State water issues haven’t been keyed on until recently because Arkansas has always had the appearance of containing ample resources. But now, the cracks in that façade are starting to show.
“People are learning we don’t have all the water we need and we’re going to have to do something about it,” says John Edwards, head of the White River Irrigation District (WRID) in the state’s Grand Prairie region.
When it comes to surface water use, Arkansas relies on a “reasonable use riparian doctrine.” You’re considered a “riparian” if you own land that’s immediately adjacent to a river, a stream or a watercourse.
“If you’re a riparian, you can use that water for your purposes on the land you own that’s on the river or stream. But if you’re not a riparian, with few exceptions, you don’t have a legal right to use that water,” says Edwards.
Harris v. Brooks
In 1955, the Arkansas Supreme Court made a landmark ruling in a case titled Harris v. Brooks.
“It’s one of my favorite cases because in it there’s a line that says: ‘It’s common knowledge that sometimes fish stop biting for no apparent good reason.’ I love a court case with some real common wisdom in it,” says Edwards.
Fishing aside, the case says if you’re a riparian, you have a right to ‘reasonable use’ of water as long as it doesn’t harm your neighbor. If you cause your neighbor to lose access to water, then your neighbor has the right to contest your use.
The unfortunate thing about this case, is it didn’t define what “reasonable” is, says Edwards. “The only way to determine ‘reasonable use’ currently is to resort to litigation. We haven’t had a lot of those cases yet. But they’re coming.”
The same principal applies in use of ground water. In Arkansas, when it comes to either surface or ground water, people have what’s called “correlative rights.” If you have a well on your farm, you have a right to use that well. But if the day comes when the use of your well causes your neighbor’s well problems, he can take you to court.
While guaranteeing reasonable use, many people will be surprised that Arkansas law doesn’t recognize ownership of water.
“Some people may say, ‘As long as I can use it, it doesn’t matter if I own it – that’s just semantics.’ But you own your car and can do what you want with it. If you own land, you control the dirt. You have the opportunity to control the land and rights support that. There aren’t nearly the number of rights to water that many think,” says Edwards.
Many hoops to jump through
Based on a period from around 1940 to 1986, the Clarendon White River gauge shows there are 7 trillion gallons that typically flow through annually, says Edwards. But unless you own land right on the river, you’re out of luck in having a legal mechanism for removing water from the river.
In 1985, the Arkansas General Assembly passed “one of the most important pieces of legislation ever in the state”: Act 1051. The act did many things, but principally provided a mechanism under state law that a non-riparian could, through a process with the Arkansas Soil and Water Conservation Commission, apply for a “non-riparian permit.” Most permits go to organizations like irrigation and water districts.
These permits describe in very precise language the amount of water that can be diverted from the rivers or streams. They describe the flow per second at which water may be removed and other restrictions.
Another reason that 1051 is important is that under the old riparian law, very few people ever truly benefited from waters of rivers and streams. If you weren’t on a stream or river, you were out of luck. The old laws, in essence, forced people to have to use ground water in lieu of surface water.
“Well, now we have an opportunity to equalize use between riparian and ground water.
Prior to Act 1051, there were concerns that withdrawals made for irrigation from rivers and streams would be harmful. So the law has some very specific provisions that address how (state agencies) determine how much water is available for irrigation.”
First, the law requires that state agencies determine the needs for current domestic water users, water quality, fish and wildlife and navigation. All those needs must be considered before any water is declared, “excess.” Further, the foreseeable water needs 30 years into the future must be studied and declared before any determination is made to excess.
Second, the state limits use of excess water by allowing only 25 percent of the total to be utilized for irrigation purposes. So 75 percent of the excess can’t be touched.
“It’s important for folks to realize that any irrigation district must go through many procedures, review and safeguards before taking the first drop of water out of a river or stream.”
A question of balance
It’s all a question of balance, says Edwards. As a state, Arkansas probably gets around 93 percent of water needs met by groundwater.
“That’s not good. One way or the other, we must balance that out. We’re fortunate that alluvial aquifers will recharge. If we don’t take the pressure off by 2015, it will be devastating for eastern Arkansas particularly. But the whole state will suffer. We can’t continually have a situation where water resources aren’t balanced.”
If the state does nothing, when the day arrives – “and it’s coming” – when aquifers are depleted, neighbor will be pitted against neighbor. That isn’t a terribly appealing prospect, says Edwards.
This scenario has already played out in many western states.
“That’s why some western states adopted a ‘prior appropriation’ theory of water law. I hope Arkansas doesn’t have to do that. But the theory says everyone is given a permit and allowed ‘X’ number of acre-feet of water. Once they hit their limit, water is cut off. Everything is very certain because there’s scarce rainfall and fewer of the water benefits this state has. If we’re not careful and don’t balance our use, Arkansas may soon have the same kind of laws.”