Water Allocation

It’s time to update our water laws for the 21st century.

How limited water supplies are divided up among all the various possible uses is ultimately both a legal and a political question. The experience of the much drier western states has shown that, when the laws do not provide a clear answer, water allocation questions become highly political, and the natural environment usually suffers.

The United States inherited two basic systems of water allocation law: the riparian system and the prior appropriation system. The prior appropriation system, used in most western states, says that water belongs to whoever made use of it first, with little regard for the interests of other, later users. The riparian system, originally followed by most eastern states, dates back centuries to the English common law. It says that landowners beside a river can make reasonable use of the water to the extent that their use does not injure upstream or downstream landowners. That’s a sensible principle, but to enforce it, a water user has to wait until they’ve been injured, and then prove that a new withdrawal that injured them was unreasonable. That makes the traditional common law ineffective at protecting both river health and existing users, and no help at all as a planning tool that can give communities a clear expectation of how much water remains available for future use.

Over the last few decades, many East Coast states have updated their laws. Generally, they’ve kept the basic concept of reasonable use, but augmented it with a permitting and planning structure that lets it work in practice. However, instead of modernizing our water laws, North Carolina’s legislature has enacted narrow laws to deal with specific issues. The Interbasin Transfer Act of 1994 (GS 143-215) requires state approval of transfers of more than two million gallons per day from one river basin to another. The Water Use Act of 1967 (GS143-215.11-.22) allows the Environmental Management Commission (EMC) to declare special zones – capacity use areas – where water supplies are running low, and issue rules for water use in those zones. So far, the EMC has only declared two capacity use areas, both in response to declining groundwater levels. While both of these state statutes have been important tools, they do not address water allocation comprehensively. In addition, they are unpredictable, and do not provide long term certainty for businesses and local governments trying to plan ahead.

It is much easier to pass fair and comprehensive water laws before a state begins to bump up against the limits of available water supplies. States that have waited too long have found that special interests begin to take over the discussion – and, since there isn’t enough water to meet everyone’s current needs, all compromises are lose-lose. North Carolina still has abundant water most of the time. An overhaul of our water laws could still result in win-win compromises for most interests. That’s why it is so important that state leaders modernize North Carolina’s water laws now, before our water allocation problems become too politically hard to solve.

In 2007, the NC General Assembly enacted legislation, S.L. 2007-518, making it harder to transfer large amounts of water from one river basin to be used in another. That legislation called for the legislature’s Environmental Review Commission (ERC) to study water allocation in North Carolina. The ERC contracted with the UNC School of Government and the Nicholas Institute at Duke University to conduct the study; the final 2008 report, and comments on the study from a variety of perspectives, including environmental, are available on the UNC School of Government WaterWiki. The study’s recommendations for needed policy changes include establishment of a statewide water withdrawal permitting program for large withdrawals, and river basin planning that protects the ecological integrity of our river systems.

In late March, Sen. Dan Clodfelter (Mecklenburg-D) introduced S907, Water Resource Policy Act of 2009 to implement the recommendations of the Water Allocation Study by establishing a new planning and permitting system for large water withdrawals.  As introduced, the bill would both protect existing users and river health, while providing an orderly, efficient way to make water available to additional users without provoking water wars.   The environmental community broadly supports S907.

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