| The news of the western drought
has reached Washington, D.C., and the topic of water is once
again on center stage.
Of course, it is not just the drought but also
the population boom in arid states, groundwater mining, and
aging infrastructure that are bringing the specter of a water
crisis to public awareness.
The national response to this crisis requires
careful thought, though, not the familiar plea for congressional
funding for new water projects.
New Mexico Sens. Pete Domenici and Jeff Bingaman
have announced a hearing to consider critical questions about
the role of federal agencies. Foremost among the questions about
the federal role is the extent to which federal funding will
be provided to meet the West's ongoing demand for additional
water supplies.
Federal support for
Emblematic of this pattern is legislation to
create a "Twenty-First
Century Water Commission." It is based on the assertions that
the nation needs "a comprehensive strategy to increase water
availability," and that Congress needs advice on such
matters as "means of capturing excess water and flood water
for conservation and use in the event of a drought." (H.R.
135, 1st Sess. 108th Cong. (2003)).
How can increased federal spending possibly be the wrong response?
It is counterintuitive to suggest that additional spending
may actually make a problem worse, but that is what I will argue
here. It would be better to have the federal government strengthen
its programs in areas where there is a unique contribution to
water management to be made.
Federal support for scientific research, for
monitoring, and for technology development are examples of
national benefits
that are better provided at a federal level. In addition, the
federal government should maintain its trust responsibilities
to Indian tribes and manage water on federal lands. It should
also provide support for environmental protection and restoration
because the environment is a public good.
Much of the contemporary federal involvement is
in the operation of dams and other infrastructure, roles that
are now incorporated within a mosaic of management agencies
and working well.
Both the U.S. Corps of Engineers and the U.S.
Bureau of Reclamation actively protect environmental values
in many of their projects, serving an appropriate governmental
role. The interstate nature of major rivers makes the involvement
of the national government imperative. But the argument that
the United States faces a crisis in water supply and that
the
federal government should solve the crisis will lead the nation
to spend more on a problem that will not be solved with federal
funds.
The history of federal involvement in water gives
some indication why spending federal funds on water supplies
might actually
retard progress on solving our water needs. The nation has
witnessed decades of spending by the Corps of Engineers and
the Bureau
of Reclamation to bring flood control, transportation, irrigation
and electrical power to the people of the country. But, for
each success story, another story can be told.
Subsidizing water projects
Funding for water storage has meant cheap water for agribusiness,
not the small farms envisioned by the Reclamation Act. Cheap
water has been an inducement to use water inefficiently, even
wastefully.
Flood control structures have permitted development
in river corridors, in turn necessitating costly protection
of that development.
Transportation by barges requires ongoing
subsidies to maintain these waterways. For several generations
our nation has transferred money from taxpayers to small group
of beneficiaries under the banner of solving local water problems.
The politics of pork are that subsidies provide
a benefit to the member of Congress who procures them (in
increased power
and prestige) and are viewed as harmless to the public. But,
on any number of grounds their harmless nature could be contested.
Some conservatives would argue that individuals should be allowed
to keep their tax dollars and choose their own investments.
Others might argue that society would realize higher returns
from investments in other areas, such as education.
Subsidizing
water projects removes the incentive
for states to manage their water wisely. Economists have long
argued that pricing is the best means of allocating water and
addressing scarcity.
States have gained experience in addressing
drought through water banking and water transfers. Municipal
governments are learning how rate structures can further domestic
and industrial conservation. Irrigators are using new technologies.
State capacity to address water management is
far greater than in 1902, so that those who advocate for a continuation
of traditional roles should bear the burden of showing why these
roles are still appropriate.
The assumption that the nation should seek to increase its
"water supply" is also questionable. The notion that additional
water must be diverted or withdrawn from aquifers ignores the
variety of choices that water managers should have.
Water managers across the country have recognized that demand
for water can change with a variety of factors, including pricing.
There is widespread agreement in state water policy circles
that water transfers will be the primary means of addressing
new demands. These transfers can occur under state law and executed
within a framework that respects the rights of water rights
holders.
Finally, the concept of capturing "excess water" and "flood
water" is probably one whose time has passed; we now know that
vital ecosystems are dependent on river functioning. While society
may choose to impair these ecosystems, the waters are excess
only in our incomplete scientific understanding, or lack of
concern for ecosystems.
This piece is intended to be provocative. There is a continued
role for the federal government, both in supplying public goods
that the market cannot supply, but also in providing expertise
and funding that states lack, maintaining infrastructure, protecting
tribes, and similar responsibilities.
But, the congressional
consensus that led to decades of dam construction by the Bureau
and the Corps no longer fits the national good: the states are
able to address many issues on their own, and federal "solutions"
may only create more need for additional federal funds. Solutions
created and funded closer to home may be better in the long
run for inhabitants of a region.
It is also an overstatement to infer that no water supply
projects are needed. Undoubtedly regions will continue to seek
these projects. The projects that are funded on a local or state
level, however, will be very different from those that federal
funding would permit to be constructed.
Congress needs to examine its role in water
management but with a new candor about the consequences of
large federal expenditures on local decision-making. State
and local governments are developing innovative mechanisms
such
as water banks, pricing, and conservation to manage demand;
Congress should not undercut these necessary measures with
the strategies of the past.
Denise D. Fort is a professor of law
at the University of New Mexico School of Law.
A version of this article appeared in Impact, by
the American
Water Resources Association, Vol. 7, No. 1, 2005. |
