'Use It Or Lose It' vs. 'Reasonable Use'

Part II of III in the series “Extreme Events And Water Management In The Lower Missouri River Basin.” Read Part I here.

By Katy Lackey, research specialist, Water Environment Research Foundation (WERF)

In the Lower Missouri River Basin (LMRB), Kansas City straddles two water governance systems and two major sources of water supply in the basin. The basin was part of a collaborative workshop series in 2012/2013 exploring strategies and lessons learned from water utilities during extreme events. In the culminating report[i] on these workshops, the Water Environment Research Foundation (WERF) and partners noted these competing policies as a potential challenge for basin-wide management.

How do these policies impact water conservation, the reallocation of water rights, and conflict during drought in the basin? Given the recent 2012/2013 drought and a lack of existing literature on specific Kansas-Missouri water conflicts, several people were interviewed for this article. While sources remain anonymous, they include experts on water law, local water managers, and climatologists in the region. Experts reveal that conflict in the LMRB is not always what it appears to be.

The Riparian And Prior Appropriation Doctrines

Water law in both states originally developed under English common law, which assigned water rights according to land rights.[ii] Today, however, the confluence of rivers at the border of Kansas and Missouri marks the line separating water governance frameworks in the U.S. The prior appropriation doctrine and riparian doctrine establish water rights, affect state storage capacity, and guide solutions between users during water shortages.[iii]

The riparian doctrine governs most eastern states, including Missouri. Like English common law, it stipulates water rights based on land ownership. Whoever owns land adjacent to water resources such as lakes, rivers, and streams, also has the right to use as much of that water as desired.[iv] Scarcity tends to be less of an issue in the traditionally wetter climates of the nation’s east. When water is plentiful, this system functions effectively.

However, experts say “it can cause conflicts during drought when there is not enough to go around.”[v] The doctrine specifies that no riparian user may take away from another, that all owners’ needs must be considered. States facilitate low water supplies by enacting the ‘reasonable use’ principle. This determines allocations based on the value of each use (economic and social), the suitability of withdrawals from a particular water body for that use, and the potential resulting harm for others (including the environment).[vi] Most riparian states have pre-established use priorities and restrictions during drought to specify what is ‘reasonable.’

Most cities, however, are not considered riparian owners. Even cities that reside along a river do not typically own the land.[vii] Cities must acquire riparian rights (sometimes through purchasing rights) to protect themselves during drought. Or they may enter into agreements with riparian owners in order to avoid being sued for necessary water withdraws. In most cases, reasonable use favors cities because public health is a top priority.[viii]

West of Missouri, states subscribe to an entirely different form of governance, dominated by the prior appropriation doctrine. This specifies a time priority system where the state owns and distributes water rights.[ix] Senior water rights take precedence over junior water rights holders, essentially reflecting a first in time, first in line allocation principle among users (though certain uses will always take precedence, such as drinking water over commercial or industrial uses). The prior appropriation doctrine was “created and evolved to address issues of scarcity.”[x] Water supplies out west have naturally higher evaporation rates and stream flow depends more on high mountain snowmelt than local rainfall.[xi] Kansas adopted this governance system in 1945 as a response to stressed groundwater supplies coupled with increased freshwater demands among municipalities, agriculture, and oil/gas production.[xii]

Regardless of whether junior holders are up or downstream, senior rights holders can enact the doctrine. In fact, the underlying ‘use it or loose it’ notion encourages them to do so. This sometimes results in junior rights holders being cut off during drought.[xiii]

Cities or other public water suppliers can enforce a claim to water over other users, if they hold senior status.[xiv] If they do not, some western states allow them to acquire or lease senior rights by purchasing ‘dry-year options.’[xv] This means a city or utility enters an agreement to pay the economic losses of senior rights holders in exchange for using their water during drought.[xvi] Otherwise, cities may have the option to pursue a condemnation of senior water rights — essentially forcing a sale — through eminent domain.[xvii] During shortage, a public utility is viewed similar to a private user.[xviii] The water utility may obtain a permit regardless of where they are in respect to the river in a prior appropriation state like Kansas, whereas a state following the riparian doctrine, like Missouri, may need to secure water through a formal agreement negotiated with other users.[xix]

Conflict From Clashing Governance Doctrines?

Given shared water supplies, conflicts emerge in transboundary basins during drought.[xx] In the LMRB, the question is whether or not conflict roots in the clash between the riparian and prior appropriation doctrines. In other words, is conflict structural, existing not only because of water shortage, but also because of differences in state policies managing water in a basin-wide context?

Experts confirm the legal right to water does have an influence, but that conflict primarily arises between states and the federal government or between users within states. To date, there are no disputes between Kansas and Missouri, nor the differing doctrines.

Neither Kansas nor Missouri fully controls any portion of the Missouri River. Through the management of six reservoirs, the U.S. Army Corps of Engineers (USACE) retains primary control over water use in the wider Missouri River Basin, which includes the LMRB.[xxi] The quantity of water released by reservoirs upstream can cause tension during drought when downstream states require larger releases.[xxii] But basin-wide decision-making processes rarely mention riparian and prior appropriation doctrines.[xxiii] While doctrines “may determine the relative rights of private parties to water within a state, they are of limited importance in disputes between sovereign states themselves,” one expert notes.[xxiv]

Theoretically, the USACE only controls the reservoirs. Users can “suck water out of a straw” anywhere along free-flowing water in the rivers.[xxv] In reality, reservoir control dictates flows downstream, and the USACE has some leeway to determine use if there is compelling evidence for severe drought.[xxvi] Missouri complained over allocation restrictions by the USACE during the 2012/2013 drought, primarily due to navigational purposes.[xxvii] As 56 percent of flows to this Mississippi River come from the Missouri River, navigation shutdowns result in a near $1 billion loss per day.[xxviii] Conflicts tend to manifest between states and the USACE, rather than between states.[xxix]

Conflicts also arise among users within states, and the doctrines impact allocations in these cases. This primarily occurs along smaller streams and tributaries to the Missouri River, as the volume of water is less to begin with. For example, for the much smaller Kansas River, the proportion of water utilities’ diversions for municipal use in this river is much larger than the proportion diverted from the shared, and bigger, Missouri River.

Discrepancies between doctrines have little influence over basin-wide management, at least for now. However, changing climates in the LMRB, as well as a full assertion of rights by all users, may challenge these findings.