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WESTERN WATER WARS, ARE THEY COMING TO THE MIDWEST?

By John Jansen, Aquifer Science and Technology
Published in the Wisconsin ground water Association Newsletter, Winter, 2000

Probably everyone is familiar with the long history of water wars in the west. Long ago, these fights occasionally resembled wars. However, as the legal framework for water law evolved, the fights became legal battles instead of violent conflicts. Initially these battles were between two land owners fighting for the water in a stream that flowed by their property. However, as the demand for water grew, water wars have been fought in the courts between cities, states, Indian tribes, and even between states and the federal government.

What has resulted is a patchwork of laws, legal interpretations, and state and federal court rulings that function, albeit in a rather cumbersome way, to allocate limited water resources and provide a framework to move water from the places where it is available to the places where it is needed. The system evolved from a mixture of English Common Law, concepts of personal property rights, and a western sense of stubborn individualism. The water law of each western state is different and complex. Reasonable people will disagree on how well the systems work, but most will agree that the systems are complex and expensive to administer.

The battles can seem counter productive, or even bizarre, to outsiders. I have been involved in a court case between two cities who each spent hundreds of thousands of dollars to dispute the volume of ground water returning to a stream due to lawn irrigation. Strange as it seems to us, millions of dollars worth of water rights, as well as the future growth of a medium sized city were on the line. A few years ago Kansas won a case against Colorado which is forcing many farmers on the high plains of Colorado to stop farming. Nebraska is currently facing a similar fight with Kansas. The federal government is asserting a senior right for in-stream flow and habitat protection that threatens to shake up the economies of several western states. Several other critical fights are currently working their way through the system. The effects of western water law often seem short sided and counter productive, especially when environmental impacts and loss of aquatic habitat are considered. In the west, quite literally flows up hill toward money.

What does that have to do with us? Well, similar shortages of water are looming in parts of Wisconsin and we do not have the legal or political frameworks to deal with the problems that are coming. While it is true that Wisconsin has abundant water, nature did not distribute it equally; and man is not always willing to share it fairly. We do have enough water to meet future needs, but just not in the right places at the right times. As the population of the state concentrates into metropolitan centers, pockets of intense water demand are being created. Unfortunately, the water resources available to those areas have not be augmented to meet the rising demand. This has resulted in pockets of local water shortage. The problem will become even more serious if you believe the predicted climate effects of global warming. Putting politics aside, the U.S. is almost alone among developed nations in ignoring the potential impact of climate change.

Reaching out to bring in water from areas of surplus is not as easy due to political and economic limitations. As a result, the future water supplies of some of the fastest growing population centers of the state are in doubt. Could water wars be heading to the humid Midwest? Well yes, and possibly sooner than many people think.

To illustrate my point, let me present a hypothetical situation for your consideration. A medium sized community in southeastern Wisconsin has produced a reliable water supply from several sandstone wells for decades. The community becomes concerned with decreasing pumping levels in their wells. The static water level in their wells dropped by one to two feet per year for decades, until reaching an alarming rate of five to ten feet per year over the last twenty years. The neighboring communities start to notice the same declines. At the same time, total dissolved solid levels in several neighboring wells begin to rise. TDS has tripled over 10 years in several cases. While the small water department staff of this community is trying to make sense of what’s happening, they are told they must make major investments to reduce radium and gross alpha levels in their wells.

Compounding their problems is the fact that the community needs to plan for a significant increase in supply capacity over the next ten to twenty years as wells as meet more stringent water quality standards in the future. Relying solely on the sandstone aquifer appears to be risky at best, given the uncertain long term of capacity and water quality. The city lies within a few miles of areas served by Lake Michigan water, but they are told they cannot use this source because they are just outside of the Lake Michigan drainage basin and no diversions out of the basin are allowed. When they try to develop wells in the shallow aquifers, they find that there are few acceptable potential well sites within their corporate boundaries. When they try to develop well sites in the surrounding townships, they face strong opposition from local residents with private wells and the town board. As they continue their efforts to develop the shallow aquifer at increasing expense, their well permit is held up due to potential wetland impacts that are not covered under the municipal well code. Where do they go? Under existing legal and political conditions, possibly to court. As they say in the west, “Whiskey is for drinking, but water is for fighting over”.

Does this sound far fetched? Well, it’s already happening. What I have described is a composite of the recent experiences of two communities. Some, or all of these conditions will be aspects of most municipal well siting studies in the future. What do we do? First, as ground water professionals we need to be aware of the issues ourselves. Secondly, we need to make the regulators, legislators, and the public aware of the situation. Finally, we need to provide technical leadership to offer rational solutions rather than waiting for the litigation to start. I think we can all agree that a rational scientific approach leads to a more sustainable political solution than a series of legal show downs and high profile litigation. If we are to avoid water wars, we will need a credible “ground water peace keeping force”.

The path forward is far from clear. The technical issues are clear cut. We must inventory the capacity and water quality of the major aquifers near major pumping centers and conduct the analysis needed to wisely mange the resources. The political side is far less clear and far more important. Most likely, some sort of regional water authorities will be needed to fund the studies and build the infrastructure to put the plans in place. We have started this, but we need to do much more.

I confess that I don’t know how solve these problems, but its time we found out. Like many other important things, they seem impossible until enough people get involved. As the leading ground water association in Wisconsin, we all need to be involved.