Water: A Test in Governance

By Lisa Beutler

Mark Twain is oft credited with the phrase “Whiskey is for drinking; water is for fighting over” and many futurists predict future wars will be over water.

For some of the ASPA members scattered across the globe, the issues of blue gold, water, may be abstract, but in the American West, where the whiskey phrase was coined, fighting words are already being leveled.  The public is alarmed as drought as severe as any in recorded history is projected to last at least another year and aging infrastructure is literally crumbling beneath us.  For the public administrator, these declining conditions wreck havoc with an ancient water governance structure so complex and inconsistent that most policy makers need a road map to even follow it.

For Texas Policymakers, drought has exposed limits of power.  A recent article in the Texas Tribune asked the question, “So what can the government do to help those who are hit hardest?”  They reported experts told them, “Not much at the state level.”[1]

They went on to report, “Droughts are tricky to manage. Their effects vary significantly from place to place, so local authorities generally assume primary responsibility for drought management. Different counties or cities not only get different amounts of precipitation, but they also may draw from different sources of water, below the ground or in reservoirs or rivers.”

This bifurcation of responsibility is not exclusive to drought.  From the beginning, civilizations have organized themselves around water sources and the West is no different.  The water governance structure has ancient roots and the oldest surviving common law in history, the Public Trust Doctrine, is central to this issue.

Roman Emperor Justinian is credited with codifying Public Trust concepts in the period around 530 AD when he published rules and edicts from his predecessors.  In this he dictated, “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.”

This fundamental concept carried forward through wars and numerous successor empires. This concept was particularly extraordinary as during the same time frame many people did not have what we might now consider other basic rights.  Rights were granted by the sovereign and this was one of them.

As the United States gained its independence from Great Britain, this idea of responsibility for the Public Trust was furthered through the conditions of American states joining the original 13 colonies.   The states were granted sovereign rights to the commons (water, air and land) and sovereign responsibility for its care.

Since then the doctrine has been used extensively to protect the public’s interest in water. The Courts have ruled water is owned by everyone and no one, thus protection must be provided by its steward — the state. This interpretation has been upheld all the way to the U.S. Supreme Court.

In the West, water governance is rooted in these very ancient common laws and further complicated by additional terms and conditions of statehood granted by the Federal Government, pre-existing rights transferred from Spanish territorial claims, state constitutions, code, statute, regulations, and increasingly, court mandates .

In the case of the Texas drought, public administrators have a role play even as jurisdictional issues and public pressure complicate action.

After a state declaration of emergency and a request from the state, the federal government has taken lead on disaster aid.  Last month the US Department of Agriculture declared nearly all Texas counties disaster areas so that farmers and ranchers statewide can apply for low-interest loans for relief. They have also relaxed some farming requirements to allow hay to be grown and provided some emergency relief for wildfires, including for small businesses.

At the federal level a National Integrated Drought Information System (NIDIS) has been created.   A collaboration of 37 federal agencies, offices and departments, as diverse as the Forest Service and Internal Revenue Service, the NIDIS operates www.drought.gov, a website with real time drought information.  The agencies also seek to develop leadership and networks to implement an integrated drought management approach at the federal, state, and local levels; encourage research on risk assessment, forecasting, and management; create a drought early warning system; and, and provide public awareness and education. In Texas, a Drought Preparedness Council, [2]  consisting of multiple state agencies, meets regularly and tries to improve drought-response coordination.

Ultimately local jurisdictions will continue to be central to managing the drought.  According to Chris Brown, executive director of the California Urban Water Conservation Council, more options exist in places like California where water can be moved from one part of the state to another, but, “In a practical sense, drought plans are implemented at a local level.” [3]

Given these realities, public agency collaboration will be an essential part of addressing this crisis.  Absent that, many say a change in weather will be the only final solution.  Carmen Fenton, a spokeswoman for the Texas and Southwestern Cattle Raisers Association, summed it up for many Texan’s. “Really what everyone’s doing,” she says, “is praying for rain.”[4]


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