Water rights & water fights: States no longer take water for granted. Having laws in place helps when disputes over the precious commodity arise.

The Ailsa Craig juts from the Firth of Clyde off the west coast of Scotland. A rocky island, it has become part of Scottish golf lore, rising close by the Turnberry links. Undaunted by the often turbulent weather, the locals proudly explain, "If you cannot see the Ailsa Craig, it means it's raining. If you can see it, it means it's gonna rain."

George William Sherk, a Colorado water attorney, ascribes a similar comparison to the water conflicts that now grip many states. "There are two kinds of states," he notes, "those that are involved in an interstate water conflict, and those that are going to be involved in one."

The reasons are simple: Water does not adhere to lines drawn on a map, and growth is occurring where water isn't.

WATER FIGHT IN THE SOUTH

The tri-state dispute among Alabama, Florida and Georgia over water in the Apalachicola, Chattahoochee and Flint river system illustrates the problems facing humid Eastern states, which had seldom faced supply problems in the past. Atlanta's rapid growth and recurring regional droughts have landed the three states in federal court over who gets how much of an increasingly scarce resource. Georgia and Alabama need to satisfy growing urban drinking and waste water needs, while Florida is concerned about reduced flows into a bay that supports 90 percent of its oyster harvest.

All three states rely on the "riparian doctrine" of water use, which allows for "reasonable use" of water subject to equally reasonable uses in other states. The problem is that what is reasonable varies in time, place and in response to changing needs. There is no certainty. And because there has been an abundance of water in the East, there has been little pressure to establish more secure and equitable water management systems. "The Eastern states do not have a tradition of water shortage," Sherk points out. "Therefore, they have few laws to address one when it happens."

LACK OF CERTAINTY

This lack of certainty was one of the reasons that drove West Virginia, one of the few states east of the Mississippi River without some statutory water allocation system, to enact a law this session. There was concern that with rapid growth in the Washington, D.C., suburbs, residents of West Virginia's panhandle (a rapidly growing area itself that sends increasing numbers of commuters to D.C. each year) might face reduced flows on the Potomac River as demand increases. Economic development also was a factor. If the state couldn't ensure sufficient supplies to businesses that relied on the resource, those companies might locate where there was better water management.

Senate Bill 163 begins by declaring that "the waters of the state of West Virginia are hereby claimed as valuable public resources held by the state for the use and benefit of its citizens ... The state shall manage the quantity of its waters effectively for present and future use and enjoyment and for the protection of the environment." Innocuous sounding enough, but an important first step in a state where water rights had always been determined in court with few guiding principles.

The bill requires the Department of Environmental Protection to survey surface and groundwater withdrawals in the state, and requires every person who uses more than 750,000 gallons per month to register with the department. After three years, the department must recommend to the Legislature a way for managing water use in areas that are currently facing shortfalls or are likely to be. The law combines two of the three options adopted by most Eastern states--registration of use and, potentially, targeted permitting.

The bill was opposed by industries that did not want to see their rights--never clearly defined under riparian law--diminished. Senator John Pat Fanning, chair of the Natural Resources Committee and a leader in passing the legislation, noted that "there was this perception that the state was going to start charging them for water." He was able to disarm much industry opposition by assuring them that "we're not trying to penalize anybody, we're just trying to get a handle on what we have." At the same time, he was able to make everyone understand that the approach would be light as long as there was cooperation. Cooperation ... a word often replaced by litigation when resolving water disputes.

West Virginia appears to have taken a prudent first step in determining where it is before deciding how much further to go.

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Larry Morandi directs NCSL's Environment, Energy and Transportation program.