Iowa Alumni Magazine | February 2012 | In Class

Water Fight!

By Kathryn Howe
One part oxygen and two parts hydrogen, water supports the survival of every living creature on the planet. Water covers a huge expanse of the Earth, comprises 85 percent of the human brain, and, without it, a person will die in less than a week.

Water is so crucial, yet so commonplace, that most Americans rarely give it much thought—until an event happens that underscores its presence and power.

Just a few short months ago, homeowners from Montana to Missouri waded through their waterlogged living rooms, cursing Mother Nature and the U.S. Army Corps of Engineers for their terrible losses. Excessive spring snowmelt and rain had forced the Corps to drain record levels of water from six dams along the Missouri River. Unable to cope, the overwhelmed river breached its banks, forced thousands of people from their homes, and left behind an estimated $1 billion in damages when the waters finally receded.

"We just don't think about water until it does what it did last summer," says Jonathan Carlson, UI College of Law professor and an environmental law expert. "Then, we start to wonder: Who's in charge of water? And who shapes the principles that govern it?"

In light of recent floods—including Iowa City's own disaster in 2008—Carlson began considering how he could draw more attention to the public policies that surround U.S. water sources. The topic seemed relevant and important not only in those places with too much water, but throughout the country—particularly in arid Western areas where growing populations stress finite resources. New law graduates in the Midwest might navigate the legalities of natural disaster, while those who head west might negotiate water allocation disputes between cities and farmers. Wherever they practiced law, Carlson believed they would benefit from knowing the different ways states approach the public's varied issues over water.

So, Carlson's "Water Law" course opened this past fall with 32 first- and second-year law students in Room 245 of the Boyd Law Building.

"Water law is a fascinating blend of policy, history, power, and constitutional principle," says the professor. "It's hugely important to many individual developers, farmers, and other landowners, cutting across so many legal fields that many law graduates will find it helpful regardless of what they practice."

The Missouri River flood of 2011 afforded students a timely example of the necessity and complexity of water governance. They spent class time discussing the latest disaster news: specifically an October meeting among the area's state governors for a serious—and somewhat radical—debate about the river basin's future management. Many people accused the Corps of Engineers of worsening flood conditions by waiting too late to lower the reservoirs, then hastily attempting to accommodate the extra water with an epic release. North Dakota's governor even boldly stated that Missouri River states working together might better manage flooding, as well as competing interests between recreation upstream and barge traffic below. However, such a move would require an intricate and time-consuming change in the federal law to remove the Corps' authority.

In addition to the river example, Carlson presented various domestic and international scenarios that illustrate how legal policies influence water issues. One afternoon, he asked his students to consider a large, but slowly-recharging aquifer that supplies water to a region's municipalities and farms. A beverage company soon buys a farm and decides to pump heavily from the aquifer, putting the water in bottles for commercial sale—and potentially draining the aquifer within 20 years. Carlson then asks the class to pinpoint what limits should be placed on private businesses that wish to tap this community resource.

In another exercise, students ponder a subdivision's expansion past the city limits, a common occurrence in many rapidly growing communities. These new residents will need water, but neighboring farmers might see their wells go dry. Another town wants to dump its waste in a river used for boating and recreation further downstream. With each case, Carlson instructs his students to weigh the benefits and harms to all parties and predict possible outcomes based on how states apply their individual water laws.

"My goal is to teach students that there are tough, tough choices to be made—and there are many ways to make those decisions, depending on geography," he says. "This is a great way to introduce students to the law in other parts of the country."

Students also discussed drought and water shortage concerns in Texas, a dire situation that prompted several communities to spend more than $100 million to purchase water rights owned by billionaire T. Boone Pickens (giving credence to the claim that "water is the new oil"). They debated the contentious 20-year battle among Florida, Georgia, and Alabama over a shared water source, and analyzed the function of interstate compacts—like the one among seven Western states that intends to equally distribute the Colorado River but faces criticism in times of population growth and drought. Farther afield, the class learned about an international dispute between Canada and the United States over excess water flowing from North Dakota lakes. While the U.S. prefers to divert that water into rivers and streams that run northward, Canadian officials worry about the introduction of harmful aquatic species to their treasured resources.

Most often in their careers, lawyers confront complex, local-level disputes about the fair distribution of water. And that depends on how states approach water rights, which involve variations on two basic principles. In the West, states follow the doctrine of "prior appropriation." In other words, the first landowner to start using the water owns the water—and therefore has the right to use it before anyone else. In the East, including Iowa, states apply the doctrine of "riparian rights." A person who owns land along a water source such as a stream or lake has a right to use it for domestic and other necessary purposes. Water use for irrigation and other commercial purposes must be "reasonable" (defined on a case-by-case basis in court), taking into account the needs of all other riparian owners. This doctrine can also be applied to underground water, although Iowa and many other states employ a permit system to regulate pumping from such sources.

In fact, about 80 percent of Iowans get their drinking water from underground aquifers, which also provide up to 90 percent of water for agricultural irrigation. Most of Iowa's groundwater comes from the Jordan Aquifer, which extends from northeast to south central Iowa and actually spreads under most of three states and parts of another four. Students soon realize that water sources aren't exactly "local," as the Jordan Aquifer also serves the metropolitan Twin Cities area in Minnesota and many other municipalities.

Many aquifers face enormous strains due to city growth, lack of adequate rainfall, and pollution threats. Like the Jordan Aquifer, many are depleting faster than they can recharge. In Texas, where there are no limits on groundwater pumping, the situation is even worse.

"Water law impacts everyone on a basic level," says Rachel Zander, who graduates in 2013 with plans to practice environmental law. "How do you get the water you drink every day, how clean is it, do you have to reduce your usage during drought? I've really gotten an understanding of just how differently states confront these issues. Most interesting to me are the questions solved at the federal level, when two or more states have a conflict over water."

One day, much to Zander's delight, the class addresses the tenacious dispute that's made its way to the federal courts: the ongoing tri-state water war among Georgia, Alabama, and Florida. In the 1980s, city and county officials in Georgia sought permission from the Army Corps of Engineers to increase their withdrawals from Lake Sidney Lanier and the Chattahoochee River to meet the growing water needs of the Atlanta area's booming population. They wanted to draw millions of additional gallons of water a day from storage in Lake Sidney Lanier, with even more withdrawals from the Chattahoochee and Flint rivers in the long-term. Lawsuits soon followed. Alabama officials considered the plan a threat to their supply and to recreational use of the affected rivers. They also worried about increased pollutants from the decreased water flow. Florida foresaw reduced flow into its Apalachicola Bay and damage to the state's $70 million oyster industry.

Over the years, the case has shunted between the federal district court and the federal court of appeals for the 11th circuit. An interstate water compact temporarily settled the case in 1997, but that agreement expired in 2003—and litigation began anew. The most recent decision came last June. It hardly settled the conflict, simply remanding the matter to the Army Corps of Engineers for reconsideration.

Carlson figures the final decision will rest with the U.S. Supreme Court. However and whenever that particular case finally is resolved, one detail is crystal clear: with a resource this important, there'll be no shortage of future disputes.