Groundwater Under the Pacific Northwest • November 2-3, 2005 • Stevenson, Washington

Keynote Address: Robert Glennon

“Groundwater is a bit like a milkshake or a glass of water,” says Robert Glennon, the Morris K. Udall Professor of Law and Public Policy in the Rogers College of Law at the University of Arizona. The more straws--or wells, in the case of groundwater--that are drawing from it, the faster it goes. Unfortunately, at this point in time, the law is little help in dealing with groundwater issues. “There’s a disconnect between law and science,” says Glennon, and the law isn’t the same from place to place. For groundwater, some states use prior appropriation; some use the rite of capture (“If you can get it, it’s yours”); and most use a reasonable-use doctrine. Problems result because capture and reasonable use may lead to the mining of water, with the consequence that the supply eventually will be exhausted.

Glennon’s journey to his book, Water Follies (Water Follies: Groundwater Pumping and the Fate of America's Fresh Waters. Washington, D.C., Island Press, 2002) began with a Ph.D. in history, a law degree, and the teaching of constitutional law. A vacancy at the University of Arizona gave him the opportunity to teach water law, which he thought would be fun. Once in Arizona, he began to work with those from other disciplines, especially hydrology. “I learned that there had been rivers in Arizona that had dried up,” he says. When an Arizona Supreme Court decision basically confirmed that groundwater and surface water were two distinct entities, he and a hydrologist colleague wrote an article critical of the decision. In the course of doing that, he learned that water problems went beyond Arizona to include other western states. That led to a long article about law in the west, when he realized it’s not just a western problem. That’s when the idea for a book for a wider audience started, and he began to collect the stories that are featured in Water Follies.

One example is the Santa Cruz River near Tucson, Arizona: increased groundwater pumping in response to a growing population, mining, and agriculture captured water that would otherwise have gone to the now-dry river. The Mecan River in Wisconsin, protected for years, is now threatened by a water bottling plant that would mine spring water that feeds the river. Luckily, the plant as yet has not been built. The Straight River in Minnesota is losing water to fields irrigated to grow perfect potatoes that can be made into perfectly-sized French fries for McDonalds and the like. The Straight also gains water from irrigation--higher temperature irrigation water that percolates into the ground and carries with it agricultural chemicals, neither of which is good for the stream’s brown trout and other wildlife. Then there’s Crooked Lake in Florida, which is hardly a lake anymore.

Glennon believes that solutions to these and other water problems can be found. First, water needs to be paid for as a commodity. “At this time, we only pay for delivery,” he says. He would grandfather in all existing users, quantify their current water rights as a baseline, and then make those rights transferable. With transferable rights, farmers would have the option to sell their rights, opening up the possibility of moving water from existing to new, higher-value uses. “One acre-foot of water growing alfalfa in California creates three jobs and $60,” says Glennon. “The same amount in Silicon Valley creates 60 jobs and $980,000. The disparity in water use is so immense that we must move toward greater value use of water.”

Restraints on new users are needed. Going back to that milkshake, the number of straws needs to be held constant. To reduce use, Glennon suggests using an Arizona law for a model, although it’s a law that’s not yet working well. For existing users, current use is the baseline. Over the next 25 years, these users are expected to be just a little more efficient every five years. He also favors an extraction tax, but realizes it’s important to be sensitive to farmers, perhaps by providing a time lag for them and giving them the incentive to have the city come in and make improvements on marginal land, for example, and then get the water that is saved.

As for the future, Glennon is definitely not working on Water Follies II. He does maintain files and updates on the stories in the book, and is looking at the possibility of a documentary. He’s also giving Water Follies talks across the country at the rate of about one per week.

Summary by Mary Aegerter, Technical Writer, Washington State University