By Rhett Larson
Water is unique in that it is often viewed simultaneously as a fundamental human right and yet an increasingly valuable natural resource largely integrated with private real property rights. Because of this dichotomy, water policy lends itself to similar dichotomous discussions, with aspirational platitudes met with pragmatic skepticism. In recent years, this dichotomy has crystallized around the concept of "integrated water resource management" ("IWRM"). IWRM is commonly defined as, "A process which promotes the coordinated development and management of water, land and related resources, in order to maximize the resultant economic and social welfare in an equitable manner without compromising the sustainability of vital ecosystems" (1). This essay describes the objectives of IWRM, examines its limitations in the context of one hotly contested river basin—the Colorado River Basin—and offers pragmatic suggestions on how to realize the aspirations of IWRM.
I. The Colorado River Basin—Why IWRM is Conceptually Sound
The Colorado River represents a classic example of a failure to incorporate IWRM principles in resource management. The river basin is shared by two countries, several states and many indigenous communities in an arid region that has a growing population, agricultural and mineral resources, and threatened ecosystems (2). The law of the Colorado River (commonly called "The Law of the River") is composed of legislation, court decisions and agreements, including the Colorado River Compact and the Mexican Water Treaty in particular, which set forth the rights of the river’s stakeholders and the relationships between riparian jurisdictions, including upper basin jurisdictions (like Colorado and Utah) and lower basin jurisdictions (like Arizona, California, and Mexico) (3,4,5). The compact was negotiated in 1922 and the treaty in 1944, each with limited input from many stakeholder groups, inadequate and inaccurate hydrologic and climatologic data, poor foresight on population growth and climate change, and virtually no consideration of ecological issues (6).
Upper basin jurisdictions often make development and management decisions independent of lower basin users who bear the heaviest burden of mismanagement by upstream riparian states. For example, dams in Nevada and Arizona, the operation of a desalinization plant along the Arizona/Mexico border and diversionary irrigation projects in northern Mexico and southern Arizona threaten the ecological balance of the Colorado River Delta, including the ancestral homeland of the Cocopah people and the endangered southwestern willow flycatcher. Each jurisdiction rationally seeks to satisfy its constituents without regard for externalities (7).
Had The Law of the River included a more flexible approach, allowing diversion rights to respond to changing flow conditions, and had development of The Law of the River integrated public participation (in particular from indigenous communities) and different disciplines (including ecology and climatology), much of the current crises related to the Colorado River might have been mitigated. But the development of The Law of the River is not just an example of failure to incorporate IWRM in treaty negotiation and development, it is a cautionary tale of the pitfalls for implementation of IWRM.
II. The Colorado River Basin—Why IWRM is Fundamentally Flawed
IWRM is fundamentally flawed in several ways demonstrated by challenges in the Colorado River Basin. Primarily, the concept of collaborative governance inherent in IWRM seldom works in practice (8). Stakeholder interests and cultures in most contested river basins are simply too diverse and their differences too divisive. For example, it is difficult to harmonize the disparate interests of casino developers on the Las Vegas strip with fishermen in the Colorado River delta (9). The challenge is all the more acute given the unanimity principle inherent in the concept of collaborative governance—e.g. IWRM (8). Unanimity amongst so diverse, and so competitive, a group of stakeholders hedges in IWRM efforts dependent upon collaboration.
Indeed, diversity is a central challenge to implementation of IWRM, and not just economic, cultural and political diversity. The geological, ecological, and hydrological conditions of large contested rivers are typically too diverse to lend themselves to centralized IWRM. The Colorado River Basin encompasses highly varied geological and ecological conditions, from perennial mountain streams in the Rockies to ephemeral arroyos in the Sonoran Desert (6,7). The technical challenge of developing nuanced standards over so diverse a watershed poses an obstacle to successful IWRM implementation.
Furthermore, existing legal institutions may be inconsistent with IWRM objectives. For example, Arizona maintains a bifurcated water rights system in which groundwater and surface water are treated as distinct, disconnected resources (10). This bifurcation is a legal fiction, as surface water and groundwater resources frequently interact as part of the hydrologic cycle and rarely lend themselves to bright-line distinctions. This legal fiction has resulted in significant litigation amongst Arizona users, and would serve only to further muddy the legal miasma of integrating multiple jurisdictions’ water law (11). In order to take an integrated approach to water management, IWRM proponents would have to integrate regulation of surface and groundwater in Arizona, thereby overcoming the rigid expectations of Arizona groundwater rights holders based on more than a century of law treating groundwater and surface water as distinct resources.
Entrenched expectations and rigid legal rights can frustrate IWRM success. The U.S. federal government holds in trust reserved water rights for all tribes within the basin (12). These reserved water rights represent a critical assumption underlying the treaties establishing tribal reservations upon which indigenous peoples rely both economically and culturally. Impinging upon these federally reserved rights to more effectively allocate water resources across the entire watershed would be viewed by many tribes as an assault on their sovereignty, a blatant violation of long-established treaty rights, an unconstitutional exercise of eminent domain on tribal property and a dereliction of a fiduciary duty held in trust by the federal government for the benefit of the tribe. IWRM comes to the scene too late at a point when resources have become so scarce and reliance on contractual and historical practices so entrenched as to practically preclude the effort to integrate other management approaches.
III. How To Advance IWRM While Mitigating Its Flaws
While IWRM principles address the most fundament challenges of water basin management, the practical implementation of IWRM would prove too unwieldy a tool in the face of the types of obstacles illustrated in the Colorado River Basin. The following four prescriptions would mitigate the weaknesses of IWRM while still upholding its values.
First, IWRM should provide overarching guidance to promote consistency in a series of management plans, "Starting at the sub-basin level and be progressively integrated into a multinational planning and management regime for the entire river basin" (13). This ensures that the institutions and regulatory framework developed by IWRM are sufficiently nuanced to the peculiar hydrogeological, ecological, cultural and economic issues in each sub-basin.
Second, IWRM must incorporate adaptive management principles. Adaptive management is, "A decision process that promotes flexible decision making that can be adjusted in the face of uncertainties as outcomes from management actions and other events become better understood…It is not a ‘trial by error’ process, but rather emphasizes learning while doing" (14). Adaptive management principles prevent decisions made in the IWRM process from becoming stale and static in contrast to the dynamic variables of watershed management.
Third, the shared benefits model used in the 1961 Columbia River Treaty between the United States and Canada allows downstream users to share in the benefits of upstream allocations, including dams for reservoirs or hydroelectric power. In that treaty, Canada agreed to forego certain development and diversion opportunities within the watershed, and offered flood control measures to the United States, in exchange for payment from the United States of revenues derived from electricity sales and water storage for Canadian users. The concept of "shared benefits" is derived from welfare economics, which posits that water is simply a valuable, scarce commodity with multiple possible alternative uses (15, 16).
Fourth, transferable private water rights (including tribal reserved water rights) must be viewed as consistent with IWRM objectives. "Private rights in water are fully transparent in every state water rights system. They are inclusive in the sense that potential water users may acquire water rights, although both the riparian and appropriation systems do place limits on type and place of use. Private rights in water provide accountability except to the extent that costs and benefits cannot be fully internalized. Finally, market exchanges of private water rights assure efficient allocation of the water resources, again assuming costs and benefits are internalized" (8).
The objectives of IWRM are directed at problems that have always plagued watershed management, including lack of transparency, inclusivity and coordination. However, its implementation is hampered by the technical difficulties in regulating varied ecological and climatic conditions over large areas, collaboration between diverse stakeholders with competing and entrenched interests, and distinct jurisdictions sharing the watershed, each with legal institutions which may be inconsistent with one another and with the objectives of IWRM. The flaws can be mitigated through sub-basin planning, adaptive management, shared benefits and application of market forces on transferable water rights.
(1) Global Water Partnership (2000) Integrated Water Resources Management. in TAC Background Papers No. 4 (GWP Secretariat, Stockholm).
(2) Adler RW (2002) Restoring Colorado River Ecosystems: A Troubled Sense of Immensity (Island Press, Washington, D.C.).
(3) Wilber RL & Ely N (1948) The Hoover Dam Documents (U.S. Government Printing Office, Washington D.C.)
(4) Nathanson MN (1980) Updating the Hoover Dam documents, 1978 (U.S. Department of the Interior, Bureau of Reclamation).
(5) Treaty Between the United States of America and Mexico Respecting Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande (1944) 59 Stat. 1219, 1237.
(6) Pulwarty RS, Jacobs KL, & Dole RM (2005) The Hardest Working River: Drought and Critical Water Problems in the Colorado River Basin. Drought and Water Crises, ed Wilhite DA (CRC Press, Boca Raton, Florida), pp 249-280.
(7) Glennon RJ & Culp PW (2002) The Last Green Lagoon: How and Why the Bush Administration Should Save the Colorado River Delta. Ecology Law Quarterly 28(4):902-992.
(8) James L. Huffman, "Comprehensive River Basin Management: The Limits of Collaborative, Stakeholder-Based, Water Governance," 49 Nat. Resources J. 117, 144 (2009).
(9) Fradkin PL (1996) A River No More: The Colorado River and the West (University of California Press, Berkeley).
(10) Evans A (2010) The Groundwater/Surface Water Dilemma in Arizona: A Look Back and a Look Ahead Toward Conjunctive Management Reform. Phoenix Law Review 3:269-291.
(11) In re General Adjudication of All Rights to Use Water in the Gila River System and Source (989 P.2d 739, 749 (Ariz. 1999).
(12) Winters v. United States (1908) 297 U.S. 564.
(13) Tarlock AD (Changing Currents: Perspectives on the State of Water Law and Policy in the 21st Century. Tulane Environmental Law Journal 23(2):369.
(14) U.S. Dept. of the Interior (2009) Adaptive Management Technical Guide 4, available at http://www.doi.gov.initiatives/Adaptive Management/TechGuide.pdf.
(15) Tarlock AD & Wouters P (2002) Are Shared Benefits of International Waters an Equitable Apportionment? Colorado Journal of International Environmental Law and Policy 18(3).
(16) Sadoff CW & Grey D (2002) Beyond the river: the benefits of cooperation on international rivers. Water Policy 4(5):389-403.
Rhett Larson's research and teaching interests are in administrative law and environmental and natural resource law, in particular, domestic and international water law and policy. Larson graduated from the University of Chicago Law School, where he was a Mohlman and S.K. Yee Scholar, and received his Master of Science in Water Science, Policy, and Management from Oxford University, where he was a Weidenfeld Scholar. Larson is a visiting assistant professor of law at the Sandra Day O’Connor College of Law, Arizona State University.