lengthy, cumbersome, and expen-sive.“@ Court decisions over the allocation of rightshave differed from basin to basin, and thus have beencriticized as lacking a uniformity on which waterusers could base their decisions.

Courtshavebeen criticized forproducing”atbest. . , piecemeal problem solving.“65 The decision “of onecourt as to the best, most pragmatic solution may notbe the most efficient management solution.“” Fur-ther, courts take into consideration only the rights andinterests of the parties before them, which may not bethe full set of persons affected by the outcome. Finally,experience has shown that basinwide adjudicationsgenerally have been initiated “only after the groundwater basins were in real trouble.“67

Despite these criticisms, groundwater usershave continued to employ courts and basinwideadjudications. Groundwater users may comparethe costs, defects, and potential outcomes of thejudicial process with those of otherpublicdecision-making processes and find the judicial processpreferable or at least less undesirable.

There is no gainsaying that basinwide determi-nations of rights through adjudication are usually“lengthy, cumbersome, and expensive.” However,when users need to resolve problems resulting fromjoint use of a common water supply, their choice isbetween a “lengthy, cumbersome,and expensive” butauthoritative legal proceeding and a long, difficult,and uncertain legislative or administrative processThere is no immediate, simple, and cost-free alterna-tive. While the rules of civil procedure in the courtsmay be complicated, they do not necessarily compareunfavorably with, say, the Adminisfmfive ProceduresAct (or its equivalent in a given state) or the legislativeprocess.68 Similarly, while it is true that court decisionsare not necessarily the most efficient managementsolutions to the problems of joint use of a groundwa-ter basin:’ legislative or administrative decisionmak-ing about groundwater rights may show a greatertendency toward inefficiencies because of the mis-matches between jurisdictional boundaries and thoseof the affected communities.

Similar analysis applies to other criticisms ofadjudications. The procedural rules of courts aredesigned to limit those involved to “real parties ininterest” They do not guarantee that all concernedparties will be found, included in the proceedingandheard, although courts have a number of proceduresfor finding and joining additional parties to a contro-versy Similarly, legislatures and administrativeagen-


ties offer no guarantees that all affected interests willbe heard, or heard equally. Likewise, the charge thatadjudication is not undertaken until harmful effectshave manifested themselves applies to publicdecisionmaking processes generally. People initiatejudicial proceedings or introduce legislation or un-dertake administrative rulemaking after problemshave arisen, not before.

Therefore, adjudications may be pursued bywater users not because they are simple, inexpensive,and yield efficient solutions to problems before theyoccur, but because they are perceived as less inaccessi-ble, indeterminate, inefficient, and inflexible, andmore responsive than alternative forms of publicdecisionmaking. In addition, some properties ofadjudications may actually be preferable from thestandpoint of water users.

Equity court proceedings offer such proceduraland remedial devices as the temporary restrainingorder, the court-appointed referee, and the perma-nent injunction that may Be especially well-suited tothe determination of water rights. In 1973,theNation-al Water Commission explicitly endorsed the ideathat “the States should consider employing theflexible powers of the equity courts to achieveleast-cost physical solutions” in groundwater basinconflicts.‘0 Adjudications in overdrawn groundwaterbasins have “stopped the clock on the acquisition ofadditional water rights.“n Courts can “act quickly toprevent irreparable damage and then take longer toreflect on the merits. In the water resource field, noinstitution can move so quickly to prevent harm sothat time to consider exists.“n

The appointment of experts to assist courts alsohas been used in groundwater adjudications. Thecourt-appointed referee (called the special master insome courts) can assemble information on hydrologiccharacteristics and historical use of a basin that givesall parties a common information base, which canassist in the negotiation of a settlement, and providesthe judge with the data needed for a decision. Thistends to blunt the criticism that judges, like legislatorsand administrators, lack the technical expertise tomake determinations.

Another aspect of the judicial process that usersmay find beneficial is that, “Courts are deciders.When parties call upon them for decisions, they havevery few ways to avoid making it”n Individualparties may not agree with the outcome of the process,“but only in the rarest of cases is the court action anempty exercise which wastes time,“74 as may occur withlegislative and administrative processes

The outcomes of basinwide adjudications alsomay be perceived as desirable by the participants.Injunctions that limit extractions and bar additionalpumping, for example, help control overdrafting, anessential element of improved management Basin-

wide determinations of rights result in the partiesacquiring something of value. These rights, if ac-quired through a determination separate from landownership, often are tradable within the basin. Innonadjudicated basins, taxes on withdrawals may beused to try to limit aggregate extractions, but thisalternative gives users nothing of value in theirproduction; they can pay taxes on their pumping butthey cannot sell the right to pump.75

Adjudications also may give users the right torecapture water stored underground, an essentialelement of conjunctive management Indeed,observ-ers who have criticized the length and expense ofadjudications have concluded nonetheless that the“use of underground storage for imported watercannot be completely successful unless the naturallocal water supply has been fully adjudicated so thatextractions can be controlled and the basin fullymanaged.“76And,adjudications have been used oftento generate the basis for financing the conjunctivemanagement practices that help preserve the basinand exploit its advantages Once firm and limitedpumping rights are allocated, it becomes possible toimpose a surcharge on overpumping to pay forreplenishment and to impose the costs of additionalsurface supplies, whether locally developed or im-ported, on new users whose demands exceed theavailable yield of the basin.

In all, the use of adjudications to establish rights,limit withdrawals, control overdraft, provide forregulation of water in storage, and distribute the costsand benefits of basin management among users maynot reflect a “problem,” but a decision based onassessment of the capacities of the process relative toother public decisionmaking processes This possibil-ity was recognized in a recent article on forums forgroundwater dispute resolution:

Of all of the water resources manage-ment questions that ate raised, the judicialsystem is probably most effective in deter-mining simple questions of water quantitybased on factual testimony by expert wit-nesses. The court system is the only forum todetermine traditional monetary damagescases, the award of damages in inverse con-demnation cases, and the issuance of injunc-tive relief against unlawful or harmful prac-tices It is also the only forum which acts asthe reviewing agency for special district andagency determinationsR

REGULATORS IN THE COMPLEX WATER ECONOMY:THE PROTECTION OF WATER QUALITY

The complex water economy is regulated bylocal,state,and federalgovernments. Local regulatorsare most likely to be overseeing the operations and


costs of private water suppliers such as utilities. Whenlocal general governments contract for water supplywith a private producer, the local legislative bodygenerally retains oversight authority

Local governments also have been actively in-volved in protecting gmundwater quality and mmedy-ing contamination problems. Metropolitan DadeCounty, Florida, for instance, depends on the shallowBiscayne Aquifer for its drinking water supply. Thisaquifer is highly permeable and therefore veryvulnerable to contamination The location of theaquifer along the coast also renders it susceptible tosalt water intrusion if excessive withdrawals lowerthe elevation of fresh water Located in a state that hashighly developed and strong groundwater qualityprotection programs, Dade County has been aggms-sive in developing and integrating groundwatermanagement effortsm Regulation of supplies andquality are centered in the county’s Department ofEnvironmental Resources Management In the 196Os,there was salt water intrusion because of depletionand biological contamination from leaking septictank systems. In the 197Os, industrial and agriculturalactivities caused chemical contamination. Contami-nation prevention, wellhead protection, rechargearea management, wetlands protection, and growthmanagement are all part of the Dade County ap-proach to groundwater managementm

Since the early 197Os, the county commission hasattempted to integrate water quality and supplyconcerns with the regulation of land uses. In 1974,thecommission imposed a building moratorium in a partof the county that is a vital recharge area for theBiscayne Aquifer, after which the area was zoned forminimum lot sizes of five acres. A Florida appellatecourt upheld the zoning plan against a constitutionalchallenge, observing that water supply protectionwas a legitimate objective of a local zoning policy anda valid exercise of local police powers in the interest ofthe general welfare.so

Land use practices that create risks of groundwa-ter contamination are closely monitored by thecounty Department of Environmental ResourcesManagement Dade County also has established itsown broad definitions of hazardous wastes, whichare more extensive than federal or state regulationsand include more than 900 chemicals. The Depart-ment of Environmental Resources Management hasidentified 8,000 generators of hazardous wastes andclosely regulates their activities through a permitsystems1 that requires use of best management prac-tices (BMPs) to protect groundwater quality

In addition, Dade County has been a leader indesignating “wellhead protection areas,” protectingsensitive amas around water supply wells from surfaceactivities that could lead to contamination. Withinprotected areas, land use and zoning restrictions can be

used to prohibit underground storage tanksa Thecounty also has created a local hazardous waste trustfund; has established a cleanup program forcontami-nation sites; and participates with two neighboringcounties in the “Biscayne Aquifer Project,# an attemptto extend effective protection programs across thereach of the aquifec@

Interlocal coordination also can be effective inexecuting regulatory functions. In California, theSouthern California Association of Governments(SCAG) became a vehicle for interagency and inter-jurisdictional coordination in response to the discov-ery in 1980 of the volatile organic compound trichlo-roethylene (ICE) above state safe drinking waterlevels in one-third of the wells tested in the SanFernando Valley groundwater basin in Los AngelesCounty. This basin has been the source for aboutone-fourth of the drinking water for Los Angeles,andequally significant shares of the drinking watersupplies for Burbank, Glendale, and San Fernando.The basin also is operated conjunctively by the LosAngeles Department of Water and Power and awatermaster as a direct source of supply and as astorage reservoir for imported surface water via theLos Angeles Aqueduct

SCAG and the Los Angeles Department of Waterand Power applied for and received a federalareawide planning grant for a study to develop a“Groundwater Quality Management Plan for the SanFernando Valley Basin.” The development of theplan engaged citizen input through a citizen advisery committee, and alerted the public to the contami-nation in a way that mobilized local opinion in favorof remedial action but avoided panic.@

State and local agencies were involved in plandevelopment through a 30-member technical advisery committee that met bimonthly The plan, whichspecified roles for the governments, included proce-dures for public education; regulation and eventualelimination of private disposal systems (septic tanks);regulation of underground storage tanks, pumps, andpipelines; enhanced landfill regulations; a ground-water monitoring program and aquifer managementand groundwater treatment The governments and thecitizens accepted the plan, due to the inclusive processby which it was produced, and all aspects of the planhave been or are being implemented.@

The technical advisory committee has beenretained as an interagency advisory committee,which continues to meet bimonthly to discuss andoversee implementation. The plan was developedand implemented regionally, without the creation ofa new agency or department, but with the coordina-tion and cooperation of multiple jurisdictions. Therewas no attempt to centralize groundwater supplymanagement, quality protection, and remediationactivities, but there was an attempt to coordinate the


activities of the entities that had responsibility forthose functions. The presence and involvement of theSouthern California Association of Governmentsfacilitated this coordination.

The states and the federal government performregulatory and other functions in the complex watereconomy. The remainder of this chapter focuses onthe role of the states and the federal government.

THE R OLE OF THE S T A T E S

States as Regulators

States regulate water quantity and water qualityin a variety of ways. Several states have their owndrinking water standards as well as compliancerequirements for water providers.

While most water supply provision and produc-tion are local, state governments have long beenengaged in overseeing local water supply provision,especially in ensuring safety, often through state healthdepartments@ State-operated public water supply su-pervision programs have existed since as early as 1915.8’

Washington state regulates supply operationsand water quality. The state took several legislativesteps in the 1970s toward regulating all water utilities.Washington monitors suppliers’ compliance withdrinking water standards and requires local retailersto plan for adequate treatment of supplies and for fullsystem metering. The state also has attempted,through its Water Supply System Coordination Act of1977, to “raise barriers to entry” into the industry inorder to reduce the number of smaller, undercapital-ized operators that might ultimately be unable tomeet quality requirements. The law encourages usingexisting producers to meet new water supply provi-sion needs in critical areas.ffl

The states’ role in water quality regulation hasgrown significantly in the past two decades.89 Manystates have adopted programs for cleaning up andregulating major sources of groundwater contamina-tion. Indeed, as the National Research Council’sCommittee on Ground Water Quality Protectionfound, “many states have broader authority than thefederal government to prevent and control ground-water contamination. In the last several years, manystates and local areas have initiated and expandedground water protection programs by state man-date.“% Most state water pollution control laws applyto groundwater as well as surface watecgl A 1988report from the U.S. General Accounting Officefound that states “usually deal with the threat ofgroundwater contamination within the frameworkof an overall protection program. Many states haveorganizations directly responsible for groundwaterprotection, while others have placed these dutieswithin existing organizations.“g? The diversity re-

flects in part the fact that, “Although contaminationproblems are similar across the states, each state hasunique problems.“93

Some states have moved toward administrativecentralization, but often this has been in environmen-tal quality rather than water resources. In 1973, theFinal Report of the National Water Commissioncoupled its nzcommendation that surface and gmund-waterwithdrawalsbemanagedtogether,withcoordi-nated conjunctive use, with a recommendation thatgroundwater quality and surface water qualityshould also be managed together. The commissionobserved that “the expertise bearing on surface waterquality will also bear on ground water quality,” andsuggested that the “agency that regulates the oneshould regulate the othec”%

Since then, many states have consolidated envi-ronmental quality programs, including surface andgroundwater quality, air, soil, and waste disposal.Such consolidations have separated quality andquantity planning and management% Furthermore,there appears to be some regional pattern to statechoices. States in the West and Southeast have tendedtoward administrative consolidation of water quanti-ty planning and management, with a separate orga-nization for environmental quality States in theNortheast have more often integrated both func-tions.96 Connecticut and Arizona pmsent examples ofthese different approaches.

Connecticut has been described by the NationalResearch Council’s Committee on Ground WaterQuality Protection as “a national pacesetter in state-wide programs for ground water protection.“97 Thestate has developed an integrated management pro-gram that is connected with local land use planningand regulation of pesticide application. The goal is,where possible, to restore or maintain all groundwa-ter to drinking water quality? Impetus for the pro-gram came from rapid growth in the number of wellsshut down due to contamination.

Connecticut adopted a series of laws concerninggroundwater quality protection in 1985. One lawdirected the commissioner of Environmental Protec-tion to report to the legislature on options forprotecting underground water supplies, with a mapof areas needing protection and a strategy to protectwatersheds and recharge areas from dangerous landuse activities Another law required land use officials toconsider protection of underground drinking watersupplies in land use and zoning decisions Two otherlaws authorize the restriction of general-use pesticidesand the nzgistration of pesticide application companies

Among the elements of Connecticut’s integratedgroundwater management program are:

1) State drinking water standards;

2) State groundwater quality standards;

U.S. Advisory Commission on Intergovernmenta! Relations 65

3)

4)

5)

6)

7)

8)

9)

10)

11)

12)

An ambient groundwater quality monitor-ing network, as well as monitoring of con-tamination sources and sites;

Aquifer classification;

Aquifer mapping and inventory;Permits for all point sources of pollution;

A statewide ban on toxic septic system addi-tives and some pesticides;

Use of best management practices (BMPs)for nonpoint sources of pollution;Wellhead protection and setback require-ments;

Use of land use regulations along with aqui-fer classification, wellhead protection, andsetback regulations to protect aquifers fromcontamination;

Requirement of groundwater withdrawalpermits;

Regulation of groundwater withdrawal per-mits to maintain minimum adequate streamflow where water sources are connected.

Groundwater in all areas of the state has beenmapped and classified according to four categories ofuse. The highest protection is for utility and munici-pal drinking water systems. Two middle classifica-tions cover private drinking water supplies andsupplies that may not be potable unless treatedbecause of prior impacts on water quality, The fourthclassification designates areas where waste disposalis allowed because of the poor water quality, andbecause there are no future use plans.99Thisclassifica-tion system provides the highest level of protectionfor 90 percent of the state’s groundwater+@’

The Connecticut program is based on the prem-ise that, while much should be done by the state, theprincipal implementation of resource protection shouldbe done by local authorities, and some local capacitybuilding wmains to be done. The gmundwater strategyis “a partnership between the State and its 169 munici-palities for the management of ,ti rrsoua”lD1

The state Department of Environmental Protec-tion, which has been in existence since 1972, containsa central information gathering and disseminatingunit, the Natural Resources Center, to provide data tostate and local decisionmakers. The center makesextensive use of the cooperative investigations pro-grams of the U.S. Geological Survey.lLa

In Arizona, as was noted in Chapter 3, afterpassing the 1980 Groundwater Management Act,officials began work on quality protection, culminat-ing in enactment of the Environmental Quality Act of1986. Some added pressure for this legislation camefrom the 1984 discovery of trichloroethylene (TCE) in

wells in Tucson, which is wholly dependent ongmundwatec103 The legislation was developedthrough a process of negotiation by a representativecommission toward consensus and compromiseamong affected interests, similar to the process for thegroundwater management law. And, as was the casewith the 1980 law, internal political divisions slowedthe adoption of strong legislation, though the politi-cal lines went drawn somewhat differently. Strongenvironmental protection legislation aroused theopposition of some influential agricultural and min-ing operato% weaklegislation was opposed by activeenvironmental groups and would have been incon-sistent with the commitment of the governotlOq

Another significant political issue was what stateagency should be primarily responsible for adminis-tration. One logical choice was the Department ofWater Resources, created by the 1980 legislation. Suchan approach would have integrated groundwatersupply management and quality protection. Anotherlogical choice was the Department of Health Ser-vices, preferred by environmentalists, who viewedwater quality as a public health issue to be separatedfrom the management of supplies Thenz was someconsideration given to mating an environmental“super agency” with jurisdiction over water resourcesmanagement, quality protection, pesticide control, andother subjects None of these choices was adopted,

The 1986 Arizona Environmental Quality Actcreated a Department of Environmental Quality,with responsibility to protect water and air quality,and spread environmental regulatory authorityacross six existing and new state agencies. In the viewof two former directors of the Department of WaterResources, this approach has raised coordinationcosts but was an understandable resolution of theissue of administrative responsibility and authority?

The law required all groundwater quality stan-dards to be based on an evaluation of social, econom-ic, and environmental costs and benefits. All aquiferswere to be inventoried and classified by June 30,1987,and a statewide monitoring program was establishedto improve the data base on groundwater qualityAquifer protection permits have been required for allactivities that have been found to pollute gnnmdwatetThe law also directs the Commission on Agriculture andHorticulture to regulate the use of pesticides throughlicenses and permits, and bans the use of any pesticideunless the manufacturer has shown that contaminationwill not result The Arizona Attorney General is autho-rized to enforce water quality standards’”

Although Arizona approached groundwatersupply management and quality protection withstatutes that created new departments, this does notmean that there is no connection or coordination. Thewell registration, metering, and withdrawal report-ing requirements of the management law will con-


tribute to the knowledge base for quality protection,‘”and the aquifer inventory and classification andgroundwater monitoring programs will be useful formanagement officials.‘OB

These examples have been chosen to highlightsome different possibilities for the organization ofgroundwater protection in relation to the managementof supplies; no attempt has been made to inventory anddescribe the number and variety of state and localprograms Through the YXKls, new groundwater pmtec-tion legislation and regulations, and new forms ofadministrative organization and coordination havebeen generated in vktually all stateslog

The Committee on Ground Water Quality Protec-tion of the National Research Council concludedfrom its review of state and local groundwater qualityprotection activities and programs that

no single program was found to address allaspects of ground water protection problemscomprehensively. A comprehensive pro-gram would probably incorporate elementsfrom a number of the state and local pro-grams reviewed in this report as well asothertechniques not discussed here. While nosingle program can be held out as a model forothers to follow, collectively they comprise areasonable array of alternative ground waterprotection program designs being used.llO

State laws and organization of groundwaterquality protection programs doubtless will continueto vary, reflecting emphases on different groundwa-ter quality problems, and different institutional ar-rangements on which to build, as well as legal andcultural differences Deviations from suggested statuto-ry or administrative models do not necessarily reflectinadequacies, but may indicate successful adaptationsto the challenges faced by states and communities

States as Water Suppliers

States also have operated in the complex watereconomy as large-scale water suppliers or whole-salers. While California’s State Water Project, whichconveys water from the north to the more heavilypopulated south, is perhaps the largest and bestknown state water supply undertaking, state involve-ment is far from being a western phenomenon. Forexample, Pennsylvania has long authorized andconstructed flood control projects;“’ Massachusettshas supplied the Boston area with water from thewestern part of the state for over a century; and NewJersey has transferred water from the Delaware Riverto the more heavily urbanized northeastern part ofthe state since the E300s.“2

As noted in Chapter3,states that perform the roleof water supplier have opportunities to influenceuser behavior through conditions on access and

through pricing mechanisms. Massachusetts andNew Jersey have used control of access to large-scalesurface water projects to encourage changes in thebehavior of local water users and their organizations,although the tactical approaches of the two stateshave been different

States as Rulemakers

One of the most important state roles in thecomplex water economy is making the rules for accessto water supplies Although the federal government hasthe constitutional authority to regulate navigable water-ways, the states have had responsibility for making andenforcing the laws that govern access to the withdrawaland use of surface and groundwater supplies

As much of the emphasis in water resourcemanagement has shifted from developing additionalsupplies to managing and allocating supplies, thehistorical role of the states in water rights administra-tion isseen as enhancing their present and future role.“[A]s priorities shift from water resource develop-ment to management, the states are the more appro-priate level of government to initiate and administerprograms.1113 States have broad police powers tomake policy in health, welfare, and environmentalprotection. Almost all states have health and environ-mental agencies, and many have separate waterresources agencies or departmentsu4 These facts,combined with the states’ historical role and currentactivity, have formed the basis for some analysts toconclude that “the states are uniquely qualified toaddress the issues spec$ic to their region, and thatmany states have already developed solutions tosome of their water management problems.“115

Thisaspectofthestates’mle-thedefinitionofwhohas rights, how those rights am acquired, and in whatways (if any) they am quantified and limited-is at theheart of the institutional arrangements for managingwatermxnucesThestaterulesdiffer;andthisaffectsthepatterns of water use and development The effects ofstate water rights laws on use and development will beconsidered at some length in the next chapter

States as Policy Innovators

States developed and modified water rights rulesand quality regulations and programs considerablyin the 1970s and 1980s. During the 1980s in particular,it can easily be contended that the states have beenthe principal sources of groundwater policy innova-tions, 54s in other water management categories, themajor actor in groundwater is state government”l16

From 1980 through 1989,3Ostates adopted signifi-cant new groundwater supply management andquality protection policies.“‘These states were signif-icantly more dependent on groundwater suppliesthan those that did not adopt new policies,suggesting


that states respond to perceived water supply man-agement needs.

During the 198Os, 24 states adopted new waterquality protection laws, groundwater classificationsystems, and/or groundwater quality standards Ac-cording to 1987 testimony by the executive ditector ofthe Association of State and Interstate Water PollutionControl Administrators, two-thirds of the states had orwere developing groundwater quality standards and/oruse classification systems 118 During the 1985,19&j, and1987 legislative sessions, 37 states enacted groundwaterquality protection legislation, either to address specificprograms (such as underground storage tanks or pesti-cide use) or to develop statewide strategies119

Forty states have discharge control permitprograms, and these programs frequently require adischarger of contaminants to monitor groundwa-ter quality.iza Forty-nine states have accepted pri-mary enforcement responsibility under the provi-sions of the federal Safe Drirtkirrg WaterAct, whichinvolves: (1) engineering plan review, (2) com-pliance monitoring, (3) conducting periodic sani-tary surveys, (4) certifying laboratories, and (5)enforcement against persistent violators of drink-ing water quality standardsJ21

THE ROLE OF THE FEDERAL GOVERNMENT

The federal government has been involved inwater resource development and management formuch of our history Most of this involvement has beendirected toward surface water supply development

States, communities, and industries have had theprimary responsibility for water provision and man-agement In the past, the Congress has recognized thisprimary state and local role, and many federal waterlaws contain policy statements that describe thefederal government’s role as limited and ancillary.‘”This federal role has been manifested in several waysPerhaps the most plain has been statutes directingfederal agencies and installations to comply withstate water rights laws and administrative proce-dures. This has included acquisition of water rightsfor federal projects through appropriation permitprocedures or condemnation and payment in situa-tions where the federal government could haveexploited its “navigation servitude” under the law.123The Congress elected instead to defer to the statesFederal deference to state water laws, which dates backto the acquisition of the western states during the 19thcentury, has been seen by some as a missed opportunityto impose ua uniform system of water law on the region,though in view of the well known difficulties thatdeveloped over the federal land policy in the area, themis no reason to assume that Congress would havedevised an ideal system of water law.“iZ4

The Congress also has cooperated with andsupported states efforts at interstate resolutions ofwater supply issues involving multistate resourcesThe Congress has authorized interstate water com-pacts, and the federal government has been a party tofederal-interstate compacts, such as the one govern-ing the Delaware River Basin.

In addition, the federal government has encour-aged and supported state and local activities andinitiatives in water resource management throughincome tax laws. By exempting the interest earned byholders of state and local securities from federalincome taxes, the Congress and the executive branchhave made it easier for governments to sell the securitiesthat finance state and local water resource activitiesHowever, limits were placed on this support by the TnwR&m Act qf 2986. These forms of support have beenaccompanied by more active involvement, such asfinancing and production and dissemination of watermsoumes information, financing and production ofsurface water development and impoundment proj-ects, and regulation of water quality

A Supportive Federal Role:Information and Technical Assistance

The federal government has contributed impor-tantly to the production and dissemination of infor-mation and scientific knowledge about groundwaterAlthough management problems and responses dif-fer from place to place, many elements of basichydrologic research into groundwater are conductedin the same way and require the same sort of educationand expertise throughout the country and the benefitsof research reach beyond the boundaries of the commu-nity in which it was conducted. Thus, while states andlocal communities have been interested in supportingand participating in the promotion of research and thedevelopment of extensive resource information, theyhave been reluctant to fund most types of waterresearch The appropriate scale for the conduct of basicresearch and the collection of scientific and technicalinformation on water resources is national*=

The Department of the Interior’s United StatesGeological Survey (USGS) has been collecting dataon water resources since 1888. Currently, USGScollects streamflow and discharge data at 13,212surface water sites, water level and pumpage data at35,621 wells, and water quality information at 4,610surface-water sites and 7,648 wells USGS publisheshydrologic data in the form of annual reports for eachstate, and a monthly catalog of publications126

States and communities have relied strongly onUSGS reconnaissance studies and hydrologic investi-gations, and the “early systemic collection and inter-pretation of hydrological data has been important tothe development of current state groundwater pro-gramsn127 Some state geological surveys date back to the


mid-180@ but most state efforts evolved in associationwith USGS. Cooperative investigations began in 1895.The Congress appropriated funds specifically for coop-erative studies beginning in 1905, which began theFederal-State Cooperative Program of the U.S. Geologi-cal Survey In 1928, the Congress set a 50 percent upperlimit on the federal share of the costs of any investiga-tion under the pmgmm

The Federal-State Cooperative Program allowsstates and communities to enter into agreements withUSGS for hydrologic investigations into an actual oranticipated water-supply problem. States and com-munities are able to define the problems, contribute atleast half of the funds for the investigations, haveaccess to the expertise and experience of USGS, anduse the information in their decisionmaking pro-cesses. The cooperative program has produced muchof the information available on the nation’s water~esourres, including information used by other federalagencies In fiscal 1983, more than 800 “cooperators”participated with USGS in the program. States partici-pated in 252 projects, municipalities in 205, counties in183, and other entities (including special districts,interstate compact organizations, and Indian tribes) in204 USGS publishes several series of reports based oncooperative program projects

The federal government also has assisted statesand communities in building institutional capacitythrough the development of their own expert person-nel. The Wafer Resources Research Act of 1964 (mostrecently reauthorized in 1984) provided matchingfunds for the establishment of Water ResourcesResearch Centers in each state. The centers conductresearch and investigation, and serve as trainingcenters for water resources professionals. USGS alsooperates a National Training Center in Denvec Inaddition, the Wafer Resources Planning Act of 1965created the federal Water Resources Council (WRC)and authorized financial assistance to the states forplanning. Although WRC and the planning fundswere discontinued in the early 198Os, state watermanagement agencies greatly expanded in size andexpertise through the 197% and 1980sm

The U.S. Geological Survey has been publishingestimates of water use (figures such as those used inChapter 2 of this report) since 1950. The first reportsissued were based on data derived from many sourcesof varying degrees of accuracy, so in 1977, theCongress acknowledged the need for uniform infor-mation and directed USGS to undertake a coopera-tive federal-state National Water Use InformationProgram. Begun in 1978, the information programbecame part of the Federal-State Cooperative Pro-gram. The states collect much of the data and thenreceive state water use information and reports fromUSGS. As of 1988,49 states and Puerto Rico participatein the program. lz9 USGS directs the data collection

effort, compiles the information, and analyzes re-gional and national water use statistics and trends.

USGS also produces National Water Summaryreports as part of the National Water SummaryProgram, begun in 1983. Each report focuses on asingle topic (groundwater resources, groundwaterquality,etc.) and presents state-by-state reports plusnational summary information. The reports havebeen instituted as a way to bring together into anannual presentation information generated throughthe various USGS programs.

The Bureau of Reclamation, also part of theDepartment of the Interior, conducts some ground-water studies in connection with planning for itssurface water projects -estimations of pumping re-quirements for projected crop demands, along withcalculations of available local supplies based ongroundwater geology, depth, movement, and re-chargela-but the bureau typically does not dolong-range groundwater studies. More recently, thebureau has been supporting research and demonstra-tion programs on artificial recharge, which wouldprovide information that could feed back into stateand local conjunctive management programs.

Several other federal agencies, including thedepartments of Agriculture, Energy, and Defense,the Environmental Protection Agency (EPA) andthe National Science Foundation (NSF), have allo-cated funds for water research.131 With all of thefederal, state, local, academic, and industry programstogether, there is and has been a sizable waterresources research effort. Federal support from themid-1970s to the mid-1980s totaled over!+2 billion132 (asmall fraction of the amount spent on water projectconstruction and maintenance over the same period).A 1989 report from the Office of Science and Technol-ogy Policy in the Executive Office of the Presidentfound that federal science and technology programsconcerning groundwater expended over !$890 millionover the five fiscal years ending with fiscal year1990:% The expenditures by federal agency and pro-gram category are shown in Figure41. Nonetheless,thereport concluded that “scientific uncertainties, lack ofadequate technologies, lack of basic data, and shortageof skilled scientific personnel still hinder the ability offederal, state, and !ocal governments and the privatesector to develop and implement effective gmund-water management, protection, and remediation poli-cies and ~mgrams”‘~

In the area of research into basic hydrology andhydraulics, the major federal participants are USGS,the Department of Energy’s Office of Energy Re-search, the Department of Agriculture’s AgricultiralResearch Service and Cooperative State ResearchService (ARSKSRS), NSF, the National Aeronauticsand Space Administration (NASA), and the Depart-


Figwe 4-1Groundwater Research Expenditures, by Federal Agency and Program Category

. ..by Federa! Agency

0’(SO6

FsaLlxAn

. ..by Ptogra~~~ Category

Source: U.S. Office of Science andTechnology Policy, Fedelnl Gloumi IV&r Scienced Technology Prognms (Washington, DC,1989)


ment of Commerce’s National Oceanic and Atmo-spheric Administration (NOAA). Over the five fiscalyears 1986 through 1990, federal mseamh program ex-penditures in this area totaled $123.4 million, of whichUSGS spent $51 million, the Office of Energy Research$27 million, the ARS/CSRS $21.5 million, NSF $9 mil-lion, NASA $6.7 million, and NOAA $5.2 million.

Federal research expenditures for groundwaterquantity resource assessments from fiscal year 1986+-trough fiscal year 1990 amounted to $134.3 million;JSGS accounted for $132 million. Federal researchexpenditures for development and testing of moni-toring, characterization, and assessment methods1990 totaled $58.4 million. The major federal agenciesfunding and conducting research were EPA, USGS,and AARSKSRS. The major federal agencies support-ing information storage, retrieval, and handling andtraining and education are the Department of Agri-culture’s Soil Conservation Service and ExtensionService,USGS,and EPA. Total federal research expen-ditures in these areas were $147.6 million.

Estimated federal groundwater research expen-ditures for fiscal 1990 were $225 million, the largestamount yet budgeted for a single year: Of that total,quantity assessments was budgeted for 15.1 percent,and hydrology and hydraulics for 13.9 percentAnother 23.1 percent of the funds would supporttraining and education; information storage, retriev-al, and indexing and the development and testing ofmethods of monitoring characterization, and asses-sment Half (49.8 percent) of the funds were allo-catedto the Department of the Interior (which in-cludes USGS and the Bureau of Reclamation), 24.4percent to the Department of Agriculture, 10 percent*to EPA, and the remaining 15 percent to the otherprincipal federal groundwater research agencies

In 1986, the Congress appropriated funds for aNational Water-Quality Assessment Pilot Program,to be operated by USGS. The purpose has been totest and refine assessment approaches and meth-ods and to evaluate the potential costs and uses of anationwide assessment program Four surface-waterand three groundwater pilot projects were chosen.A full-scale national assessment program wouldprovide a consistent set of descriptions of waterquality, and identify long-term trends (if any).Another possible outcome would be the identifica-tion of factors and conditions that appear to beassociated with changes in water quality, and theidentification of aquifers thatareespeciallyvulner-able to degradation and contamination.

The Federal Government as Water Supplier

Conjunctive management of water resourcesoften involves coordination of surface storage facili-ties with underground storage capacity Controlled

releases of surface waters from a flood control ormultipurpose reservoir can be coordinated withgroundwater use to maximize total available watersupply while minimizing damage to surface structuresand underground aquifers and protecting overall quali-ty Therefore, federal involvement in the constructionand operation of surface water projects has provided auseful tool for state and local conjunctive managementof water supplies, as well as protection from flooding136

The federal government became involved inwater resource development through navigationimprovement and flood control. Planning for naviga-tion improvements on a significant scale began earlyin the 19th century, and in 1824, the Congress chargedthe United States Army Corps of Engineers withresponsibility for implementing the improvements.Flood control was added to the Corps’ responsibilityin the middle of the century, when the Mississippiand Missouri River basins were being ~ettled.‘~Generally, projects built and operated by the Corpshave been planned as surface water impoundments,with minimal consideration to groundwater supplyrelationships, The Corps monitors groundwater at afew sites, and some multipurpose projects haveincluded authority for spreading waters for replen-ishment (this usually is done by local agencies).‘37

In the decades after the Civil War, federal lawsand policies encouraged the rapid development ofthe West Through the Desert Land Act of 1877, theCongress authorized the sale of land in 64CLacre tractsin most of the arid region of the West to persons whowould irrigate lands within three years. This markedthe official beginning of a federal policy of encourag-ing the development of irrigated agriculture in thewestern states.‘“In 1902, the Congress backed up thatpolicy with the adoption of the Reclanration Act,authorizing federal funding and construction ofwater development projects

The Reclamation Act directed the Department ofthe Interior to undertake examinations and surveys,and to locate, construct, and maintain irrigationfacilities, to be paid for out of a reclamation fund. Theinitial fund came from the sale of land, and was to bereimbursed, without interest, by project beneficiarieswithin ten years. The Bureau of Reclamation wasestablished and joined the Corps of Engineers inconstructing these surface water facilities.

While the Bureau of Reclamation has had acrucial impact on water resources management in thewestern states, the Army Corps of Engineers, whichhas a nationwide reach, spends the lion’s share offederal water resources development outlays. Of the$3.4 billion in federal outlays for fiscal 1986, 70percent was spent by the Corps, 21 percent by theBureau of Reclamation, 8 percent by the Departmentof Agriculture’s Soil Conservation Service, and 1percent by the Tennessee Valley Authorityn9

U.S. Advisory Commission on Intergovernmental Relations 7l

The Federal Government as Regulator

Federal water quality efforts were originallydirected toward surface supply protection and reme-diation. The Federal Wafer Pollution Control Act (CleanWater Act) of 1972 did not address groundwater,although some of the activities under the act haveimpacts on groundwater quality and some EPAinterpretations extended the provisions to groundwa-teP Subsequently, through the Safe Drinking WaterAct of 1974, and in particular the Safe Drinking WaterAmendments of 1986, federal legislation has reachedgroundwater as a source of drinking water

The Clean Water Act provided federal grants tomunicipalities to finance up to 75 percent of the

~ design and construction costs of wastewater treat-ment facilities needed to meet the goal of secondarytreatment levels for all publicly owned treatmentworks by 1977. Amendments to the law extended the1977 deadline, eventually to 1988. A reauthorizationof the Clean Wafer Act in 1987 maintained the 1988deadline for treatment compliance but made othersignificant changes Amendments provided for thephasing out of the federal construction grants programby 1994 and offered federal assistance to the states tocapitalize state revolving loan funds to provide assis-tance to communities with considerable flexibility141 Inthe words of the executive director of the Association ofState and Interstate Water Pollution Control Administra-tors, “After 1994, the federal government should be out ofthe sewerage business, and it will be up to state and localgovernments to meet the Congmssional challenge andbe ready by 1994 to assume full responsibility for theClean Water Program.n*rlz

More than half of the states have grant programsto assist communities with wastewater treatmentprojects;‘” nearly half of them have establishedrevolving loan funds. Progress in the construction ofwastewater treatment facilities and the continuationof the clean water program contribute to federal,state, and local efforts to prevent contamination andprotect groundwater quality Treated wastewater isless likely to produce contamination and can be asource of recharge water in groundwater basins withartificial replenishment programs.

In the 1987 amendments to the CIeun WaterAct,the Congress also authorized up to $400 million forfederal support of state and local nonpoint-sourcepollution programs, Nonpoint sources of pollution -such as agricultural and urban drainage and returnflows, and storm runoff -are especially likely toaffect groundwater quality. However, funds were notappropriated during the first two years after theamendments were enactedJM

The Safe Drinking Water Amendments of 2986extended many federal requirements to groundwatersources, and this act now constitutes the principal

federal legislation for groundwater quality protec-tion. The Congress required EPA to set maximumcontaminant level goals (MCLGs) within three yearsfor 83 contaminants previously listed in 27te FederalRegister. Addressing this broader set of contaminantswas one of the main purposes of the amendments.l*The amendments also require monitoring of a largenumber of unregulated contaminants, and will likelyrequire disinfection of groundwater supplies thatwere previously not disinfected, and filtration ofnearly all community surface water supplies.146

EPA has established drinking water standards formore than 50 contaminants EPA does not issueseparate groundwater standards and has not sup-ported the adoption of uniform national standards,although it has recognized the appropriate use ofdrinking water standards as guidelines indicatingacceptable levels of contaminants in groundwaterThe subtlety of that distinction apparently has beenlost on the states. EPA drinking water standards areadopted by most states that have numeric groundwa-ter quality protection standards, and most state drink-ing water administrators told the U.S. General Ac-counting Office that, in their view, drinking waterstandards “should” or “probably should” be used asgroundwater standards.‘* States use EPA drinkingwater standards “both as an indicator of what substances to regulate and as an indicator of the level atwhich to set the groundwater standards.“149

The Safe Drinking Wafer Amendments also re-quired states to submit to EPA by July 19, 1989,programs for protecting the areas around water wellsthat supply public drinking water from contamina-tion. State programs would be considered adequateunless rejected by EPA within nine months of submis-sion. States are required to implement the programswithin two years of submission. State developmentand implementation of wellhead protection pro-grams is supported through the authorization ofgrants meeting from 50 to 90 percent of programdevelopment and implementation costs.

Some provisions of the amendments also recog-nized the special needs of small water systems.Systems serving fewer than 150 connections, forexample, may meet the requirements for monitoringunregulated contaminants simply by submitting awater sample to the state or EPA. The amendmentsauthorized up to $10 million dollars annually for fiscalyears 1987 through 1991 to aid small water systemscomplying with EPA regulations It remains to be seenwhether the authorized funds will be appmpriated;150they were not appropriated during the first two budgetcycles after adoption of the amendments

One of the ongoing problems in implementingthe Clean WaterAct and the Safe Drinking WaterAct hasbeen building implementation capacity. The 1986Safe Drillking Water Amendmenfs made the states the


primary implementation and enforcement agents forEPA-promulgated regulations Administrators gener-ally believe that there is not sufficient financialcapability to implement the Act properly in manystates and public water supply systems, and thatadditional financial assistance will be neededJsl

The Cleun Wafer Act and the Safe Drinking WaterAct are only two of the federal laws relating to waterquality, and EPA is only one of the federal agenciesinvolved in groundwater quality protection, albeitthe principal one. Depending on the definition of“relate,” it has been estimated that from fewer than 10to more than 40 federal statutes relate to groundwaterquality?” Other prominently involved federal agen-cies in addition to EPA include the U.S. GeologicalSurvey, which produces much of the information ongroundwater used by EPA and other regulatoryagencies, the Department of Agriculture (which hassome authority regarding pesticide use), and theDepartment of Energy (which has authority regard-ing the disposal and handling of radioactive materi-als). States and local governments have observed thatthe federal groundwater protection effort, coming asit does under the authority of the Safe Drinking WaterAct, the Clean WaterAct, the Resource Conservation andRecovery Act, the Federal Insecficide, Fungicide, andRodenticide Act, the Comprehensive Environmental Re-sponse, Compensation, and Liability Act, and otherstatutes, has at times lacked coherence and coordina-tion, and has subjected state and local administratorsto a plethora of obligations.

In 1984, in an attempt to provide a focal point forfederal efforts in groundwater quality protection,andto improve program coordination and enforcementof laws and regulations, EPA established an Office ofGroundwater Protection. EPA published its “ground-water protection strategy” in 1984, which reliesheavily on state implementation and enforcement oflaws and regulations, with technical and financialassistance from the federal governmentls3 The EPAgroundwater protection strategy recognizes the his-torical and legal roles of the states in water allocationand the localized nature of most contaminationsources and incidents; acknowledges that the stateshave the principal role in protecting groundwaterquality and have developed several powerful stateand local authorities; and declares a position in favorof strengthening. not displacing or disrupting, stateand local initiativesJs

The strategy identifies four major objectives forEPA’s role in groundwater quality protection: (1)strengthen the states’ institutional capacity to protectgroundwater resources (principally through finan-cial and technical assistance), (2) give greater empha-sis to regulating sources of contamination that are ofspecial national concern and are insufficiently ad-dressed, (3) develop guidelines for consistency in EPA

groundwater protection and remediation decisions,and (4) coordinate groundwater protection activities

internally as well as with other federal agencies andthe states. The EPA groundwater protection strategyalso focuses on areas where groundwater contamina-tion would cause the greatest harm and assignshighest priority to groundwater that is used fordrinking or to supply unique ecosystems.‘56

A key element of the EPA groundwater protec-tion strategy has been to combine capacity-buildingmeasures with encouraging states to develop andimplement their own strategies. Under Section 106 ofthe CZeun Wuter Act, EPA has offered grants to thestates to assist them in developing statewide ground-water quality protection strategies, which the states inturn submit to EPA for review and approval.

Summary

Through support of research and technical assis-tance, program development, and development ofdrinking water standards in connection with the SafeDrinking Water Amendments, EPA and other federalagencies have been attempting to improve ground-water quality protection. At the same time that it iscommitted to helping, the federal governmentshould ensure that its activities do not harm ground-water quality and make protection more difficult forthe states and communities that have primary imple-mentation responsibilities.

Regardless of whether its water projects weeeast or west, single purpose or multipurpose, federalinvolvement in solving water resource problems hasbeen organized by individual projects rather than onthe basis of some federal plan or policylM The historyof federal involvement in water resources is repletewith instances of boards, commissions, and councilsformed to articulate a national water policy andcoordinate federal programs, with each body elimi-nated in an executive branch reorganization or aperiod of budget austerity, and of studies by commis-sions yielding insightful conclusions and recommen-dations that were never adopted.15’

The most recent commission was the NationalWater Commission. Its 1973 report, W&r Policies for theFuture, advocated conjunctive management of waterxtzfmms at the scale nearest the useIs of the n5outces,with federal suppoti for march and problem identifi-cation, diminishing federal support in planning andfinancing development, and a strong federal role inquality pmtection, along with a host of other morn-mendations that have yet to be implemented. Coordi-nation of federal water programs and ongoing analysisof national water policy were most recently institution-alized for a time in the U.S. Water Rexnmxs Council(formed under the auspices of the Wuter ResoltrcesHutming Act of Z-%5), but that body was terminated in1982 as part of federal spending reductions in the firstterm of the Reagan Administration.‘5B


The project-by-project approach and the lack of acomprehensive federal management plan have beencriticized. The organization of federal support andparticipation also is criticized. Water resource devel-opment and management are part or all of theportfolio of about 25 federal agencies,i59 as well as thesubjects of hundreds of federal laws. Neil S. Grigg,attempting to summarize the federal role in ground-water management, wrote “The federal government isresponsible for policy formulation, mgulation, datacollection and research. These responsibilities are frag-mented between agenciesR160 The existence of multiplefederal agencies with involvement in water resourceinformation, development, and management has beencited as a source of confusion and inefficiency161

Much of the literature suggests that the federal roleand participation are declining now that the emphasishas shifted away from water development towardmanagement of existing supplies*62 However, otherchanges during the 1980s suggest the possibility for agreater federal role in the management of watersupplies 163 Among these changes am the federal courtdecisions striking down state restrictions on gmundwa-ter supply exports and ruling that groundwater is anarticle of interstate commerce subject to direct federalregulation; the problems surrounding federal reservedrights and Indian water rights, especially in the westernstates; and legislation introduced in the Congmss torequire the use of nondegradation standards forgroundwater quality programs nationwide, and torequire prior federal approval of state groundwatersupply management programs The following chapterconsiders these and other problems and prospects inwater resource management

Notesi Vincent Ostrom and Elinor Ostrom, “A Behavioral Ap-proach to the Study of Intergovernmental Relations,7he Annals of the American Academy of Political and SocialScience 359 (May 1965): 138.

* For example, U.S. Advisory Commission on Intergov-ernmental Relations (ACIR), 7he Organization of LocalPublic Economies (Washington, DC, 1987).

3 Ostrom and Ostrom, p. 138 (emphasis added).

4 Ibid.

5 William Lord, Director, Water Resources Research Cen-ter, University of Arizona. Proposal for the ComparativeStudy of Water Management Inst i tut ions. 1988.

6 Ostrom and Ostrom, p. 140.7 Wade MiUer Associates, ‘Ike Nation’s Public Works: Report

on Water Supply (Washington, DC: National Council onpublic Works Improvement, 1987), p. i .

s Vincent Ostrom, Robert Bish, and Elinor Ostrom, LocalGovermnent in We Uuited States (San Francisco: ICS Press,1988), pp. 59-60.

9 See especially Wade MiIIer Associates, and NationalCounci l on Public Works Improvement, Fragile Pounda-

tions: A Report on AmericaS Public Works (Washington,DC, 1988).

lo Wade Miller Associates, p. 17.l1 Ibid., p. 18.l2 Ibid., pp. 17-18.l3 Kyle Schilling et al., The Nation’s Public Works: Report on

Water Resources (Washington, DC: National Counci l onPublic Works Improvement, 1987), p . 134.

I4 Wade Miller Associates, p. 18.l5 Ibid., pp. 91-92.l6 Ibid., p. 18.l’ Ibid.l8 Schiing et al., p. 134.I9 This distinction isexplained in detail in ACIR, IIre Organi-

zation of Local Public Economies.2o James Krieger and Harvey Banks, “Ground Water Basin

Management,” CalQorm’a Law Review 50 (1962): 74 (em-phasis added).

21 SchiUing et al., pp. 134-135.22 Jurgen Schmandt, Ernest Smerdon, and Judith Clarkson,

State Water Policies (New York Praeger publishers, 1988),p. 1.

zs Ostrom and Ostrom, pp. 141-142.24 John Leshy, “Special Water Districts-The Historical

Background,” in James Corbridge, ed., SpeciaI Water Dis-tricts: Challengefor the Future (Boulder: Natural ResourcesLaw Center, 1983), p. 13; Sidney Harding, Water in Cali-fornia (Palo Alto: N-P publications, 1960), p. 215.

25 Warren Viessman and Claire Welty, Water Management:Technology and Institutions (New York: Harper and Row,1985), p. 25; SchiIIing et al., p. 7.

26 See for example, Lyle Craine, “Intergovernmental Rela-tions in Water Development and Management.” Paperpresented at the Southern Poli t ical Science Associat ion,Gatlinburg, Tennessee, 1959, pp. 13-14:

As a theoret ical proposi t ion, should we notconceive, and encourage, insofar as feasible, theoperat ion of a competi t ive public market amongwater service enterprises as the primary basis forallocating water services from a given river man-agement scheme? . . . Thus, the tricky water man-agement decision, i.e., which customers get what,results from the relative demand as expressed bythe wil l ingness of each customer to pay.

27 Leshy, p. 24.28 Ibid., pp. 12-13.29 Ibid., p. 13.3o Ibid.31 Inst i tute of publ ic Adminis t ra t ion, SpeciaZ Distr icts and

Public Authorities iti Public Works Provision: Report to theNational Council on PubIic Works Improvement (Washing-ton, DC, 1987), p. 24 (unpublished); Harold Rogers andAlan Nichols, Waterfor California: Planning, Law and Pmc-tice, Finance (San Francisco: Bancroft-Whitney, 1967), Vol.2, pp. 49-50.

sz Institute of public Administration, p, 65; Leshy, pp. 22-23.ss Charles Phelps et al., Efficiart Water Use in California: Ex-

ecutive Summary (Santa Monica: RAND Corporat ion,1978), p. 10.


34 Institute of Public Administration, p. 65; Leshy, pp. 22-23.35 Institute of Public Administration, p. 65.36 Ibid., p. 62.37 Ibid., pp. C-5 and C-6.38 ACIR, l%e Problem of Special Districts in American Govern-

ment (Washington, DC, 1964).39 Jnstitute of Public Administration, p. 62.40 Compare, for examp le, Leshy, p. 22:

In the modern era, most states have chosennot s imply to expand the purposes of t radi t ionaldis t r ic ts , but also to create wholly new categoriesof speciaiwater districts to serve larger geograph-ic areas and f&ii a variety of purposes. Some-times these new distr icts overlay in whole or inpart existing districts (as weii as other water sup-ply entities), creating multiple layers of specialwater districts and a patchwork of water supplyauthority in the same geographical area.

*I Schiiling et al., p. 135.* Tim DeYoung, “Discret ion Versus Accountabil i ty: The

Case of Special Water Districts,” in Corbridge, ed., p. 34.as David Jaquette, Ejficient Water Usein California: Conjunc-

tive Management of Ground and Surface Reservoirs (SantaMonica: RAND Corporat ion, 1978), p. 3 .

44 James Corbridge, “An Overview of the SpeciaI WaterDistricts Workshop,” in Corbridge, ed., p. 5.

45 In California, which has by far the highest number andpercentages of water supply and management servicesperformed by special water districts, a telephone surveyof a stratified random sample of registeredvoters in 1978asked them to rate the performance of their watersupplier as excellent, good, only fair, or poor Three-fourths responded “good” or “excellent.” A later surveyconducted by the Association of California Water Agen-cies focusing on respondents served by special water dis-t r ic ts showed sl ight ly higher levels of sat isfact ion, butmust be regarded with some reluctance in l ight of thefact that the latter survey was conducted by members ofthe association. CharlesHobbs,IIre WaferDistricfsofCali-fornia (Sacramento: Association of California WaterAgencies, 1979), p. 25.

46 This criticism is addressed to particular identifiedspecialwater districts in the San Joaquin Valley in Merrill Good-all and John D. Sullivan, Water System Enti t ies in CaIi-fornia: Social and Environmental Effects,” in Corbridge,ed., pp. 71-102.

47 Institute of Public Administration, pp. 4-5.

* Ibid49 Wade Milier Associates, p. 97.sa Ibid., p. 92.

51 Richardson et al., “Gypsum Blocks TelI a Water Tale’,”Journal of Soil and Water Conservation 44 (1989): 195.

52 L.M. Hartman, “Economics and Ground-Water Devel-opment,” Ground Water 3 (April 1965): 7.

53 Wade Milier Associates, p. 18.54 Wade Milier Associates, p. 22.ss Ibid., p. 142.56 From the State Capitals: Water Supply 43 (January 1989): 3.

57 A fuller description of the NRWA program can be foundin Wade Milier Associates, p. 84.

ss Albert Lipson, Eficient Water Use in Calijornia: Ike Evolu-tion of Groundwater Management in Southern California(Santa Monica: RAND Corporation, 1978), p . 16.

59The activit ies of SAWARA can be found described ingreater detai l in Schmandt et al., pp. 48-53.

a Gary Weatherford et al.,Acquiring Waterfor Energy: Lnsti-tutional Aspecfs (Littleton, Co: Water Resources Publica-tions, 1982), p. 19.

6* Grant Thompson, Courts and Water: The Role of the JudicialPYOWSS. Background Report (Washington, DC: NationalWater Commission, 1972), p . 2 .

62 Krieger and Banks, p. 66.63 Michael MalIery, “Groundwater: A CaII for a Compre-

hensive Groundwater Management Program,” Paci f icLaw Journal 14 (July 1983): 1290.

bl Ibid.66 Krieger and Banks, p. 66.66 Thompson, p, 123.67 As Zachary Smith has pointed out , resolution of water

disputes in legislative forums wiii favor groups with theresources and skilIs for success at lobbying legislatorswho are motivated primarily by reelection, while resolu-t ion of water disputes in administrative forums wilI fa-vor those with resources useful for dealing with bureau-cracies. Similarly, resolution of water disputes in judicialforums wiII favor those with resources and&i& for suc-cess at adjudication. Zachary Smith, me Pol icy Envi -ronment” in Zachary Smith, ed., Wafer and the Future ofthe Southwest (Albuquerque: University of New MexicoPress, 1989), p. 15.

68 National Water Commission, Water Policiesfor the Future:Final Report to the President and to fhe Congress ofthe UnitedStates (Port Washington, New York: Water InformationCenter, 1973), p. 232.

69 Lipson, p. 20.70 Thompson, p, 32 .n Ibid, p. 19.* Ibid, p. 23.n tipson, pp. 10-11.74 Krieger and Banks, p. 69.75 Susan M. Trager, “Emerging Forums for Groundwater

Dispute Resolution in California: A Glimpse at the Sec-ond Generation of Groundwater Issues and How Agen-cies Work towards Problem Resolution,” Pacijic LawJour-nal20 (October 1988): 58.

76 Ibid., p. 52.R Ibid., p. 53.76 JamesTB.Tripp andAdamB.Jaffe,‘TreventingGround-

water Pollution: Towards a Coordinated Strategy to Pro-tect Critical Recharge Zones,” Harvard EnvironmentalLaw Review 3 (January 1979): No. 1, pp. 41-42.

79 National Research Council , Committee on Ground Wa-ter Quality Protection, Ground Water Qualify Protection:State and Local Strategies (Washington, DC: NationalAcademy Press, 1986), p . 53; Metropoli tan Dade CountyDepartment of Environmental Resources Management,State of the Environment, 1987-88 (Miami, 1988), pp. 2-6.

ffl National Research Council, p. 52.


‘* Ibid.82 Ibid., p. 78.83 Ibid.

84 Nancy Humphrey and Christopher WaIker, InnovatiaeState Approaches to Community Wafer Supply Problems(Washington, DC: The Urban Institute, 1985) p. 6.

85 Wade MiUer Associates, p. 10.86 Humphrey and Waker, pp. 49-52.s7 See especially R. Steven Brown, “Environmental and

Natural Resource Problems: The Role of the States,” ?%eBook offhe States, 1986-87 Edition (Lexington, Kentucky:Council of State Governments, 1986), pp. 401-419.

ea National Research Council, p. 2.sg WiIIiam Cox, ‘Water Law Primer,“ASCE~ournal of Wafer

Resources Planning and Management 108 (March 1982):118; also George, p. 236.

9o U.S. General Accounting Office, Groundwafer Qulify:State Activities to Guard against Confaminanfs (Washiig-ton, DC, 1988), p. 3.

91 Ibid., p. 4.92 National Water Commission, p, 244 .93 Henry C. Hart, “Toward a Political Science of Water Re-

sources Decisions,” in L. Douglas James, ed., Man and WR-&(E7ington: Universi ty Press of Kentucky, 1974), pp .

- .94 SchiIIinget al., p. 133; David HoweIIs and James Warman,

“Groundwater Management in the Southeast ,” ASCEJournal of Wafer Resources Planning and Management 108(October 1982): 325.

95 National Research Council, p. 46.96 Ibid. ; Robert Melvin, Hugo Thomas, and Robert Moore,

“Cooperative Efforts in Ground-Water Protection-AConnecticut History,” U.S. GeoZogicul Survey Yearbook1987 (Washington, DC: US. Geological Survey, 1988), p.8 .

97 National Research Council, p, 46.

98 Melvin et al., p. 11.99 Ibid., p. 8.

loo Ibid., p. 15.lo1 Schmandt et al., p. 41.loL Ibid.lo3 Testimony of Wesley Steiner and Kathleen Ferris before

the Subcommittee on Water and Power Resources, Com-mittee onlnterior andInsular Affairs, U.S. House of Rep-resentatives, 1OOth Congress, First Session, on H.R. 2320.Series 100-23, Part 1, pp. 87-88.

lo4 Schmandt et al., p. 42; p resentation by Ronald MiIIer, Ari-zona Office of Waste and Water Quality Management, in7’he States’ Groundwater Management Conference, Associ-ationof State andInterstate Water Pollution ControlAd-ministrators, November 1986, San Diego, p. 3.

lo5 National Research Council, p. 83.lo6 Prospects for greater coordination of groundwater sup-

ply management and quali ty protect ion functions areexplored in Susanna Eden, Integrated Water Mnnagemenfin Arkona (Tucson: University of Arizona, Water Re-sources Research Center, 1990).

lo7 Alabama Florida, Hawaii, Illinois, Indiana, Iowa, Maine,Marylanb, Massachusetts, Minnesota, New Jersey, NewYork, North Carolina, Rhode Island, Vermont, Virginia,Washington, Wisconsin, and Wyoming have developednew laws, regulations, strategies, agencies, or coordina-tion procedures for groundwater quality protectionduring the last decade. Several other states began evenearlier , and others have enacted legislation within thisdecade directed specifically toward agricuIturaI chemi-cal use or underground storage tanks.

lo8 National Research Council , p, 9 .‘09 Ibid., p. 127.no Humphrey and Waker, p. 6 .11* Schmandt et al., p . v i i .112 Robert Ehrhardt and Stephen Lemont, Inst i tut ional AY-

rangemenfs for lnfrastfife Groundwofer h$nnngement: AComparative Assessment Using Virginia as a Case Sfudy(Arl ington, Virginia: JBF Scient i f ic Corporat ion, 1979),pp. 23-24.

113 Schmandt et al., p. 202.‘14NeiI S. Grigg, *Appendix: Groundwater Systems,” in

Kyle SchiIIing et al., 7he Nation’s Public Works: Report onWater Resollrces (Washington, DC: National Counci l onPublic Works Improvement, 1987), p . B-3.

1’S With respect to groundwater quality protection, thisrepresents act ivi ty in addit ion to the adoption of under-ground storage tank legislat ion or regulat ions (whichnearly all s tates adopted), or the development and sub-mission of s tate groundwater quali ty protect ion strate-gies under EPA’s Section 106 program (which also wasdone by nearly aII states). Wiiiam Blomquist, “ExploringState Differences in Groundwater Laws and Policy Inno-vations, 1980-1989,” Publius - The Journal of Federalism 21(Spring 1991): 101-115.

116 Testimony of Roberta Savage on H.R. 2253 and H.R. 791before the Subcommittee on Natural Resources, Agri-culture Research, and Environment, Committee on Sci-ence, Space, andTechnology, U.S. House of Representa-tives, 100th Congress, First Session, p. 244.

11’ U.S. Environmental Protection Agency, Survey of StateGround Water Quality Protection Legislation Enactedfrom298.5 through 1987 (Washington, DC, 1988), p. vii.

118 U.S. General Accounting Office, Groundwafer Qu~~lity, p.5 .

n9 Wade MiIIer Associates, p. 10.l”) Ibid, pp. 9-10.lzl Frank J. Trelease, “States’ Rights Versus National Powers

for Water Development,” in Ernest Engelbert, ed., Strnf-egiesfor Western Regional Wafer Development (Los Angeles:Western Interstate Water Conference, 1966), p . 107.

lzz NorrisHundIey, Wrrterand the West (Berkeley:Universityof California Press, 1975), p. 64.

I23 Schmandt et al., p. 25.m United States Geological Survey, Water-Data Program.

Water Fact Sheet (Reston, Virginia, 1984).lz5 HoweIIs and Warman, p. 321.lz6 David Moreau, “New Federalism and Social and Envi-

ronmental Goals,“Journ~Z of Water Resources PlanningandManagement 115 (January 1989): p. 28.

lnWayne SoIIey, Charles Merk, and Robert Pierce, Esfi-mated Useof Wafer in the United Stntes, 2985 (Washington,DC: U.S. Geological Survey, 1988), p. 3.


128 David Jaquette and Nancy Moore, Ef f i c i ent w&r Use inCalifornia: Groundwater Use and Management @antaM*nica: RAND Corporation, 1978), p . 32.

lzg Schmandt et al., p . 25.130 Schiing et al., p. 116.131 U.S. Office of Science and Technology Policy, FederaI

Ground-Water Science and Technology Programs (Washing-ton, DC, June 1989).

132 Ibid., p. i.133 James H. Jensen, “Governmental Responsibi l i t ies for

Water Development,” in Engelbert, ed, p. 116 .134 Viessman and Welty, pp. 30-31.I35 Jaquette and Moore, p. 32.1X Viessman and Welty, p. 31.137 Henry I? Caulfield, “The Future of Local Water Districts

and Agencies in Historical, Political Context,” in Cor-bridge, ed., pp. 104-106.

138 Viessman and Welty, pp. 38-39; PaulTaylor, “The 160-AcreLaw,” in David SeckIer, ed, California Water: A Study inResource Management (Berkeley: University of CaliforniaPress, 197l), p. 251.

13’ Schiiing et aL, p. 8.‘40 Wii iam Cox and William Waker, “Ground-Water Impli-

cations of Recent Federal Law,” Ground Water 11 (Sep-tember-October 1973): 15.

141 Robbi Savage, “National Clean Water Act ProgramTurned Into State Revolving Loan Funds,” County News19 (August 17, 1987): 16; Anthony J. Celebrezze, Jr.,“Ohio’s Required Enforcement of the clean Water Act,”Cities and VUZages 36 (February 1988): 8.

142 Savage, p. 18 .143 Ibid., p. 16.144 “NACD Announces Water Quality Strategy,” Journal of

Soil and Water Conservation 44 (May-June 1989): 217.145 Wade MiIIer Associates, p. 204.146 Ibid., pp. 5 and 205.

147 U.S. General Accounting Office, Groundwater Protection:‘Tk Use of Drinking Water Standards by the States (wash-ington, DC, 1988), p. 3.

la Ibid., pp. 2-3.14g Ibid., p. 5.150 Wade Miller Associates, p. 84.lsl Ibid., p. 205.ls2 George, p. 235; Zachary Smith, “Federal Intervention in

the Management of Groundwater Resources: Past Ef-forts and Future Prospects,” Publilts - 7heJoumniof Eeder-aiism 15 (Winter 1985): 1.51; Environmental and EnermStudy I&itute,A Con$ressionalAgenda to Prevent Grou&water Contamination: Building Capacity to Meet ProtectionNeeds (Washington, DC, 1986), p. 1.

153 Smith, p. 151; National Research Council, p. 3.‘%U.S. Environmental Protection Agency, Office of

Ground-Water Protection, Ground-Water ProtectionStrategy (Washington, DC, 1984), p. 3.

ls5 Ibid., p. 4.ls6 Viessman and Welty, p. 2; William Lord, “Conflict in Fed-

eral Water Resources Planning,” Water Resources Bulletin15 (October 1979): 1224%.

ls7 Viessman and Welty, pp. 41-53.ss Ibid, p. 7.159 SchiIIing et al., p. 130.160 Grigg, p. B-3.M Ibid.; also Schiing et al., p. ix.I8 See, for example, Schmandt et al., p. 2:

Whereas the federal government was a ma-jor player when water development projectswere the preferred approach to water manage-ment, now that the emphasis has changed fromdevelopment to better management of existingresources, i ts role is declining, and state govern-ments are assuming a more active role.

I63 Smith, p. 146.



Chapter 5

i!

Water Resource Management:Problems and Barriers

Despite the initiatives described in Chapters 3and 4, there still are important institutional barriers toeffective coordination of surface and groundwatersupplies having to do with the rules governingallocation,valuation, and information It is possible to“create a crisis” through the application of inappropriate rules: “When institutional mechanisms do notreflect reality a crisis o~curs.“~ Recognition of this facthas led to calls for more “institutional analysis” ofwater resource management and for institutionalreform.2 However, as others have pointed out, “insti-tutional analysis” is easier said than done,3 and“institutional reform” is no simpler than designinginstitutions originally (indeed, it is likely to be tough-er, as problems of design are compounded by inertia).Moreover, important and useful recommendationsfor institutional reform that have been offered havegenerally been ignored!

Acceptance of the idea that institutional arrange-ments and physical realities in the water resourcesfield are mismatched is not enough; there must be an

I understanding of how they are mismatched if reformis to make the situation better There appear to be threebroad views of the nature of the mismatch:

11, 1) Water supplies are insufficient, and institu-tional arrangements fail to force us to con-serve those supplies

2) Institutional arrangements of the past are in-

Iadequate, and their continued use is thecause of the problem.

I 3) The principal problem with the institutionalarrangements is that they distort the valua-tion of water supplies, making it difficult toknow whether supplies are sufficient be-cause users have several incentives to mis-state preferences for water and virtually noincentives to be accurate.

When the water situation is described as if thesupply were a fixed and limited known quantity, less

than can meet all needs and desires, the problem isperceived to be that laws and institutions haveperpetuated a false sense of water abundance As oneauthor stated, water laws and institutions have “main-tained the ‘water-rich’ illusions of this country” when infact the “challenge of the future will be learning to livewith less”5 The proper course for institutional reform,then, is to curtail use so as to balance the limitedavailable supply with aggregate demand

As the objectives of water resource managementhave shifted from development to the more effectivemanagement of existing supplies, part of the difficul-ty is that “we have inherited a structure of politics,organizations and intergovernmental relations whichis derived from the initial objective” of water develop-ment6 In the words of the director of Arizona’s WaterResources Research Center, our

society is, and has long been, a technologicallyoriented one. We have been successful intechnological innovation and we have cometo look first for the ‘technological fix’ whenwe confront a new problem. At the sametime, we are institutionally backward. Weshrink from institutional change, except as alast resort . . . In our own field of water re-sources management there are abundantand obvious examples of the tendency to re-sort to extravagant and unwarranted techno-logical solutions. Massive reservoirs, contro-versial water transfers, costly desalination,and uncertain weather modification schemesare all examples of a resort to technology tosolve problems which are more easily andcheaply addmssed by institutional innovation,Indeed, most of these ‘solutions’ are aimed atproblems which exist only because we havefailed to modify institutions which were re-sponsive to problems of an earlier day, butwhich have long since been rendered obsoleteby changing conditions’


The problem is not merely that our water laws andinstitutions are old, but the arrangements that werebeneficial for water development may have detrimen-tal results when the purpose of management haschanged to efficient and equitable allocation ofsupplies. The laws and institutions governingalloca-tion have distorted users’ sense of the value of watersupplies Therefore, it is virtually impossible to drawsimple conclusions, such as “water demand equals xand water supply equals x,and y is greaterthan x.” Weoperate in an institutional environment in whichusers’ claims are undefined, rights to use groundwa-ter basins for storage are undefined, barriers exist towater being transferred from one user to another orreclaimed by a user who employs water conserva-tively, and some persons pay unnecessarily high taxesor electrical power rates so others can have watersupplied at prices less than the cost of production.Under those circumstances, making any claims aboutthe relationship between the demand for water and thesupply is a dubious exercise.

What remains to be done is some real institution-al analysis. Past analyses have usually treated waterlaws and institutions as fixed elements, and predictedcrises based on projections of supply and demandthat were also deemed unchangeable.8 Institutionalanalysis treats water laws and institutions as vari-ables, subject to change, and then inquires as to thepossible effects of changed laws and institutions onthe relationship between supply and demand? Thus,while we acknowledge that it may be possible to“create a water crisis” through poorly adapted institu-tional arrangements, we must acknowledge that it maybe possible to avert or lessen the likelihood of a watercrisis through appropriate institutional adaptations

What, then, are the barriers to more effectiveconjunctive management of gmundwater supplies?They are the institutional factors that distort decision-making in such a way that the adoIs in the complexwater economy respond to incentives and constraintsby “creating a water crisis” or simply by failing to takefull advantage of available resources These institution-al factors include lack of definition and transferability ofproduction and storage rights, distortions created bywater subsidies, and lack of information distribution.*0

LACK OF D EFINITION AND T RANSFERABILITY

OF PRODUCTION AND STORAGE RIGHTS

State Water Rights Laws

State laws govern rights to the use of groundwa-ter and water resources generally Some states tiethose rights to the ownership of land; others tie therights to actual water use. Although the laws vary intheir details, there are four general categories of water

rights laws absolute ownership, reasonable use,correlative rights, and appropriation.

Some laws follow old common-law property rulesand confer absolute ownership of groundwater on theriparian or overlying landowner The absolute owner-ship doctrine places no restriction on the amount ofwater withdrawn or on its place of use (the owner mayexport the water). Such a system provides no quantifica-tion of an owner’s right to the use of waterll

Under this system, an owner of water rights isunrestricted in withdrawing water and is protectedby law in doing so. Water users bear only their own costsof withdrawal. There are no charges for use of thecommon supply or for losses imposed on fellow user5

The absolute ownership system creates incen-tives for overlying owners to produce as much wateras desired given the production cost, and creates noincentive to conserve water or make sure that it is notwasted. The system also renders management of thecommon supply highly problematic because there isno quantification of users’rights and no legal basis forrestraining use. It is a system that promotes overuse.The absolute ownership doctrine is a recipe for watershortages in any area that is not blessed with anabundance of water

Because water is not unlimited in most of thecountry, most states have moved away from theprinciple of absolute ownership. Many statesadopted a policy that limited withdrawal rights tothose amounts that could be applied to a “reasonableuse” or a “beneficial use” on the owner’s land.12 Thereasonable use doctrine also takes away the entitle-ment to export the water: The prohibition againstgroundwater withdrawals for any “unreasonable” or“nonbeneficial” use has been essentially meaningless inpractice, as virtually any use on an owner’s overlyingland has been construed to be reasonable or beneficial

Under the reasonable use doctrine, rights towater withdrawals remain unquantified and essen-tially unlimited. For instance, there is nothing toprohibit an owner from withdrawing groundwatertothe detriment of a neighbor as long as the waterwithdrawn is put to a “reasonable” or “beneficial”~se.‘~ There also is no mechanism for taking intoaccount the costs one pumper imposes on others. Aswith the absolute ownership rule, the only costs forthe owner are the production costs

The reasonable use doctrine creates incentivesfor users to use as much water as they desire giventheir production costs, and no incentives to conservewater or avoid waste. The lack of quantification ofwater rights also poses obstacles to conjunctivemanagement. Any possible schemes for limitingwithdrawals, inducing users to take water fromalternative sources, or in any other way controllingoverdraft are unlikely to succeed in such a legalenvironment Water shortages and conflicts are likely.


Neither the absolute ownership nor the reason-able use doctrine takes into account the interdepen-dence of the users of a common water supply. Thedoctrine of “correlative rights,” while still tyinggroundwater withdrawal rights to ownership ofoverlying land, was adopted by a few states in anattempt to redress this shortcoming. Under the corn+alive rights rule, overlying ownem share the commonsupply in proportion to their ownership of theoverlying land.14 However, this is a rule that acquim“bite” only after a shortage has occurred, when adetermination of the amount of water available in agroundwater basin is made and that amount isapportioned among the owners.

The correlative rights rule, which reached itsgreatest development in California and Florida,suffers from problems similar to absolute ownershipand reasonable use. First, the rule also leaves ground-water rights unquantified, which presents obstaclesto conjunctive management (except in Oklahoma,where the state Water Resources Board is directed bystatute to survey each basin, make a determination ofits maximum annual yield, and allocate a share ofthatyield to each acre of overlying land, thus giving eachoverlying landowner a quantified right to a specificamdunt of groundwater15).

Second, like the absolute ownership and reason-able use doctrines, the correlative rights rule tiesacquisition of groundwater rights to ownership ofoverlying land. In fact, it makes that tie even closer byapportioning the water proportionately with landownership. The main problem this presents is that awater purveyos whether a private company or apublic agency,may own a relatively small share of theland overlying a groundwater supply but may re-quire significant quantities of water in order to serveits customers or residenti and may value that watermore highly than other owners of more extensiveland areas. Nevertheless, doctrines that tie waterrights to land ownership -especially the reasonableuse doctrine and the correlative rights doctrine-maynot provide for such needs, and water may not beavai\able for higher valued uses, both of which resultin inefficiency and inequity.

The allocation of water has been addressed inmost of the western states, where water is generallyless naturally abundant, through the adoption of asystem of appropriative rights. Under an awor-+ation system, users acquire rights to specific quanti-ties of water based on actual use rather than on landownership. Water can be diverted for use out of thestream and on nonadjacent lands (in the case ofsurface waters) or on nonoverlying lands (in the caseof underground waters).

Rights to the use of water under appropriationsystems can be acquired as long as “surplus” (i.e., notalready appropriated) waters remain, and as long as

the appropriator will put the water to a “beneficialuse.” In times of shortage, however, there must besome allocation of obligations to reduce withdrawals.Thus, the pure appropriation doctrine employs aShpk rule of seniority: “first in time, first in right"Junior appropriators must yield to senior appropria-tors during times when there is not enough water tosatisfy all claims. Some states have added otherrestraints to this rule, classifying uses by priority intimes of reduction of withdrawals. To keep track oftheamounts of water to which holders of appropriativerights are entitled, and the priority (i.e., seniority) ofthose rights, states typically have issued permi& topump or dhwters (by a state engineer, for examp\e\.

One desirable feature of the appropriation dot-tine was that it quantified rights. This makes possiblesome beginning steps toward effective management,In a groundwater basin, it is possible to know at agiven time in a given groundwater basin the maxi-mum amount of legal pumping. It is also possible tolimit the amount; if the office that issues appropri-ation permits is aware of the total available wateryield of the basin, the off ice can stop issuing permitswhen there is no more “surplus” water available.And, as noted above, the appropriation doctrinecomes with a rule for allocating water in times ofshortage-junior appropriators cut back first

The appropriation doctrine, with its priorityprinciple, also encouraged the development of west-em lands by offering secure water rights to those whoput the water to ~se.1~ Water rights were not tied toland ownenhip, so a landowner could not “sleep onhis rights” The telationship between the appropri-ation system for the acquisition of groundwater rightsand the development of regions, however, is a vehiclethat is all accelerator and no brake. Appropriation lawhas combined with other economic and politicalpressures to promote the premature overdevelop-ment of land and other resources.”

In an area where there may not be enough waterto satisfy all claims (i.e., where water is “scarce” in theeconomic sense), anyone who waits to use water untilit is genuinely needed for some profitable purposemay find that all available water has been appro-pfiated OT thatthe remaining appropriative right thatcan& acquired is so junior as to stand highly exposedto any period of shortage. Water is to be put to a“benefiCial use; but reserving water for future use doesnot so qualify under most appropriation laws There-fore, “fist in time, first in right” becomes “get it now,wh&er you need it or not” Each entity mceS against all&a “to establish use rights ahead of need.“” Themult an be almost comic water waste: industrialenterp& in desert a=% grow fields of alfalfa haywiti irrigation water in order the preserve their fight tohe water if they need it for future expansion.

Once begun, the process feeds on itself Anyentity - from individual farmer to metropolis -seek-


ing water to appropriate as “surplus” induces othersto try to be sure that they do not lose out. The only wayto be sure that water for future use is not defined aspresent “surplus” and lost is to put that water to use.i9Moreover, in some states, unused water rights may belost by adverse use or prescription. Thus, “first in time,first in right!’ becomes”use it or lose it.” Both offensiveand defensive strategies under pure appropriationlaw work toward the same end: the premature andexcessive exploitation of water resources

Under the appropriation system, individual incen-tives are placed in opposition to collective goals Andcollective efforts, instead of being directed towardreshaping the legal institutions that create this incom-patibility, are dim&d at trying to fix its effects:

At a time when real competition for scarcewater supplies is forcing conservation poli-cies,weathermodification,desalination,andexpensive transbasin diversion projectsupon some water users, it is unthinkable thatstate water laws should be simultaneouslyencouraging other water users to use asmuch as possible and speculators to claimnow water rights in the hope of somedaybe-coming rich by so doing.. . . z”

Regardless of how “unthinkable” it may seem,these perverse incentives are created by water rightslaws that reward users who employ as much water asfast as possible, and penalize those who wait andthose who reduce their use. Water “shortages” thatappear under such situations are often attributed tonatural conditions (the notion that “there simply isn’tenough water to go around”) or to wasteful waterusers, as though their wastefulness were a personalitytrait rather than a response to a system of water lawthat seems to be designed to eliminate surplus waterswherever and whenever they are found.

Because the use of water in irrigated agriculture,and especially in the appropriation states, is oftensingled out for attention, the point should be madethat these water rights laws encourage waste anddiscourage conservation, the opposite of our collec-tive goals Irrigated agriculture accounts for approxi-mately 90 percent of water consumption in the westernstates Since farming and ranching are among the oldestactivities in the developed West, irrigated agriculturealso holds most of the senior appmpnative rights in thewestern states that use that system As demands forurban uses have grown in the West, and as urban watermanagers have viewed the water rights of farmersjealously, the use of terms such as “waste” has becomepart of the political battle over entitlement, fuelinganimosities between farmen and city dwelleIs21

Yet there is no reason to believe that westernfarmers are somehow “wasteful” or that irrigatedagriculture must necessarily be a “wasteful” practice.

Those engaged in agriculture under an appropriativerights system may be perfectly rational, responding toalmost perfectly irrational incentives If an individual’sright to use a specified amount of water is based on theamount of water diverted or withdrawn, and if acquir-ing the right costs virtually nothing (usually there is afiling fee for a pen&but the cost of the water right doesnot vary with the amount), given some uncertaintyabout the future, the understandable response is to stakea claim to as large a water right as feasible by divertingor withdrawing and using as much as possible. That isnot being “wasteful”; under the circumstances- andgiven the incentives-it is being prudent

Water rights laws that provide for the acquisitionof rights to groundwater based either on ownershipof overlying land or on actual use at a specific placeand for a specified purpose encourage inefficientuse?2 Production rights are either undefined, definedbut connected to land ownership, or defined in such away as to encourage maximum use and minimumconservation. Although the appropriation system doesat least provide for specific and quantified water rights,it does so in a way that leaves claimed water rightsbearing only a questionable relation to needed waterrights Without modifications, each of these water rightssystems constitutes a barrier to more effective conjunc-tive management of water supplies

Legal Separationof Surface and Groundwater Rights

Although we have become increasingly knowl-edgeable about hydrologic interrelationships betweengroundwater and surface water in stream-aquifersystems, water rights laws often do not recognize theconnection. In many states, there is a distinctionbetween the laws governing groundwater rights andsurface water rights, even where the two sources arephysically interconnected. The extent of the differ-ence between the two systems of rights varies fromstate to state.23

Separate legal systems governing the acquisi-tion, retention, and transfer of rights to surface waterand groundwater in stream-aquifer systems wherethe two sources are physically interrelated “imposean added difficulty forwater managers.“x Separationcan leave appropriators of the two sources “on acollision course.“25 Groundwater appropriators mayhave perfected senior appropriative rights to pumpfrom an aquifer that is hydrologically connected to astream system wherein surface water diverters haveperfected senior appropriative rights to that water

In these cases,which are not rare,the law protectsboth appropriators absolutely; yet, pumping ground-water reduces the surface stream flow, or divertingsurface water reduces the water available to thegroundwater aquifer While it is one thing to say thatsuch conflicts could be resolved as would other


conflicts between users of a common resource-i.e.,through some adjudicative or administrative pmcess-it is another thing altogether to have such conflictscreated needlessly by the failure to adjust water rightslaws to reflect known characteristics of the supply thoselaws are supposed to allocate and govern

An example of the problems this can create can beseen in the recent experience of the Platte River inNebraska. Nebraska has a “reasonable use” doctrine forthe allocation of groundwater and an appropriationsystem for surface water As thousands of wells havebeen drilled and put to use, some of those have pumpedwater that would have contributed to the flow of thePlatte River, and flows in the river have declined.Towns, irrigation companies, and districts with appro-priation permits along the river have faced reductionsin stream flows, from which they can claim a right to bepm&ted. On the other hand, groundwater pumperscan argue that they have invested in wells and drillingequipment and have put the water to a masonable use,and therefore have an equally unassailable right tothe water they use. Nebraska law does not provide away of making these users’ rights fungible so thatwater supplies can be allocated among them whenshortages occur Similar problems have appeared inother river basins”

Some states in the West have attempted to bridgethe legal separation of connected waters. In Colorado,separate legal treatment is given to groundwater thatis tributary to surface water, and this groundwater issubject to the laws governing the use of the surfacewater to which it contributes?7 This allows at least achance for conjunctive management in a basinwhere the two sources are interrelated by unifyingthe priorities of the appropriative rights. In the 13western states that apply the doctrine of prior appro-priation, six apply a single appropriation system tohydrologically connected surface water and ground-water, and five provide by a separate statute for theintegration of rights where surface and undergroundwaters are connected. In two states, the courts haveupheld actions of the state engineer (as in NewMexico) in administering rights to the joint use ofconnected surface and underground water?

States attempting to consolidate water rights after astream system has been “fully appropriated” have faceda political problem of some intensity when the prioritiesof rights of groundwater pumpers come up against theolder rights of surface water diverters% Nevertheless,failure to integrate the two sets of rights makes cootdi-nated use quite difficult State water rights laws need “torespond to a realistic view of the physical occurrenceand distribution of ground water including the interre-lationship between ground and surface water”=

Rights to Store and Recapture Water

Lack of definition of rights to the storage of waterin underground basins and to its subsequent recap-

ture discourages systematic conjunctive manage-ment31 Moreover, other aspects of state laws andpolicies governing groundwater and surface waterrights and basin management may impede effectiveconjunctive management

Water rights may be undefined for entities wish-ing to undertake artificial recharge of groundwatersupplies in order to capture temporary water sur-pluses for later use. First, the right to use surface watersupplies for recharge must be assured. Under theappropriation doctrine, diverting and capturing sur-face waters for use at some later time may not qualifyas a “reasonable” or a “beneficial” use. Appropriationrules often stipulate that the water diverted must beput to beneficial use within a certain period or theright to its use is forfeited. This places in question therights to store water that might not be recaptured andused for years32 While most western states havemodified their procedures to recognize groundwaterrecharge as a qualifying “beneficial use,” other statesdo not make this definition explicit

Rights to store and recapture water suppliesunderground also depend on the availability ofstorage capacity Rights to the use of the storagecapacity in an underground basin often are notdefined in state laws, which were likely devised toaddress rights to production. As a result, any privateoperator or public entity attempting to use an under-ground basin for storage runs some exposure of beingunable to sustain a subsequent claim to the storagespace; this discourages such use of a basin before thefact On the other hand, assuring a right to useunderground storage space provides an incentive tocapture, store, and recapture waters and to alternatebetween water sources

Of course, for there to be storage space to use,there must be space available. Optimal basin man-agement may require lowering underground watertables in order to increase the effectiveness of thebasin in capturing flows for recharge when surpluswaters are available.33 As noted in Chapter 3, in stateswhere “safe yield” operation of groundwater basinsis mandated, there will be a conflict between havingavailable underground storage capacity and comply-ing with the “safe yield” requirementM “Safe yield”policies affect planning of surface water reservoirsand distribution systems because underground stor-age capacity cannot be figured into plans for convey-ance, storage, and distribution of surface water sup-plies, resulting in overinvestment in above-groundfacilities This inefficiency hampered the State WaterProject in California, which was planned when “safeyield” was the prevailing requirement for managinggroundwater supplies.35

Where groundwater and surface water rights areseparated but the supplies are physically connected,legal protection afforded to surface water rights may


require keeping a contributing groundwater basin asfull as possible. This would have the same effect as a“safe yield” requirement in presenting an obstacle toeffective basin management.%

The right to recapture the stored water requiresthat the storing entity also be entitled to pump thewater from underground. Priorities may have to beestablished for the retrieval of stored water duringperiods of shortage.n Procedures are needed to ac-count for the water stored and the right to remove itIn the groundwater basins in the Southwest, whereeffective conjunctive use has been developed, thistypically has been facilitated by the appointment of a“watermaster” or the acceptance of these accountingduties by the office of the state engineer

Finally, consideration should be given to tworelated issues. First, the interests of overlying land-owners should be protected from any unreasonableharm from raising and lowering underground waterlevels as part of a conjunctive management program.Any entity storing water should assume some liabilityand the overlying landowners should receive somecompensation if their pumping lifts are unreason-ably lengthened or if the quality of their water supplyis affected adversely? Second, communities contem-plating conjunctive management of groundwaterand surface water supplies should do some planningto ensure that potential recharge areas overlyingaquifers in which they may wish to store water arenot developed beforehand. One potential institution-al mechanism for addressing both of these issues isthe idea of “water zoning” ordinances that set asiderecharge areas and condition development in areasoverlying an aquifer that will be used for waterstorage on recognition of the likely variability ofwater levels in that area.39

In all, a legal structure “has to be developedwhich permits raising and lowering of water levels,defines the authority to use empty storage space,defines individual rights, provides for physical solu-tions when individual rights conflict with the man-agement plan, and protects individuals from theeconomic inequities which may be created locally”40Institutional arrangements that fail to provide forthese elements of conjunctive management presentcontinuing barriers to more effective utilization ofgroundwater supplies.

Authority for ConjunctiveManagement Agencies

One of the most serious and persistent obstaclesto effective conjunctive management is the absenceof local or basinwide authorities that could effectivelyrepresent water users. Organizing for groundwatermanagement locally has been impeded by the factthat “states have historically been slow to turn over

comprehensive environmental responsibility to localgovernments.“41

As long ago as 1973, the National Water Commis-sion recognized that local management authoritiesshould have the following capacities in order toundertake effective conjunctive management efforts:

4

b)

c)

4

e)

To issue revenue bonds and to levy pumptaxes and diversion charges;To acquire water, water rights, and real proper-ty for the development and use of facilities forwater storage, recapture, and conveyance;To buy and sell water and water rights,and toexport water from the area when it is eco-nomically beneficial to do so;To store water in surface reservoirs or under-ground, to extract water, and to reclaim andtreat water;To represent all landowners and water rightsowners in legal actions to protect water rightsand water quality within its jurisdiction.

These powers, according to the commission, werevital in order that any locally based water manage-ment institution “be able to perform comprehensivemanagement functions within its jurisdiction.“”

The commission also acknowledged that fewstates were willing to give such a range of powers towater management agencies. Even powers to imposepump taxes and diversion charges have been grantedreluctantly at best, though these powers are “vital ifthe agency is to be able. to enforce rational choicesbetween surface and ground water use when both areavailable and physically accessible to ~sers.“~ Imple-menting effective institutional arrangements for con-junctive management requires the ability to manipu-late user charges to increase the compatibility ofindividual incentives and collective goals.

Problems of Unspecified and Latent Rights

Instream Flow Protection, the “Public Trust” Doc-trine, and Land Based Water Rights. Unspecifiedand poorly quantified rights give rise to considerableuncertainty on the part of water rights holders andmanagers Similar problems are created by legal doc-trines that leave vague and unspecified “latent”rights in the system that might at some subsequentdate be activated and used. Even a specified, quanti-fied permit to appropriate water, duly acquired understate laws and procedures, is of dubious value if it isnot binding on subsequent uses.& Unspecified rightsand reservations that impede more effective manage-ment arise from four sources: protection of instreamflows; the emergence of the “public trust” doctrine;water rights tied to land ownership; and the doctrineof “reserved rights.”

Protecting instream flows (for scenic, wildlife,navigation, recreational, and other purposes) is not


normally conceived as a problem of managinggroundwater supplies, but, as we have seen, ground-water supplies frequently contribute to the base flows ofsurface streams with which they are physically inter-connected. In such cases, actions by the state to protectinstream flows may affect the amount of withdrawalsfrom a groundwater basin. Here, again, the difficultiesencountered may be less physical than institutional.

States that do not connect their groundwater andsurface water rights systems are poorly positioned toestablish reasonable trade-offs for the protection ofinstream flows. Maintenance of undiverted waterflows downstream has been especially difficult inappropriation states that require diversion and use ofwater Yet, governmental action after the fact to try torestore instream flows disrupts the production rightsof users who acquired them in good faith under therules of their day, and requires the owners to relin-quish the rights for another purpose without com-pensation. Perhaps most importantly, endless specu-lation about possible impending governmentalaction to protect instream flows has a chilling effecton efforts to manage water supplies”

The “public trust” doctrine has been employedrecently to protect instream flows. The doctrineoriginated in the Tudor period in England% to conveythe limits on private rights of ownership to tidallands, but has been extended to nontidal lands and towater rights. The claim of right under the public trustdoctrine is that some natural resources “are so intrin-sically valuable to the public that they cannot beowned by any persor~“~~ As a “broad mandate toconsider public trust values,“& the doctrine could beused to protect instream flows before allocating produc-tion and storage rights to individual ownefs On theother hand, recent litigation has attempted to employthe public trust doctrine after the allocation and exerciseof rights in order to subsequently “limit or destroy thepmperty right by application of a pmviously undefinedsuperior claim with no compensation for the lossn49

When applied in this fashion, the public trustdoctrine becomes another source of uncertainty forthe holders of production and storage rights. This caninhibit the development of complex basin manage-ment programs that involve allocation of water andstorage among competing users, the employment ofalternative sources of watersupplytransfers of rights,allocation of management costs among users, and soon While it is unclear whether and to what extent thepublic trust doctrine will be employed to defeatproduction and storage rights that users believed theyheld with certainty and stability, it appears to have‘almost suddenly evolved into a completely newcreature that is doing things never considered possi-ble when the doctrine developed.*

The emergence, or threat of emergence, of “la-tent” rights that may be employed suddenly without

compensation for the losses imposed on holders ofother rights generally presents a barrier to moreeffective conjunctive management In states that linkthe acquisition of water rights to ownership ofoverlying lands, this problem of the “latent” right canaffect even the most apparently complete and stablemanagement plans. Even after a long and complexadjudication of the rights to native groundwaters,imported stored waters, and return flows in Califor-nia’s San Fernando Valley, forexample, the CaliforniaSupreme Court indicated in its opinion that land-owners in the valley who were not exercising theirrights to the use of the groundwater beneath theirlands at the time of the entry of the judgment couldstill initiate production of groundwater for reason-able use on their overlying lands. The exe&e of this“latent” right could thus “upset the apple caf151 andreduce or infringe on the tights of the parties to theadjudication, simply because California water rightslaw continues to give unquantified rights to the use ofunderlying groundwater to anyone who owns landEffective basin management planning requires that, atsome point, them be an end to the expansion ofpumping rights within the basin

Federal Reserved Water Rights. Reserved rights arethe most extensive of the “latenr unquantified rights,In the western states in particular, federal reservedwater rights play an especially important role inimpeding more effective management of groundwa-ter supplies. A series of decisions, beginning withWinters v. United States (1908) and reaching its zenithwith the surface water diversion decision in Arizmn v.Cnlifomia (1963) and the groundwater withdrawaldecision in C~ppuertv. United States (1976),establishedreserved water rights of the federal governmentThese reserved rights are superior to the water rightsgranted under state laws, which previously had beenthought to govern nonnavigable water resources

The concept of the reserved right is that when theCongress acts to set aside lands for a federal reserva-tion (e.g., military or Indian), it implicitly acquires theright to use whatever waters are available andneeded to fulfill the purposes for which the landswere reserved. The right dates back to the time whenthe reservation of the land is made, and is superior toany and all subsequently acquired rights.%

Reserved rights create two problems for effec-tive basin management. First, the reserved rightsare often unquantified,and until they are put touseby the federal government their full extent in abasin can only be guessed at by the local users. Thispresents the same problems as with all otherunquantified water rights.

Second, because many federal reservations dateback to the turn of the century and earlier, the rights ofthe many users who complied with applicable statelaws would be rendered essentially worthless by the


exercise of federal reserved water rights. Moreover,water withdrawn under a federal reserved right canbe used without regard to state law, or even in waysthat are inconsistent with or in contradiction of statelaw.53 The reserved water rights have not been usedfrequently; as a matter of federal comity, federal agen-cies have complied with state laws and administrativepnxedures, but there is nothing requiring them to do so.As competition for water resources intensifies, thetemptation to employ automatic, senior reserved rightsrather than comply with state procedures for theacquisition of junior appropriative rights may grow.

This expands the pumping rights in a basin,thereby upsetting any management program. It alsomeans that the federal government has the right toenjoin other groundwater and surface water users’rights that interfere with the availability of water for afederal project or reservation.%

In Cnpynert, for example, also known as “thePupfish Case,” the United States was upheld by theSupreme Court in its efforts to restrict gmundwaterpumping by the Cappaert Ranch (pursuant to permitsgranted by the state of Nevada) that were lowering thewater level at Devil’s Hole in Death Valley NationalMonument, thereby threatening the continued exis-tence of a rare species of desert pupfish.” The Cappnerfdecision appears to establish the authority of federalagencies to exercise rights to the use of groundwater andto prohibit other users’ exercise of groundwater pmduc-tion rights that might interfere with the federal reservedwater right The potential for such a decision wasviewed with alarm by western states, some of whichfiled amicus curiae briefs in the Cnppnert case. Given theextent of federal reservations in Arizona, for example,the state’s brief warned that interference with stategroundwater rights laws and management plans fromthe extension of federal reserved rights would wreak“economic havoc” on the state.%

In 1978, the Supreme Court clarified the federalreserved water right issue in a way that showedgreater sensitivity to the concerns of states In UnitedSt&s v. New Mexico, the Court restricted federal re-served rights to water for specific needs essential to theplanned use of the reserved land. The Court rejected anattempt to broaden the reserved water rights of nationalfores& to protect instream flows for fish and wildlife5’

Indian water claims in particular present consid-erable uncertainty for the Indian tribes and the statesin which reservations are located. No one in thereservation states “knows how much unencumberedwater will be available until the Indian claims aresettk~L”~ Furthermore, the tribes do not know whatwater they have or what they will be allowed to do withit. The Indians’ wealth position and their flexibility todetermine their own course of development would beenhanced if their water rights were quantified and werenot restricted to use for irrigated agriculture on reserved

lands, but were available for municipal and industrialuses, and even for transfer and exchange.59

Uncertainty in the Extent of State Authority: Spar-hase and EZ Paso. The power of the federal govern-ment to regulate the waters of navigable streams hasbeen settled since the early days of the Republic. Theconstitutional power of the federal government toregulate groundwater supplies directly has been amore recent question.

Two principal cases in the federal courts in the1980s ruled on the issues of the authority of states torestrict the use of groundwater outside their bound-aries. In 1982, the United States Supreme Court ruledon an appeal in the case of Sporhnse v. Nebmskn, and in1983a federal districtcourtentered judgment in CityojEl l3rso v. Reynolds. The two decisions have changedthe view of the constitutional power of the federalgovernment and the states with respect to groundwa-ter management

In Sporhnsev. Nebrasku,bo the joint owners of landson both sides of the Colorado-Nebraska borderapplied for a Colorado permit to appropriate ground-water for use on their Colorado lands. Their applica-tion was denied because the groundwater withdraw-als would have constituted groundwater mining,which is prohibited by Colorado. The landownersthen pumped groundwater from a well located a fewfeet over on the Nebraska side and used the water ontheir lands in both states.

Under Nebraska law, a permit must be obtainedto export groundwater from the state. One of theconditions for granting such a permit (along with theconditions that the withdrawals be reasonable, notcontrary to the conservation or use of groundwater, orotherwise detrimental to the public welfare) is that thestate to which the water is exported grants reciprocalrights to Nebraska, which Colorado does not Nebraskasought an injunction to restrain the landowners fromexporting groundwater pumped in Nebraska to theirlands in Colorado. Nebraska prevailed in the trial courtand in the state supreme court The landownersappealed to the United States Supreme Court The casegenerated amicus curiae briefs from the states ofCalifornia, Colorado, Kansas, Missouri, Nevada, NewMexico, North Dakota, South Dakota, Utah, and Wyom-ing as well as the City of El Paso, the Elephant ButteIrrigation District, the National Agricultural LandsCenter, and the National Wildlife Federation

The United States Supreme Court, by a 7-2 vote,held for the landowners, ruling the Nebraska lawunconstitutional. The principal constitutional chal-lenge was that the Nebraska law presented animpermissible state burden to interstate commerce.Nebraska replied that groundwater, which is not afreely tradeable item under state law, is not an articleof interstate commerce. The majority opinion for theCourt, by Justice John Paul Stevens, observed that the


agricultural products of the western states, supportedby groundwater irrigation, are part of markets that arenot only interstate but international in scope and“provide the archetypal example of commerce forwhich the Framers of our Constitution intended toauthorize federal regulation.“61 The opinion ob-served that the multistate extent of the OgallalaAquifer “confirms the view that there is a significantfederal interest in conservation as well as in fairallocation of this diminishing resource.“62 The Courtmajority defined groundwater to be an article ofinterstate commerce, subject to federal regulationunder the Commerce Clause, declaring that further“Ground wafer overdraft is a national problem, andCongress has the power to deaf with it on a national scale. “63

The constitutional inquiry then turns to theextent to which Nebraska may regulate groundwaterwithdrawal and use in the absence of congressionalaction on the subject In this regard, some of theconditions the state placed on the export of ground-water were clearly constitutional, according to theCourt Requirements that withdrawals be reasonable,consistent with conservation, and not detrimental to thepublic welfare are not unreasonable restraints on thefree movement of groundwater in interstate commerce.However, the mcipmcity requirement (for water per-mits) failed to survive constitutional scrutiny under theCommerce Clause for apparently “discriminatory” or“protectionist!’ state regulation. Justice Stevens notedthat the reciprocity requirement would bar the transferof water to any nonreciprocating state, regardless ofhow beneficial the transfer may be. Such transferswould be prohibited by the Nebraska law even if therewere no detrimental effects for the state and even if thestate were sitting atop a massive groundwater surplusFinally, the Court observed that federal deference to thestates in groundwater law and management does notand cannot remove constitutional constraints64

The dissenting opinion by Justice William Rehn-quist criticized the majority for failing to confine itselfto the issue of the relationship between the Nebraskalaw and the Commerce Clause. In the view of thedissent, the majority had “gratuitously” undertakenand decided additional issues that were not presentedby the case, such as whether groundwater overdraftconstituted a “national problem,” the scope of congres-sional authority to regulate groundwater withdrawals,and the relationship between the Nebraska statute andfederal laws that were not passed, not challenged, andnot before the Court in any but a hypothetical fashionIn addition, the dissenting opinion argued that it wasdifficult to see how “commerce” could exist in ground-water since groundwater in Nebraska could not itself bereduced to possession, and the only right conferred onNebraskans was the right to use the groundwater onaverlying lands owned by the pumper

The Supreme Court issued the Sporhase decisionin July 1982 In January 1983, the federal district courtfor the New Mexico District decided the case of City ofEl Paso v. Reynolds. El Paso, Tstas, attempted to acquirerights to the use of 296,000 acre-feet of groundwaterfrom aquifers that are hydrologically connected withthe Rio Grande stream system. New Mexico StateEngineer Steve Reynolds denied the city’s applicationfor an appropriative permit, citing state law forbiddingthe export of groundwate@ El Paso sought to have theNew Mexico export ban declared unconstitutional, and,in light of the Supreme Court’s decision in SporIm, thefederal district court agreed with El Paso.

Criticisms weredirected to the El Paso decision onthree principal grounds. The first criticism is that in itsapplication of Sporhnse, the federal district courtconcluded that states may discriminate in favor oftheir citizens “only to the extent that water is essentialto human survival.“” This may be an excessivelyrestrictive interpretation of the Supreme Court’sposition in Sporhase.

A second criticism in El Paso was that the districtcourt failed to take into consideration the SupremeCourt decision in Colorado v. New Mexico67 handeddown in December 1982, involving the VermejoRiver, which flows from Colorado into New Mexico.The Supreme Court upheld the doctrine of equitableapportionment governing interstate streams, whichdivides the waters of a stream so that each state isallocated a fair share. Since the El Paso case involvesthe intexstatetransferof groundwaterthat is part of aninterstate stream, the federal district court decisionhas been criticized for following Sporhase instead ofColorado v. New Mexico.68 Relying on the doctrine ofequitable apportionment rather than the CommerceClause to govern the case would maintain therecognition of state interests in the management ofwater resources by allowing each to regulate its fairshare of water resources that underlie or flow throughmore than one state.69 Part of the problem with the ElPaso case, then, is that it

was argued under the wrong theory in thewrong court Under the U.S. Constitution,disputes over interstate streams are to be de-cided by the Supreme Court of the UnitedStates, not by a federal district court, and un-der the federal common law these disputesare governed by equitable apportionment,not by the commerce clause.70

Finally, El kso has been criticized on policygrounds. By deciding in favor of the Texas city seekingadditional supplies and against New Mexico, thefederal district court “penalizes a state with a progres-sive water law system (New Mexico) and rewards awasteful system (Texas).“n

The Sporlme decision, on which the federaldistrict court based its El Paso decision, also has drawn


attention and scrutiny The Supreme Court’s rulingthat groundwater is an article of interstate commercesubject to direct congressional regulation has gen-erally been acknowledged to have substantiallyweakened the basis for state and local primacy in themanagement of groundwater supplies, to have“opened the door for federal control over groundwa-ter on nonfederal lands,“R and to have “far-reaching”implications for water regulation.73

Much of the post-Sponhase analysis has beenaddressed to the questions of what authority remainswith states to limit and control theuse of groundwaterresources. The majority opinion in Sporhase has beeninterpreted by different observers to mean:

4

b)

cl

4

Narrowly tailored state restrictions ongroundwater use could be sustained ifshown to be related to the state’s legitimateinterests in conservation and preservation ofthe resource.74State restraints on groundwater exports maybe permissible if the withdrawals for exportwould result in groundwater mining thusimpairing the resource.75State restrictions on groundwater exportsmay be sustainable provided that a discrimi-natory embargo against out-of-state resi-dents is not their prime purp0se.7~State restrictions on groundwater exportsmight be justifiable in times of “severe short-age,” in order to protect the health and safetyinterests of the state’s citizensn

From the standpoint of enhancing the marketabilityof production rights to groundwater, Sporlzase mayalso be seen as removing arbitrary state “resourceisolation” barriers to the interstate movement ofgroundwate?’

The Sporlrase decision is seen as having left thefollowing questions unanswered:

4

b)

4

Can a state’s projections of a “severe short-age” that would occur if a groundwater ex-port were allowed be used to justify restrict-ing that export?In so projecting, can a state take into consider-ation acreage that might become permanentlynonirrigable if the export were allowed?Can states prohibit export where the healthand safety of residents might not be threat-ened but “instream flow” values would be?79

Nebraska and New Mexico changed their lawsgoverning groundwaterwithdrawal and use aftertheSporltase and EZ Paso decisions. Nebraska adopted apermit system for all groundwater withdrawals.sONew Mexico enhanced its review of permits forgroundwaterexportbyauthorizingthestateengineer

to consider the supplies available to an exportapplicant in the applicant’s home state. This raises thequestion of one state9 authority to restrict exports ofwater into another state where water surpluses exist, orwhere wasteful water practices have resulted in theattempt to import water from elsewhere. Neither ofthose issues was reached by the Sporhnse decisions1

Three years after Sporhase v. Nebraska, the Courtdecided Garcia v. San Antonio Metropolitan TransitAuthority.82 The Garcia decision calls speculationsabout the remaining groundwater management au-thority of the states into question. Garcia holds that, inCommerce Clause cases, the limits on congressionalauthority relative to the states and localities are notimposed by any substantive concepts of “reservedpowers” under the Tenth Amendment, but by theprocedural elements of the “political safeguards offederalism.” In the aftermath of Gnrcin, once ground-water has been ruled to be part of interstate com-merce, there are no aspects of its governance that theconstitution reserves to the states, just those that theCongress leaves to the states. Even if states retainsome authority to regulate groundwater supplies, akey question of intergovernmental relations andwater resource policy raised by Sporlrase is whetherand to what extent the uncertain specter of directfederal regulation, production, and transfer ofgroundwater supplies may inhibit the willingness ofstates to engage in innovations.

At present, there is little question that the Congresshas the constitutional authority to directly regulategroundwater under the Commerce Clause. In a legalconfrontation between federal and state regulatorypower, the federal power would prevail. The S~&Wdecision means, among other things, that the deferenceof the Congmss to the primacy of state authority in thearea of the management of groundwater supplies isbased not on constitutional power but on federal comity

Summary: Certainty in Water Rights and in Stateand Local Authority. Water rights should be charac-terized by certainty (a protected right to a specificquantity of water for a known tenure) and flexibility(the ability to convert the right through exchange)F3Certainty is often lacking in state laws definingproduction and storage rights

Rights to production often lack certainty becausethey are unquantified and because other users maybegin to assert “latent” unspecified rights. Rights tostorage often lack certainty because they have notbeen provided for or because local entities that couldstore and recapture water lack either the authority todo so or the implementing mechanisms. Furtherprogress in the definition of production and storagerights and the authority of local water resourcemanagement organizations is drawn into questionnot only by the continued existence of “latent” federalrights, but also by uncertainty about the scope of state


and local authority relative to federal authority Eachof these attributes of the institutional arrangementsgoverning the use of groundwater supplies forms abarrier to more effective coordination of water re-source use. So does the lack of flexibility (i.e., market-ability) of production rights.

Lack of Transferability of Production Rights

Along with increasing the certainty of waterrights, increasing their flexibility is a long-proposedinstitutional reform. Local users have experimentedwith transfering rights on the local, basinwide scalewhen they could find ways to circumvent the ob-stacles in the laws. Whether or not one is inclined tobelieve that the benefits of water rights transfers aresometimes oversold by their proponents, preventingthem creates real barriers to effective managementAmong the barriers are: disincentives for conserva-tion and more efficient use of groundwater supplies;the maintenance of relatively less valued and lessefficient water uses; and the inability to shift betweensources or to bring new uses into a basin. Institutionalreform in the direction of increased marketability ishindered in turn by reluctance to treat water as acommodity and by inefficient pricing practices

It is in discussions of marketability of rights thatthe distinction between water shortages that resultfrom natural scarcity and from institutional rulesbecomes most sharply drawn:

Even in the western region, the scarcity ofwater to meet the demands of growth is not,however, a problem of running out of waterIt is instead a matter of allocation of a valu-able economic resource among competingdemands. The current allocation has becomeinefficient in meeting the demands ofgrowth due to market and institutional fac-tors which discourage the transfer of wateramong usesa

Lack of Marketability and Conservation. As noted inconnection with the discussion of water rights lawsabove, most groundwater users face incentives to“use it or lose it” Pumpers lack incentives to reduceuse, to use water more efficiently, and to waste less ofit Yet, the community and individual users experiencelosses if aquifers are depleted to the point wherewithdrawals are limited because pumping has becomeuneconomicaL85 Some form of intervention before thatpoint is reached would be desirable. The questionbecomes what form this intervention should take.

Any effective conjunctive management programis likely to involve reductions in or limits on with-drawals in order to control overdrafting. Regulationscould be imposed on water rights ownem and en-forced by monitoring and policing arrangements

This approach represents an attempt by the commu-nity to achieve its gain at the expense of individualrights owners. However, the chances for full com-pliance with such an arrangement are smaller than ifinstitutional arrangements for limiting withdrawalsare compatible with individuals’ incentives. Ownerspossess a valuable property right in the use of thewater supplies. The imposition of regulations requir-ing owners to forfeit some or all of their right for thecollective good isunlikely tobe received as a welcomedevelopment The regulatory approach thereforewill likely require extensive monitoring and enforce-ment of individuals’compliance with a rule that runscounter to their goals.

Water management programs stand significant-ly better chances of success and stability if water rightsowners benefit from it? Assuming that there arecollective gains from more efficient water resource use,there should be no intrinsic problem in securing thosebenefits through processes that distribute at least someof the benefits to the water users and rights owners Thiiis the principal argument for making water rightsmarketable to increase conservation and efficient use.

Once each owner has a quantified right to the useof a specific amount of water (i.e., taking advantage ofthe principal benefit of the appropriative rights system),allowing exchange of rights creates an incentive struc-ture that pmduces a positive+um situation from whatappeared to be a zero-sum situation. A water rightsowner who can improve efficiency will be able toreap the same benefits while using less water If theowner can transfer the difference to another user forsome consideration, then the original water rightsowner has benefited by increasing efficiency andreducing water use rather than being penalized for it Inaddition, new uses have been accommodated withoutincreasing the total amount of water withdrawn fromthe system The water rights owner gains by acquiringsomething of value for increasing efficiency the newuser gains a valuable water right, and water resoumesan2 used more efficiently

Institutional arrangements encouraging conser-vation could even be applied across water basins.Communities able to generate surplus waters couldtransfer them to water-short communities, and bothgroups could gain by the transaction. Communitiesunable to make conservation improvements mightbeassisted by communities seeking additional sourcesof supply This has occurred in southern California,where the Metropolitan Water District of SouthernCalifornia will pay for water conservation invest-ments in the Imperial Irrigation District in exchangefor the rights to the surplus water yielded by thoseconservation practices8’

Impediments to water conservation and watertransfers are numerous and primarily institutionaLsBMoreover, appearances can be deceiving water laws


and policies that seem to encourage conservation andwater marketing may in fact discourage both. Forexample, “recent Massachusetts legislation allowsinter-basin water transfers only as a last resort, after alllocal leak reduction and conservation efforts havebeen exhausted.“*9 While on the surface this appearsreasonable, this qualification actually discourageswater transfers If user A wastes 20 percent of KS watersupplies, and user B wastes 10 percent of B’s watersupplies, any transfer of water from A to B wouldimprove efficiency of use. Under the Massachusettscondition, however, B must reduce waste from 10percent to zero before acquiring water through transferfrom A, who may continue to waste 20 percent of itswater supplies until then. In the meantime, the costs B islikely to incur in squeezing out the last drop of waterwaste, finding and sealing the last leak, may be severaltimes the cost of purchasing equivalent amounts ofadditional water from the moTe wasteful A Neitherefficiency nor conservation is facilitated by such arequirement, which undoubtedly was intended tofacilitate both The connection between water market-ing and conservation is not always obvious In waterresources management, as in other areas, our institu-tions do not always comport with our intuitions

Lack of Marketability and Inefficient Water Uses.The remarkable abundance of water resources rela-tive to population, even in the relatively arid westernregions, was noted in ChapterZ Some estimates of thewater-sustainable population of the Colorado RiverBasin states indicated that those states have not run upagainst the water supply limits of development, buthave considerable water supplies to use if they weRallocated differently. In particular, in the western states,most of the water rights are held by, and most of thewater consumption occurs in, irrigated agriculture.

Even in the less abundantly water endowedwestern states, crops that are highly water consump-tive are grown in great quantities. The most highlywater consumptive crop, alfalfa, which requires5 to 6feet of water per acre, accounts for millions of acres ofland use and millions of acre-feet of watet Accordingto 1988 estimates, the acreage of alfalfa grown withmined groundwater (i.e., nonrenewable supplies)was as follows: California, 196,000 acres; Tstas,103,000 acres; Kansas,88,000 acres; Idaho, 51,000 acres;Arizona, 38,000 acres; New Mexico, 31,000 acres;Nebraska, 27,000 acres; and Colorado, 20,000 acres.%To gain a sense of perspective on the magnitude of thisacreage, the United States’ entire lettuce crop occupiedabout 200,Oo acres; the California avocado crop occu-pied about 75,000 acres, and the California lemon cropoccupied about 50,000 acreSgl Total alfalfa acreage inArizona was estimated in 1985 to be 200,CK)O am,irrigated with renewable and nonrenewable watersupplies: at 6 acrefeet of water per year, the alfalfa crop

alone would have consumed 1,2&lm acre-feet ofwater that yeas which is equivalent to the entireplanned yield of the Central Arizona Project (CAP).

Why is so much thirsty alfalfa hay grown in theseclimates? It is surely not because it is a high-valuedcrop, producing a vital share of the nation’s or theregion’s economic abundance. Its primary use is forfeeding livestock In the words of Natural ResourcesDefense Council analyst Marc Reisner,

In California, the single biggest consum-er of water is not Los Angeles.. . . It is irrigatedpasture. . . . In 1986, irrigated pasture usedabout 5.3 million acre-feet of water-asmuch as all 27 million people in the state con-sumed, including for swimming pools andlawns. Its contribution to California’s $500billion economy, on the other hand, was aninvisible $94 million. One five-thousandthof the economy; one-seventh of the water.

If you entirely eliminated pasture, alfal-fa, cotton, and rice (not everyone’s idea of anappropriate desert crop, since it grows onlyin standing water) and substituted nothingelse, you would merely reduce agriculturalincome from $14 billion to $12.3 million. Butyou would free up enough water for, God for-bid, some 70 million new Californians.

Is California atypical?Only in the sense that agriculture in Cali-

fornia, despite all the desert grass and irrigatedrice, accounts for proportionately Iess wateruse than in most of the other western states.=

Alfalfa and other low-valued, highly water con-sumptive crops are grown with western water re-sources for three primary reasons. First, alfalfa inparticular is easily mechanized and grown with verylittle labor. Second, outside of the Pacific Northwest’shumid climes or the warmth of California andArizona, much of the rest of the West’s climate is notreceptive to many other crops; alfalfa and pasturagegrasses are hardy and help keep “blow sand” and soilerosion down. The third (and perhaps most impor-tant) primary reason is the laws governing waterrights in the western states. As John Wesley Powellnoted a hundred years ago, the greatest source of valuein arid lands is access to watecg3 Whether that access isallocated on the basis of actual use under appropriationor beneficial use on overlying lands, maximizing thisvital asset is secured by maximizing use.

The crop that consumes the maximum amount ofwater per acre would secure the maximum possibleright to the use of water. Western farmers understand-ably do not want to relinquish their rights to the use ofwater and receive nothing in return. There is noincentive for an individual farmer to grow anythingelse or irrigate fields more efficiently except where it


might be possible to transfer water rights to a city, awater district, a suburban community, a manufactur-er, or another farmer, in exchange for something ofvalue. (This would also explain the fact that evenmunicipalities and manufacturers maintain alfalfafields in the desett Southwest They are not maintainingthe nation’s livestock supply or perpetuating ruralagrarian traditions, or maximizing profit through iniga-tion to yield high-valued crops They are making sumthat they have the largest possible share of water rights)

Laws that would simply shut down enoughirrigated agriculture to generate water to supplymunicipal and industrial needs miss the point, andwould go too far Those who have properly acquired,held, and used water rights-in other words, who haveplayed by the past and present rules of the game-should receive an agreed-on compensation for mlin-quishing those rights

Those who object that water rights transfers fromthe agricultural sector to the municipal and industrialsector would threaten the future of irrigated agticul-ture and the nation’s food supply also miss the pointBearing in mind that agriculture accounts for about 80percent of water use in the west while urban wateruse is about 7 percent, a reduction of only 10 percentin agricultural water use could double the amount ofwater available for urban ~ses.~ This is hardly awrenching dislocation of irrigated agriculture, and itwould produce more water availability than neededby the urban sector in the most arid and fastestgrowing region. Indeed, the comparison in Chapter 2of the populations of the more arid western stateswith what those states could support if all irrigatedagriculture were eliminated shows how little changewould have to occur in the water use practices ofirrigated agriculture in order to accommodate currentand projected populations.

Lack of Marketability and the Problem of NewUsers. Lack of transferability also has complicatedthe problem of accommodating new users. In appro-priation states,for example,the total quantity of waterin many stream and aquifer systems has reached or isapproaching “full appropriation.” Yet, because pro-duction rights often are nontransferable, this situa-tion “leads some analysts to conclude erroneouslythat all the available water is being consumed or thatno new water uses can be accommodated.“95 In fact,accumulated claims on the water supply may notreflect accurately the needs of users who retain theirclaims because their only other option is to abandonthem without compensation.

If owners could transfer their rights to new users,many claims (some of which are a century old) towater in the appropriation states probably wouldbecome available for purchase. New uses of limitedgroundwater supplies, for example, could be metwithout increasing pumping rights if state legislatures

will adjust the laws to permit it With transferable waterrights, an allocation of water rights based on past use isnot locked into the same uses or the same owner3 asconditions change?6

In the absence of transferability, one must eitherassume that the original allocation of water rightswas perfect or accept the possibility that the originalallocation is likely to have been somewhat imperfectand to become increasingly so over time.97 Acceptingthe latter conclusion, an important issue becomeshow to adjust the original allocation. Marketability ofwater rights would allow new users to “buy in” toacquire water rights. When combined with the abilityof the original owners to enter into exchanges,adjustments to the original allocation of water rightscould be made on the basis of terms of exchangearrived at by willing sellers and potential buyers,moving water at the margin from those who value itless to those who value it more.

In the absence of the ability to make relativelycontinuous marginal transfers of water rights, thoseseeking water under conditions of scarcity tend eitherto undertake large-scale water transfer projects or tobring political pressure on some larger jurisdiction toundertake transfer projects on their behalf.” 7’henotion that marketabil i ty of water rights means a biddingwal; transfers of water from one location to another andescalation of costs , and that these problems are avoided bynonmarketabi l i ty, is simply fa lse . Without marketabi l i ty ,the bidding war is simply shiftedfrom the economic arena tothe poli tical arena, water is transferredfrom one location toanother by means of massive structural projects, and thecosts o f water transfers by those means (while hidden) arehigher than the costs of transfers of water rights negotiatedbetween potential buyerandpotential seller Yet most statelawsmakeitdifficulttotransferwaterrights from oneuse to another and practically impossible to transferrights from one place to another.

There is evidence that when they are allowed todo so water users will transfer rights from agriculturalto municipal and industrial uses,and reallocate waterfrom irrigation to higher priority uses. Private capitalmarkets are being developed to facilitate acquisitionsof water rights for growing municipal and industrialdemands, complete with water “brokers” who con-nect sellers with buyers and help negotiate transac-tions.% Water rights transfers and water markets areprospering especially in Colorado, but also in Califor-nia and New Mexico, in Utah’s Lower Sevier Basin,and between agricultural and urban water users inthe Tucson area.‘@’

In the adjudicated groundwater basins of southernCalifornia, where groundwater pumpers fashionedtheir own management programs through court judg-ments, the water rights allocated to existing pumperswere fixed and quantified, but they were also madeexchangeable. Lively intrabasin lease and sale ex-


changes have characterized those basins since the entryof judgments Though the courts, water users in thosebasins found a way around the lack of quantificationand marketability of rights inherent in the law.

Laws and policies are all that stand in the way ofthese water rights transfers. For example, an attemptin the 1980s by the City of San Diego to enter into anagreement with Wyoming ranchers on the upperreaches of the Colorado River was aborted because itwould have violated terms of the Colorado RiverCompact and the international treaty with Mexico.San Diego wanted to compensate the upstreamranchers for using less water, which would haveallowed greater amounts of flow to descend to the lowerreaches of the Colorado Rivel; where it could bediverted by the city The agreement would havebenefited both parties and moved water away from lessvaluable uses, but it was blocked by the existing rulesgoverning the allocation of Colorado River waterslo

United States Representative George Miller ofCalifornia, who chairs the Subcommittee on Water,Power, and Offshore Energy Resources of the Com-mittee on Interior and Insular Affairs in the U.S.House of Representatives (and who is not an advo-cate of unfettered water marketing), introduced legis-lation in the 99th Congress that would have estab-lished a “water exchange” in central California. Theexchange would have allowed San Joaquin Valleyfarmers to sell their water rights to southern Califor-nia cities rather than use the water on lands tainted byagricultural drainage water high in selenium, andwould have applied part of the profits to alleviatingthe polluted drainage problem. Representative Mill-er’s bill was not acted on by the Congress.lm A fewstates have attempted to revise their groundwaterlaws and policies to facilitate the voluntary transferofrights and to further the lease and sale of waterAmongthe promising institutional reforms of the lastdecade are:

a ) Oregon and California have tied to elimi-nate the disincentive to conserve water byal-lowing rights owners to retain water con-served by efficiency and a 1980 ruling of theIdaho Supreme Court held that an appropria-tor retains the right to water salvaged by reduc-ing seepage from transmission systemslm

b ) During the 198Os, California enacted legisla-tion providing that water transfer does notconstitute wasteful or unreasonable use anddirecting the state’s Department of Water Re-sources to implement state laws regardingtransfers and encourage the voluntary trans-fer and exchange of water?

c) Idaho has experimented with the transferof water impounded by federal water proj-ect reservoirs so that contractors with sur-plus water can “bank” it for rental to con-

tractors (though a low ceiling has beenplaced on the rental price).‘a5

Efficiency in resource use should be and ostensi-bly is a goal of public policy. Efficiency requiresshifting resource use from lesser toward highervalued uses, just as it involves the reduction ofwasteful useslOd If transfers of water rights areblocked or impeded by laws and other institutionalarrangements, then the tools of public policy aredefeating the goals of public policy

Objections to Water Marketing: Agricultural andOther Third-Party Effects, and the “Water Is Differ-ent” Objection. Objections to water marketing ariseon the ground that it will wantonly destroy theagricultural sector of the economy Yet, the percent-ages of water rights that would need to be shifted awayfrom western irrigated agriculture are small. Also,w&rkting amounts of water transferred to amountsconsumptively used, as discussed in connection withthe practices of the New Mexico state engineer inChapter 3, can protect neighboring water uselsiw

Relatively continuous, marginal adjustments inthe distribution of consumptive water rights shouldnot produce massive displacements in the agricultur-al sector As water rights are transferred from agricul-tural to municipal and industrial uses, labor opportuni-ties axe likely to increase in the graying urban areasI@Some in farm communities might experience difficultywith significant capital investments at risk, many ofwhom have been encouraged to make those invest-ments by decades of governmental policies It is notnecessary to dismiss these potential problems simply bypointing to the “rough justice” of the “free market”Instead, these third parties might be compensated bythe beneficiaries of the transaction. Having enforced amisallocation of water rights for so long states and localcommunities should be able to ease the transition to amore reasonable allocation, especially since waterrights transfers can save money that might otherwisehave been invested in large-scale water projectslOg

Other objections to water marketing arise fromreluctance to view water as a commodity. Watersupply has been seen traditionally as a servicedelivery function, to be regulated and subsidized, butnot priced or traded. This distinction between “com-modity” and “service” stems in part from the percep-tion that, as a necessity of life, water should not besubject to the coarse rigors of the marketplace, and itsprovision to consumers should not reflect such harsheconomic factors as the cost of production or consum-er demand. “Freshwater is too important to be givenover to free market forces,” argues Williamson B.C.Chang.‘lO This reasoning begs the question of whyconsumers are not similarly provided with food,clothing, orshelter “services” without regard to cost ordemand, and of why such other “utility” services as


electricity and telephone cost the average householdmuch more and are priced according to use. Whatstands to CO.9 citizens more in the long run is thecontinuing misallocation of water resou~es that wouldresult from an illusion that water ought somehow to beexempt from treatment as a commodit$ll

Another objection to treatingwateras a commod-ity and allowing its price to reflect its valuation byusers is that demand is inelastic-the quantity of waterdemanded does not vary with price. The reasoning ofthis objection is that necessary uses of water arerdativeiy fixed for each person, and, theEfore, incremin price will only capture economic nznts and will notmaterially affect the demand

Yet there is considerable evidence that waterdemand is price sensitive, even if it is not fullyelastic.112 A comparison of the 12 hydrologic studyareas in California shows that 1984 water use variedfrom approximately 300 gallons per person per day inthe two regions where water costs were less than 20cents per 100 cubic feet down to about 175 gallons perperson per day in three regions where water costsexceeded 70 cents per 100 cubic feet, and the overallcorrelation between water use and marginal pricewas -0.62113 Similarly, in Arizona, water use per personper day is approximately twice as great in Phoenix as inTucson, and water rates are approximately twice as highin Tucson as in Phoenix114 According to LawnznceMasher, studies of one electric power plant showed thatan innease in the price of water from 1 cent perthousand gallons to 5 cents per thousand gallonsresulted in a drop in water use from 50 gallons perkilowatt-hour of electricity generated to 0.8 gallons ofwater per kilowatt-hour generated: “A five-fold priceincrease thus led to a 5Gfold reduction in water use.“‘15

A good such as water has multiple attributes anduses. Some of those uses are highly price sensitivewhile others are not As the price of water increases,least valued uses are curtailed first while highervalued uses are not curtailed at all, but overall wateruse declines?16 Outdoor summer water uses, forexample, tend to be curtailed to a greater degree inresponse to a water rate increase than indooryear-round water uses - in fact, outdoor water usesmay show an elasticity of demand of greater thanone.117 There is no evidence that increases in the priceof water workany particular hardship on individualsor households in that they are unable to affordenough water for need, but there is evidence thatusers become more attentive to water waste andreduce lower valued uses.

Water rates have long borne no apparent relationto the natural scarcity of the good. The combination ofgenerally plentiful supply through most of thecountry and inefficient pricing practices has pro-duced underpricing of watec Water is by far the least-pensive of the utilities for which households pay

As Figure 5-l shows, the average family’s annualwater bill in 1984 was $143. The average family’s

telephone bill was more than three times as high, thenatural gas outlay four times as high, and the annualelectric bill five times as high. The annual outlay ofthe average U.S. family in 1984 for water constituted0.5 percent of median family income.

While rates charged by water supply systems mayrange from 10 cents to $5.50 per $000 gallon,s,“8 the vastmajority of the population is nearer the low end of thisrange than the high end Water supply systems charg-

kg rates Of 1esS than $1.00 per lpo0 gallons serve 88.8percent Of the population. While 11.1 percent of waterq@y systems charge $3.00 or more per 1,000 gallons,they serve only 0.01 percent of the population.1*9

Among the difficulties to be faced during the nextfew years are that any increases in water prices tomake up for past undervaluation will be com-pounded by the increasing costs of meeting waterquality standards and of needed investments inrepair and improvement of facilities. Long-neededreform in the direction of full-cost pricing of watersupplies is coming at the same time as the impact onrates from these other sources. In the first half of the198Os, water rates in 20 large cities increased by 90percent at the 1,000 cubic-feet use level and 55 percentat the lO,ONl cubic-feet use level, while the generalConsumer Price Index rose 21 percentlm Rate in-creases in excess of the general inflation rate areexpected through the first half of the 1990s.

Of course, comparisons of what customers arecharged per thousand gallons or per hundred orthousand cubic feet of water presume that supplierscharge according to the amount used. This impliesbeing able to account for the amount used, an abilitythat suppliers in some of the largest populationcenters have not had. Even the practice of meteringhas not been used in some places; residents withconnections to water supplies are charged a flatmonthly fee regardless of the amount of water theyuse. The marginal cost of the water used then?fO~

de- every time the tap is turned on. The incentivetoward overuse is cleat; and the implications formanagement are substantial. Charging prices for waterthat moR accurately reflect its value is impossible if useis not measured.

Sacramento County, California, has embarked ona Isyear, $135 million program to install residentialmeters. In the populous and prosperous Californiacapital, where some of the most active opponents ofwater diversions to the San Joaquin Valley andsouthern California reside, water use has not beenmete-d. Average per capita daily water use in thecounty has been estimated to be 300 gallons, and theflat monthly residential fee is $7.61.“l (By contrast, innotoriously thirsty Los Angeles, where the averagehousehold monthly water bill was recently increased


FigfIre 5-zComparison of Annual Utility Bills, 1950-1984

6 -i

5Ai

4 ii

3 -,

2 i

l-

I

w-a-- Electric. . . . . . . . . phone- - - Noturol cos- W a t e r ( o n d S e w e r )

-i1.w----i-I----

!E% 1960 197GY e a r

Source: WadeMiJler Associates,~fe~[7tioa’sP~~blicIl’orks: Rqwtoa 12TllterSupply (Washington, DC: NationalCouncilon F’ub-lit Works Improvement, 1987).


to about $22.50, per capita daily water use is about 190gallons.) The installation of water meters in Sacra-mento County will take time and represents a sub-stantial financial investment When completed, itwill allow water rates to be charged on the basis ofuse, which represents a tremendous step toward ma-sonableness in water pricing.

New York City also has begun a program toinstall 630,000 water meters in all five boroughs overthe next 10 years at a cost of $290 million. New waterrevenues are expected to repay much of the capitalcost of the installation, and to defray some of theexpense of needed improvements to the quantity andreliability of the city’s water supplym

Expectations of widespread public outcry overincreased water rates may be exaggerated; the factthat water prices have been distorted and keptartificially low does not necessarily say anythingabout customers’ willingness to pay’” In fact, thereare strong indications of willingness to pay higherprices for reliable water supplies. From the mid-1970sto the present, there has been rapid growth in themarkets for bottled water and home water treatmentsystems, despite the fact that the water is hundreds oftimes more expensive per gallon basis than water froma public systemlz4 with customers paying premiumprices for substitute goods, local officials and waterpurveyors should be able to implement the changesneeded to establish mom realistic water rates’”

How water pricing and marketing interact andrelate to more effective management may not beimmediately clear Before discussing distortions indecisionmaking caused by water subsidies, it is worthpausing here to make the connection more explicit

There is a direct interaction between prices andrights transfers. Once pricing is viewed as a dynamicrather than static process, the relationships betweenthe prices at which consumers receive water, theamount consumers will want to receive, and theamount suppliers are willingto offer begin to emerge.For example, if 1988 population projections for thewestern states are used along with an assumptionthat urban water rates will remain constant, thenagricultural use would have to decline by 6% pement,or 5,149,tMO acre-feet per year, to ensure stable suppliesfor the West through 2OM. Howevel; a doubling ofurban water rates reduces projected urban use suffi-ciently to reduce the projected reallocation from agricul-tural to urban use to only 208 percent, or 1537poOacre-feet per year? As municipal and industrial waterprices rise, consumption declines, as does the amount ofadditional supplies that need to be secured, whetherthrough water projects or rights transfers

Consider the following observation of trendstoward decreasing per capita water use in the moreheavily urbanized portions of California, where

water rates have risen considerably over the pastthree decades:

Several significant trends ate developing in re-lation to urban per capita water use in Califor-nia. Construction of more multiunit housingthe general reduction in residential lot sizes,the inaeasing number of residences built sinceenactment of legislation requiring low wa-ter-use fixtums, and the multitude of localagency water conservation programs in effectare all tending to reduce per capita water con-sumption. Other conservation trends includeplantings of low water-using landscapes andmore efficient wateringln

Of course, none of this conservation happens ifwater is artificially cheap. Calling for better watermanagement without recognizing the need for moterealistic prices misses a fundamental point Water that isnot valuable enough for producers and consumers topay attention to or monitor is not valuable enough tomanage or conserve Artificially low prices do not justencourage consumption and waste, they contribute tothe persistence of the illusion that water is endlesslyabundant, that it is not an economically scarce good.

DISTORTIONS C REATED BY WATER SUBSIDIES

It has been said that the United States is not“running out of water/l but is “running out of cheapwater”12B Rational pricing practices are impeded bysubsidies When supplies are subsidized, inaccurateprice signals to users result in m&allocations of re-sources Both efficiency and equity in the allocation ofwater resources are negatively affected by subsidies

Subsidization of water supplies occurs in severalways In some communities, commingling of watersupply and electrical power provision results in theuse of power rates to finance water operations, so ashare of the costs of water supply is borne by powerusers. The Salt River Project, a special district incentral Arizona, has been cited as an example ofsubsidizing water supplies with electrical powerrates According to a 1985 publication, electricalpower sales generated 98 percent of Salt River Projectrevenues,r29 a fact partially explained by the fact thatvoting for project directors is based on land owner-ship, so power rate subsidies are a means for farmers(who hold most of the votes) to shift project costs tourban dwellers (who would hold the most votes ifvoting were per capita). As a result, the price of waterdelivered to lands within the Salt River Project hasworked out to less than 1 cent per ton.lm

Another means of subsidizing water supplies isthrough local property taxes or other unrelatedrevenue sources, and the commingling of water


supply with other general fund operations. Invest-ments in water supply or treatment often are fi-nanced by bonds that are repaid out of the localproperty tax or other general fund revenues Becausethese revenue sources are not tied directly to wateruse, some residents will pay for more water than theyuse while others will pay for less, and direct watercharges will be artificially low. In addition, keepingwater rates artificially low may have been a deliberatechoice as part of a local or state strategy to encourageeconomic development or by deferring maintenanceand repairs Such decisions are more likely when watersupply competes for attention with a host of otherconcerns in a local government that mingles water andother revenues and expenditures131

Often, assistance in water supply project con-struction, operations, and maintenance has beenprovided by the state or national government Thisprovides local water users with the opportunity tospread the costs of investments from which they willbenefit to a broader set of taxpayers The federalgovernment has financed a major portion of waterresources development from general taxes and bor-rowing as well as the reclamation fund.‘32 The costs ofthose essentially local development projects havebeen spread across all federal taxpayers. Federalfinancing of project construction was originallyjustified as an interest-free loan to be repaid by thewater users within ten years On this theory, the only“subsidy” would be that the local users would not faceinterest charges when they repaid the capital costs andpaid for the operations of a federal water project Thesubsidy was justified on the ground of the federalinterest in promoting the settlement and developmentof the western lands

As the federal reclamation program developed,however,“it became clear that the irrigators wouldbeunable to reimburse the federal investments withinten years.N133 The Congress had to prop up thereclamation fund with direct appropriations. In 1926,the period for repayment of the costs (withoutinterest) of Bureau of Reclamation water projects wasextended from the original 10 years to 40 years In1939, the law was amended again, placing repaymenton an “ability to pay” basis.‘% Continuing the devel-opment of the West was deemed more importantpolitically than securing reimbursements for waterprojects. 135 Moreover, repayment obligations weresuspended in any year when insufficient flows wereavailable from the federal reservoirs, and subsidiesfrom the sale of hydroelectric power are allowed tomake up the difference between farmers’ ability topay and amounts owed.

With the extension of time for repayment, nointerest, and the ability to shift the costs of projectconstruction and operation to hydroelectric powerconsumers, the amount of the federal subsidy to

irrigators has increased to rates approaching 90percent. 136 “In California’s Central Valley Project,only 5 percent of the total $931 million spent on theproject’s irrigation facilities over the last 40 yearshas been repaid to date.“lY

What happens when 85-95 percent of the costs ofa federal water project are paid by powerusers and bytaxpayers across the country, while 5-15 percent of thecosts are paid by local water users? Water from federalprojects is so inexpensive that local users have noincentive to conserve or manage local or supplemen-tal supplies.138 To the extent that the price of a goodcommunicates information about its relative scarcity,the prices from federal project water have beencommunicating for decades that water supplies, evenin the arid West, are more abundant than the soil thatis irrigated with the water In fact, water from somefederal projects in the West has been sold to local usersat rates that work out to pennies per ton, which makeswater in this near-desert climate cheaper than sand.13g

Estimates of the cost of water for irrigation in theWest vary from !§3.50-$5.00 per acre-foot to $1~$15 peracre-foot In either case, the subsidized price is severaltimes less than the full cost of provision. A 1981 reportfrom a San Francisco Federal Reserve Bank econo-mist estimated that the average price for federalCentral Valley Project water paid by Californiafarmers was $5 per acre-foot, compared with $48 peracre-foot average replacement cost, and $325 as theestimated marginal cost of developing an additionalacre-foot of wateP Five years later, while theestimated average replacement cost per acre-foot hadrisen to $73, the average price paid by Central ValleyProject irrigators had risen to $6.15.141 At 1985 rates, thetotal annual federal subsidy to irrigators in areascovered by Bureau of Reclamation projects wasestimated to be $1 billion.‘42

Urban water users in the West typically pay 20times the irrigators’ $5$15 per acre-foot of water. InLos Angeles, for example, the average household’smonthly water bill is about $22.50, which works out toabout $270 per acre-foot, using the normal assumptionthat an acre-foot represents the average household’swater use for a year. If urban water rates for an acie-footof water were $5$15 instead of $1@$300, the averagehousehold’s monthly bill in semi-arid Los Angeleswould be somewhere between $0.42 and $1.25.

At rates that low, there is little incentive toconserve water or even to keep track of it, much lessengage in vigorous local management For example,a RAND Corporation report compared the localmanagement of water supplies in southern Califor-nia, where natural water supplies are more scarce butwater is more expensive (including imported waterfrom locally financed projects such as the ColoradoRiver and Owens Valley Aqueducts), with the “man-agement” of water supplies in the San Joaquin Valley,


which is served by the federal Central Valley Projectand California’s State Water Project Among theobservations concerning the valley were:

Those who have received relatively in-expensive Central Valley Project water haveseen no need to control pumping. They takethe water when it is available and pumpwhen it is not . . . In general, pumping is notmonitored or controlled as it is in southernCalifornia.. . .

In general, it appears that most valleywater users prefer either localized rechargeprojects or groundwater mining to adjudica-tion or basinwide regulation imposed by thestate. Some still anticipate that future federaland/or state rescue projects will bail them outwith inexpensive subsidized surface water,despite rising opposition to such projects oneconomic grounds Others suggest that theirproblems would be solved by construction ofadditional facilities to meet State Water Proj-ect contractual commitments. If surface wa-ter cannot be brought in, then many favorpumping until this is constrained economi-cally by increased pumping costs’”

In light of the availability of groundwater fromunderground storage and cheap subsidized waterfrom surface reservoirs, two statistics that wouldotherwise appear puzzling given the distribution ofnatural water supplies in California make sense. Thefirst is that 75 percent of the total amount of ground-water overdraft in the state occurs in the southern SanJoaquin Valley.144 The second is that 8 of the 11groundwater basins in California identified as beingin “critical overdraft” condition in the 198Osare in theSacramento-San Joaquin Valley, and none of the 11 isin the more heavily populated arid southern countiesof Los Angeles, Orange, San Diego, Riverside, andSan Bernardino, where 15 million of the state’s 29million residents live.

The objectives of federal policy were to encour-age western settlement and development and thegrowth of the agricultural sector, as well as to satisfycertain ideological objectives of the “conservationmovement,” and the promotion of a “rural democra-cy” composed of yeoman farmers with small,self-suf-ficient family farms. These benign objectives led tothe building of water projects, the sale of the devel-oped water at subsidized rates, the watering down ofrepayment requirements, the muting of incentivesfor sta te and local water management, and, over time,the creation of organized political constituencies infavor of maintaining and extending the status quo.

In a curious sense, in the political arena, thefederal financing of water projects has been a situa-tion in which “supply creates its own demand.” The

more water projects the federal government assistswith, the more intense become the demands of theremaining localities that have not yet received a&-tance. Agricultural interests correctly perceive accessto a reliable supply of water as essential to theirsurvival; obtaining that supply at lowest cost makeseconomic sense. Over time, cost-benefit formulasapproved by the Congress for analyzing water proj-ects have become distorted to yield the results thatwill justify building the project’&

The policy of federal subsidization of watersupplies has been driven not by economic criteria oftotal benefits versus total costs but by political criteriaof distribution, i.e., who benefits and who pays. Thereis considerable evidence that the principal beneficia-ries of federal water subsidies are large landholders inthe western states146 This is true despite the originallimitation on water availability from projects built bythe federal Buwau of Reclamation. Water from reclama-tion projects was supposed to be delivered to irrigatorsfor use only on up to 160 acres of land.

The 160-acre limitation has been honored prin-cipally in the breach. A 1980 bureau report on 18projects indicated that half of the land supplied frombureau projects was in the hands of 9 percent of thelandowners:*’ and one third of the land was ownedby 3percent.‘* The largest 5 percent of irrigators, eachwith 1,280 acres or more, received 50 percent of thetotal water subsidy, and the largest 1 percent received21 percent of the subsidy. Farmers with 160 acres orless represented 60 percent of all recipients of bureauwater; they received 11 percent of the water subsidy?Federal water subsidies amount to a program ofwealth Edistribution from federal taxpayers andmany electric power users to holders of large tracts ofwestern lands who use large amounts of federal projectwateP As far as can be discerned, this was not amongthe original objectives of the reclamation program

The beneficiaries of federal water subsidies havea clear incentive to try to retain them; those who payfor federal water subsidies have little incentive to tryto n&rain them. The principal beneficiaries are relative-ly &, relatively large, and politically influential in theirstates and with their congressional delegations151 Therelationships at work are fairly simple:

The wider the resource base, the smallerthe per capita burden of taxes and controlsand hence the more passive the public; thesmaller the base the greater the per capitaburden and the more active the public be-comes.. . . Therefore, in the field of reclama-tion I would expect the subsidy from federalprojects to be greater than from state projectssuch as those undertaken by the state of Cali-fornia, and this is in fact the case>%


When additional water can be developedthrough rural-urban transfers or other transfers fromlower valued uses less expensively than vialarge-scale structural water projects, this “raises theissue of the incidence of benefits and costs implied bydifferent modes of water supply and related financ-ing arrangements.“153 For example,

the federal government will pay for a largepart of the Central Arizona Project while thepeople of Central Arizona [would] have topay the costs of purchasing agricultural wa-ter rights in any rural-urban water transfersWhile the benefits are essentially the same,the incidence of costs is much different, be-ing placed upon the whole nation in the caseof the Central Arizona Project, but upon thebeneficiaries alone in the case of the purchaseof agricultural water rights Federal subsidiesand repayment policies thus have the powerof subverting economically rational decisionsin this vital area of water supplyP

One of the most perverse outcomes of theexpansion of irrigated agriculture is that it has placeda strain on water resources in order to provideadditional yields of surplus crops. Over one-third ofthe acreage irrigated with water from bureau projectsis growing surplus crops, some of which are highlywater consumptive.155 When surplus crops are beinggrown, continuing to subsidize water for irrigatedagriculture cannot be justified on the grounds ofinsufficient food supplies for domestic or export mar-kets Nor is it possible to justify the continued subsidy onthe grounds of maintaining low food prices, or with theargument that if water prices increased to reflect fullcosts of provision, food prices would skyro&et Irriga-tors using more expensive water supplies use less wateqand employ the water they do use more efficiently Inplaces such as California’s Central Valley, where someirrigators purchase federal project water at $10 or lessper acre-foot while others purchase state project waterat roughly $50 per acre-foot, both manage to stay inbusiness and produce the same crops to sell in the samemarkets for the same pri~es.‘~

The subsidy system also cannot be justified by theneed to maintain an excess capacity “irrigationinfrastructure” to provide for a sudden response to“unforeseen circumstances.” There has long been alarge surplus of agricultural land that could bepressed into production without need for drainage orirrigation to grow basic crops, including low-valuedcrops such as pasturage and hay that are now beingirrigated with project water. Throughout the postwarperiod, millions of acres of agricultural land havebeen removed from production under various pro-grams, while additional land has been brought intoproduction with irrigation water In some places and forsome crops, the replacement has been nearly acre for

acm.157 In 1983, the United States paid farmers not togrow crops on 82 million acres of land, about one-fifthof the farmland, at a cost in excess of $4 billion.‘5B

The overall results of subsidizing water suppliesmay be viewed as “irrational.” In the end, taxpayerspay for the same food four times: for the surface waterprojects that provide the cheap water, for the supportand storage programs that buy up the agriculturalsurpluses and guarantee farm incomes, for the pay-ments to other farmers to take land out of production,and for the food purchase at the grocery store.

It also may be argued that the old persuasivereasons for federal funding and construction of waterdevelopment projects are no longer valid.‘591f the realobjectives of federal water development assistancewere settlement of arid lands, flood control, promo-tion of agricultural development, and exploitation ofprime natural sites for water development, thoseobjectives have been fulfilled.‘60 If the real objectivesof federal water development assistance have beenprovision of cheap water to politically powerful constit-uencies at prices far below the cost to taxpayeE whileinflicting forms of damage to the western environmentthat am only now beginning to be seen and compre-hended, those objectives cannot be sustained.

According to several experts, if subsidizing watersupply operations with general revenues, powerrevenues, or by tapping into the treasury of a largerjurisdiction was ever justifiable, it is justifiable nolonger M Uses of water that would not occur if waterprices reflected costs of provision are likely to becurtailed, but this is not necessarily bad:

We can think of no circumstances underwhich it would be desirable to guarantee $3per acre-foot water forever to those water us-ers who first entered basin pumping on thepremise that water would cost $3 peracre-foot to pump. Indeed, to state the reversehighlights the case: We cannot think of anycircumstances under which it is desirable tospend $30 per acre-foot for water to supportall future use of water that is valued at only$3 by the water user . . . To argue that all his-torical groundwater uses should be main-tained through surface imports is tanta-mount to arguing that inefficient water usesshould be sustained because there will of ne-cessity be water users within the basin whovalue the water less than its full social costGmundwater management will almost invari-ably lead to eventual cessation of some wateruses where the water is least valued.162

LACK OF I NFORMATION D ISTRIBUTION

In the words of a 1989 report of the Office ofScience and Technology Policy, “The management ofgroundwater resources depends on the science of


groundwater hydrology and information about theparticular groundwater system being managed.“163Information requirements for rational decisionmak-ing within state and local groundwater managementagencies are high. Specification of water rights,supervision of rights transfers, and the developmentOf more efficient pricing practices require soundhydrologic data in addition to sensitive awareness oflocal conditions and needs’& There has been a consen-sus in the Water resources literature from the early halfOf this century to the 1980s that insufficient data e&,particularly regarding groundwater supplies16

Research has been supported by the federalgovernment, state and local governments, andindustry associations. Research funding and activi-ties by entities other than the federal governmenthave been modest, and,in aI2, waferresourcesresegrchfirllding by governments has been approximately 2percent of the level of expenditures for water resourcesdevelopment projects.16

States and local governments are “uniquelyqualified” to address water supply managementissues within their jurisdictions, and many are risingto the task On the other hand, it is less plain whetherstates and local governments will fund basic researchas extensive as sophisticated management approachesrequire. 167 A study supported by the American WaterWorks Association Research Foundation of barriers tobetter water management found that, while states doinvest time and financial resources in water research,“in general, states have little money for investigatingnew technologies or developing solutions to localproblems.“‘@ This raises the question of whether theresearch is best conducted on a state or local scale, inwhich case their relatively smaller investmentswould constitute a problem, or whether some otherscale is appropriate. There seems to be agreement inthe water resources research and management litera-ture that basic research into hydrologic conditions isappropriately organized at the national scale,through federal agencies such as the United StatesGeological Survey and the Environmental ProtectionAdministration, and through the academic communityand associations involved in groundwater manage-ment, such as the American Society of Civil Engineers,the American Water Works Association, and the Nation-al Water Well Association.169

Through the Water Resources Research Centersset up in the states with federal support since theWater Resources Research Act of 1964, and the comput-erized data access and retrieval systems of the UnitedStates Geological Survey and available through itsfield offices, tremendous amounts of hydrologic dataare available to state and local water managers andusers. However, water managers need more thanhard data on the physical characteristics of aquifers,and some managers feel that much federally SUP-

ported hydrologic research has emphasized lead-ing-edge technology and “state of the art” research,rather than the appkation of existing technologyand knowledge to existing conditions?70

The information needs for groundwater man-agement and for water resource management gener-ally are shifting. The needs that are growing aretechnology transfer and dissemination, for applica-tion of knowledge to existing problems; and informa-tion on management strategies, practices, and per-formance (especially for smaller systems).ln As theemphasis has shifted from water development toInOre effective management of existing supplies, andas states and communities are responding withmanagement innovations, more information is need-ed about management activities.ln Research into theeffects of nontraditional solutions to problems andthe effect of different institutional arrangements onsupply conditions is of growing importance.in

There has not been much dissemination ofinformation about resources and management, andstates historically have been reluctant to acceptresearch results from each otheC174 While problems ineach community are different, there are commonelements and management challenges that may beoverlooked, as well as opportunities for beneficialchanges in institutional arrangements for managingwater resources. Scarce personnel time and effortmay be needlessly devoted to reinventing a “wheel”that has been devised and tested elsewhere.

SUMMARY

The perceived scarcity of water in various parts ofthe United States results from its geographic distribu-tion and the scarcity created by water laws and otherinstitutional arrangements that distort decisionmak-ing about the use of water? A stronger statement of theview that water shortages are more apparent than realwas given to the National Council for Public WorksImprovement in 1987, in a report which referred to “themisperception that severe water shortages exist?

There appears to be sufficient water avail-able in all regions of the country However; dueto allocation practices such as the appmpri-ation doctrine, water resources are not allo-cated efficiently thereby giving the appear-ance of shortages It also appears thatallocation of water is not just a problem west ofthe Mississippi; water supply systems in sever-al northeastern cities are now faced with stiffcompetition for available resource~~‘~

Distortions of decisionmaking about use andallocation create obstacles to more effective conjunc-tive management of groundwater supplies. Theinability of state and local water regulators andplanners to know the quantity of water rights, and


thus the outside limits of demand, makes efficientand equitable allocation all but impossible. As waterusers receive inaccurate signals about the value ofwater and of their rights, their behavior is affected inways that are likely to arouse opposition to theimposition of any new rules that might limit anddefine, or redefine, production rights. Water userswho pay subsidized prices are highly unlikely tosatisfy demands that they conserve water Users whoare told to conserve water but are given no incentiveto do so are being asked to comply with a rule that (asthey see it) imposes losses on them, but no benefits.No group in society,in the United States or elsewhere,is likely to welcome that sort of “reform.” And insocieties like the United States, where there can never beenough “enforcers” of any rule and where voluntarycompliance is a cornetstone of social orderj rules thatimpose losses without compensating benefits an2 notlikely to meet with high rates of compliance.

A primary goal of water governance should be todevise institutions that make individual incentivescompatible with collective goals, “to create waterprices more in keeping with the supply and demand,and to establish well defined, transferable and lessn+&ricted water rights”“’ In addition, increasing themanagement information available would aid in thedevelopment of more effective approaches

Many of these observations about the importanceof changing the institutional arrangements for manag-ing water resources are not new Philip Metz-ger of TheConservation Foundation reviewed more than twodozen national water policy studies, and produced areport in 1983. He found that while about half of thestudies’ recommendations concerning instream andoffstream uses had been implemented to some degnze,few of the recommendations for institutional changeshad been implemented at alL In particular, recommen-dations for better coonlination of surface and gmund-water resources, and for improved cooperation amongagencies, had largely been left unrealiz&lB”Historical-13 then, the federal government has funded asses-sments of water resources and has tasked those asses-sments to make recommendations, but has failed toorganize post-assessment efforts to address institutionalrecommendations”179

The consequences of failing to develop andimplement the needed institutional reforms arebecoming increasingly evident In areas with lessabundant water supplies, water subsidies and thedistortions they cause in decisionmaking have mere-ly delayed the day of reckoning by making it possiblefor userS to put off shifting to water-saving practiceswhile we continue to look for the next “technologicalfix” to “make the desert bloom.”

Notes1 Christine Olsenius, “Tomorrow’s Water Manager,” JOW-

~ruZof.SoiZund W&r Conserz~ation 42 (September-October1987): 312.

2 See for example, Wade Miller Associates, The Nution’sPublic Works: Report on Wuter Supply (Washington, D.C.:Nat ional Counci l on Publ ic Works Improvement, 1987),pp. 115 and 206.

3 Helen M. Ingram et al,, “Guidelines for Improvedlnstitu-tional Analysis in Water Resources Planning,” Wuter Re-sours Research 20 (March 1984): 323.

4 K le Schiiing et al., 7he Nation’s Public Works: Report onk&er Resources (Washington, D.C.:National Council onPublic Works Improvement, 1987), pp. 19-21.

5 Okenius, p. 312.6 Lyle Craine, “Intergovernmental Relations in Water De-

velopment and Management.# Paper presented at theSouthern Poli t ical Science Associat ion meeting, Gatlin-burg, Tennessee, 1959, p. 3.

’ Wiiiam Lord, “Institutions and Technology: Keys to Bet-ter Water Management,” W&r Resources Bzrlletirr 20 (Oc-tober 1984): 655.

a StephenBurges andRezaMarnoon, =1 Systenlntic Exmi-nation of issues in Conjunctive Use of Ground and SurfaceWaters. Water Resources Information System TechnicalBulletin No. 7 (Olympia: Washington Department ofEcology, 1975), p. 8.

9 Ingram et al., p. 326.lo For asomewhat different, overlappingcategorizationof

inst i tut ional issues of importance for resources manage-ment reform, see Warren Viessman and Claire Welty,Water Management: Technology and Institutions (NewYork Harper and Row, 1985), p . 52.

l1 Micha Gisser, #Groundwater: Focusing on the Real Is-sue,” JournuI of Polit ical Economy 91 (December 1983):1010.

l2 Wiiiam Cox, ‘Water Law Primer,” ASCE Journnl of WuterResources Plunning and Munugement 108 (March 1982):116.

l3 John W Bird, “Ground Water and Federal ReservedRights,“‘lorrmuZ of Water Resources Pbming and Munuge-ment 109 (April 1982): 175.

l4 Jurgen Schmandt , Ernest Smerdon, and Judith Clarkson,State Water Policies (New York Praeger publishers, 1988),p. 5.

l5 Frank J Trelease, “Legal Solutions to Groundwater Pro-blems-A General Overview,” Pucijc Lnw Journnl 11@fly 1980): 869.

l6 Douglas Grant, “The Complexit ies of Managing Hydro-logically Connected Surface Water and GroundwaterUnder the Appropriation Doctrine,” Lund and Wuter LawReview 22 (January 1987): 66; Frank J. Trelease, “StatesRights Versus National Powers for Water Develop-ment,” in Ernest Engelbert, ed., Strutegiesfor Western Re-gional Water Development (Los Angeles: Western Inter-state Water Conference 1966), p. 105.

l7 Mason Gaffney, “Diseconomies Inherent in Western Wa-ter Laws.” Paper presented at the Western AgriculturalEconomics Research Council , Tucson, Arizona, 1961, p.44.

la Ibid., p. 55.l9 Stephen Wil l iams, me Requirement of Beneficial Use

as ‘a Cause of Waste in Water Resource Development,”Natural Resources jmlrnnl23 (January 1983): 7.

XJ Lord, 1984, p. 654.


” Mohamed El-Ashry and Diana Gibbons, “Managing theWest’s Water,” Journal of Soil and Wafer Conservation 42(January-February 1987): 8.

zz Charles Phelps et al., EIficient Water Use in California: Ex-ecutive Summay (Santa Monica: RAND Corporation,1978), p. 1.

23 Viessman and Welty, p. 54. As these and other authorspoint out, while rights to the use of groundwater andrights to the use of surface water are legally separated inmany states even though the two sources are physicallyrelated, the law governing rights to the use of ground-water covers both renewable and nonrenewable aqui-fers, even though these present very different physicals i tua t ions .

24 Ibid.25 Morton W. Bittinger, “Ground-Water Surface-Water

Conflicts,” ASCE JournaZ of W&r Resources Planning andManagement 106 (July 1980): 474.

26 Ibid., pp. 470473.27 cox, p. 115.28 Grant, pp. 64-65; Trelease, “Legal Solutions to Ground-

water Problems,” p. 864.29 Thii was recognize d b y the Nat ional Water Commission,

WaterPoliciesfor thefuture: FinalReport to thepresidentandto the Congress ojthe Unifed States (Port Washington, NewYork Water Information Center, 1973), p . 233.

a Joseph Westphal, “The Potential for Water Managementin the West,” Ground Water 20 (January-February 1982):p. 59.

31 Phelps et al., p. 5.32 Les Lampe, “Recharge Saves Water for a Not-so-Rainy

Day,” American City nnd County 102 (June 1987): 46.33 John E Mann, “Concepts in Ground Water Manage-

ment,” Journal of the American Water Works Association 60(December 1968): 1342.

34 Thelma Johnson and Helen Peters, ‘Regional Integrationof Surface and Ground Water Resources.” Paper pres-ented at the Symposium of the International Associationof Scientific Hydrology Haifa, Israel, 1967, p. 495. Thiswas at issue in the celebrated Los Angeles v. San Fernan-do (1975) case, in which the city argued that operating abasin at “safe yield” should not mean the same as operat-ingit full but should mean operating at a lower level thatallows some storage capacity for the retention of poten-t ialsurplusesthatwouldotherwiseescape thebasin.Thisargument did not prevail in the original trial, but eventu-ally was found persuasive by the California SupremeCour t .

as Johnson and Peters, p. 495.36 Lee Dutcher and Lee Peterson, “Water Zoning-Tool for

Ground-Water Basin Managers,” Ground Water 13 (Sep-tember-October 1975): 397.

371n California, for example, municipalities are beinggranted a “public servitude” in stored water, so that mu-nicipal withdrawals of stored water would have priori tyover other withdraw& during periods of shortage, inrecognition of the public nature of most municipal uses.

se Susan M. Trager, “Emerging Forums for GroundwaterDispute Resolut ion: A Glimpse at the Second Genera-tion of Groundwater Issues and How Agencies WorkTo-wards Resolution,” Pacific LawJournal 20 (October 1988):

31-74; James Krieger and Harvey Banks, “Ground WaterBasin Management,” California Law Review50 (1962): 73;Dutcher and Peterson, p. 397.

39 Dutcher and Peterson, pp. 396-397.a Helen Peters, “Groundwater Management.” Wafer Re-

sources Bulletin 8 (February 1972): 197.41 Robert Ehrhardt and Stephen Lemont, Institutional Ar-

rangements for Intrastate Groundwater Management: AComparative Assessment Using Virginia as a Case Study(Arlington, Virginia: JBF Scientific Corporation, 1979),p.24.

42 Nat ional Water Commission, p . 236.43 Ibid.41 Sidney Harding, W&rllz California (Palo Alto: N-PPubli-

cations, 1960), p. 58.a El-Ashry and Gibbons, p. 12.46 Nat ional Water Commission, p . 228.47 John W. Bird, ‘Water Resources and the Public Trust Doc-

trine,” Journal of Water Resources Planning nnd Mnnage-merit 112 (January 1986): 66-67.

48 Rodney Smith, “A Reconcil iat ion of Water Markets andPublic Trust Values in Western Water Policy,” Transactionsof the Fifty-Third North American Wildlife and Natural Re-sources Conference, 1988, p. 331.

a Bird, “Water Resources and the PublicTrust Doctrine,” p.65.

so Ibid., p. 69.51 Trelease, “Legal Solutions to Groundwater Problems,“p.

868.52 Bird, “Ground Water and Federal Reserved Rights,” pp.

176-177.53 Trelease, “States/Rights versus National Power,” p. 103.54 John Leshy and James Belanger, “Arizona Law: Where

Ground and Surface Water Meet,” Arizona State LawJournal 20 (Fall 1988): 729.

ss Zachary Smith, “Federal Intervention in the Manage-ment of Groundwater Resources: Past Efforts and Fu-ture Prospects,” Publius - ‘the Journal of Federuhsm (Win-ter 1985): 147.

56 Leshy and Belanger, p. 729.57 Schmandt et al., p, 6.sa B. Delworth Gardner, “Removing Impediments to Water

Markets,” Journal of Soil and Water Conservation 42 (No-vember-December 1987): 386.

59 Ibid.; also Norris Hundley, Wafer and the West (Berkeley:University of California Press, 1975), pp. 330-331.

60 Sporhase et al. v. State of Nebraska ex rel. Douglas,Attor-ney General, 458 U.S. 941(1982).

6* Ibid., p. 952.a Ibid., p. 953.63 Ibid., p. 954 (emphasis added).61 Ibid., p. 959.65 Albert Utton, ‘The El Paso Case: Reconcil ing Sporhase

and Vermejo,” Natural Resources Journal 23 (January1983): ix.

66 Quoted in JohnW Bird, “Implications of Sporhase in Wa-ter-Resources Planning,” Journal of Water Resources Plan-ning and Management 112 (April 1986): 202.


136 Schiiling et al., p. 92.r3’ Schmandt et al., p. 3.lss Schilling et al., p. 93.139 Welsh. Similar comparisons have been made by Natural

Resources Defense Council analyst Marc Reisner, whosefigure is that water in the western deserts is beingsupplied at prices approximately 2,000 times cheaperthan i ts equivalent weight in sand.

‘40 P K Rao, “Planning and Financing Water Resource De-. .velopment in the United States: A Review and PolicyPerspective,” American Journal of Economics and Sociology47 (January 1988): 92.

14’ El-Ashry and Gibbons, p. 11.** Rao, p. 92.I* Albert J. Lipson, Ejj5ienf Wafer Use in California: 7he Evo-

lution of Groundwafer Management (Santa Monica: RANDCorporation, 1978), pp. 22-23.

laKeith Knapp and H. J. Vawc, “Barriers to EffectiveGround-Water Management: The California Case,”Ground Wafer 20 (January-February 1982): 62.

l6 Susan Christopher Nunn, 7he Political Economy oflnsfifu-fionallnnovafion: Coalitionsand Strategy in fheDevelopmenfof Groundwafer Law. Ph.D. Dissertation. University ofWisconsin, 1986, p. 45.

146 Thii can be true of state water projects as well . For con-siderable evidence and analysis of the distribution ofbenefits from the combination of the federal CentralValley Project and California’s State Water Project in theSan Joaquin Valley, see Merri l l Goodall and John Suili-van, “Water System Entities in California: Social and En-vironmental Effects,” in Corbridge, ed. , pp. 71-102.

14’ Rao, p. 91.148 Schmandt et al., p. 11.lg9 Rao, p, 91.lso Ibid., p. 93.lsl Henry C. Hart, “Toward a Political Science of Water Re-

sources Decisions,” in L. Douglas James, ed., Man and Wa-&(Lexington: University Press of Kentucky, 1974), p,

lS2 cuzan, p. 36.ls3 Howe and Easter, p. 171.ls4 Ibid.lss Welsh, p. 38; Rao, p. 91; Howe and Easter, p. 91.ls6 Reisner, “The Next Water War,” p. 100.ls7 Howe and Easter, p. 173; Schmandt et al., p. 7.lsa Welsh, pp. 38-40; Schmandt et al., p. 7.ls9 Schilling et al., p, 94.l”) Viessman and Welty, p. 2.161 Wade Miller Associates, p, 12.162 Phelps et al., p. 25.laU.S. Office of Science and Technology Policy, Federal

Ground-Wafer Scienceand Technology Programs, June 1989,p. 3-2.

I64 L M Hartman, “Economics and Ground-Water Devel-opment,” Ground Wafer 3 (April 1965): 6.

lfi See for example, Ira G. Clark, Wafer in New Mexico: A His-foryof Ifs Management and Use (Albuquerque: Universityof New Mexico Press, 1988), p. 422:

Since World War II intergovernmental andinteragency cooperation in resolving basic na-tional water problems has at tracted considerablesupport across the entire political spectrum. Asuccession of national investigations, followed byelaborate reports, supported this approach butwith sharply divergent recommendations as tothe best means for its accomplishment. . . . Theolzepoint on which they did agree was the woeful tackofba-sic data regarding waft, and that fhis must be reme-died. (emphasis added)

A good example of Clark’s point is the 1973 report of theNational Water Commission, which stated

it is apparent that there is a deficiency in theamount of technical data and other informationabout ground water resources, informationwhich is needed to make sound decisions with re-gard to regulation and management. (p. 247)

See also Viessman and Welty, p. 14; and National ResearchCouncil , Committee on Ground Water Quali ty Protec-tion, Ground Wafer Qualify Protection: Sfafe and LocalStrategies (Washington, DC: National Academy Press,1986), p. 10.

166 Schilling et al., p. xii.

16’ Schmandt et al., p. 202.168 Wade Miller Associates, p. 79.

169 National Research Council, p. lO;.Wade Miller Associates,pp. 110-111; Schilling et al., pp. xii-xiii; Neil S. Grigg, “Ap-pendix: Groundwater Systems,” in Schillinget al., p. B-5;Schmandt et al . , p. 2.5.

170 Wade Miller Associates, p. 79.

in National Research Council, p. 10; Wade Miller Associates,p, 111; Schiimg et al., p. 178.

172 Grigg, “Appendix: Groundwater Systems,” p. B-5 .

173 Schilling et al., pp. xii-xiii.

174 Wade Miller Associates, p. 79.

175 Ibid., p. 115.

176 Ibid p 206. A still stronger statement was made twoyea; earlier in Welsh, p. 25:

Obviously there are adequate water suppliesavailable in the nation, even in our most aridstates , to support populat ions well beyond anyreasonable projections. Thus any city in the areathat claimswatershortage must be admitt ing thatits laws and policies are the problem.

lR Wade Miller Associates, p. 123.

‘7~ ‘&hilling et al., pp. 19-20.

179 Schilling et al., p. 21.



Chnpter 6

Modifying Intergovernmental Relationsin Water Resources Management:Whether, Why, and How

Several issues and trends with intergovernmen-tal implications forwaterresource managementwerenoted in Chapter 1. Among the improved techniquesthat have emerged in response to those issues andtrends are conjunctive management of surface andgroundwater supplies, and integrated managementof groundwater supply and quality Both of theseapproaches involve considerable coordination amongthe many actors in the complex water economy

There is evidence of a remarkable number of stateand local initiatives to improve water resource man-agement using a wide variety of organizationalforms. Federal activity has focused more on ground-water quality protection, but there are signs that alarger federal role in supply management is at leastunder consideration, and it has received SupremeCourt authorization. Despite the innovation occur-ring in the American federal system, there remainimportant institutional barriers to more effectivemanagement, several of which have an intergovern-mental dimension, and in the resolution of which allgovernments have roles to play.

APPLYING CONCEPTS AND L ESSONS LEARNED

This chapter attempts to bring together theunderstanding of trends and issues, and progress andinnovation in water resource management, the orga-nizing concept of a complex and regulated watereconomy, and the remaining institutional barriers toeffective management Suggestions (some in theform of pending legislation) for modifying intergov-ernmental roles and relations will be reviewed. Somemodifications in federal, state, and local practices toremove impediments to improved water resourcemanagement will be outlined.

Much of the literature discussingwater and othercommon-pool resources divides into two generalrecommendations for organizational and legal struc-ture~ centralized public authority or privatization.This report has recognized that water resources aremultifaceted, that conjunctive management of sur-face and groundwater supplies and integrated man-agement of groundwater supply and quality are verycomplex tasks, and that diversity of organizationalforms and jurisdictional responsibilities is part of theAmerican federal system and must be taken intoaccount The management of water resources is notorganized as a centralized public hierarchy or as aprivatized, competitive market Most successful con-junctive management situations exhibit complexmixes of noncentralized public activity and highlevels of involvement by users. This report, therefore,looks beyond simple organizational models.

The policy debate between advocates ofprivatization and of centralized public managementwill doubtless go on. However, much of that dispute isbeside the point from the perspective of those en-gaged coordination of water resource use. Indeed,framing problems and solutions in terms of thesediametrically opposite concepts may itself be abarrier to effective action. Restricting recommendedsolutions “to the intervention of external authority onthe one hand and privatization of property rights onthe other [ignores] the existence and potentials ofother solutions, including user-group or local com-munity management.“’

Furthermore, experience in conjunctive manage-ment makes it plain that neither complete centraliza-tion nor massive privatization is necessary for effi-cient or equitable water use. There is a body of legal,governmental, and economic experience indicatingthat, when empowered to do so, citizens have pro-


duced “remarkably creative achievements” in adapt-ing a diversity of institutional forms to the demandsof coordinating the use of water resources.2

Experience from groundwater and other com-mon-pool resource cases “illustrates a remarkableability on the part of nonseparably related decisionmakers to develop rules to mutual benefit”3 Whengroups of resource users and decisionmakers exhibitthe ability to shape rules that produce mutuallybeneficial resolutions to resource dilemmas,

the devolution of authority and responsibil-ity to make rules to such groups is a valuablepolicy aim. For nonseparable decisions, nei-ther the individual nor the nation is the ap-propriate decision maker. . . . The two ex-tremes that characterize the usual models ofeconomic policy- individual and central deci-sion making- are equally inappropriate!

Conjunctive management presupposes a consid-erable degree of activity and information but notnecessarily any particular structure. It leaves avail-able the possibilities of coordinating the actions ofmultiple individual water users; associations of waterusers; water supply providers and producers; thosestoring and recapturing water; and agencies control-ling extractions and water levels, and determiningstorage and pumping rights. In other words,conjunc-tive management leaves open the possibility of a“complex and regulated water economy” composedof many organizations.

The American federal system likewise does notpresuppose that the considerable division of respon-sibilities and coordination of action will assume anyparticular structural or organizational form. Thus, theAmerican federal system also leaves open the possi-bility of a “complex and regulated water economy”composed of multiple participant organizations.

The question remains whether the division ofresponsibilities and the coordination of activity in-volved in a complex and regulated water economyrepresents anything more than “satisficing,” a ratio-nalization for falling short of some better form oforganization. Strong arguments have been made forcentralized public authority or privatization in watersupply management, but there are stronger argu-ments for a system of noncentralized arrangementsinvolving public and private entities in the coordina-tion of the conjunctive use of groundwater andsurface water supplies.

The Concept of Scale, the Tasks of ConjunctiveManagement, and Multiple Jurisdictions

Noncentralized public and private arrange-ments may be preferable for conjunctive manage-ment of water resources in a complex and regulated

water economy. Ira Clark of the University of NewMexico wrote recently

Effective administration is dependent on theexistence of specialized institutions tailored tomanage water for specific purposes This in-volves mating state agencies to handle prob-lems of a general nature, clothing political sub-divisions with power to act on pertinent watermatters within their jurisdiction, providing forthe formation of quasi-public entities to man-age local projects, and authorizing action byprivate water companies. Congress has alsohad to mate a wide variety of administrativeagencies relating directly or indirectly to themanagement of water insofar as there is a fed-eral responsibility.5

As Susan C. Nunn concluded, given the diversity ofvalues and interests involved in groundwater devel-opment and management, and the particularly diffi-cult problems of distributing benefits and costs acrossvarious communities of interest, an “institutionallyrich environment” with “institutions that relatedecisionmakers in ways that generate necessaryinformatiorP about effects, preferences, benefits,and costs, is more useful over the long term than theimplementation and enforcement of a particular ruleon a given community at a given moment

The Scale of Decisionmaking and the Involvementof Diverse Communities of Interest. In the discus-sion of the water economy, Chapters 3 and 4 drew onthe distinction between provision and production.There is no a priori reason to believe that organiza-tional integration of provision and production isconsistently more efficient than arrangementswhereby providers obtain services and commoditiesfrom producers. Interorganizational arrangementsmay involve higher transaction and coordinationcosts than organizational integration but reap greatergains from functional specialization, division of label;and appropriateness of scale The r&&ive balance ofthese benefits and costs cannot be predetermined byanalysis acmss the full set of possible cases

Consideration of intergovernmental responsibil-ity for conjunctive management of groundwatersupplies does raise some key issues. One of thoseissues is the importance and effects of jurisdictionalboundaries on decisionmaking processes, as theyrelate to the scale of immediate involvement ofcitizens and officials. Finding an appropriate scale ofdecisionmaking is challenging. Inefficiencies andinequities result from processes that are underinclu-sive or overinclusive. Underinclusive boundariesexclude persons from decisionmaking processes theresults of which affect them. Information about thepreferences of the excluded persons is not incorpo-rated into decisions,’ reducing efficiency and equity.


Public decisions about resource management madeon an inappropriately restrictive scale may imposeadversities on the excluded group or result in system-atic underinvestment in beneficial activities.

Overinclusive jurisdictional boundaries includepersons in decisionmaking who are not affected bythe outcome. This brings their preferences to bear oncollective choices, and this, too, can produce less thanoptimal results. For instance, those who are likely tobenefit from a particular resource management activityand who can spread the costs to nonbeneficiaries haveincentives to pursue overinvestment in that activity

Appropriate scales of decisionmaking wouldachieve as close a match as possible between thosebenefiting from resource management and thosebearing the costs. Rules arrived at, adopted by, andapplied to those whose well-being is affected are“built on a better information base than if they areimposed from outside, or if unaffected parties influ-ence the decision.“8 Generally, “it appears that there isan advantage in a rulemakingapproach in which thecommunity that will be governed by the rule is thesource of the collective decision that creates the rule.“9With particular reference to water supply operations,appropriate boundaries are likely to yield moreefficient pricing and full cost recovery, economies ofscale, and the uniting of alternative sources of~upply.‘~ Compliance and consent are also morelikely in communities where those affected by thedecisions have been part of the process.”

Of course, these general considerations haveassumed that there are two clearly defined sets ofpeople-those “affected” and those “not affected” byresource management decisions. In actual settings,there will be persons who are more directly affected,indirectly affected, or unaffected. Moreover, as dis-cussed below in defining communities of interest,understandings may change over time as to who isaffected and to what degree by decisions aboutgroundwater management

While this may appear to introduce an inordi-nate amount of complexity into the process, all of theconsiderations argue against uniting water resourcemanagement decisionmaking in a single collectivearena. When groundwater and surface water re-sources are used and managed together, and whenquality protection decisions are related to supplydecisions, there are likely to be multiple communitiesof interest of varying sizes involved. The existence ofand the capacity to create multiple jurisdictions provideopportunities that would otherwise not exist for publicdecisions to be taken at various appropriate scales thatrelate to differing communities of interest This repre-sents a considerable advantage of a federal system inundertaking conjunctive management and/or inte-grated management of water resources

Not only multiple jurisdictions, but nested juris-dictions, are valuable to decisionmaking about themanagement of a multiattribute resource with differ-ing communities of interest Jurisdictions that encom-pass those most directly affected by a groundwaterbasin, for example (overlying residents who produceand consume water supplies directly from under-ground), are often nested within broader jurisdictionsthat include other users of water from nearby orrelated sources (who are affected indirectly by deci-sions taken within the smaller jurisdiction and, ifadversely affected, may exercise recourse). In a feder-al system, citizens can create and alter jurisdictions fortaking collective decisions and representing theirinterests, as illustrated in Chapter 3.

Defining Diverse Communities of Interest as anEmergent Process. Thus far, the discussion hasproceeded as though “the community” (users, benefi-ciaries, taxpayers) was known and specified. This isan easy (and often a useful) assumption to makewhile investigating the importance of other concepts.What starts out as an assumption, though, can turninto a prescription. Assuming that there is “a well-defined group that should be involved in rulemakingover a nonseparable decision” can become a state-ment that “all and only the nonseparably relateddecision makers are needed for a rule that exploits thefull potential for improvement.“r2

If the definition of the relevant “community ofinterest” (those whose interests with respect to agiven activity or issue are sufficiently consonant to beseen as “common”) is conceived as an act that takesplace once and for all, it presupposes a level ofknowledge of present and future preferences andactions that is likely beyond the ken of any analyst orpolicymakec The definition of communities of inter-est with respect to a groundwater supply (or any othervalued item) is more usefully conceived as a process.

In some cases, interests may exist but initiallymay not be perceived and included in decisionmak-ing. In other cases, interests may emerge over time,perhaps even as a reaction to resource uses andmanagement decisions taken in the pastJ3 In eithercase, as new (or newly perceived) interests becomeapparent, they must be included in some way orlosses will be incurred in efficiency, equity, com-pliance, and adaptability

The emergence of communities of interest cantake time. People may not be aware of how they areaffected by or involved in the use or management of agroundwater resource. Groundwater basins can ex-tend under significant land areas, and the geohydrologic conditions of the same aquifer can differmarkedly from one location to another Therefore,effects of activities may not be spread evenly across all


users of a gmundwater supply: “seldom does a negativeeffect on an aquifer system touch all users equally at thesame time. These effects are progressive.“14

Even within the same aquifer, interests, benefits,and costs may not be evenly distributed. Sometimesan aquifer is great in extent and variable in itsphysical characteristics, as is the case with the OgallalaAquifer underlying the high plains. This aquifer

is not like a giant bathtub.. . it is more like anenormous egg carton, deep in some areasand shallow in others.. . . While the aquifer asa whole was probably being exploited at anuneconomically rapid rate, the costs of thattoo-rapid exploitation did not fall evenly onthe just and the unjust alike.. . . That is to saythe user cost was unevenly distributed acrossthe farms of the high plains. l5

These users are not similarly situated, and artifi-cially defining all of them as having a single andshared set of interests because they derive their waterfrom the “same” source may not make as much senseas allowing them to define their different interestsand providing institutional means for accommodat-ing conflicts. High-plains aquifer users may notconstitute “a community of interest,” despite theircommon water source. A combination of districtrepresentation and administration with the develop-ment of an overlapping capacity for effecting regu-lated water transfers could allow water-poor farmers“to make the water-rich farmers an offer they couldn’trefuse, even after accounting for the costs of trans-porting the water?

Muitiple and conflicting communities of interestcan thus coincide with respect to the use of the samewater resources. “As the nation’s waters have beenmore and more dedicated to specific uses, the poten-tial for escalation in conflicts among environmental-ists, ranchers, irrigators, well users, energy firms,cities, and industries has grown.n17 A centralizedadministration system drives all of the conflictsbetween these interests into the decision processes ofan agency, making agency employees responsible forresolving conflicts and designing the trade-offs be-tween desired uses18 Complete privatization requiresthat each interest with claims on resources seek toout-bid theothers, thus skewing the outcomes in favorof those with disposable assets to devote to thebidding war Regulated transferability under rationalpricing may allow for the movement of waterresources among uses without the excessive presump-tions that accompany the privatization literature,name-ly complete and perfect information and complete andperfect independence of decisionmaking.

“Functional Fragmentation” as Functional Special-ization. Multiple jurisdictions can enhance special-ization as well as representation in decisionmaking

about groundwater supply management There areefficiency advantages deriving from close informa-tion about groundwater and knowledge of the activi-ties that comprise conjunctive management Specificknowledge about the resource is an important aid toeffective conjunctive management, which calls for alevel of “artful administration” that is responsive to thephysical characteristics of the groundwater basin, to theparticular use patterns, and to the institutional, social,and political characteristics of the user communityJg

The range of particular characteristics to be under-stood for effective management of any groundwaterresource is indicated by the following observation:

Gmundwater management demands anunderstanding of the geologic history andstructure of the basin, and of its water carryingand water storage characteristics It demandsan understanding of the hydrologic regimeunder average and extreme conditions of wa-ter supply and the effects of artificial rechargeupon that regime. Groundwater managementdemands sufficiently detailed data and meth-ods to support saline water barriers, artificialrecharge, and protection from polluti~n.~

This would not be an especially demandingtask,nor would this issue relate to the proper scale oforganization of conjunctive management, if allgroundwater basins were alike. However, each basinhas somewhat different characteristics, with varia-tions in the effects of recharge and of overdrafting, thelikelihood of quality degradation resulting fromfluctuations in water levels,climate, drainage charac-teristics, overlying use patterns, irrigation practices,and soil permeability?

There is more to this than merely observing thatno two groundwater basins are alike. Take only one ofthe elements of conjunctive management listed inChapter 3 -the control of overdraft The variability inphysical characteristics of groundwater basins asreservoirs is extremely significant for controllingoverdraft In a shallow aquifer along a coastline andin hydrologic contact with the ocean, any overdraft-ing of the groundwater may result in salt waterintrusion that degrades the quality of the watersupply and renders it essentially useless. In a karstaquifer underlying a sandy soil surface, overdraftingbeyond a certain point could result in sudden landsubsidence, such as sinkholes. In an alluvial basin notin contact with a salt water or other low-qualitysupply,overdraftingcouldcontinueforyearswithoutany harmful effects other than increased pumpinglifts The prospects for controlling overdraft to createstorage space for the retention of surface water flowsas part of a conjunctive management program wouldbe markedly different in these three types of cases

How, then, would one construct a rule for thecontrol of overdraft that would extend across basins?A rule that prohibited overdrafting and required


safe-yield operations would result in inefficient useof two of the three types of basins described above. Arule that required overdrafting could inflict seriouseconomic losses in two of the three basins describedabove. The only rule that fits all three situations is a rulestating,“owdnkwl;\err ?zid to the c!Y?eAt a basin iscapable of being overdrafted; otherwise, do not over-draft” This is essentially the same as no rule at aR

Rules for controlling overdraft,as for implement-ing recharge, regulating storage capacity and waterin storage, and protecting water quality from degra-dation as a result of management practices, must beformulated in accord with the specific character&-sof each groundwater reservoir. Overlying use pat-terns, which result from the interaction of economic,political, and historical characteristics, affect thesedecisions and need tobe taken into account, as welt. Insum, the information requirements of conjunctivemanagement of groundwater supplies are intensiveand highly particular.

Furthermore, this analysis, which applies to theconditions prevailing in a particular basin at aparticular time, applies equally strongly (if not morestrongly) to changes in those conditions. Closeknowl-edge of changes in the physical characteristics of agroundwater reservoir and in the overlying usepatterns is essential to adapting and maintaining theeffectiveness of any program for coordinated use ofwater resources.22

The advantages of specific knowledge do notrelate only to water resources and their associatedcommunities. Efficiency also can result from func-tional specialization that unites differentiation withspecific knowledge and experience. When decision-making for a variety of functions is combined,different activities compete for attention and re-sources within the organization. Gaining maximumadvantage from specialized experience also cannotbe assured. Optimal decisions for each activity can nomore be assured by an integrated organization thanby coordination among several organizations. Withpublic jurisdictions especially, “the endemic condi-tion which results from co-mingled (sic) deci-sion-making is one of ‘public choice failure’.“23

Water supply and wastewater treatment func-tions, for example, have often been divided andperformed by different entities. This differentiationhas been criticized by some observers who havesuggested that the organizations should be combinedin order to promote “efficiency” However, efficiencyalso may be promoted by the execution of thesefunctions by separate and specialized entities As arecent study of water supply concluded, “there is littleevidence to support the assertion that U.S. systems inwhich the water and wastewater functions m? COm-bined are more efficient than those that are not.“%

Knowledge specific to efficient conjunctiveman-agement may be attained through functional differ-entiation. What appears at one level of analysis to be“fragmentation” standing in the way of efficiencymay at another level appear as “specialization” thatenkances efficiency. 0tcause of the impcsitanc~ ofspecific knowledge and the value of functionalspecialization, it has been contended that “[e]ffe&veadministration is dependent on the existence ofspecialized institutions tailored to manage water forspecific p~rposes.“~

Discussions of the appropriate scale of decision-making, representation and definition of communi-ties of interest, and the advantages of specializedknowledge and functional differentiation may notmake it clear whether groundwater management is anational, state, or local responsibility In fact, attrib-utes of groundwater systems are of concern to allgovernments.26 Developing groundwater manage-ment information systems, implementing conjunc-tive use programs, adjusting programs to changingconditions, and coordinating these activities withinthe intergovernmental system all have differentappropriate scales, with roles for all jurisdictions inthe federal system. This response may be disappoint-ing to those who prefer the simple artswets offered bythe Supreme Court and others, who apparently havehad no difficulty deciding “whose problem” and“whose responsibility” groundwater management is.

A priori definitions of the appropriate manage-ment jurisdictions activities are unneeded, and pmb-ably impossible to find and defend successfully Coordi-nating the conflicting demands on a limited but highlyvariable resource in a federal system is not easy, and“the solution does not lie in an uncompromising grantto either the State or the federal governmerV2’

A reasonable statement of the multijurisdictionalarrangements that optimize the use and manage-ment of water supplies is:

a) Decisions that depend strongly on closeknowledge of the water resource and its us-ers -such as allocations of water productionand storage, and pricing - can best be madeby local specialist organizations (public andprivate) that are as nearly matched as practi-cable to the communities of interest

b) Rules for the establishment and authority ofmanagement organizations, and for the ac-quisition and transferability of productionand storage tights, can best be developed bythe states in response to their individual situ-ations, thereby retaining and encouraginginnovation and diversity

c) Support for the information requirements-in particular, basic hydrologic research, wa-


ter resource inventories, technical assistance,and the exchange of information about wa-ter resources and management practices-would best be performed cooperatively bythe states and the national government

This description, in turn, relates to the roles of thesegovernments in overcoming the institutional barriersthat remain to improved management of waterresources:

a ) Local organizations should have primary re-sponsibility for implementing water pricingpractices that more accurately signal users asto the value of the resource, without spread-ing water supply development and opera-tion costs to larger jurisdictions.

b ) States have primary responsibility for modi-fying their water rights laws and forempow-ering public organizations to conduct con-junctive management of surface andgroundwater supplies where conjunctivemanagement is practical and indicated.

c) The states and the federal government haveprimary responsibility for overcoming re-maining information barriers to the im-provement of management practices

Protection of Groundwater Quality:A Different Set of Roles and Relationships?

In Chapter 1, the distinction was drawn betweenthe conjunctive management of water supplies andthe integrated management of water quality andquantity. The management of groundwater andsurface water supply may or may not be coordinated,although the two often arerelated physically. Similar-ly, the protection of groundwater quality may or maynot be coordinated with the management of ground-water supplies, although the two also are relatedphysically

As was also stated in Chapter 1, this report doesnot contain a review of local, state, and nationalgroundwater quality protection programs. Readersinterested in further pursuing the question of inter-governmental roles and relations in the protection ofgroundwater quality are referred to the 1986 report ofthe Environmental and Energy Study Institute, ACongressional Apda for Pmenfing Groundwater Con-tamhafion: Building Capcity to Meet Protection Needs;the 1986 report of the National Research Council’sCommittee on Ground Water Quality Protection,Ground Water Qual i fy Protectiox Stateaml Local Stmte-gies; the 1986 report of the National GroundwaterPolicy Forum, Grourdwater: Savitzg the Unseen Re-source, and the 1989 report of The Urban Institute,State Mmagement of Groum-lwnfer: Assessment of Prac-tices and Progress.

Nevertheless, the management of groundwatersupplies necessarily includes a concern for protectingquality The adage “quality is quantity” is oftenrepeated by water managers. With respect to ground-water, a 1975 bulletin of the California Department ofWater Resources expressed that relationship explicit-ly: “A basin that may be expected to be used forthousands of years can become unusable, perhapspermanently, within only a few years by deliberate oraccidental pollution.“B The seriousness of groundwa-ter contamination has multiple dimensions and isdifficult to overstate. Use of groundwater contami-nated by toxic, carcinogenic, or mutagenic materialscan result in adverse health effectsz9 Groundwatercontamination can be deadly That is just one dimen-sion of the seriousness of groundwater contamina-tion, albeit the most acute one.

Even where public health may not be acutelyendangered, the loss of a groundwater basin hasserious economic consequences. Where local ground-water has been contaminated, suppliers may have todevelop new sources,% any one of which is likely to bemore expensive and less reliable. Costs of cleaning upthe local groundwater supply and restoring it tousable quality are likely to be as great or greater3iFurthermore, contamination threatens theusefulnessof a groundwater basin as a storage reservoir, withserious consequences for conjunctive management

While it is not difficult to conceive of the seriousness of groundwater contamination, it is difficult toknow its extent The Committee on Ground WaterQuality Protection of the National Research Councilfound “no adequate data available on a national oreven regional scale to estimate the extent of groundwater contamination and the impactsof thiscontami-nation.“% Most authorities seem to agree that theextent of groundwater contamination nationwideremains relatively sma11?3 A 1988 report of the U.S.General Accounting Office noted that “groundwaterquality in 91.8 percent of the locations we studiedsurpassed drinking water standards for all substancesmeasured. That is a positive result”34

Nevertheless, reports from various sources indi-cate that problems are sufficiently widespread andserious to be of concern. Thus far, more than 225harmful and potentially harmful chemical, biologi-cal, and radiological substances have been found ingroundwater supplies.35 Half of the states havediscovered pesticides in groundwatet? As of 1987,more than 2m community supply wells in 34 stateswere closed due to contamination. And the possibilitiesfor future contamination incidents are substantial:“There are 90,000 landfills and between 1.5 million and25 million underground storage tanks in this country;an estimated 20 to 30 percent of them are leaking.“37

What renders this patchwork of figures of greaterconcern is that areas of contaminated groundwater


generally coincide with areas of greater populationconcentration.B Reported contamination is most ex-tensive in the Northeast,3g but there have been casesnationwide that have caused supply shortagesa A1988 book reviewing state water policies concluded,“It is becoming abundantly evident that degradationof ground water is a major problem, especially inspecific localities.“41

Because of these important intersections be-tween quality and water resource management gen-erally, this section contains a discussion of somepatterns in governmental roles and relationships ingroundwater quality protection, which have beendifferent from those in supply management

States and local communities have demonstratedconsiderable initiative in devising and implementinggroundwater quality protection and supply manage-ment programs, but the federal government has amore extensive role in the protection of groundwaterquality. As observed by the authors of a 1985 book onwater management, “The trend in water qudityrnnrzngerrzent in the United States has been towardcentralization and the imposition of uniform rules,“”which can be seen as more appropriate than theywould be in the management of groundwater sup-plies. The reasons for the differences may be groupedinto three categories: (1) the usefulness of uniformstandards; (2) the significant needs for technical andscientific information; and (3) the challenges faced bysmall water systems in meeting quality standards

Water quality protection involves assessing risksto human health for varying levels of contaminantsand establishing maximum levels. Some states andcommunities have developed standards or guide-lines to ensure safe water, but it is duplicative andinefficient for them to do sop3 (Presumably, the healthrisks from a given level of contaminant are the samein Florida or Alaska.)

The establishment of maximum contaminantlevels by the federal government “is an efficientintervention because the information requirementsnecessary to assess subtle health risks in sufficientdepth to evaluate alternative levels of protection areenormous.w4 Although a few states have devotedsubstantial resources to health research and sophisti-cated standard-setting procedures, as a general mat-ter, “the states do not usually conduct their ownresearch to develop information on toxicology or onthe risks of groundwater contaminants to health.They rely instead on information from the federalgovernment”& Some of that information has beenforthcoming, but “much of the basic scientific knowl-edge needed to develop policy does not yet exist.“%The appropriate scale for such research and develop-ment is nationaL

The National Research Council’s Committee onGround Water Quality Protection concluded in its

1986 report that research to develop the knowledgebase for effective groundwater quality protectionremains to be done. The committee observed:

More scientific and technical informationis needed concerning the extent of ground wa-ter contamination, its effects on health, the en-vironment, society and the economy and strat-egies and technologies to prevent it Also, moreinformation is needed on the effectiveness ofvarious protection pmgrams There is a needfor understanding pmcesses, including thosein the unsaturated zone.47

The development of the information base concern-ing groundwater contamination supports federal, state,and local regulatory efforts and the use of the courtsystem to protect groundwater quality Many individu-als harmed by contamination have sought remediesthrough liability litigation, but securing evidence hasbeen a principal obstacle to their success&

Federal and state efforts to improve the dataavailable could assist parties in liability cases againstpolluters and help resolve competing claims con-cerning contamination incidents.49 Concern aboutpotential liability claims may complement regulatoryefforts aimed at prevention, making potential pollut-ers weigh their actions in light of the increased risk ofincurring some future penalty

Implementation and enforcement of protectionregulations raises another issue that distinguisheswater supply from quality protection. Proper imple-mentation of the Safe Drinking Water Arnemlmnts of1986 and the 1987 amendments to the Clean W&r-Actwill impose significant costs on local public watersupply systems, especially medium and small sys-tems.% The challenges faced by small systems inprotecting groundwater from a growing list of con-taminants, in monitoring quality on an ongoing basis,and in complying with federal and state regulatorystandards are daunting and are likely to grow. (Thosechallenges are referred to in the literature on gmundwa-ter quality protection as “the small system problem.“)

Small water systems do not present a problem asproviders per se; it is their capacity to perform therange of tasks associated with protecting quality thathas been drawn into question. The two principalobstacles are the lack of technically expert personneland lack of access to sufficient financial capital.5l Thisis true of smaI1 local systems even in economicallyprosperous regions. 52 “EPA officials have consistentlystated that small water systems deserve a higherpriority on the environmental agenda within theAgency, and that the small water system problem isthe greatest impediment to successful implementa-tion of the SDWA Amendments”53

Since the states are responsible for implementingthe drinking water amendments, the “small system


problem,” which is basically one of implementation,becomes a problem for state governments as well asEPA. States have a number of options One is to grantsome flexibility in compliance schedules to ease thefinancial burden on small systems, in exchange forfinancial reforms to address their chronic undercapi-talization problems.% Another option is state finan-cial assistance to help bring small systems intocompliance with the standards. Typically, such assis-tance is provided directly through grants and loans orindirectly by backing local attempts to gain access tofinancial capital with the credit of the state.5s Somestates have encouraged and facilitated mergers andtakeovers of undercapitalized small systems or regio-nalization schemes that could facilitate “pooling” ofpublic water supply system reso~rces.~

The combination of groundwater quality protec-tion tasks-development of standards or guidelinesfor maximum contaminant levels, development ofthe information base for regulatory and enforcementaction, and the compliance challenges faced bysmaller systems - produces a different set of intergov-ernmental roles and relationships than is appropriatefor managing water supplies and developing con-junctive management More of the decisionmaking,information gathering, and financing for water qual-ity protection, whether for groundwater or surfacewater, is of state and federal scope.

During the 198Os, other groups of public officials,water administrators, and policy analysts reachedsimilar conclusions about the appropriate state andfederal roles and relationships in groundwater quali-ty protection. A policy position adopted by theNational Governors’ Association in 1981 called not somuch for new laws and regulations as for greateremphasis on federal and state enforcement of exist-ing laws, with more federal research on contamina-tion sources and their associated health effects, andincreased state applications of the information andguidelines5’ The governors called for a “new environ-mental partnership” between the states and the federalgovernment in gnnmdwater quality protection

In 1983, the National Governors’ Associationjoined with the Conservation Foundation to developthe National Groundwater Policy Forum, chaired byformer Arizona Governor Bruce Babbitt The 17-member forum was composed of three governors,three chairmen of major corporations, the directors ofthree major environmental groups, other state officialsand a county executive, and groundwater mseaichersThe forum also endorsed the “new environmentalpartnership” concept Among the forum’s conclusionswas that groundwater protection would require highlevels of federal, state, and local coordination to “takeadvantage of the management capacities of differentunits of government as well as engage the activecooperation of the private sector and public interest

community”5B The forum also recommended that allstates enact groundwater quality protection legislationincorporating the following ten components:

1)

2)3)4)5)

6)

7)

8)

9)

Comprehensive aquifer mapping includingassociated recharge and discharge areas;Aquifer classification;Ambient groundwater standards;Source control authority;Monitoring, and data collection and analysispqvwEffective enforcement provisions;Surface use restrictions to protect groundwa-ter quality;Programs to control groundwater withdraw-als to protect groundwater quality;Coordination of groundwater and surfacewater management and

10) Coordination with other natural resourceprograms.

The forum recommended further that federal lawcondition future receipt of assistance by states ingroundwater remediation under the Superfund pro-gram on adoption of quality protection programscontaining these elements, with the first six requiredas “the essential core of a comprehensive program.”

The most thorough proposals, addressing thegoals, the implementation, and the appropriate fed-eral, state, and local roles and relations in groundwa-ter quality protection, are to be found in the 1986special report of the Environmental and EnergyStudy Institute, titled A Congressional Agerrda to PreventGroundwater Contamination: Building Capacity to MeetProtection Needs. A brief and necessarily incompletesummary of the Institute’s findings, conclusions, andrecommendations follows:

1)

2)

3)

4)

A massive, new federal groundwater pro-gram along the lines of the Clean Air andClean Water programs of the 1970s is notneeded, probably could not be crafted, andwould not workThe local nature of the groundwater re-source, and of contamination problems,must be recognized, respected, and takeninto account, as should be the historical pri-macy of the states in the management andprotection of groundwater resourcesA restrained, phased, and nontraditional re-sponse is called for, stressing federal leader-ship, not regulation; real state flexibility, notrhetoric; and state and local decisions, notdeferrals.The proper federal role involves the estab-lishment of a national goal of contamination


prevention, financial and technical supportto the states for the development of their ownprograms, leaving the states the real flexibil-ity and authority to do so, assisting state and lo-cal decisionmakers with the information thatcould improve decisions, and getting the feder-al government’s own house in order throughmore effective and coordinated implementa-tion of existing authority and thmugh changesin other activities to bring them intO line withthe national prevention goal.

5) The federal information gathering and tech-nical assistance program should have a des-ignated lead agency (U.S. Geological Sur-vey), and should include a groundwaterinformation clearinghouse for federal, state,local, and private decisionmakers and con-cerned citizens; the emphasis of federal re-search efforts and funding on remediationand cleanup of contaminated sites should besupplanted by research and demonstrationefforts directed toward prevention,

6) States should pursue the possibility of develop-ing protection goals stronger than the federalgoal; states should be free to consider naturalgroundwater quality vulnerability of variousaquifers to contamination, and uses of aqui-fers, but aquifer classification systems shouldnot be mandated; state quality protection pm-grams should be encouraged through devel-opment and implementation grants, ratherthan mandated with threats of funding losses,in order to encourage rather than disrupt theextensive state initiatives

7) Local governments would bring the preven-tion of groundwater contamination to a prior-ity status in making local land use decisions, inorder to ensure that contamination sources an2kept away from recharge areas; planning andzoning of land uses are among the most effec-tive tools for the prevention of groundwatercontamination, and those tools are for the mostpart in the hands of local officials

8) The private sector should be encouraged todevelop and deploy protective technologiesandpractices,especiallywith regard towastedisposal and agricultural chemicals.

A similar position on appropriate intergovern-mental roles and relationships in groundwater quali-ty protection was adopted by the Association of Stateand Interstate Water Pollution Control Administratorsin 1983 and was revised in 1987. The agenda calls for anational goal of protecting human health and theenvironment by preventing and mitigating ground-water pollution wherever possible; a federal role of

supporting research and development and providingtechnical assistance; a state role of developing andimplementing groundwater protection programs,and coordinatingorintegratinggroundwaterquanti-ty management with groundwater quality protec-tion; and a local role in making responsible land usedecisions that protect groundwater supplies fromfurther degradation.

Addressing the Issue of Nondegradation. An ob-vious issue that arises in connection with waterquality protection standards is where to set them. Aless obvious but equally crucial related issue is theunderlying criterion for quality protection. The issuehas come down to the following basic question:should a nondegradation policy be adopted forgroundwater supplies?

A U.S. General Accounting Office report issuedin 1988 observed that nearly all of the states that setnumeric groundwater standards simply adopted EPAmaximum contaminant levels for drinking watecHowever,because so much of the nation’s groundwa-ter is so pure, adoption of EPKs levels “would allowthe potential for degradation of a considerableamount of groundwater (to the level of contamina-tion allowed by drinking water standards). That is,contaminant levels might gradually increase to aboutthat allowed by the standards”59 This poses a poten-tial problem in areas where groundwater contributesto a surface water supply that supports sensitivespecies of aquatic life, the survival of which might bejeopardized by levels of contaminants deemed safefor human use and consumption. The drinkingwaterstandards tend not to be as stringent as EPA andNational Academy of Sciences guidelines for theprotection of aquatic life. Furthermore, EPA maxi-mum levels have not yet been established for allidentified groundwater contaminants.

Some environmental advocacy groups, such asthe National Wildlife Federation,@ have endorsed theconcept of nondegradation as the proper goal forgmundwater quality protection. They point out that theproper purpose of federal and state policy should be theprotection of the resource, not the protection of certain“uses” of the nzsource, which change over time.

Accordingly, a bill introduced by Sen. Dave Duren-berger of Minnesota would requk states to adoptnondegmdation standards for all gmundwater re-sources On the other hand, other environmentaladvocacy groups, such as the Conservation Foundation,recommend that states adopt aquifer classificationschemes EPA’s groundwater protection strategy,adopted in 1984, included guidelines for the classifi-cation of groundwater, with different levels of protec-tion for each of three classes.6l Class I is a strictnondegradation category for irreplaceable drinkingwater sources and for aquifers connected with sensi-tive and ecologically essential life. Class II includes


current and potential sources of drinking water, andwaters having other beneficial uses. Class III ground-water is nondrinkable in its existing poor-qualitystate, and is isolated from Class I or II aquifers.

Groundwater protection does not exist in avacuum, but in a policymaking context that includesordinary uses and waste disposal needs. Almosteveryuse of water results in some change in its character,and some form of biological, chemical, or thermaldeterioration. An advocate of a “limited degradation”approach observed, “Pristine purity in developedareas probably cannot be maintained. The objective isto keep deterioration within acceptable limits.“@

In contemplating the desirability of a nondegra-dation standard in light of the need for waste disposalsites, an important question is whether it is consistentwith proper groundwater management to allowsome aquifers to experience additional degradationin quality. There also are two subsidiary, and ratherdifferent, questions. The first is whether it is accept-able to dedicate areas containing unusable ground-water to waste disposal, thereby causing the furtherdeterioration of those supplies. The second questionis whether it is acceptable to dedicate areas contain-ing usable groundwater to waste disposal that wouldrender those groundwater supplies unusable.63 Aqui-fer classification schemes can be designed to allowthese questions to be answered affirmatively, or toallow an affirmative answer to the first and anegative answer to the second.

Resolving the issue of nondegradation versuslimited degradation on a national scale presumes thatit is possible to be certain that one approach ispreferable. The information required to make such ajudgment is not available, but state groundwaterquality protection programs will add to the store ofknowledge and experience on this question. Mandat-ing either nondegradation or aquifer classificationacross the states forecloses avenues for innovation.

The Environmental and Energy Study Instituteconcluded in its 1986 report that there was noconsensus on the issue of nondegradation versus useprotection goals, that each perspective “has distinctadvantages, and distinct disadvantages,” that each“would be expensive and difficult to implement,” andthat the debate “over these divergent managementphilosophies is likely to be long and divisive.“@ Theinstitute’s recommendation was a national goal ofpreventing groundwater contamination “to the max-imum extent possible.” Another possible resolutionwas offered by the National Groundwater PolicyForum, which supported a sort of compromise goal“to protect the physical, chemical, and biologicalintegrity of the nation’s groundwater resources andensure that they are not degraded in any way thatmay be harmful to humans or the environment”

States have been experimenting with aquiferclassification and protection limits For example,Wisconsin’s 1984 groundwater protection law established a uniform protection standard rather than anaquifer classification system or a nondegradationstandard. Then Governor Anthony Earl commented,“We don’t use all of our aquifers for drinking water atthis time, but we see no mason to write any of them offby giving some of them a different or lesser level ofprotecti~n.“~ The law provides for two levels of qualitystandards, a lower “preventive action limit” for eachcontaminant to trigger remedial action, and a higher“enforcement limit” to protect public health, based onfederal drinking water standards, where available.

While the Wisconsin law provides uniform stan-dards for all aquifers, those are not nondegradationstandards. In Governor Earl’s words, “Though wewould like to adopt absolute nondegradation, wethink that is an ideal not achievable or measurable.. . .It seemed to us, to be as practical as we could, thatsome degradation will take place and our effortsought to be aimed at minimizing it or eliminating it tothe extent possible.“”

Wisconsin‘s response to groundwater contami-nation is one example of a fundamental shift that hasoccurred in the states on issues of environmentalprotection. The dairy industry and the brewingindustry, which are dominant contributors to theWisconsin economy, both rely on supplies of cleangroundwater and also contribute to contaminationproblems. These industries, along with concernedcitizens, legislators, state agencies, and the governor,participated in the development of the law. A newIowa groundwater protection law toughens regula-tions and raises fees on the use of pesticides by thefarm sector, which is the dominant sector of the state’seconomy and politics. In New York, the members ofthe Long Island Association, the major businessassociation on the Island, ranked water quality astheir number one concern in locating and operating abusiness there, even ahead of energy costs and solidwaste disposal. These and other examples fromaround the country suggest that old assumptions thatstate and local officials would sacrifice environmen-tal quality and their citizens’ health for the sake ofappeasing the dominant sectors of their economies,or attracting businesses to their states and communi-ties, are simply no longer borne out by evidence, atleast with respect to water quality

Summary: The Limits of “Quality is Quanti&” Likemost cliches, “quality is quantity” remains in usebecause at one level it is unarguably true. Yet, that oldadage is of little use in telling us whether it isnecessary or desirable to organize groundwater qual-ity protection and supply management together,


whether to unite the legislation and regulations thataffect both, how to go about acquiring theknowledgeneeded for sound decisions, and how to connect theinformation and decisions about groundwater to sur-face waters The management of groundwater suppliesin a well functioning federal system increases citizens’opportunities for addressing those issues in variouscombinations and learning and adjusting.

There is no reason to limit-and good reason notto limit-the variety of organizational approachescitizens and public officials may devise. Some statesand communities have integrated groundwater sup-ply management and quality protection, while othershave kept the functions separate and still others havepursued regional cooperation for quality protectionwhile organizing supply management principallyon a community scale.

State and local approaches to quality protectionalso have varied. Wellhead protection programs,landuse restrictions, conditions on the transfer of realestate, and a host of other methods have been part ofthe arsenal of state and local assaults on groundwaterdegradation. This is consistent with the conclusion ofthe National Research Council’s Committee onGround Water Quality Protection:

It is apparent that ground water issuesand conditionsvary from state tostate and re-flect differences in the states’ physical,social,and political makeup. As a result, no singlestrategy for dealing with ground water pol-lution problems can be recommended for allstatesorareas.Eachstateorlocalstrategywillnecessarily reflect the local situation.67

Remedies for groundwater contamination alsovary. Some contamination problems have had seri-ous local impacts but also “exhibit a high degree ofsite-specific characteristics and have required theapplication of highly nonuniform remedial strate-gies.“@ In a federal system, this variety in the ap-proach to specific problems is intrinsically desirable,to be valued in and of itself; it is, indeed, one of theprincipal reasons for having a federal system.

Two other important elements in fightinggroundwater contamination are the development ofinformation about quality and contamination, andthe use of basic and applied research into riskassessment and health effects to develop guidelinesfor specific contaminant levels. The appropriate scalefor these two functions is national, and the federalgovernment should maintain its leadership in re-search and the setting of waterquality and guidelines,in the interest of health.

Much remains to be done. As the list of contami-n~~~d~~~ve~~~g~u~~wafer suppfies increases,so does the task for the Environmental ProtectionAgency. There are several known contaminants for

which assessments have not been completed and forwhich maximum levels have not been published. Aswe have learned more about groundwater contamina-tion, the list of contaminants about which citizens andpublic officials are concerned has seemed to expandmane rapidly than the research and guideline pmcess

Lack of knowledge, and of knowledge dissemi-nation, plagues groundwater quality protection justas it does supply management, although the needsare not identical. Quality protection raises suchquestions as: How do contaminants move throughgroundwater? How can contamination be pre-vented? How serious is the contamination, and whatare its impacts? How has regulation fared thus far?Local, state, and federal gnnmdwater protection activi-ties have unfolded in the midst of these uncertainties,and been shaped by them.

In such uncertain circumstances, policyformulation has been groping towards a bal-ance between strict @ation and environ-mental degradation. Lessons learned from ear-lier enthusiastic attempts to regulate air andsurface water have prompted a more cautiousapproach.. . . Considering the uncertainty asso-ciated with current unde&anding of gnnmd-wateq its protection, and its conservation, thiswould seem an appropriate approach to take.Such an approach could, however, degenerateinto aimless policy making often working at-purp=@

It is vital that federal officials not allow researchand standard setting to degenerate. It is equally vitalthat states and localities, regardless of whether theycombine quality protection and supply managementinto a single piece of legislation or a single adminis-trative agency, maintain coordination and not allowprogram development and implementation pmcessesto degenerate. In fact, when the policy mponse of thefederal government is to tell states and local govern-ments what to do and have them implement and payfor it, the quality of gmundwater protection programswill depend as much or mow on the states and localcommunities as on the federal governmentTO

Keeping policymaking from degenerating intoaimlessness and working at cross purposes is ex-tremely difficult when citizens and public officialsare not entirely sure of what is going on; informationand coordination costs are high. Nevertheless, thestakes for public health are even higher, and ascitizens and public officials realize, the continuationof successful experimentation and innovation ingroundwater management depends on protectingtheirgualip “Qual~jsq~an~~”

hey must be mm3 by the sane statute or be theresponsibility of the same administrative unit (al-though these are options). It does mean that there is a


contingent relationship between the two, and failureto protect quality injures the complex water economythat provides and produces water supplies.

ENDING SUBSIDIES, INCREASING INFORMATION,AND SUPPORTING QUALITY PROTECTION:

WHAT THE F EDERAL GO V E R N M E N T CA N DoWe have reviewed the historical and current role

of the federal government in water supply andquality protection, and some of the institutionalbarriers to more effective water resource manage-ment, including some in which the federal govern-ment is involved. In this section, we review somesuggestions for the federal role in improving waterresource management

Supporting Certainty in Water Rights and StateAuthority. Certainty in rights is a component of im-proved water resource management that has beenendorsed for decades The federal government has arole to play in eliminating uncertainty about federalreserved rights, about state authority to establish andenforce rights, and about the prospect of direct federalmanagement of groundwater supplies under the Com-merce Clause authority granted in Sporlme v. Nebraska.

The existence of unquantified federal reservedwater rights compounds planning and managementdifficulties facing states, local governments, andwater users. “In some instances, Federal officialsrefused to disclose their existing uses of water andwere also claiming reserved rights to future uses ofwater In any amount necessary to serve the purposesof withdrawn Federal lands.“?l

Initially, sovereign immunity appeared to bar theuse of the courts by the states to obtain judicialdefinitions of rights. The sovereign immunity of theUnited States in suits involving water rights waswaived, however,under the provisions of theMcCar-ran Amendment to the Justice Approptiafion Acf in1952. After the Arizona v. California and Cappaerf v.hifed Sfafes decisions revealed the full scope offederal reserved water rights,states have sued to forcefederal agencies to disclose and quantify reservedwater rights. This approach, while effective on acase-bycase and basin-by-basin basis, is certainly momcostly than an act of Congress directing all federalagencies to disclose and quantify all reserved waterrights, based on the Utrifed Sfafes v. iVm A4exico criterionof specific needs essential to the planned use of the land

In his statement of national water policy in 1978,former President Jimmy Carter called on federalagencies to quantify and report their reserved waterrights as quickly as possible. Despite the passage of 12years, uncertainties remain about the reserved rights,and about Indian water rights in particular. Theanalysis in this study supports the notion that Presi-

dent Carter’s proposal would have aided the cause ofimproved management of water resources by remov-ing some of the uncertainty.

Under current U.S. Supreme Court interpreta-tion, the federal government has the constitutionalpower to regulate groundwater supplies directlythrough the Commerce Clause. The question offederal exercise of that power remains open. Contem-plation of confrontations between federal and stateregulatory power casts the question of power in“winner-take-all” terms. On the other hand, “if thequestion is not the existence of power but thedesirability of its exercise,compromise and accommo-dation are more likely to be achieved.“R Thenz havebeen “several instances” where the “Conm haschosen to use less than all of its powers, and has electedto rpcognize statecreated rights even though it wasunder no constitutional obligation to do so.“* In theaftermath of the Spo&.se decision, it remains to be seenwhether stateaated rights and regulations regardinggroundwater supplies will be added to this category.

In the view of one observer, “the general frame-work for the regulation of water supplies. . . is stillintact. Interstate compacts and equitable apportion-ment statutes may well withstand the Sporhase deci-sion.“74 And, at least during the Reagan administra-tion, executive branch officials indicated that theSporltase decision would not alter federal agencies’actions regarding groundwater managementE In theaftermath of Sporl~use and Garcia, states and localgovernments wilI have to rely on the continuation ofsuch federal fotiarance in order to maintain theirprimacy in the management of gmundwater supplies

Ending the Flow of Subsidies. There has beenconcern about the distribution of the costs of federalwater projects since the 1930s,76 and the attitudes offederal policymakers have shifted. In the early de-cades of this century, water projects for flood controlor agricultural development were considered to besufficiently “in the national interest” to justify theassumption of a large share of the costs by the federalgovernment In recent years, many policymakershave embraced the notion of “user pays the costs.“RThis is due partly to a recognition of the implicationsfor water resource management, i.e., that federalpricing of water “at full cost, rather than subsidizing it,would give further incentives for efficiency”“? But amater share of the shift appears to be due to therecognition of the connections between selling subsi-dized water and the continued overproduction ofsurplus crops, with its attendant increased cost of farmprograms in a time of strained federal fiscal resources

The Congress addressed the problem in 1982with the Recln~ntiorr Reform Act, an attempt toimplement fullcostpricingof Bureau of Reclamationwater delivered to irrigators and irrigation districtsthat renegotiate their contracts in order to take

116 US. Advisory Commission on Intergovernmental Relations

advantage of the new, higher limitation of 960 acres.Implementation, including publication of the newfull-cost pricing structure (which could raise the priceof bureau water to irrigators by fivefold or more), hasbeen delayed,79 and the announcement in 1989 of theplanned renewal of the Orange Cove IrrigationDistrict contracts offered little hope that the bureauand the Interior Department will use water contractsto try to improve conservation or efficiency?

The Congress revisited the issue of pricing in1986, when a compromise allowed “what will prob-ably be the last” major surface water supply and floodcontrol project, the Garrison Diversion Unit of thePick-Sloan Missouri River Basin Program, to pro-ceed?* Some of the controversy concerning theGarrison project centered on the problems of provid-ing subsidized water for the production of moresurplus crops. When it appeared to be settled thatfarmers who used Garrison water to grow surpluscrops would pay a 10 percent surcharge, an amend-ment offered by Representative Phil Sharp of Indianaproposed to make those farmers pay full-cost pricesfor that water. The amendment was defeated on theHouse floor, but by only 4 votes (203-199).82

The Garrison project, expected to cost approxi-mately $1 billion, has been anticipated for a long time.Rep. George Miller, California, of the House Commit-tee on Interior and Insular Affairs, stated that thelength and strength of pa&t commitments to theproject were primarily what had kept it movingforward. Upper Missouri River Basin states haveacceded to many changes in the project, including itsoverall scale and a shift in the primary emphasis fromirrigation to municipal, industrial,and rural domesticuses. Whether or not it is “the last? major federal waterproject in the West, the Garrison project is viewed bythe Upper Basin states as only fair, in light of theirearlier cooperation in abandoning the developmentof hundreds of thousands of acres of prime farmlandfor the sake of supplying water flows to LowerMissouri River Basin areas, where federal irrigationand flood control projects have been built.

In addition to moves to operate the projects onsomething closer to a user charge basis, there is abroader trend toward federal disengagement fromwater development project financing and construc-tion. Federal financing was at a virtual standstill from1976 to 1986, and even the passage of the WaferResources Development Act of 1986 has not reversed theoverall trend.

With the exception of the Upper Missouri RiverBasin, the major developments anticipated to be partof the reclamation program have been or are beingcompleted. Western rivers such as the Columbia andthe lower Colorado are now “one mrvoir afteranothet”@ The Central Arizona Project is essentiallycompleted, and the Central Utah Project is underway.

This should not be overinterpreted to mean theimminent demise of the Bureau of Reclamation; as of1987, the bureau’s agenda included 68 ongoingbuilding projects, which aR anticipated to keep thebureau active into the 21st century.

Asthe198Osdrewtoaclose,itappearedtomanyobservers that, “with the exception of Federalprojects now nearing completion, there will be fewif any additions to the irrigation infrastructure.“g&PAs the federal government disengages, states andlocal governments that wish to develop additionalwater supplies through construction of physicalfacilities will have to undertake such projects ontheir own.& If federal disengagement means re-duced subsidization and increased attention tomanaging water supplies, efficiency and equity inwater resource use may be enhanced.&

Imposing Federal Conditions on Water Subsidies:The Reclamation States Groundwater Protectionand Management Act. There may be an effort to usefederal financing of water projects as leverage torequire states to develop federally approved ground-water supply management programs. The subsidiza-tion of water supplies is connected with the federalgovernment’s constitutional spending power In thewater resources field, Um?ed States v. Gerlach LivestockC~JX@’ upheld the federal Central Valley Pmject inCalifornia as a valid exercise of the spending poweqwhich allows the federal government to conditionexpenditutp of funds on beneficiaries’ compliance withfederal regulations, or; as the Supreme Court stated, “to@te that which it subsidizes”sB

The potential scope of the spending power andthe General Welfare Clause (in addition to congres-sional power over navigable streams) were indicatedby the Supreme Court in Arizona v. California (1963)FgIn that case, the Court appeared to hold that, as part ofits power “to regulate that which it subsidizes,” theCongress could direct the Secretary of the Interior toapportion the waters of the Colorado River not onlybetween the states through which it flows but amongthe water users within the states Although it has notbeen died on, the Arizona v. Calijinxia decision in-creased the “Congn3s.3 authority over the West% watercourses.. . by a quantum jump,” and was “a monumen-tal victory for advocates of national contmL”m

There is now at issue the possibility of theCongress conditioning funds for reclamation projectsin the western states on their adoption of federallyapproved statewide groundwater management stat-utes. The idea apparently derives from the experienceof the 1980 Arizona Groundwater Management Act,where threats from the Secretary of the Interior towithhold the construction of the Central ArizonaProject contributed to the passage of the statute: “Thehistory of federal intervention in Arizona groundwa-


ter management illustrates both the federal govern-ment’s interest in groundwater management and itsability to pressure states to manage groundwaterresources in line with federal policies.“91

Criticisms of any federal attempt, through directregulation under the Commerce Clause or indirectinfluence using the spending power, to write andadopt a uniform federal groundwater code haveappeared in the literature for decades. As CharlesCorker wrote in 1957, “one can scarcely conceive of afederal ground water code applicable to an entireregion of the United States.“% In the view of mostobservers and analysts, “[florced uniformity in waterregulation is impractical in states with divergentwater resources and needs.“= Furthermore, as NorrisHundley observed, there is some disparity betweenthe Congress’ power to impose a uniform system ofwater law and its ability to devise an optimal systemof water law within the nation.

In 1973, the National Water Commission rejectedthe idea of “a uniform national ground water law., .because of the great variety in aquifer characteristics,in legal regimes allocating the resource, and in theeconomic and social milieu in which the uses takeplace.“” The commission instead addressed recom-mendations to the states for improving use, particu-larly urging the creation of “agencies fully empow-ered to effectuate conjunctive use” of surface andgroundwater supplies.95

The imposition of a federal groundwater code onthe entire country, or even a particular region,appears unlikely in the near term. What is more likelyis the use of the spending power to require states toadopt laws that fit some model state groundwatercode, first in one region and then to each state. Abill -“The Reclamation States Groundwater Protec-tion and Management Act” -was introduced in the100th and 10lst Congresses by Representative Millerand is planned for reintroduction in the 102ndCongress. It would condition the receipt of reclama-tion contracts and funds for federal water projects byany of the 17 western “Reclamation States” on theadoption and implementation of a statewide ground-water management program that would meet desig-nated federal criteria. The bill focuses on the reclama-tion states, but questions and testimony atsubcommittee hearings indicated that the extensionof the bill to the West was seen as a first step towardsimilar legislation with a national scope?6

The concept and motivation behind such acondition are clear. The concept is to use a federal“carrot and stick” approach to induce improvedpolicymaking from thestates9’The principal motiva-tion is an understandable frustration on the part offederal policymakels with the use of federal watersupply projects to “bail out” states and localities that

have overdrafted their local water supplies irrespon-sibly and excessively.

That frustration, in the Congress and the execu-tive branch, is of long standing. The National WaterCommission’s 1973 report expressed the followingconcern about extended and unregulated practices ofgroundwater mining

The Federal concern here arises not somuch from the fact that the resource may beultimately depleted, although that is a prob-lem, but from the fact that thedepletion is un-planned, and the future is not provided for.As disaster approaches, the Federal Govern-ment is likely to be implored to step in with arescue project, commonly conceived as oneto furnish a supplementary water supply attaxpayers‘ expense to save an establishedeconomy, an economy that became estab-lished in the first place by imprudent over-use of ground wateP

The commission therefore recommended that federalagencies planning water projects should “describeand evaluate the ground water management pro-grams in the area,“* and that the Congress “shouldscrutinize closely the economic justification forwatersupply projects designed to supply supplementalwater to areas that have mined ground water . . .including the presence or absence of ground watermanagement, and their operation.“100

More recently, in 1985, Zachal y Smith predicted:

It makes little sense for the federal gov-ernment to rescue localities unwilling tomanage their groundwater resources effi-ciently . . . To the extent that federal waterprojects are designed to mitigate the effectsof overdrafting, it is likely that, as a quid proquo for federal assistance, improved ground-water management would be required.lO*

Introducing the “Reclamation States Groundwa-ter Protection and Management Act” in 1987, itssponsor stated:

This is the best way to make sure thatFederal water project construction dollarsare not continually poured into States to cor-rect ground water problems -problems thatshould not or would not have occurred ifground water programs had been in place.. . .?gxpayers’ dollars should not be spent tobuild new projects to correct ground waterproblems which would never have devel-oped in the first place if adequate protectionprograms had been in place.. . .

This large infusion of money into struc-tural solutions to ground water overdraft


The version of the bill introduced in the 1OlstCongress provided that within one year of its enact-ment, the Secretary of the Interior is to publish thecriteria for assessing groundwater protection andmanagement programs in the reclamation states.Those criteria are to specify at a minimum, that stateshave:

4

W

d

4

Programs to ensure that the quality of gnnmd-water will not be degraded in any way harm-ful to human beings or the environment;Comprehensive mapping of aquifers andtheir recharge and discharge areas;Systems of aquifer classification;

Authority for regulatory and managementcontrols on sources of groundwater contami-nation;

e)

4

Programs for groundwater monitoring, datacollection, and data analysis;Provisions for effective state enforcement ofgroundwater protection and managementlaws and regulations;

Programs to regulate or manage groundwa-ter withdrawals so as to protect supplies andtheir quality;

h) Programs to protect and enhance integratedand conjunctive use of groundwater and sur-face wateI;

0

i)

Programs for public participation in pro-gram development,Authorities for imposing surface-use restric-tions in order to protect groundwater qualityand quantity;

k) Coordination of groundwater programs withother relevant natural resource programs; andprograms for cleanup and emergency re-sponse to gmundwater contamination thatposes an environmental or health hazard

problems has not led to solutions at all.Ground water overdrafts continue to be ma-jor and serious problems throughout theWest Ground water pollution and contami-nation are growing threats. We need solu-tions other than more dams. We need effec-tive programs to manage and protect ourwater supplies. This bill will provide themechanism and the assurance we need thatour ground water is protected and that wearen’t wasting taxpayer dollars on unneces-sary water projectslE

The legislation directs the Secretary of the Interi-orto identify the reclamation states that have, or couldhave, “significant ground water overdraft, contami-

nation or pollution problems which should be re-solved.” The secretary assesses the adequacy of thosestates’ groundwater management and protectionprograms in light of the criteria, with notification tothe states The Bureau of Reclamation is then prohib-ited from obligating or expending reclamation funds,or entering into contracts, in any state identified ashaving deficient programs.

Furthermore, the secretary will review reclama-tion states’groundwater protection and managementstatutes and programs. The states’ programs are to bereviewed for “substantial compliance,” although theAct specifies that they must contain at least elements (a)through (i) in order to be the approved. States arerequired to review their approved programs at leastonce every five years, with opportunity for publiccomment In addition, the Secretary of the Interior isdimted to review state programs at least once everyfive years, including implementation and compliance.Pieviously awarded approvals may be removed, sub-ject to notice to the governor and time to bring thepmgrams or their implementation into compliance.

The proposed legislation does not specify anystate’s groundwater management laws or programsas a model. However, the background and motivationof the bill, and comments made by its sponsor in theHouse, make it clear that the experience of the federalgovernment with Arizona and the adoption of thestate’s 1980 Groundwater Management Act, are andwould be regarded as a model for the reclamationstates and the Secretary of the Interior to follow.

The first round of subcommittee hearings on thebill featured the first two directors of the ArizonaDepartment of Water Resources, Wesley Steiner andKathleen Ferris, testifying about the adoption and thecontent of the law. In addition, the sponsor ofreclamation states act made the following remarkswith its introduction:

This is not the first time this sort of ap-proach has been used. In fact, the Interior De-partment threatened to stop funding the Cen-tral Arizona Pmject (CAP) because the groundwater problems in the State were severe, andlittle was being done to remedy the problem -except, of course, to build the CAP project

Arizona responded quickly and veryably to the challenge from the Department ofthe Interior. It now has a progressive andfar-reaching ground water program. I viewthese actions by Arizona as a modelfor other recla-mation States with ground water problems?03

Just as there would be serious problems withapplying a uniform federal groundwater law to thestates, there are problems with applying any singlemodel of groundwater management Furthermore,even if one were to adopt a single model, there are


serious questions about the appropriateness of theArizona approach for other states As Wesley Steiner,the first director of the Arizona Department of WaterResources under the 1980 law, wrote: “The watersituation in each of the westemstates is unique to thatstate. The water situation in Arizona, the seriousimbalance between supply and consumption, is theworst in the West and demnnds the hrshesf uppmd~.“~~Requiring all states to adopt minimal groundwatermanagement provisions would raise substantialenough questions of federal comity Requiring allstates to adopt legislation based on “the harshestapproach,” raises even more serious questions.

Comprehensive statewide groundwater man-agement legislation faces considerable obstacles ofimplementation and public acceptance comparedwith step-by-step approaches. A 1988 review of statewater policies noted that

despite attempts by some states to enactcom-prehensive water management plans, thishas not always led to the most effective andfar-reaching policies In fact, most attemptsto enact and later implement such plans mayhave the opposite effect, as oppositiongroups either impose compromises uponthese plans prior to enactment or subjecttheir provisions to judicial review during im-plementation . . . implementation is oftenmore difficult than enactment.la5

These general statements are consistent withobservations made about the first few years ofimplementation of the 1980 Arizona law. The deputydirector of the Department of Water Resources notedthat deadlines for filing water rights claims, deter-mining water rights, and developing initial ruleswere missed, not by weeks or months but by years,and that the Act generated “a swarm of proposedlegislative amendments . . . [many] intended to let auser or group of users escape the restrictions of theCode.“lN The Arizona approach contrasts with that ofOklahoma, which has enacted groundwater legisla-tion that is admittedly less comprehensive and restric-tive, but where state planners have chosen to im-prove groundwater management incrementally,securing acceptance for each new statutory or regula-tory change before proceeding with the next.*”

Arizonans have been less than enthusiastic aboutrecommending the extension of the law to otherstates, and have subjected it to rather severe criticism.Arizona’s 1980 comprehensive groundwater man-agement code has been described as “a testimony tohow wrong things can go when an inappropriatewater law is coupled to a severe case of overdraft,“‘@and an example of how an”inefficient mechanism.. .shaped by political arrangements” is likely to emergeunder pressure when existing institutional arrange-

merits are unable to accommodate and resolve con-flicts among competing users103

Arizona adopted a regulatory approach togroundwater management, especially with respect tothe reduction in water demands imposed by irrigatedagriculture. The statute provides for the collection oftaxes on groundwater pumping to create a fund withwhich the director of the state Department of WaterResources may purchase and retire agricultural landsafter 2006. The problems with this approach aretwofold. First, the law does not allow water rights tobe transferred independently of land ownership.This has resulted in the widespread use of the practiceknown as wwater ranching,” which means that mu-nicipalities and other public water supply providersbuy up large tracts of land to capture the appurtenantwater rights This imposes a considerable inefficiencythat would be avoided by making water rights transfer-able apart from land ownership. It also robs agriculturalproducers of any incentive to improve the efficiency ofirrigation practices in order to profit by the sale of waterrights fmd up by the conservation.

Second, the statute places all purchase andretirement of the agricultural lands in the hands of thedirector of the Department of Water Resources, andpostpones any such purchases until 2006. Presum-ably, owners of agricultural lands and their appurte-nant water rights will have to take the offered pricefor their lands, when they might have made morebeneficial sales in a more open setting.

The statute seeks to reduce water use in theinterim by imposing increasingly stringent conserva-tion rules in active management areas, whether formunicipal, industrial, or agricultural use. If waterrights transfers were allowed in the interim, therebymoving water from lower valued to higher valueduses and givingusers a conservation incentive so as tohave water rights to trade, neither the stricteracross-the-board conservation regulations nor thepurchase and retirement of agricultural lands by thestate might be necessary by the 21st century,

The groundwater management act was thechoice Arizona made in response to the realities of itswater situation and the pressures from the federalgovernment The point of the preceding paragraphsis not to criticize the law, which is a widely acknowl-edged and highly regarded innovation. However,caution should be used in consideration of this law asa model for other states.

The frustration of federal policymakers at beingrepeatedly requested to “rescue” states and localitieswith federal water supply projects is understandable.Aresponse that requires all states to adopt groundwa-ter management programs that meet federal criteria,that are approved and periodically reviewed by thefederal government,and that may be disapproved bythe federal government, in order for states and


localities to qualify for future federal water projectfunds that may never be available, imposes high costsin federal-state relations for the sake of keepingfederal officials from having to refuse state and localrequests for funding. The more direct approach ofending federal water subsidies requires more politi-cal will from federal officials than maintaining the(probably unrealistic) possibility of a federal “carrot”in the form of future funding in order to use the “stick”of federal conditions requiring pre-approved stategroundwater management programs.

Ending the flow of subsidies may be mom difficultpolitically, but it is preferable from a policy standpointas a way of encouraging state conservation andmanagement of water resources Arizona was cited asan example of how the federal spending power hasbeen used to prompt state action. Yet, as other analystshave concluded, there is also an opposite, perverseeffect of the use of the federal spending power in waterresources, and that has been to lull states and localitiesinto inaction in improving management

Arizona has been discussed as an example of thisphenomenon, too. As one analyst stated, “In Arizonathe federal presence was strongly felt in watermanagement decisions - “so strongly, perhaps, as toprovide a disincentive for local initiative.““O

Following adoption of the law, Wes Steiner, thefirst director of the Arizona Department of WaterResources, wrote:

One of the major obstacles that had to beovercome before Arizonans could be con-vinced that they must deal internally withthe state’s water supply imbalance, waswidespread confidence that permeated thewater community that these problemswould be overcome in the future by effectinginterstate water transfers. We had to weanthem away from reliance on this dream andconvince the legislature and the public that theeconomic, environmental, and political costsof major interstate water transfers to the PacificSouthwest make them completely infeasible atthis time.. . and that we had to deal with ourimbalance problem with the supplies current-ly available to us plus our remaining entitle-ment from the Colorado River”’

Along similar lines, another prominent observer ofwestern water law and institutions wrote:

I think the users, the nonusers, and the publicthink that either the state or the federal gov-ernment will bail them out After all, hugeprojects have saved other areas.. . . Surely thelegislature or the Congress will come to therescue of other prosperous and growingtowns, groups of towns, cities, and countiesthat have been created by the overuse of

groundwatec Since others have been res-cued in the past, there is a feeling that peoplehave a right to overuse, a right to expect res-cue, a right to be subsidized.“2

The problems created for more effective ground-water management by the construction of federalwater projects arise at both ends of the process. Waterusers are reluctant to face up to the need to manageand conserve local supplies as long as they think afederal project could bail them out. Once the federalwater project is built, the water it supplies is so cheapdue to subsidies that there is no incentive to monitor andmanage use.113 For both reasons, the federal role inimprovingwater resource management should includebringing the flow of water subsidies to an end

Improving the Flow of Information. It appears thatthe nature of water supply information needs ischanging. Technical information on the location andcharacteristics of aquifers is still needed, but is beingsupplied by several federal agencies, as described inChapter 4. Information still is needed on institutionalarrangements for groundwater allocation and man-agement of groundwater supplies, and existing infor-mation (technical or institutional) needs to be mademore accessible.

There still is a critical need for additional infor-mation concerning institutional arrangements forthe allocation and management of water supplies.This was the only priority area identified in a 1981National Research Council review of federal waterresearch

Plans as not being addressed by one or more

agencies. l4 Although USGS has funded institutionalstudies since then, the need has not been fully met,and the area remained conspicuous by its absence inthe 1989 Office of Science and Technology Policyreview of federal groundwater research expenditures

The scientific information yielded by decades ofresearch needs to be made more accessible to personswith different levels of expertise.115 As noted inChapters 4 and 5, much federal information collect-ing has stressed the advancement of the state of the artin hydrology which is important and beneficial. Onthe other hand, additional translation of the informa-tion would make it even more useful to watermanagement decisionmakers, who tend to be con-cerned citizens and public officials, as well as hydrol-ogists and geologists.

Second, the technical information on watersupplies is insufficiently accessible physically Stu-dies performed for and by a dozen different federalagencies, 50 states, thousands of local governments,industry associations, environmental groups, foun-dations, and others, exist all over the country Findingsomething about a specific area is not difficultfinding all of the information about an area is nearlyimpossible, even if one is willing to travel to state


water research centers and USGS regional and stateoffices, to send away for information, to use interli-brary loan services, and the like.l16

There are formal mechanisms for interagencycooperation or joint information gathering. No fewerthan six Memoranda of Agreement and 11 types ofinteragency committees, working groups, and advi-sory boards, councils, and committees (some withsubcommittees) were listed in the 1989 Office ofScience and Technology Policy review of federalgroundwater research programs. And there are somecomputerized information storage, retrieval, andexchange programs for hydrologic data. USGS oper-ates the National Water Data Storage and RetrievalSystem (WATSTORE), arranged in a Daily Values File,a Peak Flow File, a Water Quality File, and a GroundWater Site Inventory File. USGS also supports aprogram called the National Water Data Exchange(NAWDEX), which is monitored by the Subcommit-tee on Water Data and Information Exchange of theFederal Interagency Advisory Committee on WaterData, which is chaired by USGS. Similarly, EPAsupports a National Groundwater Information Cen-ter, under contract with the National Water WellAssociation in Dublin, Ohio, with more than 54,000references listed

We have been unable, however, to establish alocation where the whole array of groundwaterinformation, including management, would be avail-able. In the 10lst Congress, a bill introduced in theHouse by Rep. Sam Gejdensen and Rep. JamesScheuer, and in the Senate by Sen. Quentin Burdick,would have attempted to address this problem byestablishing, among other things, a national ground-water information clearinghouse. RepresentativeScheuer’s bill is planned for reintroduction in the102nd Congress.

Making more information available to state andlocal water managers would ease one of the barriersto more effective conjunctive management This is alogical lead role for the federal government, whichcould couple information development and dissemi-nation about management practices and perform-ance with information on hydrologic data. Thegrowth of innovative management techniques beingemployed throughout the nation could then workmore effectively to benefit all communities.

Supporting Groundwater Quality Protection. Thereis another aspect to the federal role in supportingimproved groundwater quality protection. In far toomany cases, federal installations and facilities havebeen among the principal polluters of local ground-water resources, which “hasserious repercussions forthe effectiveness of state and local regulations.“ii7“State and local regulations are not very effectivewhen the polluter is a federal agency?** Testimony in1987 before the Senate Committee on Energy and

Natural Resources and the House Committee onInterior and Insular Affairs cited more than 50 federalfacilities and installations contaminating groundwa-ter resources just in nine western states.llg

As the federal government moves in the 1990s toclose down several military installations, affectedstates and communities are concerned about theplumes of toxic wastes below the land surfacemoving into and through aquifers that supply waterfor drinking, domestic and industrial use, and live-stock and irrigation. As the federal, state, and localgovernments pursue their “new environmental part-nership,” the federal governmentshould at least try toremove itself from the list of major groundwaterpolluters.120 Compliance by federal facilities withstate and local groundwater quality programs andtheir implementation should be assured.

Summary: A Supportive Federal Role. A RANDCorporation report published toward the close of the1970s contained this summary observation: tiA1-though the federal government through its variousdepartments and agencies has vast powers andpriority in the water field, the federal role in ground-water is minimal.“12* A slight modification to thatstatement would allow it to fit the early 1990s: thedirect federal role in groundwater has beerr minimal.As we have seen, the various departments andagencies of the federal government exercising vastpowers and priority in the water field have indirectconsequences for groundwater management that arefar more than minimal, and the potential for directaction has grown.

The federal government’s role in research andinvestigations through the U.S. Geological Surveyand other agencies has given states and localitiesmuch of the technical and scientific informationabout groundwater resources. That information hasbeen invaluable in planning appropriate manage-ment strategies, improving programs, and designingnew ones. Water resources research exhibits scalecharacteristics that suggest it is best organized nation-ally, giving states, local governments, and water usersbasic hydrological research and data, as well astechnical expertise and training.

The other modification to the RAND descriptionof the federal role-that it has been minimal -reflects the changes of the last decade in the scope offederal authority in the management of groundwatersupplies. The direct federal role could increase as aresult of expansions in the commerce power and theuse of the spending power. The federal governmenthas the power to directly legislate and regulate in thearea of groundwater supply management or to requirestates to adopt legislation and regulations that meetspecified federal criteria. The current question is not oneof federal power but of intergovernmental relations, ofthe wisdom of the exercise of federal power, and of


whether the federal government will continue to limitits direct role in groundwater supply management

The appropriate federal management role wasaddressed by the National Water Commission in its 1973report The Commission reflected a sensitivity to theimportant differences between an indirect and support-ive federal role and a direct and regulatory role:

The Commission does not believe.. . thatthe Congress should enact a comprehensiveFederal ground water law regulating with-drawal. Rather, Congress should assist Statesand local regions to obtain the informationnecessary to make sound decisions, it shoulddeclare a policy of supporting water devel-opment projects only when they are eco-nomically sound, and it should implementthis policy by close scrutiny of proposed ‘res-cue projects,’ examining not only the eco-nomics of project proposals but also conser-vation and management practices applied toground water and surface water by the re-gion to benefit from the project.lZ

As the Commission’s statement suggests, there isan indirect federal role that supports sound state andlocal management decisions by states and localgovernments, and an indirect federal role that candistort the decisionmaking process. Before directfederal authority is expanded in groundwater man-agement, activities that have indirect, but nonmini-ma1 and nonbeneficial, effects should be reconsid-ered. First (and perhaps most beneficial), the federalgovernment could reduce its role in contributing toand perpetuating the barriers to more effectivemanagement As water resources have become in-creasingly scarce in some locations and as the compe-tition for those resources has intensified, policies thatpromote inefficient use and impede effective man-agement become political luxuries that all segmentsof the water economy are better off without

A 1989 White Paper of the Western Governors’Association on federal water policy coordinationsuggested that if the federal government is not goingto play a leadership role in water management (inkeeping with the tradition of state and local primacyin thisarea),it could try toavoid making managementmore difficult for states and local governments.

In other words, western states understandthat they cannot depend on the federal gov-ernment to meet their needs for water,whether it be for consumptive or noncon-sumptive purposes. However, if states andlocalities are to shoulder greater responsibil-ity for meetingwater needs, the statesbelievethat they are entitled to a system of federalwater policy implementation that does notneedlessly get in their wayY

At the outset of the 19905 there is little doubt thatthe federal role in water supply management and inwater resources generally is changing. Some see thescope of federal authority expanding and anticipatemore direct action by federal officials in the ground-water field. Others see the federal role declining, withthe states and localities “shouldering more of theburden.” By the end of the decade, the size and thechange in size of the federal role may turn out to havebeen the less interesting and less important question.The more important question is likely to be whatoptions federal officials chose- whether they de-creased activities that impede more effective ground-water management and enhanced those that assist inthe development of innovations and improvements.

CHANGING WATER RIGHTS LAWS,ENCOURAGING BASIN M ANAGEMENT,

SETTING QUALITY PROTECTION POLICYWHAT THE STATES CAN Do

States also face an agenda of institutional reformin improving the management of water resources -modifying laws to increase certainty and flexibility ofwater rights, building capacity for conjunctive man-agement of surface and groundwater supplies, andsetting policies for the protection of water qualityThere does not appear to be a need for a singleuniform state groundwater code. States face differentsituations, and will continue to develop and imple-ment different policies for allocating and managingwater supplies All states can benefit from thisdiversity and experimentation.

In states where surface and groundwater arephysically interrelated, writing the rules governingthe supply sources would remove a major obstacle totheir conjunctive use. Water users could be encour-aged, through pricing and other measures, to adjusttheir use of sources based on availability Maintainingdual systems of rights for surface water and hydrolog-ically related groundwater inhibits the optimal use ofboth sources.

Uniting the systems of water production rightswould also make it easier to resolve some of theconflicts concerning the protection of instream val-ues Within a given stream-aquifer system, one set ofspecified, quantified water rights could allow rightsto be exercised by some for surface water diversion; byothers for tributary groundwater withdrawal; and byothers leaving water instream for recreational, scenic,habitat, and other benefits. At the very least, statesshould declare instream flow protection sooner rath-er than later in order to allow effective basin manage-ment to proceed.

Another institutional reform that has receivedattention in the policy literature would change thesystem of acquiring rights for production of water or


protection of instream flows. States have held thatonly governments may acquire appropriative rights topreserve instream fl0~s.l~~ This is argued to be unrra-sonably limiting: if a private individual or group wishesto increase the amount of water retained instreambeyond an agency limit, there would appear to be noreason for refusing a permit Moreover, such rightsshould be tradeable between usas for increasinginstream flows for water production The citizenswould determine the balance between instream usesand water production, based on their valuations of each.Dual systems of water rights effectively preclude thisalternative from even being tried.

Whether joined with surface water rights or not,groundwater production rights systems would beimproved by building in incentives for water conser-vation. States choosing to retain the “beneficial use”system, for example, could designate conservation(including underground storage for subsequent use)as beneficial, thereby removing at least one disincen-tive for conservation. States with an appropriationsystem based on historical or permitted use couldprovide that groundwater users do not forfeit anyportion of their production rights by agreeing to takesurface water supplies or imported water supplieswhen they are available. These modifications wouldremove current obstacles to conjunctive use.

The change that would be most effective inpromoting conservation and encouraging largeusers(especially irrigators) to use water more sparinglywould be to make production rights transferable.Water users could employ water-saving techniquesthat would maintain their productivity and gainfurther by selling or leasing the unused portion oftheir water rights. This is not the same as suggestingthat all water production rights be privatized and leftto a “free market” Transferability of water rights canand should be regulated, in order to protect otherusers, storage, quality, and environmental concerns.While the idea that water is different from othercommodities may be an illusion, the uncertaintyconcerning groundwater may be especially highrelative to other commodities.125 For this reason,retaining an institutional infrastructure to determineand administer rights, to regulate transfers, and toresolve conflicts would be wise. That is to say, whatmay be different about groundwater is not that it is tooimportant to trust to markets, but that it is tooincompletely known to trust to unfettered markets.

As noted in Chapter 5, part of the institutionalinfrastructure may be special water districts empow-ered to engage in conjunctive management of surfaceand groundwater supplies. States could authorizewell fitted special districts to regulate water transfers;to account for water production, production rights,and storage; and charge for production and storage.States could consider the 1973 recommendations of

the National Water Commission concerning therange of authority that local water organizations needfor effective conjunctive management Finally, statescan continue to devise and improve water qualityprotection policies. With respect to groundwater,states can choose whether to classify aquifers and (inaccordance with federal criteria) where to set ground-water quality standards, can implement the protec-tion strategies they developed during the 1980s withsupport from EPA, and can review and adopt therecommendations in the 1989 Urban Institute reportState Management of Groundwater: Assessment of Pmc-tices and Progress.

GETTING THE P RICES R IGHT:WHAT LOCAL P UBLIC AND P RIVATE

WATER ORGANIZATIONS CAN DoLocal public or private water suppliers, who

determine pricing practices (in the absence of subsi-dies from larger jurisdictions), could contribute toimproved management by bringing prices more intoline with water’s value and cost After studying theissue for the National Council on Public WorksImprovement, Wade Miller Associates reached thefollowing conclusions:

1) Urban water supply systems are, froma physical standpoint, generally func-tioning successfully, and do not consti-tute a “national problem” - infrastruc-ture problems, where they exist, are localand idiosyncratic problems of planning,financing, and maintenance of certainindividual systems.‘26

2) 7’he principal problem of water supply is thefailure to charge water prices that reji’ect thefull costs of capital construction, replacf5ment, and operations and maintenance, and“i’frates have been maintained at levels thatdo not cover the full costs . . . this was thechoice of local elected and appointed ofJicialsand constittl tes ‘public choice failure’.“127

3) The actions primarily needed to addressthe difficulties faced in water supply donot lie in structural, supply-oriented so-lutions, but in the adoption of institu-tional arrangements that will imple-ment full-cost pricing of water suppliesand transferability of water rights.‘%

Local water supply organizations especiallyneed to attend to the problems created by commin-gling of functions in local budgets. This practicedistorts the price signals transmitted to consumers,and in turn distorts their decisions about the use andconsumption of water supplies. If implementation offull-cost pricing is demonstrated to be likely to impose


a hardship on lower income households, some of thestrategies used in the pricing of other utilities (such as“lifeline” rates for basic service) should be explored.

Increasing the role of full-cost pricing of waterand transferability of rights will take considerableadjustment, especially in the western states Yet thereis nothing inherently wrong with having economicrelations reflect actual climatic conditions: “This ispreferable to having an economic base artificiallyreliant on under-priced supplies which cannot besustained.“*29 Moreoveq implementing and adjusting toinstitutional arrangements that increase the marketabil-ity of water rights and make water prices more tpalistic,is unlikely to take longer than the time for planning andconstructing the next major water and power project

SUMMARY

Flexibility of arrangements, and the ability toadapt different solutions and employ specializedorganizations in an institutionally rich environmentare preferable in the coordinated governance ofwater resources. With sufficient information andflexibility, noncentralized systems can tend towardefficiency and equity,n’-’ while maintaining and en-hancing adaptability and self-governance.

A noncentralized, or polycentric, decisionmak-ing arena representing diverse communities of inter-est in jurisdictions that can accommodate conflictswithout including nonessential or unaffected partici-pants-what one writer called a “community defin-ing federalism”‘”-provides possibilities for resolv-ing conflicts, directing resources toward their highervalued uses, and maintaining the flexibility to adapt tochanged circumstances or correct erroneous decisionsWith institutional barriers to more effective waterresource management reduced or eliminated, a multi-jurisdictional republic offers considerable advantagesin managing a multiattribute msoume such as water

Notes1 Bonnie McCay and James Acheson, “Ihe Human Ecolo-

gy of the Commons,” in Bonnie McCay and James Acbe-son, eds., Capturing the Commons: 77le Culture and Ecologyo/ Colnmunal Resources (Tucson: University of ArizonaPress, 1987), p. 38.

2 Ibid., p. 124.3 Susan Christopher Nunn, i?ePoliticnl Economy oflnstitu-

tional Innovation: Coalitions and Strategy in the Developmentof Groundwater Law. Ph.D. Dissertation. University ofWisconsin, 1986, p. 299.

4 Ibid.5 ha G. Clark, Water in New Mexico: A Hisforyoflts Manage-

ment and Use (Albuquerque: University of New MexicoPress, 1988), pp. x-xi.

b Nunn, p. 297.7 Ibid., p. 295.s Ibid., p. 294.

9 Ibid., p. 295.lo Wade Miller Associates, 77re Nation’s Public Works: Report

on Water Supply (Washington, DC: National Council onpublic Works Improvement, 1987), p. 286.

** Harvey 0. Banks, manag ement of Interstate AquiferSystems,” ASCE Journal of Water Resources Planning andMumrgemenf 107 (October 1981): 566,573.

l2 NUM, p. 294.l3 A prime example of this phenomenon can be found in

the water dispute over the use of streams feeding MonoLake in the eastern Sierra to supply water to Los An-geles. The use decisions, which were made by Los An-geles in the 1930s and 194Os, resulted over time in thelowering of the lake levels to a point which is contendedto have damaged the Mono Lake ecosystem. In the 197Os,agroup of citizens formed the Mono Lake Committee asan organization to try to stop or reduce the water diver-sions by Los Angeles. Their actions have added a new“community of interest” to the decisionmaking processinvolved in determining how to use the waters that feedMono Lake.

l4 Banks, p. 566.l5 Nunn, pp. 181-182.lb Ibid., pp. 207-208.l7 Warren Viessman and Claire Welty, Water Management:

Technology and Institutions (New York Harper and Row,19854, p. 11.

ls Thii hasevenbeencited as a perceived advantage of cen-tralization in a “superdepartment [that] ‘is more effi-cient because i t allows trade-offs on natural resource is-sues to be made on a rat ional , nonpoli t ical basis withinthe context of one department.‘” Henry C. Hart, “To-ward a Polit ical Science of Water Resources Decisions,lin L. Douglas James, ed, Man and Water (Lexington: Uni-versity Press of Kentucky, 1974), p. 136.

l9 Stephen C. Birdlebough and Alfred Wins, “Legal As-pects of Conjunctive Use in California,” in David Seckler,ed., California Water: A Study in Resource Mnnagement(&kz yirsity of California Press, 1971), p. 263;

m Helen J. phters, “Groundwater Management,” Water Re-sources Bulletin 8 (February 1972): 190.

21 Michael Mallery, “Groundwater: A Call for a Compre-hensive Management Program,” Paci f ic law Journal 14 ,(July 1983): 1280.

22 See, for example, Thelma Johnson and Helen peters, ‘Re-gional Integration of Surface and Ground Water Re-sources.” Paper presented at the Symposiumof thelnter-national Association of Scientific Hydrology, Haifa,Israel, 1967, pp. 497-498, in which they illustrate the potentialchangesinusepatternsresultingfrom thesucces-sful implementation of a management program,changes which may themselves then result in subse-quent s t rains on that program.

23 Wade Miller Associates, p. 92.24 Ibid., p. 14.z5 Clark, p. x.26 Neil S. Grigg, aAppendix: Groundwater Systems,” in

Kyle Schilling et al., 73e Nation’s Public Works: Report onWater Resources (Washington, DC: National Counci l onPublic Works Improvement, 1987), p . B-2.

27 Sho Sato, Water Resources- Comments upon the Fed-eral-state Relationship,* Cnlifornin LOW Review 48(March 1960): 56.


zs California Department of Water Resources, C&forrria’sf;;u12d Water. Bulletin No. 118 (Sacramento, 1975), p.

29 Ranjit Varkki George, “Is Groundwater RegulationBlindman’sBuff?“~orr~~~alo/Pl~~r~zilrgLiter~ture3 (Spring1988): 233.

30 Wade MiIIer Associate!, , pp. 204-205; National WaterCommission, Wfer Pohres for the Futrrre: Final Reporf fothe Presiderzf a77d to the Co77ress of the United Sfafes (PortWashington, New York: Water Information Center,1973), p. 243.

31 Wade Miller Associates, p. 205; Jurgen Schmandt, ErnestSmerdon, and Judith Clarkson, State Water Policies (NewYork: Praeger Publishers, 1988), pp. 10-11; U.S. Office ofScience and Technology Policy, Federal Ground WaterScience and Technology Programs, A Repor f by the Sub-cotrtllliffeeotl Gromd Writer (Washington,DC, 1989),p. 3-3.

3z National Research Council , Committee on Ground Wa-ter Quality Protection, Grorr?rd Wafer Qualify ProfecfioxState aild Local Strategies (Washington, DC: NationalAcademy Press, 1986), p . 3 .

33 National Research Council, p. 3; C.H. Ward, N.N. Dur-ham, and L.W. Canter, “Ground Water-A National Is-sue,” Grolrrd Wrrter 22 (March-April 1984): 140.

31 U.S. General Accounting Office, Groultdwaf~Profection:‘l%e Use of Drirtking Water Stnadcrrs 6y the Stntes (Wash-ington, DC, 1988), p. 1.

35 National Research Council , p. 3.

36 Chr is t ine OIsenius, “Tomorrow’s Water Manager,“]otlr-~tal ofSoiZnrzd Wafer Couservrrtion 42 (September-October1987), p. 314.

37 Ibid.38 Wade Miller Associates, p. 68; National Research Council,

p. 3; Ward, Durham, and Canter, p. 140.39 Wade MiIIer Associates, p. 68.a National Research Council , p. 3.

*I Schmandt et al., p . 10.B Viessman and Welty, p. 14 (emphasis added). ’

43 U.S. General Accounting Office, Gromdzuater Qudity:Sfafe Actiuifies fo Guard flgainst Co??fn?ninanfs (Washington, DC, 1988), p. 3.

@Wade Miller Associates, p. 111.

* U.S. General Accounting Office, Groundwnfer QnaIify, p.3 .

46 Environmental and Energy Study Inst i tute , A Co??gres-siolznl Agerrda t o Preve??t Groundw&r Contrrmination:Building Copncity to Meet Protection Needs (Washington,DC, 1986), p. 164.

*‘National Research Council, p. 10.‘ E S Cox, p. 118.49 “Groundwater Contamination: Common Ground for

the Common Law,” Water Sfrategist 2 (January 1989): 1.

5o Wade Miller Associates, p. ii.51 Ibid pp. 13 and 210; Nancy Humphrey and Christopher

W&r, Imrovative Sfnfe Approaches to Comnzfnzity Idhfer%rpply Proble??rs (Washington, DC: The Urban Inst i tute,1985), p. v.

5z David Moreau, “New Federalism and Social and Envi-ronmental Goals,“Journalof WnferResonrces Pla~n7ingn~7dAbnageme??t 115 uanuary 1989): 25-26.

53 Wade Miller Associates, p. 210.54 Ibid., p. 209.55 Moreau, p. 26; Humphrey and WaIker, p. v.56 Wade Miller Associates, p. 113.57 The 1981 statement by the National Governors’ Associ-

at ion included the fol lowing:The Governors believe that considerable au-

thori ty exists in federal and state law to controlsources of groundwater pollution. This author i tyneeds to be fully exercised to assure a protectioneffort that is coherent, consistent, and effective.

The Governors endorse and recommend anew national policy to systematical ly accelerateand strengthen protection of our undergroundwater supplies. This policy should depend primar-iIv on states for implementing comprehensivegroundwater management pro~arns.~Thii pol icymust also be founded on a new environmentalpartnership, which respects the local characteris-t ic of groundwater, while capitalizing on the ca-pability and expertise of each level of govern-ment, the private sector, and public interestgroups .

58 National Groundwater Policy Forum, A GroundwnferProfecf ion Strategy (Washington, DC: The ConservationFoundat ion, 1986), p . 1 .

59 U S General Accounting Office, Groundwater Protecfion,p:1:

a See for example, testimony of Erik D. Olson NationalW&Iife Federation, before the Subcommittehon Natu-ral Resources, Agricultural Research, and Environment,Committee on Science, Space, and Technology, U.S.House of Representatives, 100th Congress, First Session,on H.R. 2253, and H.R. 791, July 21,1987, p. 93.

61 National Research Council , pp. 23.62 John E Mann, Jr. , “Concepts in Ground Water Manage-

ment,” ]onrnal of&e A?nerican Wafer Works Associ’atiolz 60(December 1968): 1336.

63 Ibid.64 Environmental and Energy Study Inst i tute , pp. 10-11.65 Testimony of former Wisconsin Governor Anthony Earl

before the Subcommittee on Water and Power Re-sources, Committee on Interior and Insular Affairs, U.S.House of Representatives, 100th Congress, First Session,on H.R. 2320. Series No. 100-23, Part I. July 23,1987, p. 20.

66 Ibid.67 National Research Council, p. 9.68 Robert Ehrhardt and Stephen Lemont, Insfifutio??nl Ar-

ranptents for htrustnfe Groundwnfer Manf?geme??t: ACoinparative Assessmart Usiq Virginia as a (35-e Sfudy(Arlington, Virginia: JBF Scientific Corporation, 1979),p.22.

69 George, p. 240 .‘O Moreau, p. 29.n National Water Commission, p . 460.TL Frank J. Trelease, “States Rights Versus National Powers

for Water Development,” in Ernest Engelbert, ed., Stint-egiesfor Westun Regionnl W&er Developmer?t (Los Angeles:Western Interstate Water Conference, 1966), p . 101.


n Ibid., p. 107.74 Mary Ann Green, “Water Law - Sporhase v. Nebraska,”

Natural Resources ~oumal33 (October 1983): 931.75 Zachary Smith, “Federal Intervention in the Manage-

ment of Groundwater Resources: Past Efforts and Fu-ture Prospects,” Publius-?%e lourrral of Federalism 15(Winter 1985): 156.

76 Viessman and Welty, p. 38.n Ibid.m Kyle Schilling et al., 7%~ Nation’s Public Works: Report on

Wafer Resources (Washington, DC: National Counci l onPublic Works Improvement, 1987), p . 97.

79 Schmandt et al., p. 64.8o Lawrence Mosher, Wii the Real Leaders in National

Water Policy Please Stand Up?” Journal of Soil and WaterConservation 44 (March-April 1989): 135.

*l Lawrence Mosher, “Federal Water Development: Going,Going . . . .” ]ournal of Soil and Water Conservation 41(May-June 1986): 166.

82 Ibid.83 Henry l? Caulfield, “The Future of Local Water Districts

in Historical, Political Context,” in James Corbridge, ed.,SpeciaZ W&r Districts: Chalknge for the Fufure (Boulder:Natural Resources Law Center, 1983), p. 107 .

8p Schilling et al., p. 94.85 Schmandt et al., p. 16; Caulfield, p. 109.86 Moreau, p. 25.87 399 U.S. 725 (1949).ea Ivanhoe Irrigation District v. McCracken et al., 357 U.S.

275 (1958).89 373 U.S. 546 (1963).90 Norris Hundley, Water and tlze West (Berkeley: University

of California Press, 1975), p. 306.91 Smith, p. 149.92 Charles Corker, “Water Rights and Federalism-The

Western Water Rights Settlement Billof 1957,” CaliforniaLaw Review 45 (December 1957): 622.

93 Green, p. 926.94 Nat ional Water Commission, p . 227.95 Ibid.96 Hearings before the Subcommittee on Water and Power

Resources, Committee on Interior and Insular Affairs ,House of Representatives, Series 100-23, Parts I and II.See, for example, the testimony of the first witnesscalledin support of the bi l l , Wiionsin Governor Anthony Earl ,at Part I, p. 21:

We need a national goal, a national groundwater policy, and 1 believe the seeds of such apolicy are contained in H.R. 2320. Limiting thecoverage to the 17 reclamation States ls not as am-bitious as covering all the States, but I understandyou must start somewhere. . . . What begins with171 thinkwouldultimatelyexpandtomoreStates.

Simiiar comments appear on p. 53 in the tes t imonyof Philip Metzger of the Conservation Foundation insupport of the bill. See also Comments of RepresentativeGeorge Miller, Congressional Record, Volume 133, Num-ber 138, September 14,1987: “Few States in the Nation

have comprehensive plans in place; yet most States needsuch plans.”

97 Comments of Representative George Miller, Congressio-nal Record, Volume 133, Number 73, May 7,1987:

Stateswhichchoosenot todevelop plansandwhich have serious problems with ground waterwill not receive funds for construction of reclama-tion projects. Further, the Secretary of theInteriorwill be precluded from entering into water deliv-ery contracts in such States . The bi l l involves a“carrot-and-stick” approach to ensuring thatsound ground water programs are put into placewhere needed.

98 Nat ional Water Commission, p . 232.99 Ibid., p. 238.

loo Ibid., p. 242.lo1 Smith, p. 152.lo2 Miller, May 7,1987.loa Ibid.lo4 Wesley Steiner, “public Water policy in Arizona,” State

Government 55 (1982): 134.

lo5 Schmandt et ‘.’ ‘tn?iater Management In Arizonalo6 Philip Briggs, “Gro * * I)-Journal of Water Resources Planning and Management ids(July 1983): 201-202.

‘07See Rebecca Roberts and Sally Gras, “The Politics ofGround-Water Management Reform in Oklahoma,”Ground Wafer 25 (September-October 1987): 535544.

loa Micha Gisser, “Groundwater: Focusing on the Real Is-sue,” Journal of Pol it ical Economy 91 (December 1983):1001-1002.

lo9 Ibid., p. 1003.*lo Nunn, p. 20.111 Steiner, p. 135.112 Frank J. Trelease, “Legal Solutions to Groundwater

Problems-A General Overview,” Pacific Lnw Journal 11(July 1980): 874-875.

I13 Viessman and Welty, p. 16;114 Schilling et al., pp. 116-117.115 Ward, Durham, and Canter, p. 140.‘I6 Ibid. This should include al l inst i tut ional arrangements

for the management of groundwater resources, includ-ing court decisions as well as legislative and administra-tive actions.

117 George, p, 236 .118 Ibid.119 Testimony of Craig Bell, Executive Director of the West-

ern States Water Council , before the Subcommittee onWater and power Resources, Committee on Interior andInsular Affairs, U.S. House of Representatives, 100thCongress, First Session, on H.R 2320. Series 100-23, PartII, July 23,1987, pp. 175-178.

120 See also Environmental and Energy Study Inst i tute , p.10.

r2’ David L. Jaquette and Nancy Y. Moore, EfJicierrt WaferUsein California: Groundwater UseandManagemnt (San-ta Monica: RAND Corporation, 1978), p . 31.

lzz National Water Commission, p. 242.


lz3 Western Governors’ Association, White Paper on Feder-al Water Policy Coordination, May 11,1989, p. 3.

124 Terry Anderson and Ronald Johnson, “The Problem oflnstream Flows,” Econorrzic Inqzky 24 (October 1986):5 3 8 .

lzs Victor Brajer and Wade E. Martin, ‘Nlocating a ‘Scarce’Resource, Water in the West,” AmericnnJournal ojEconom-its and Sociology 48 (July 1989): 2.59271.

lz6 Wade Miller Associates, p. 211; see also p. i:

A national water supply “infrastructuregap”of the magnitude that would require a substantialfederalsubsidy does not exist. Water utilitiesexpe-riencing revenue shortfalls generally do notcharge rates which cover full costs of the utility,

lz7 Ibid., p. 211 (emphasis added).lzs Ibid., pp. 122-123.lz9 Ibid., pp. 115-116.130 Ibid.13t Hart, p. 154.


Appendix A

Tables


7i7ble A-l

StateKansas~~~;~ip,pi

FloridaNebraskaIowaTexasMissouriMinnesotaOklahomaHawaiiArizonaGeorgiaNew MexicoNorth DakotaWisconsinCaliforniaSouth DakotaIllinoisOhioLouisianaNorth CarolinaVermontNew JerseyMassachusetts

Groundwater Withdrawals as a Percentage of All Water Withdrawals, 1985*(U.S. average 2 34%)

Percent Rank91%

;;E

;;;;

69 zi

z: ;;

zi ?i

ii ;z47

Ii;ii38

4440 iiz 42 42

E z29 4729 48

2 49 50

StateNew YorkConnecticutNevadaNew HampshireVir ‘nia

8’Ida oAlabamaKentuckyMichiganPennsylvaniaTennesseeUtahAlaskaRhode IslandWashingtonWest VirginiaColoradoIndianaMarylandDelawareMaineSouth CarolinaOregon

2oming

ontana* Excluding withdrawals for thermoelectric power,Source: Wayne SolIey, Charles Merk, and Robert Pierce, Estimated Wufpr Use ill file Ultittlll St&es 2985 (Washington, DC: U.S.

Geological Survey, 1988).Table A-2

Groundwater Withdrawals Per Capita Per Day, in Gallons, 1985(U.S. average = 363)

StateIdahoNebraskaKansasArkansasNew MexicoWyomingNevadaArizonaColoradoHawaiiMississippiCaliforniaUtahTexasSouth DakotaFloridaLouisianaWashingtonMontanaOregonIowaNorth DakotaOklahomaGeorgiaMinnesota

Gallons

4,7903,4981,9511,606

1,021994

940931707617602

E430352

2;273

2;

235187

172164163

StateAlaskaMissouriDelawareWisconsinWest VirginiaIndianaTennesseeNew JerseyAlabamaNew HampshireIllinoisNorth CarolinaOhioVermontPennsylvaniaMichiganSouth CarolinaNew YorkVirginiaMameKentuckyMassachusettsMarylandConnecticutRhode Island

Gallons13512612511911811592

iit

2

ii68

z63

"5"9

z

z4528

Source: Ralph C. Heath, ‘introduction to State Summaries of Ground-Water Resources,” Nnfiolfnl W&a Sumnmry 1984(Washington, DC: U.S. Geological Survey, 1985).


Rank

;34

z

i9

::121313

:z17181920

ii

;;25

Source:

StateHawaiiMi&;igpi

IdahoFloridaNew MexicoSouth DakotaIowaAlaskaMinnesotaWisconsinCaliforniaIndianaUtahArizonaNorth DakotaArkansasvomingDelawareKansasNorth CarolinaLouisiana

Ttible A-3Percentage of Population Served by Groundwater, 1985

(U.S. average = 51%)

Rank

New HampshireVermontMontana

StateWashingtonWest VirginiaTennesseeNew JerseyIllinoisMissouriTexasMaine

ikz?aAlabamaSouth CarolinaPennsylvaniaNevadaOregonMassachusettsVirginiaNew YorkOklahomaMichiganConnecticutMarylandKentuckyRhode IslandColorado

Wayne Solley, Charles Merk, and Robert Pierce, Estimated Water Use in the United States 1985 (Washington, DC: U.S.Geological Survey, 1988).

Table A4Percentage of Public Water Supply from Groundwater Withdrawals, 1985

StateIdahoFloridaMississippiNew MexicoHawaiiNebraskaSouth DakotaIowaCaliforniaUtahArizonaMinnesotaAlaskaKansas

7oming

isconsinIndianaLouisianaNorth DakotaTexasArkansasMontanaNew JerseyTennesseeDelaware


Percent Rank92% 2.689

Eii29

E $i

;i ;i70 34

ii; ziz 37

50 ii49 3948

ii434139

:;3938

StateWashingtonNevadaVermontNew HampshireAlabamaOhioMissouriIllinoisGeorgiaWest VirginiaMassachusettsMaineSouth CarolinaOklahomaOregonNew YorkConnecticutMichiganPennsylvaniaNorth CarolinaRhode IslandVirginiaKentuckyColoradoMaryland

Percent35%

ii2726252524

82020

:;18

:;13

ii129

Wayne Solley, Charles Merk, and Robert Pierce, Es!imnfed Wafer Use in file hited Shfes 1985 (Washington, DC: US.Geological Survey, 1988).

U.S. Advisorv Commiss ion on Intereovernmental Relat ions 131

Rank1

3”

;

5

i1 011

:i141516

:‘819

iii

i;2325

Source:

Table A-5Percentage of Withdrawals for Industrial Use from Groundwater, 1985

StateArizonaSouth DakotaIdahoKansasNebraskaFloridaHawaiiUtahWyomingMio4iEAipi

GeorgiaNew MexicoCaliforniaMissouriMinnesotaArkansasIowaIllinoisKentuckyNew YorkNorth DakotaNevadaRhode IslandOklahoma

StateWashingtonMassachusettsVirginiaLouisianaNew HampshireConnecticutNew JerseyNorth CarolinaOregonSouth CarolinaMichiganWisconsinAlaskaPennsylvaniaVermontColoradoMarylandTennesseeTexasAlabamaDelawareIndianaWest VirginiaMaineOhio

Percent1 9 %

:;

:t1 2

:;

:i

i

7’7

2

i

:

:32

Wayne Solley, Charles Merk, and Robert Pierce, Estimated Wafer Use in fke United Sfafes 1985 (Washington, DC: U.S.Geological Survey, 1988).

Table A-6Percentage of Withdrawals for Irrigation from Groundwater, 1985

StateIllinoisWisconsinKansasMissouriArkansasOklahoma?&&ssippi

IndianaNebraskaDelawareGeorgiaTexasMinnesotaSouth CarolinaMarylandFloridaNew YorkLouisianaArizonaMichiganOhioNorth DakotaNew MexicoHawaii


Percent Rank100%98 ;;

;; 28 29

E 8

EJ 32 33

777 1 if)

7068 2

2; 2

62z;

::

:; :: 434543 iz43 4742 48

4 137 ::

StateCaliforniaNew JerseyTennesseeAlabamaSouth DakotaMassachusettsNevadaColoradoIdahoPennsylvaniaVirginiaWashingtonUtahMaineRhode IslandOregonWest VirginiaConnecticutNorth Carolinag;g;g

MontanaAlaskaNew HampshireVermont

Percent34%

if

224221 71 6

:“31 3

Source: Wayne Solley, Charles Merk, and Robert Pierce, Estimated hJater Use in the Urrited Sfates 29S.5 (Washington, DC: U.S.Geological Survey, 1988).


Appendix B

Bibliography

Anderson, Terry “The Water Crisis and the NewResource Economics.” In Terry Anderson, ed.Water Rights. San Francisco: Pacific Institute forPublic Policy Research, 1983. pp. 1-9.

Water Crisis: Ending the Policy Drought.Washington, DC: Cato Institute, 1983.

, Oscar Burt, and David Fractoc ‘TrivatizingGroundwater Basins A Model and Its Applica-tion.” In Terry Anderson, ed. Water Rights. SanFrancisco: Pacific Institute for Public Policy Re-search, 1983. pp. 223-248.

Anderson, Terry L, and Peter J. Hill. “Privatizing theCommons: An Improvement?” Sou them Econom-ic Journal 50 (October 1983): 438-450.

, and Ronald N. Johnson. “The Problem ofInstream Flows.” Economic Inquiry 24 (October1986): 535554.

Association of California Water Agencies. ACWA’s75-Year History. Sacramento, 1985.

Banks, Harvey “Management of Interstate AquiferSystems.” ASCE Journal of the Water ResourcesPlanning and Management Division 107 (October1981): 563-577.

Bartelt, Richard E. “State Ground-Water ProtectionPrograms: A National Summary” Ground Water17 (January-February 1979): 89-93.

Beaver, J. A., and M. L Frankel. “Significance ofGround-Water Management Strategy-A Sys-tems Approach.” Ground Water 7 (May-June1969): 22-26.

Bird, John W “Ground Water and Federal ReservedRights.” Journal of Water Resources Planning andManagement 109 (April 1983): 174-178.

. “Implications of Sporhase in Water-Resource Planning” JournaZ of Water ResozumPlanning and Management 112 (April 1986): 198-204

. “Water Resources and the Public TrustDoctrine.” Journal of Wafer Resources PlanningandManagement 112 (January 1986): 64-70.

Birdlebough, Stephen C., and Alfred Wilkins “LegalAspects of Conjunctive Use in California.” In

David Seckler, ed. California Water: A Study inResource Management. Berkeley. University ofCalifornia Press, 1971. pp. 263-270.

Bish, Robert. “Environmental Resource Manage-ment: Public or Private?” In Garrett Hardin andJohn Baden, eds. Managing the Commons. SanFrancisco: W I-I Freeman, 1977. pp. 217-228.

Bittinger, Morton MI “Ground-Water Surface-WaterConflicts” ASCE Journal of the Water ResourcesPZanningandManagement Division 106 (July 1980):467475.

. “The Problem of Integrating Ground Waterand Surface Water Use.” Ground Water 2 (July1964): 33-38.

“Survey of Interstate and International~iferl?roblems.” Ground Water 10 (March-April

1972): 4454.Blomquist, William “Exploring State Differences in

Gmundwater Laws and Policy Innovations,”Publius-The Journal of Federalism (Spring 1991):101-115.

. “Groundwater Management through Inter-jurisdictional Coordination.” Paper presented atthe Seventh Annual Donald G. Hagman Com-memorative Conference. University of Califor-nia at Los Angeles, March 1990.-The ZJerjkmance of Znsti tu tions foT Gmundwater

Management: 1: Raymond Basin (1987). 2: West Basin(1987). 3: Central Basin (1987). 4: ‘Zhe San Gabriel Valley(1990). 5: Orange County (1987). 6: ‘Ike San FernandoValley (1988). 8: Ihe Mojme Rizw B&n (1989).Bloomington: Indiana University, Workshop inpolitical Theory and Policy Analysis

‘They Prefer Chaos: The Evolution of WaterSupply Management in Southern California (SanFrancisco: ICS Press, forthcoming 1992).

Bond, Marvin, Jimmy Palmer, and Charles Branch.“Recent Experiences with Water Legislation inMississippi.” Public Administration Survey 35 (Au-tumn 1987/Winter 1988): 1-5.

Bowden, Gerald, Starhl Edmunds, and Norris Hund-ley, “Institutions Customs, Laws and Organiza-


tions.” In Ernest A. Engelbert, ed. Competition forCalifornia Water. Berkeley: University of Califor-nia Press, 1982. pp. 163182.

Brajer, Victor, and Wade E Martin. %llocating a ‘Scarce’Resource: Water in the West“ Americun Journal ofEconomics and Sociology 48 (July 1989): 259271.

Briggs, Philip C. “Ground-Water Management inArizona.” Journal of Wafer Resources Planning andManagement 109 (July 1983): 195202.

Brown, E Lee, and Fred Roach. “Changing WesternWater Institutions: Energy’s Role.” State Govern-ment 55 (1982): 119-121.

Brown, R. Steven. “Environmental and Natural Re-source Problems: The Role of the States.” 77le Bookof file States. 1986-87 Edition. Lexington,Kentucky:Council of State Governments, 1986. pp. 401-419.

Burges, Stephen J., and Reza Marnoon A SystematicExamination of Issues in Conjunctive Use of Groundand Su@ce Waters. Water Resources InformationSystem Technical Bulletin No. 7. Olympia: Stateof Washington Department of Ecology, 1975.

Bush, David B. “Dealing for Water in the West: WaterRights as Commodities.” American Wafer WorksAssociation Jolcrtlnl80 (March 1988): 30-37.

California, Assembly Office of Research. CaZijornia2000: Paradise ilt Peril. Sacramento, 1987.

California, Department of Water Resources. CaliforniaWater: Looking to the Future. Bulletin No. 160-87.Sacramento, 1987.

77te California Water Plan. Bulletin No. 3.Sacramento, 1957.

Cnlifornin’s Grolrnd W&r. Bulletin No. 118.Sacramento, 1975.

Ground Water Basins in California. BulletinNo. &-SO. Sacramento, 1980.

Planned Utilizafion of Ground Water Basins:zfal Plain of Los Angeles County. Bulletin No.

104. Sacramento, 1968.. Recommended Water Management Plan for

Solano County Flood Control and Wafer Conserz~a-tion Disfrict. Sacramento, 1982.

Carruthers, Ian, and Roy Stoner. Economic Aspects andPolicy Issues in Groundwater Development. WorldBank Staff Working Paper No. 496. Washington,DC: The World Bank, 1981.

Caulfield, Henry I? “The Future of Local WaterDistricts and Agencies in Historical, PoliticalContext” In James Corbridge, ed. Special WaterDistricts: Challengefor fire Future. Boulder: NaturalResources Law Center, 1983. pp. 103-111.

Celebrezze, Anthony J. “Ohio’s Required Enforce-ment of the Clean Water Act.” Cities and villages.36 (March 1988): 8.

Chesters, Gordon, and Linda-Jo Schierow. ‘a Primeron Nonpoint Pollution.” Journal of Soil and Water

Conservation 40 (January-February 1985): 9-13.Ciriacy-Wantrup, S.K “Concepts Used as Economic

Criteria for a System of Water Rights.” LandEconomics 32 (November 1956): 295-312

Clark, Ira G. Water in New Mexico: A History of ItsManagement and Use. Albuquerque: University ofNew Mexico Press, 1988.

Coe, Jack J. “Conjunctive Use of Surface and GroundWaters-The California Experience.” Paper pres-ented at the United Nations Seminar on Con-junctive Use, February 1986.

Cole, Kenneth. “Clean Water: National Issue, Region-al Concern.” States’ Summit ‘87: Issues andChoices for the 1990s. Washington, DC: Councilof State Governments, 1987.

Cooper,Erwin.AquedztctEmpire. Glendale,California:Arthur H Clark Co., 1968.

Corbridge, James. “An Overview of the Special WaterDistrict Workshop.” In James Corbridge, ed. Spe-cial Water Districts: Challenge for the Future. Boul-der: Natural Resources Law Center, 1983. pp. l-9.

Corkec Charles E Water Rights and Federalism -TheWestern Water Rights settlement Bill of 1957.”California Luw Review 45 (December 19.57) 604637.

Cox, William. “Water Law l?rimeF ASCEJournal of theWater Resources Planning and Management Divi-sion 108 (March 1982): 107-122.

, and William Walker “Ground-Water Impli-cations of Recent Federal Law.” Ground Water 11(September-October 1973): 1518.

Craine, Lyle E. ‘Intergovernmental Relations inWater Development and Management” Paperpresented at the Southern Political Science Asso-ciation annual meeting, Gatlinburg, Tennessee,November 1959.

Crews, James E “Regional Versus Local Water SupplyPlanning.“Joumal of Water Resources PlanningandManagemenr 109 (April 1983): 179-185.

Cross, John, and Melvin Guyer. Social Traps. AnnArbor: University of Michigan Press, 1980.

Cuzan, Alfred G. “A Critique of Collectivist WaterResources Planning.” Western Politicnl Qmvterly32 (September 1979): 320-326

. ‘tippropriators vs. Expropriators: The Politi-cal Economy of Water in the West” In TerryAnderson, ed. Water Rights. San Francisco: PacificInstitute for Public Policy Research, 1981.

Dawson, James. “State Ground-Water Protection Pro-grams - Inadequate.” Ground Water 17 (Janu-ary-February 1979): 102108.

DeWittie, Claire. “Groundwater Quality Protection:The Duty of Local Government” Pennsylvanian27 (February 1988): 12.

DeYoung, Tim. “Discretion Versus Accountability:The Case of Special Water Districts.” In JamesCorbridge, ed. Special Water Disfricts: Challengefor


the Fzc ture. Boulder: Natural Resources Law Cen-ter, 1983. pp. 31-50.

Dickason, Clifford. “Improved Estimates of Ground-water-Mining Acreage.” Journal of Soil and WaterConswvation 43 (May-June 1988): 239-240.

Duda, A. M., and R. J. Johnson. “Targeting to ProtectGroundwater Quality.“ Journal of Soil and WaterConservation 42 (September-October): 325330.

Dutcher, Lee, and Lee Peterson. “Water Zoning-Toolfor Ground-Water Basin Managers” Ground Wa-ter 13 (September-October 1975): 395399.

Eden, Susanna. Integrated Water Management in Arizona.Issue Paper Five. Tucson: University of Arizona,Water Resources Research Center, 1990).

Ehrhardt, Robert, and Stephen Lemont InstitutionalArrangements for Intrastate Groundwater Manage-ment: A Comparative Assessment Using Virgilzia as aCase Study. Arlington, Virginia: JBF ScientificCorporation, 1979.

El-Ashry, Mohamed, and Diana Gibbons. “Managingthe West’s Water” Journal of Soiland WaterConser-vation 42 (January-February 1987): 8-13.

Ellis, HI-I ‘Water Rights and Regulation in the EasternStates.” Ground Water 3 (October 1%5): 1828

Emel, Jacque. “Effectiveness and Equity of Ground-water Management Methods in the WesternUnited States.” Working Paper No. 3. Tempe:Arizona State University, Center for Environ-mental Studies, 1984.

Environmental and Energy Study1nstitute.A Congres-sional Agenda to Prevent Groundwater Contamina-tion: Building Capacity to Meet Protection Needs.Special Report Washington, DC, 1986.

Esmond, Fred. “The End of Grants -The Start ofLoans.” Water Bulletin 43 (February 1988): 6-7.

Feazell, Larry. “Interstate Water Agencies.” The Book ofthe States. 1986-87 Edition. Lexington, Kentucky:Council of State Governments, 1986.

Ferris, Kathleen. “Arizona’s Groundwater Code:Strength in Compromise.” Journal of the AmericanWafer Works Association (October 1986): 7984.

Fetter, C.W “Interstate Conflict over Ground WaterWisconsin-Illinois.” Ground Water 19(March-April 1981): 201-213.

Foster, William S. “Wastewater Reuse Protects Kissim-mee Water Resources.” American City and County102 (June 1987): 46.

Fox, Irving K We Can Solve Our Water Problems”Water Resources Research 2 (Fourth Quarter 1966):617-623.

Gaffney, Mason. “Diseconomies Inherent in WesternWater Laws.” Paper presented at the WesternAgricultural Economics Research Council, Tuc-son, Arizona, January 1961.

Garcia, Margot. “Arizona’s Ground-Water Law and Its

Implications for Urban Development” Environ-menta2 Planning Quarterly 4 (Summer 1986): 3-9.

Gardner, B. Delworth. “Removing Impediments toWater Markets.” Journal of Soil and Water Conserua-tion 42 (November-December 1987): 384388.

Gensemer, Miriam, and Marianne Yamaguchi.“Successful Water Quality Planning AnAreawide Perspective.” Journal of Soil and W&rConservation 40 (January-February): 76-78.

George, Ranjit Varkki. “Is Groundwater RegulationBlindman’s Buff?” Journal of Planning Literature 3(Spring 1988): 231-243.

Gisser, Micha. “Groundwater: Focusing on the RealIssue.” Journal ofPoZitica2 Economy 91 (December1983): 1001-1027.

Goodall, Merrill,and John D. Sullivan. “Water SystemEntities in California: Social and EnvironmentalEffects.” In James Corbridge, ed. Special WaterDistricts: Challengefor theFuture. Boulder: NaturalResources Law Center, 1983. pp. 71-102

Grant, Douglas L “The Complexities of ManagingHydrologically Connected Surface Water andGroundwater under the Appropriation Doc-trine.” Land and Water Law Review 22 (1987): 63-95.

Green, Mary Ann Water Law - Sporhase v. Nebraska”Natural Resources JournaI 33 (October 1983): 923931.

Grigg. Neil S. “Appendix Groundwater Systems” InKyle Schilling et al. ‘Ilze Nation’s Public W&: Reporton Water Resources. Washington, DC NationalCouncil on Public Works Improvement, 1987.

. “Regionalization in Water Supply InduswStatus and Needs.” Journal of Water ResourcesPlanningandManagemen t 115 (May 1989): 367-378.

Water Resources Planning. New York:McGraw-Hill, 1985.

Hamill, L, and E G. Bell Groundwater ResourcesDevelopment. London: Butterworth’s, 1986.

Hansen, Scott, and Floyd Marsh. “ArizonaGround-Water Reform: Innovations in State Wa-ter Policy” Ground Water 20 (January-February1982): 67-72

Hardin, Garrett “The Tragedy of the Commons.”Science 162 (December 13,1968): 1243-1248.

Harding, Sidney T Water in Caliform’a. Palo Alto: N-PPublications, 1960.

Hart, Henry C “Toward a Political Science of WaterResources Decisions.” In L Douglas James, ed.Man and Water. Lexington: University Press ofKentucky, 1974. pp. 122163.

Hartman, LM. “Economics and Ground-Water De-velopment” Ground Water 3 (April 1965): 4-8.

Heath, Ralph C. “Introduction to State Summaries ofGround-Water Resources.” National Wafer Sum-mary 1984 -Ground-Wafer Resources . Washington:U.S. Geological Survey, 1985. pp. 118-121.

Henley, Albert “The Evolution of Forms of Water


Users Organizations in California.” CaliforniaLaw Review 45 (December 1957): 665-675.

H&don, Philip R., and Terrence W Thompson. “The1980 Arizona Groundwater Management Code.”Arizona State Law Journal 12 (1980): 621-668.

Hobbs, Charles 7he Wafer Districts of Cah$rnia. Sacra-mento: Association of California Water Agencies,1979.

Hodges, E 0. C. “Water Legislation and Institutions:Their Role in Water Resources Development andManagement” Water InternationnI 2 (September1977): 3-9.

Holbert, Myron, Richard Atwater, and TimothyQuinn. “Water Marketing in Southern Califor-nia.” American Water Works Association Journal 80(March 1988): 38-45.

Howe, Charles W, and K William Easter: ZnferksinTransfers of Water: Economic Issues and Impacts.Baltimore: Johns Hopkins University Press, 1971.

Howe, Richard. “The Politics of Nonpoint IbllutionControl: A Local Perspective.” Joumnl of Soil andWafer Conservation 40 (January-February 1985): 107.

Howells, David, and James Warman. “GroundwaterManagement in the Southeast” ASCE Journal ofthe Water Resources planning and ManagementDivision 108 (October 1982): 321-328.

Hughes, Marcia. “Federal Laws, State Water Regulation,and Section 404.“ State Government 55 (1982)~127-132.

Humphrey, Nancy and Christopher Walket~ InnovativeState Apprc&es to Community Water Supply ZJ&lems. Washington, DC: The Urban Institute, 1985.

Hundley, Norris. Waterand file West. Berkeley. Univer-sity of California Press, 1975.

Ingram, Helen M., et al. “Guidelines for ImprovedInstitutional Analysis in Water Resounxs Plan-ning.” Water Resources Research 2.0 (March 1984):323334

Institute of Public Administration. Special Districts andPublic Authotities in Public Works Provision: Reportto the National Council on Public Works Zmprove-nzennt. 1987. Unpublished.

Jackson, William et aL “h Interdisciplinary Process forProtecting Instream Flows” Journal ofSoil and WaterConsen&ion 44 (March-April 1989): 121-K%

James, L Douglas ‘The Challenge to the SocialSciences.” In L Douglas James, ed. Man and Water.gxngtorx University Press of Kentucky, 1974. pp.

- .. “Reviews and Observations” In L Douglas

James, ed. Man and Water. Lexington: UniversityPress of Kentucky, 1974. pp. 200-239.

James, Laura. “Iowa Groundwater Resources Threat-ened.” lown Municipalities 42 (April 1987): 8.

Jaquette, David L Eficient W&r Use in California:

Conjunctive Management of Ground and SurfnceReseruoirs. Santa Monica RAND Corporation, 1978

, and Nancy Y Moore. Eficient Water Use inCalifornia: Groundwater Useand Manngemenf. San-ta Monica: RAND Corporation, 1978. ReportR-2387/l-CSA/RE

Jensen, James H. “Governmental Responsibilities forWater Development” In Ernest Engelbert, ed.Strategies for Western Regional Water Development.Los Angeles: Western Interstate Water Confer-ence, 1966. pp. 116-124.

John S. Murk Engineers. Final Local WaterManagementAlternatives: Newberry Groundwater Basin. Reportprepared for Mojave Water Agency. Victorville,California, December 1984.

Johnson, Ronald, Micha Gisser, and Michael Werner.“The Definition of a Surface Water Right andTransferability” Journal of Law und Economics 24(October 1981): 273-288.

Johnson, Sue. “Recent Sociological Contributions toWater Resource Management and Development”In L Douglas James, ed. Man and Wafer. Lexington:University Press of Kentucky, 1974. pp. X4-199.

Johnson, Thelma A., and Helen J. Peters. “RegionalIntegration of Surface and Ground Water Re-sources.” Presented at the Symposium of theInternational Association of Scientific Hydrolo-gy, Haifa, Israel, 1967.

Jolly, Carol “State and Federal Roles in National WaterCleanup.” State Government 55 (1982): 115118

Jorgensen, Alfred MI A New Approach to Solving WaterDisputes: The Long Beach Case. Master’s DegreeThesis in Public Administration. University ofSouthern California, 1967.

Kenski, Henry C. Saving the Hidden Treasure: TheEvolution of Groundwater. Claremont, California:Regina Books, 1990.

Kimm, Victor “The Federal Ground-Water ProtectionProgram -A Review.” Ground Water 17 (Janu-ary-February 1979): 75-79.

Knapp, Keith, and H. J. Vaux “Barriers to EffectiveGround-Water Management The California Case.”Gmund Water 20 (January-February 1982): 6166.

Kohlhoff, Karl. “Urban Use of Arizona’s RuralGroundwatec” Journal of the American WaferWorks Association 80 (March 1988): 46-50.

Konrad, John, James Baumann, and Susan Bergquist.“Nonpoint Pollution Control: The WisconsinExperience.” Journalof Soil and WaferConservation40 (January-February 1985): 55-61.

Krieger, James. “Ground Water Regulation-State orLocal.” Paper presented at the American WaterWorks Association Meetings, Sacramento, Cali-fornia, 1961.

Krieger, James H., and Harvey 0. Banks.“GroundWater Basin Management.” California Law RP-view 50 (1962): 56-77.


Lampe, Les K (1987) “Recharge Saves Water for aNot-So-Rainy Day.“Amticon City and County 102(June 1988): 4046.

Lee, Dwight R. “Political Provision of Water: AnEconomic/Public Choice Perspective.” In JamesCorbridge, ed. Special Water Districts: Challenge@the Future. Boulder: Natural Resources Law Cen-ter, 1983. pp. 51-70.

Lee, Eugene, and Harrison Dunning “I%litical Dynam-ics and Decision Making.” In Ernest A Engelbert,ed. Competition fir California Water. Berkeley: Uni-versity of California Press, 1982 pp. 183-198.

Lehr, Jay I-I. “Do We Really Need More Federal WaterPollution Control Regulations?” Ground Water 15(July-August 1977): 266-268.

. “The Safe Drinking Water Act Its First 250Days.” Ground Water 13 (September-October1975): 390-394.

, and Chris Reimel “Pending FederalGround-Water Legislation-Two Steps Forwardor One Step Back You Decide.” Ground Water 26(May-June 1988): 274-278.

Leshy, John D. “Special Water Districts-The Histori-cal Background.” In James Corbridge, ed. SpecialWater Districts: Challenge for the Future. Boulder:Natural Resources Law Center, 1983. pp. 11-30.

and James Belangec “Arizona Law: Wherexnd and Surface Water Meet” Arizona State

Law Journal 20 (Fall 1988): 657-748.Libby Lawrence. 7?aying the Nonpoint Pollution

Control Bill.” Journal of Soil and Water Conserva-tion 40 (January-February 1985): 33-36.

Liner, E. Blaine, et al. State Management of Ground-water: Assessment of Practices and Progress. Wash-ington, DC: The Urban Institute, 1989.

Lipson, Albert J. Efficient Water Use in California: ‘IheEvolution of Grvundwater Management in SouthernCalifornia. Santa Monica: RAND Corporation, 1978

Lord, William B. “Conflict in Federal Water ResourcesPlanning.” Water Resources BuZZetin 15 (October1979): 1226-1235.

“Institutions and Technology: Keys to BetterWater Management” Water Resources Bulletin 20(October 1984): 651-656.

Lute, Charles. “Ground Water and Government”Ground Water 7 (November-December 1969): 2-8.

Mallery, Michael. “Groundwater: A Call for a Com-prehensive Management Program.” Pacific LawJournal 14 (July 1983): 1279-1307.

Maloney, Frank, and Richard Ausness. “A ModemProposal for State Regulation of ConsumptiveUsesof wa~e~“Hnsr/irgs~~JQi~~~l22~eb~a~

1971): 523-560.Mann, John E “Concepts in Ground Water Manage-

ment” Journal of the Ante&an Water Works Associ-ation 60 (December 1968): 1336-1344.

“Ground Water Rights in California.” Pm-ceed&q of the National Water Well AssociationWestern Regional Conference on Ground WaterManagement, San Diego, October 1983. pp.181-186.

Ma&all, Brian, and James C Lamb. “Evolving Waterzg Regulations” Stare Guuernnmf 55 (1982):

McCay, Bonnie, and James M. Acheson. “The HumanEcology of the Commons.” In Bonnie McCay andJames Acheson, eds. Capturing the Commons: i%eCulture and EcoIogy of Communal Resources. Tuc-son: University of Arizona Press, 1987. pp. l-34.

McCleskey, George. “Problems and Benefits inGround-Water Management” Ground Water 10(March-April 1972): 2-5.

McGuinness, C. L “New Thrusts in Ground Watet”Ground Water 7 (March-April 1969): 7-10.

Melvin, Robert L, Hugo E Thomas, and Robert E.Moore. “Cooperative Efforts in Ground-WaterProtection -A Connecticut History.” U.S. Geologi-cal Survey Yearbook 1987. Washington, D.C.: U.S.Geological Survey, 1988. pp. 817.

Metzger, Philip C “Protecting Social Values in West-ern Water Transfers.” American Water Works Assciation Journal 80 (March 1988): 58-65.

Miller, R. E. ‘The Geological Survey and Water forSouthern California. Menlo Park, California: U.S.Geological Survey, 1971.

Moore, Charles V Groundwater Oveniraft Management:Some Suggested Guidelines. Information Series No,84-l. Davis, California: Giannini Foundation, 1984.

Moreau, David “New Federalism and Social andEnvironmental Goals” Journal of Water ResourcesPlanning and Management 115 (January 1989): 2230.

Morgan, Russell. “The Role of Ground Water inComprehensive River Basin Planning.” GroundWater 3 (April 1965): 16-18.

Masher, Dale C “The Federal Ground-Water Protec-tion Program -Tomorrow’s Undoing.” GroundWater 17 (January-February 1979): 83-86.

Masher, Lawrence. “Federal Water Development:Going, Going. . . .” Journal of Soil and WaterConsemation 41 (May-June 1986): X4-166.

. “How to Deal with Groundwater Contami-nation?” Journal of Soil and Water Conservation 42(September-October 1987): 333-335.

“Slippery Subject.” National Jotmnl, April25,1$87, pp. 1003-1004.

. “What Role Water Markets?” Jottrrtnl of Soiland Water Conservnfion 41 (November-December1986): 390-392

. “Will the Real Leaders in National WaferPolicy Please Stand Up?” Joltrlznl of Soil n11rl WriterConsemntion 44 (March-April 1989): 135136.

Myers, Carl, et al. “Nonpoint Sources of Water


Pollution.” Journal of Soil and Water Conservation40 (January-February 1985): 14-18,

National Council on Public Works Improvement.Frag’le Foundaltions: A Report on America’s PublicWorks. Washington, DC, 1988.

National Groundwater Policy Forum. Groundwater:Saving the lhrseen Resource. Washington, DC: TheConservation Foundation, 1986.

National Research Council, Committee on GroundWater Quality Protection. Grozrnd Water QualifyProfecfion: State and Local Strategies. Washington,DC: National Academy Press, 1986.

, Committee on Water. Alternatives ilr WaterManagemenf. Washington, DC: National Acade-my of Sciences, 1966.

National Water Commission. Water Policies for theFuture: Final Report to the President and to fheCongress of the Unifed States. Port Washington,New York Water Information Center, 1973.

Noonan, David, Myron Rosenberg, and DuncanWood. “Constraints to Managing Interstate Aqui-fee” Journal of Wafer Resources Planning andManagement 110 (April 1984): 191-205.

Nunn, Susan Christopher. The Political Economy ofInstitutional bmouation: Coalitions and Strategy inthe Development of Groundwater Law. Ph.D. Disser-tation. University of Wisconsin, 1986.

Olsenius, Christine. “Tomorrow’s Water Managec”Journal of Soil and Water Conservation 42 (Septem-ber-October 1987): 312315.

Ophuls, William. “Leviathan or Oblivion.” In Her-man Daley, ed. Toward a Steady State Economy. SanFrancisco: W H. Freeman, 1973. pp. 173-181.

Ostrom, Vincent Institutional Arrangements for WaferResource Development. Report to theNational WaterCommission. Washington, DC: National WaterCommission, 1971.

, a n d Elinor Ostrom.“ABehavioralApproachto the Study of Intergovernmental Relations.” TheAnnals of fhe American Academy of Political andSocial Science 359 (May 1965): 137-146.

, Robert Bish, and Elinor Ostrom. LocalGovernment in the UnitedSfates. SanFrancisco:ICSPress, 1988.

Paskowski, Andrew. “Groundwater and WatershedProtection.” Environmental Planning Quarterly 6(Spring 1988): 210.

Peters, Helen Joyce. “Current Policies and Issues ofGround Water Basin Management” Presented atthe California-Nevada Section of the AmericanWater Works Association, Palm Springs, Califor-nia, October 1981.

“Groundwater Management” Water Re-sources Bullefin 8 (February 1981): 188-197.- “Ground Water Management in Califor-

nia.” Presented at the American Society of Civil

Engineers Conference, Las Vegas, April 1982.Petersen, Margaret S. Water Resource Planning and

Development. Englewood Cliffs, New Jersey.Prentice-Hall, 1984.

Peterson, Cass. “Swimming in Subsidized Water.”Washington Post, May 12,1986.

Phelps, Charles, et al. Eficient Water Use in California:Exectl tive Summary. Santa Monica: RAND Corpo-ration, 1978.

Piper, Steven, C., Edwin Young, and Richard Magleby“Benefit and Cost Insights from the Rural CleanWater Program.” Journal of Soil and Wafer Conser-vafion 44 (May-June 1989): 203-208.

Powell, John Wesley. “Institutions for the Arid Lands.”The Century Magazine 40 (1890): 111-l 16.

Pratt, Kevin B. “Mitigating Third-Party Effects.“Alrter-ican Water Works Association Journal 80 (March1988): 51-57.

Rao, l? K. “Planning and Financing Water ResourceDevelopment in the United States: A Review andPolicy Perspective.” American Journal of Economicsand Sociology 47 (January 1988): 81-96.

Rausser, Gordon C, and Gerald W Dean. “Uncertain-ty and Decision-Making in Water Resources.” InDavid Seckler, ed. California Wafer: A Sfudy inResource Management. Berkeley: University ofCalifornia Press, 1971. pp. 233-250.

Rayner, Frank. “Ground-Water Management -A Lo-cal Government Concern.” Ground Wafer 10(May-June 1972): 2-5.

Reedy, William. “Water for the Valley of the Sun.”ASCE Journal of the Water Resources Planning andManagement Division 106 (July 1980): 477492.

Reisner, Marc. “The Next Water War: Cities VersusAgriculture.” Issttes in Science and Technology 5(Winter 1988-89): 98-102.

Rich, Jacqueline. Arizona’s Role in Wafer QualityManagement: State Agency Programs rind Lnnd andWater Resource Controls. Phoenix: Arizona Officeof Economic Planning and Development, 1977.

Roberts, Rebecca, and Sally Gras “The Politics ofGround-Water Management Reform in Oklaho-ma.” Ground Water 25 (September-October 1987):535-a

Rogers, Harold, and Alan Nichols. Waferfor California:Planning, Law and Practice, Finance (2 ~01s.). SanFrancisco: Bancroft-Whitney, 1967.

Rolph, Elizabeth. Government Allocafion of ProperfyRights: Why and How. Santa Monica: RANDCorporation, 1982.

Ross, Edwin. “State Ground-Water Protection Pro-grams Adequate” Ground Wafer 17 (January-Feb-ruary 1979): 94-101.

Rubin, Harold. 7’he Solnno Wafer Story. Vacaville,California: Solano Irrigation District, 1988.

Sacarto, Douglas, et al. Stafe Issues 1989: A Surevy of


Priority Issues for State Legislatures. Denver Na-tional Conference of State Legislatures, 1989.

Samuelson, Charles, and David Messick flAlternativeStructural Solutions to Resource Dilemmas.”Working Paper, University of California-SantaBarbara, 1984.

Sato, Sho. “Water Resources-Comments Upon theFederal-State Relationship.” California Law Re-view 48 (March 1960): 43-57.

Savage, Robbi. “National Clean Water Act ProgramTurned into State Revolving Loan Funds.” CountyNews 19 (August 17,1987): 16.

Savage, Roberta. “State Initiatives in Non-point-Source Pollution Control.” Iournal of SoilRIZ~ Wlzter Conservation 40 (January-February1985): 53-54.

Schiffman,Arnold. “Ground-WaterContamination-A Regulatory Framework” Ground Water 26(September-October 1988): 554-558.

Schilling, Kyle, et al. Tote Natiorz’s PubIic Works: Report011 Wuter Resources. Washington, DC: NationalCouncil on Public Works Improvement, 1987.

Schmandt, Jurgen, Ernest Smerdon,and Judith Clark-son. State Wuter PoZicies. New York Praeger Pub-lishers, 1988.

Seckler, David, and L M. Hartman. “On the PoliticalEconomy of Water Resources Evaluation.” InDavid Seckler, ed. CuIijorniu Water: A Sfudy inResource Munugement. Berkeley: University ofCalifornia Press, 1971. pp. 285-309.

Sever, Charles. “The Federal Ground-Water Protec-tion Program-Today’s Hope.” Ground Water 17(January-February 1979): 80-82.

Simmons, Malcolm M. Culijorniu Wuter. Washington,DC: Library of Congress, Congressional ResearchService, 1981.

Smith, Robert J. “Resolving the Tragedy of the Com-mons by Creating Private Property Rights inWildlife.” Cute Journal 1 (Fall 1981): 439-468.

Smith, Rodney. “The Changing Role of Water Policyin California’s Economic Development” Paperprepared for the California Economic Develop-ment Corporation, April 1988.

. “A Reconciliation of Water Markets andPublic Trust Values in Western Water Policy.”Transactions of the Fifty-Third North AmericanWildlife and Natural Resources Conference.1988. pp, 326-336.

- fiuding Wuter: An Economic and Legal Frame-work for Wuter Marketing. Washington, DC: Coun-cil of State Policy and Planning Agencies, 1988.

Smith, Stephen C. “Economics and Economists inWater Resources Development” In L DouglasJames, ed. Mun rind Wuter. Lexington: UniversityPress of Kentucky, 1974. pp. 82101.

. “Problems in the Use of the Public District

for Ground-Water Management.” Lund Economics32 (August 1956): 259-269.

Smith, Zachary “Competition for Water Resources:Issues in Federalism.” Journul of Lnmi Use andEnuironmentul Luw 2 (1986): 177-193.- “Federal Intervention in the Management

of Groundwater Resources: Past Efforts andFuture Prospects.” Publizls - 7’heJournal of Federul-ism 15 (Winter 1985): 145-159.

“Interstate and International Competitionfor Water Resources.” Wuter Resollrccs Blrlletill 23(October 1987): 873-877.

. “The Policy Environment.” In ZacharySmith, ed. Wafer and the Al tzrre of fhe Souflmrest.Albuquerque: University of New Mexico Press,1989. pp. 9-18.- “Rewriting California Groundwater Law:

Past Attempts and Prerequisites to Reform.” Culifor-niu Western Lnw Review XI (Winter 1984): 223257.- “Stability Amid Change in Federal-State

Water Relations.” Capital University Luw Review15 (Spring 1986): 479-491.

Solley, Wayne, Charles Merk, and Robert Pierce.Estimated Use of Water in the United Sfates, 2985.U.S. Geological Survey Circular 1004. Washing-ton, DC: U.S. Geological Survey, 1988.

Stamm, G. G. “Federal Legislation and Ground-WaterDevelopment” Ground Wafer 3 (January 1965):3@32b

Steiner, Wesley E. “Public Water Policy in Arizona.State Government 55 (1982): 133-135.

Stepleton, B. M. “T&s Ground Water Legislation:Conservation of Ground Water or Drought byproCess?” NufuruI Resources Jozuxul 26 (1986):871-882

Stetson, Strauss and Dresselhaus. Comperrdium ofReport on a Supplemental Water Supply for UpperSan Gabriel Valley Municipal Wuter District. LosAngeles, 1962.

Stetson, Thomas M. “Main San Gabriel BasinGround-Water Management” Paper presentedat the 82nd Annual Meeting of the CordilleranSection of the Geological Survey of America. InPrem K. Saint, ed. Hydrogeology of So&m Cdifor-niu: und Guidebook. Los Angeles: Geological Soci-ety of America, 1986.

Sutherland, I? Lorenz, and John A. Knapp. “TheImpacts of Limited Water: A Colorado CaseStudy.” Journul of Soil am-l Wrrter Conservutiolr 43(July-August 1988): 294-298.

‘Igylor, Edward E “Arizona v. California-Landmark onthe Colorado River” Gmmd W&r 5 (April 1967):5-12

Taylor, Paul S. “The X0-Acre Law.” In David Serkler,ed. Californin W&r: A Study in Resource Multuge-menf. Berkeley: University of California Press,1971. pp. 251-262.


Terink, John. “Impact of Water Pollution ControlLegislation on Meeting Futunz Water Needs inCalifornia” Ground Wafer 12 (March-April 1974)102105.

Templer, Otis. “Conjunctive Management of WaterResources in the Context of Tscas Water Law.”Water Resources Bulletin 16 (April 1980): 305-311.

I “Legal Constraints on Water ResourceMan-agement in Tatas.” The Environmental Professional5 (1985): 72-83.

Thompson, Grant I? Courts and Water: The Role of theJl~dicial Process. Background Report, Arlington,Virginia: National Water Commission, 1972,

Todd, David Keith. Gmund-Water Resources of theUnited St&s. Berkeley: Premier Press, 1983.

. “Groundwater Utilization.” In David Seck-ler, ed. California Water: A Study in ResourceManagement. Berkeley: University of CaliforniaPress, 1971. pp. 174-189.

Tiager, Susan M. “Emerging Forums for GroundwaterDispute Resolution in California: A Glimpse atthe Second Generation of Groundwater Issuesand How Agencies Work Towards Resolution.”Pacific Lnw ]ournal20 (October 1988): 31-74.

Trelease, Frank J. “Legal Solutions to GroundwaterProblems -A General Overview.” Pati@ L.aw]ournal 11 (July 1980): 863-875.

“States Rights Versus National Powers forWater Development” In Ernest Engelbert, ed.Stnztegiesfor Western Regional Water Development.Los Angeles: Western Interstate Water Confer-ence, 1966. pp. 99-115

Tripp, James ‘I: B, and Adam B. Jaffe. “PreventingGroundwater Pollution: Towards a CoordinatedStrategy to Protect Critical Recharge Zones.”Harvard Environmental Law Reviezo 3 (1979): l-47.

Troxell, Harold C Water Resources of Southern CuZijor-nin, With Special Reference to the Drought of 1944-51.U.S. Geological Survey Water-Supply Paper 1366.Washington, DC US. Geological Survey, 1957.

U.S. Advisory Commission on IntergovernmentalRelations. Metropolitan Oqanizntion: Tlte St. LouisCnse. Washington, DC, 1988.

The Orgnnizntion of Local Public Economies.Washington, DC, 1987.

The Problem of Special Districts in AmericanGo&nmeut. Washington, DC, 1964.

U.S. Environmental Protection Agency, Office ofGround-Water Protection. Ground-Water Pro&tion Strategy. Washington, DC, 1984

, Improved Protection of Water Resources fromLong-Term and Cumulative Pollution: Prevention ofGround-Water Contamination in the Lhited States.Report prepared for the Organization for Eco-nomic Cooperation and Development. Washing-ton, DC, 1987.

Survey of State Ground Writer Qunlity Profec-tion ‘Legislation Enncted from 2985 through 1987.Washington, DC, 1988.

U.S. General Accounting Office. Groundzonter Protec-tion: The Use of Drinking Water Standards by theStates. Washington, DC, 1988.

. GroundwaterQuality: StateActivities toGuardagainst Contaminants. Washington, DC, 1988.

U.S. Geological Survey. National Water Summnry 1983(1984), 2984 (1985), 2986 (1987), 1987 (1990). Wash-ington, DC.

U.S. Office of Science and Technology Policy FederaIGround W&r Science and TechnoIogy Programs. AReport by the Subcommitfee on Ground W&r.Washington, DC, 1989.

Urban Institute Proceedings of the National Forum onGnnmdwater Protection. Washington, DC, 1990.

Utton, Albert E. “The El Paso Case: ReconcilingSporhase and Vermejo.” Natural Resources Iour-na2 23 (January 1983): ix-xv.

Viessman, Warren. “Water Management: Challengeand Opportunity.” Journal of Water ResourcesPlanningandMunngement (January 1990): 155169.

, and Claire Welty Water Management: Tech-nology and Institutions. New York: Harper andRow, 1985.

Wade Miller Associates. The Nation’s Public Works:Report on Water Supply. Washington, DC: Nation-al Council on Public Works Improvement, 1987.

Wallace, LT., Charles Mmre,and Raymond Coppock“An Overview: The Conflicts and the Questions.”In Ernest Engelbert, ed. Competition for CnliforrtinWater. Berkeley: University of California Press,1982 pp. 199-208.

Walton, William, and Raymond Haik “Comments onWater Laws in Minnesota,” Groulld Wafer 8@lly-August 1970): 4-10.

Ward, C. H,N. N. Durham, and L W Cantec “GroundWater-A National Issue.” Ground Water 22(March-April 1984): 138-140.

Weatherford, Gary, et al. Acquiring Water for Energy:Institutional Aspects. Littleton, Colorado: WaterResources Publications, 1982

Welch, W E “The Political Feasibility of Full-Owner-ship Property Rights.” Policy Science 16 (Novem-ber 1983): 165180.

Welsh, Frank How to Create a Water Ctisis. Boulder:Johnson Books, 1985.

Westphal, Joseph. “The Potential for Ground-WaterManagement in the West” Ground W&r 20(Janua@ebruary 1982): 59-60.

Whipple, William. “State Water Supply Managementin New Jersey? Jotttrrnl of Wafer Resources Dlnn-ning rind Mmrngement 111 (July 1985): 284-292.

White, Gilbert E “The Role of Geography in WaterResources Management” In L Douglas James,


ed. Man and Wafer. Lexington: University Press ofKentucky, 1974. pp. 102121.

Strategies of American Wafer Management.Ann Arbor: University of Michigan Press, 1969.

Wickersham, Ginia. “Ground-Water Management inthe High Plains.” Ground Wafer 18 (May-June1980): 286-290.

“A Preliminary Survey of State Ground-Water Laws.” Ground Water 19 (May-June 1981):321-327.

Williams, Stephen E “The Requirement of BeneficialUse as a Cause of Waste in Water ResourceDevelopment” Natural ResourcesJournaZ 23 (Jan-

uary 1983): 7-23.

Wilm, Harold. “Intergovernmental Planning of Wa-ter Resources.” Ground Wafer 7 (March-April1969): 1517.

Worsteq Donald Rivers of Empire: Wufq Aridi&, and theGrazuth of the American West. New York Pantheon,1985.

Wright, Kenneth K. “Underground Water Problems inCalifornia.” JournaZ of the American Water WorksAssociation 44 (August 1952): 662668.

Zeiger, Richard. “Water, Water.” California Journal 19(March 1988): 104-109.



Recent Publications of theU.S. Advisory Commission on Intergovernmental Relations

Interjurisdictional Tax and Policy Competition: Good or Bad for the Federal System?, M-177, 1991, 72 pp. . . . . . . .State-Local Relations Organizations: The ACIR Counterparts, A-117,1991,36 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Directory of State-Local Relations Organizations: The ACIR Counterparts, A-117D, 1990,52 pp. . . . . . . . . . . . .State Taxation of Telecommunications, A-116, 1990,40 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Significant Features of Fiscal Federalism, 1991 Edition, Volume I, M-176, 1991, 180 pp. . . . . . . . . . . . . . . . . . . . . . . . .The Structure of State Aid to Elementary and Secondary Education, M-175, 1990,72 pp. . . . . . . . . . . . . . . . . . . . . . . .Representative Expenditures: Addressing the Neglected Dimension of Fiscal Capacity, M-174,1990, 128 pp. . . . . . . .Mandates: Cases in State-Local Relations, M-173, 1990,64 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Changing Public Attitudes on Governments and Taxes: 1990, S-19,1990,40 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1988 Fiscal Capacity and Effort, M-170,1990, 160 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .State Constitutional Law: Cases and Materials, 1990-91 Supplement, M-172, 1990,56 pp. . . . . . . . . . . . . . . . . . . . . . .Intergovernmental Regulation of Telecommunications, A-115, 1990,48 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The Volume Cap for Tax-Exempt Private-Activity Bonds: State and Local Experience in 1989, M-171, 1990,36 pp. .Significant Features of Fiscal Federalism, 1990 Edition, Volume I, M-169, 1990, 152 pp. . . . . . . . . . . . . . . . . . . . . . . . .

VolumeII,M-169-11.1990.280pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

State and Local Initiatives on Productivity, Technology, and Innovation, A-114, 1990, 180 pp. . . . . . . . . . . . . . . . . . . . .Local Revenue Diversification: Rural Economies, SR-13,1990,60 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .State Taxation of Banks: Issues and Options, M-168, 1989,48 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A Catalog of Federal Grant-in-Aid Programs to State and Local Governments: Grants Funded FV 1989,

M-167, 1989,40 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Local Revenue Diversification: Local Sales Taxes, SR-12, 1989,56 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .State Constitutions in the Federal System: Selected Issues and Opportunities for State Initiatives,

A-113.1989.128~~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Residential Community Associations: Questions and Answers for Public Officials, M-166, 1989, 40 pp. . . . . . . . . . . . .Residential Community Associations: Private Governments in the Intergovernmental System?

A-ll2,1989,128pp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Readings in Federalism-Perspectives on a Decade of Change, SR-11,1989, 128 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disability Rights Mandates: Federal and State Compliance with Employment Protectionsand Architectural Barrier Removal, A-111, 1989,136 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Hearings on Constitutional Reform of Federalism: Statements by State and LocalGovernment Association Representatives, M-164, 1989,60 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

State and Federal Regulation of Banking: A Roundtable Discussion, M-162, 1988.36 pp. . . . . . . . . . . . . . . . . . . . . . . . .Assisting the Homeless: State and Local Responses in an Era of Limited Resources,

M-161, 1988, 160 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Devolution of Federal Aid Highway Programs: Cases in State&cal Relations and issues in ,Q.& Law,

M-160,1988,6Opp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .State Regulations of Banks in an Era of Deregulation, A-110. 1988,36 pp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .State Constitutional Law: Cases and Materials, M-159, 1988,480 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Local Revenue Diversification: Local Income Taxes, SR-10, 1988,52 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Metropolitan Organization: The St. Louis Case, M-158, 1988, 176 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interjurisdictional Competition in the Federal System: A Roundtable Discussion, M-157, 1988,32 pp. . . . . . . . . . . . . .State-Local Highway Consultation and Cooperation: The Perspective of State Legislators, SR-9, 1988,54 pp. . . . . .The Organization of Local Public Economies, A-109, 1987,64 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Is Constitutional Reform Necessary to Reinvigorate Federalism? A Roundtable Discussion, M-154, 1987,39 pp. . . .Local Revenue Diversification: User Charges, SR-6, 1987,64 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Devolving Selected Federal-Aid Highway Programs and Revenue Bases: A Critical Appraisal, A-108, 1987,56 pp. ..Federalism and the Constitution: A Symposium on Garcia, M-152, 1987,88 pp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

$10.00$10.00

$2.00$10.00

m.00$10.00$20.00$10.00$10.00$20.00

$7.00$10.00

$7.50$17.50$17.50$25.00

$8.00$10.00

$10.00$8.00

$15.00$5.00

$10.00$10.00

$10.00

$5.00$5.00

$10.00

$5.00$10.00$25.00

$5.00$10.00

$5.085.00

$5.00$5.00$5.00

$10.00$10.00

Coordinating Water Resources in the Federal System

Documents