Chapter
6 | Chapter
6 |
CHAPTER
7.
INSTITUTIONAL MECHANISMS AND APPROACHES TO RESOLVE THESE CONFLICTS
7.1
Toward a Set of Policy Solutions
While
there are several short-term remedies policy makers might adopt to manage,
mitigate, or negotiate solutions to the conflicts embodied in our case
studies, longer-term efforts must be undertaken to address the underlying
problems that gave rise to them. This
chapter discusses such long-term efforts in two ways.
First, we examine the perceptions of state water problems and the
perceived viability of various remedies to them as viewed by a sample of
stakeholders interviewed for this study.
Second, we assess the pros and cons of various mechanisms and
approaches for managing water allocation utilized in other regions of the U.S.
and around the world. These
include water marketing, changes to law and regulation, and interstate
compacts. We conclude by offering
general recommendations for consideration by state policy makers.
7.2
Stakeholder
Analysis Survey - Selection of Interviewees
We
define a stakeholder as someone who has a stake or interest in the
consequences of a decision and who can influence that decision.
Such an individual may speak for himself or might represent an
organization with a salient interest. In
this study, a stakeholder is defined as an individual or group with an
interest in the use of water in Tennessee, especially from the Tennessee River
downstream of Chattanooga or from the Memphis Sand Aquifer.
Stakeholders also include voters, citizens, and residents who can
influence the decisions made by governmental organizations.
Because
this definition is broad, we sought to limit stakeholders in this study to
relevant geographical and categorical groups.
We emphasized representatives of large-scale interests, rather than
mere individuals, and we sought to contact representatives of such groups who
reside along the Tennessee River downstream of Chattanooga, or on the Memphis
Sand Aquifer. Because these
stakeholders obtain the majority of their water supplies from these two
sources, they are more likely to be heavily affected by decisions made
regarding them. While all
Tennessee residents could theoretically be affected by any large water
withdrawals, the effects on these Tennesseans would probably be greater and
more immediate.
Thirty-six
(36) survey respondents were contacted from eight major groups: agriculture;
municipalities; state agencies (including those of Tennessee’s
neighbors); utility districts; industry/ business; federal agencies;
conservation/environmental groups; and, recreationists.
Individual respondents were chosen principally by reputation. For example, county agricultural extension agents were chosen
for their expert knowledge of farming in a narrow geographical area.
Likewise, certain government agency contacts were chosen according to
perceived interest in, and knowledge of water supply issues in Tennessee and
other states.
7.3
Survey Questions
After
building a contact list of possible stakeholders, a survey was developed and
administered. Survey results were
grouped according to respondent category, and then according to specific
answers, to permit comparison with actual political/legal options which have
ben introduced. The survey
(see Appendix B) was used to obtain specific, detailed information regarding
stakeholders’ histories of water use, predictions about likely future use,
and reactions to hypothetical policy responses by the state.
By focusing on drought history and changes in water use, potential
problems and perceived benefits of future action could be acquired.
The
first set of questions dealt with the late 1980s’ drought.
This event was chosen for its relatively recent occurrence and severity
to Tennessee’s baseline water conditions.
We believed that most stakeholders would recall this event and would be
able to remember specific characteristics about it. Those who could recall the drought were then given specific
follow-up questions, including: indicators of its presence (i.e., “how did
they know we were experiencing a drought?”), implications for their
organization, and how it changed their management of water.
Next, all respondents were asked their perceptions about the current
drought; i.e., “are we now experiencing a drought?” Those who believed a precipitation shortage was being
experienced were then asked about possible changes in water management they
would endorse as a result.
Subsequent
questions assessed stakeholders’ water sources and uses.
Issues of future water use, worries about supply, and competition for
available supply were included. These
questions were used to sort respondents according to water source, as well as
examine their perceptions of Tennessee’s current and future water supply.
The final section of the survey assessed stakeholders’ opinions and
reactions about six hypothetical ideas for dealing with competition
over water supplies. Based on a
limited knowledge of plans used in other states, stakeholders simply gave
their reactions to specific, hypothetical actions that Tennessee could
take.
7.4 Data Analysis
Completed
survey responses were placed into a database for ease of analysis.
In order to quickly and easily assess stakeholders’ reactions to
proposed plans, their answers were placed into one of five categories:
unqualified support, qualified support, no opinion, qualified against, and
unqualified against. Based on
their comments on each idea, a generalized answer was assigned.
For example, if a respondent seemed to generally support a position but
expressed some hesitancy regarding its administration or viability, we
interpreted this as “qualified” support.
Once
responses were classified and entered into the database, two major groupings
were established. The first was
categorical; i.e., to compare responses within a specific sector such as
agriculture. The second was by
source of water use, ground vs. non-ground (surface, combination of ground and
surface, and so on). The latter
was a basic geographical distinction placed on the responses, since most, if
not all, groundwater users surveyed obtain their water from the Memphis Sand
aquifer. These two groupings
allowed comparing attitudes between ground- and surface-water users.
7.5
Sector Analysis - Agriculture
First,
those who depend on groundwater (10 surveyed) as their primary source seemed
less likely to have changed water management during drought in the past. They also tended to expect little or no change in water
management in the future. Second,
however, those who depended primarily on surface water (11 surveyed), or upon
a combination of ground- and surface-water, tended to have changed management
of water in the past or expect a change in the future. These inclinations were observed in responses to questions
about past practices during drought and perceived worries about water supply.
Third, agricultural interests using groundwater seemed to voice little
or no worry about their water supply, either currently or for the foreseeable
future. However, one stakeholder
did voice a concern about heating and cooling systems taking water and
possibly running the wells dry. Another
believed that water pollution would be a major supply concern.
Fourth, several surface water users (or combination ground and surface
water users) voiced various concerns. For
one, it was sediment deposits changing stream flow.
Four stakeholders mentioned the possibility of running out of water,
especially during severe drought conditions.
One even stated that “everyone” has a long-term concern about water
supply.
Reactions
toward possible solutions (question 12) did not seem to as closely follow
differences in water source. In
general, if an association did exist, it tended to be the result of
groundwater users’ belief in a seemingly endless supply of water for their
use. As a general rule, agricultural interests were predictably
wary of intrusion by outside sources, especially state or federal
bureaucracy. However, many of
those surveyed were against these solutions only because they did not see a
need for them. This was most
evident on “proposal” for statewide data on water withdrawals (12a); a
statewide planning process for communities (12b); and a permitting process for
withdrawals (note: most would resort to the latter only in extreme situations)
(12c).
A
drought management plan (12d) was the most universally accepted plan among
agricultural interests surveyed. Many
even said that it should already be in place, and under local control.
A mediation process (12f) also seems to be widely acceptable.
The selling of water rights (12e), however, was the single instance
where a fairly prominent distinction could be seen between ground and surface
water users. Groundwater users
tended to be strongly opposed to markets, while some surface water
users could accept it. One reason
for this could be that surface water users felt that they would have more
control over a resource they could see and, perhaps measure, something
impossible to do with groundwater.
Overall,
the most acceptable solutions for agricultural interests surveyed appear to be
a drought management system or a mediation process.
However, others (including withdrawal permitting) would not be ruled
out if a case could be made for their need.
For agriculture, the most important part of the process seems to be
demonstrating that there is a problem. Most
respondents would be averse to any government intrusion without clear
justification.
7.6
Sector Analysis - Water Utilities
Water
utility districts are knowledgeable sources of information on water use in a
given area. Because of this, we
interviewed ten municipal utility district officials who met the geographical
requirements for inclusion in this study.
Like agriculture, their responses tended to cluster into general
trends. Utility representatives
who recalled the late-1980s’ drought tended to cite increased water use as a
major problem. Of the eight who
recalled the drought, and who depended on groundwater, two changed their water
usage during the drought. In
addition, the single utility official who believed we are currently
experiencing a drought stated that a change in water management would result.
For surface water, one of the four utility officials who remembered the
drought changed water use. Of the
two who believed we are currently experiencing a drought, both expected to
change water usage, through increased pumping or limiting usage.
Three
of the ten groundwater utility officials surveyed expressed concern over water
supply. Two stated that
contamination was a concern, while the other saw low water pressure and the
possibility of depletion water supplies as major worries.
Among surface water utilities, one out of five officials surveyed said
that growth within the next fifty years would exceed their production
capabilities. Overall, most
utilities were not concerned about their water supply.
No general trends regarding ground versus surface water users emerged.
Reaction
to possible water supply remedies was mixed.
Both ground and surface water supply officials tended to support a
statewide data set (12a). Those
who opposed it stated that it was not needed (especially in groundwater
utilities) or that it would create more work for individual utilities.
A statewide planning process (12b) met with support from both groups.
In contrast, most surface water contacts did not support a permitting
process (12c), although groundwater contacts were more supportive with most
giving either unqualified or qualified support to such a program.
The same was true for a drought management system (12d), with only one
out of five surface water contacts giving unqualified support.
Groundwater users expressed support for such a measure, though
responses were mixed. Almost all
who supported such a measure agreed that local control would be better.
Selling water rights (12e) generated mixed responses.
A large number of groundwater contacts supported this solution, but
only one surface water contact gave it any support.
The last hypothetical strategy for managing water, a mediation process
(12f), had less support from utilities than agriculture.
Most groundwater utilities liked the measure, but surface water
utilities did not.
Overall,
most utilities seem more open to change than agriculture.
They did not, for the most part, display the same attitudes toward
government regulation as did agricultural officials. However, groundwater utilities, in contrast to groundwater
agriculture contacts, were more supportive of all the measures described.
Surface water utilities were less likely to support these measures,
unlike their agriculture counterparts. In
all, there was no single issue that utilities would categorically not support,
although they displayed no dominant general trend.
7.6.1
Sector Analysis - Recreation, Conservation, Industry
For
the remaining six categories, a much smaller number of contacts was surveyed.
The numbers are not large enough in any of these categories to discern
trends. Thus, we simply provide a
brief overview of findings. Two
conservation organizations responded via e-mail.
Both respondents expressed concerns about water supply, citing the
refusal of some to ration during drought and the impact of new water supply
projects as their main concerns. They
were also concerned with the construction of new dams and the impact they
could have on aquatic ecosystems. These
officials offered their support for a statewide data set (12a), a statewide
planning process (12b), a process for water withdrawals permits (12c), and a
drought management system (12d) with local control.
However, they both opposed selling water rights or developing a
mediation process.
Three
industrial contacts were surveyed from both Chattanooga and the West Tennessee
area. One recalled the drought of
the 1980s and claimed his firm had to change the kind of dye it used in its
manufacturing process. Two of the
three expect an increase in water use over the next ten years.
None of the three expressed concern about their water supply, however.
When the ideas about managing water were described, all three offered
support to the statewide set of data (12a), statewide planning process (12b),
and drought management system (12d). The
permitting system (12c), selling water rights (12e), and mediation were viable
options for two of the three contacts. Overall,
industry’s main concerns were self-preservation and economic. They were receptive to some regulation if it would enhance
benefits or maintain their current position.
Only
one recreation contact, an official of a recreation organization, was
interviewed. This contact
provided information about how recreational businesses, specifically those
dealing with rivers and streams, are affected by water shortages.
While this contact did not express major concern about the supply of
water, he was concerned about TVA water management strategies. The statewide set of data (12a) and mediation process (12f)
ideas were most favorable. All
other hypothetical plans were opposed, on ground they were unnecessary.
State
and federal agencies and municipalities were not contacted directly.
However, they did provide other contacts for the survey as well as
general suggestions regarding survey format and content.
Chambers of Commerce were contacted as sources for industry
information.
7.7
Summary of Survey Results
Overall,
those contacted generally favor establishing a statewide set of water supply
data, forming a statewide planning process, developing a drought management
system, and mediating disputes. The
least favorable options are a withdrawal permitting system and selling water
rights. The greatest obstacle to
any policy change is convincing stakeholders that they are needed in the first
place. A lack of concern about
water supply is prevalent in almost all groups.
While they may be worried about water quality, they believe that water
is plentiful and free. This
attitude is especially noticeable in stakeholders that use groundwater as
their primary water source. Surface
water users who can actually see changes in streamflow are more likely to
perceive that there are limits in the amount of water that can be used. It would probably be easier to convince these users to use
conservation strategies or to support proposed plans than to convince
groundwater users of the same. In
short, the survey suggests that there would be considerable resistance to
radical change in water management on the part of many current users.
If their rights can be seen to be in jeopardy, then the state should
consider acting to inform these citizens about impending or contemplated
changes.
7.8
Water Allocation Mechanisms - A Brief Overview
This
section discusses mechanisms and approaches for managing water allocation
which are utilized in other regions of the U.S. and around the world. These include water marketing, changes to law and regulation,
and interstate compacts.
7.8.1
Water Marketing
Water
markets have arisen under extreme drought conditions, generally require a
large
First,
under riparian law, there is no right to a specified amount of water, and no
such thing as “excess” water. Thus,
it is not really possible to contract delivery of a specific amount of water
for a specified term. Statutory
change would be required to make water marketing work in Tennessee. Moreover, if this market is mandatory, damages/compensation
might have to be paid. If the
market is voluntary, damages to downstream riparians might occur.
Second,
efforts to follow a market approach by allowing the sale and transfer of water
rights brokered through state or local banks have had mixed success, depending
to some extent on the legal “base” of the community.
In the western U.S. where the prior appropriation doctrine allows more
definite claims to specific quantities of water, there is growing movement
away from absolute claims to “first in time, first in right.”
Despite water scarcity, there is greater emphasis on preserving and
protecting in-stream flows regardless of existing appropriative rights
(Anderson and Leal, 1988).
Finally,
water marketing can be politically unpopular, particularly among residents of
the “importing” region. Consistent
with the findings of previous studies, a recent study in the San Joaquin
Valley of California and the Grand Valley of western Colorado found that
residents of a water-exporting area are more likely to oppose water transfers
than are residents of a water-importing area.
Moreover, regardless of area, residents are likely to have strong
reservations of free markets as a means of allocating water (Keenan, Krannich,
Walker, 1999). Water exporting
region concerns include potentially adverse impacts, and fairness in
allocation. While no one
particularly approved of water markets, agricultural interests had a stronger
tendency to agree with water transfers generally and to have a greater
acceptance of water marketing.
7.8.2
Alternatives for Legal Reform - What do Tennessee’s Neighbors Do?
The
six states that surround Tennessee all follow the riparian doctrine of water
law.
All
of these
Kentucky
has had considerable problems with water use by the mining industry.
The state has
Pressures
on water supplies created by large withdrawals by industrialized agriculture
coupled
North
Carolina has experienced fewer development pressures than Georgia. Nevertheless, the state legislature has passed legislation
allowing capacity use areas to be designated.
Permits are required for water withdrawals in designated capacity use
areas. All other withdrawals over
100,000 gpd must be registered. North
Carolina has adopted a study and permit requirement for all interbasin
transfers of more than 2 MGD or increases in existing transfers of more than
25%. Much like the preparation of
an environmental impact statement, the study must be completed before issuance
of a permit to transfer water will be considered.
Finally,
Virginia requires registration and annual reporting on all withdrawals from
either surface or groundwater of 30,000 gpm or more.
A Virginia Water Protection Permit is required in any case where a
federal permit is required under Section 401 of the Clean Water Act.
As
Tennessee faces increasing demands on its water supplies, there is much that
the state can learn from its neighbors. The
political processes that brought about the registration and permitting
requirements in the states surrounding Tennessee are of particular interest.
We have noted that there is considerable resistance to increased
regulation of water use expressed by agricultural interests in Tennessee in
particular. We can assume that
similar resistance arose in surrounding states.
The manner in which this resistance was overcome and consensus reached
will be of interest to Tennessee officials who are looking to avoid the
problems with water supply that these other states have faced.
7.8.3 Interstate Compacts - Pros and Cons
Interstate
compacts, which derive their legal authority from the U.S. Constitution, are
legally-
The
Delaware and Susquehanna River Basin Commissions (DRBC and SRBC), among the
Both
commissions emerged from a number of water quality and supply concerns that
developed
Structurally
and functionally, the DRBC and SRBC share many similarities.
They are comprised
Both
commissions have the authority to allocate interstate waters in accordance
with the
These
compacts’ experiences, as well as those of the much newer Apalachicola-
Second,
parties to an interstate compact must be willing to settle subsequent disputes
Third,
the importance of regionally-credible data and information in facilitating
recognition of
In
short, in the absence of formal, legal mechanisms for cooperation, the study
served as a
This
evidence of constructive negotiation, moreover, provides lessons pertinent to
the quest for
Fourth,
baseline comprehensive assessments can also be sources of divisiveness as
decision
Finally,
negotiating parties must be willing to settle subsequent disputes surrounding
the
Recent
events suggest at least some doubt among members of Congress as to a
compelling
Fortunately,
because the value of the DRBC and SRBC is deemed sufficiently high within
their
Ironically,
just as their esteem has diminished in the eyes of Congress, the significant
scope of
7.9
Conclusions: Some General Recommendations
In
lieu of specific recommendations for legislative changes, we suggest that the
first steps in
(1)
Any proposed administrative/legislative solution should take into account
variation in water availability from one part of the state to another as
determined by geology, needs, and custom.
There is no one-size fits all solution to water shortages or water
conflicts.
This
report has discussed the features, as well as the pros and cons, of basin
compacts,
(2) Greater
inter-community cooperation in water supply planning is a workable, yet
underutilized strategy.
The
status of inter-community cooperation exemplifies how this option might work,
as well as
Planning, acquiring, constructing, improving, extending, furnishing, equipping, financing, owning, operating, and maintaining a water and wastewater system, including treatment, storage, distribution and collection facilities, properties, and services provide; the selling, donating, conveying, or otherwise disposing of water and wastewater; and undertaking any project or work related therewith . . . . The purpose of the authority is also to plan and develop the water resources of the geographic region and to provide necessary wastewater collection and treatment . . . to secure economic benefits to the geographic region that it encompasses (Cumberland Plateau Regional Water Authority, 1999).
The
challenges facing this authority may be viewed as lying on two distinct, but
interrelated, levels:
(3) Because
water rights attach to land and are valuable, the state should consider ways
to protect these land values for the current holders in the face of changing
uses. One way might to be to
encourage voluntary registration of use, vest registered uses (subject to
abatement in time of shortage) and allow transfer or leasing of withdrawal
rights to other riparians for short terms in time of shortage.
Tennessee
might want to consider adopting some form of regulated water withdrawal
(4)
Tennessee has little ability to control water sales out of state if they are
legal under Tennessee law, even though interbasin transfers are usually not
permitted under riparian law if complaints are made.
Tennessee
might consider instituting a program to require consultation, study, and
permitting
(5)
There are a number of data collection and educational tools that could be
utilized to better protect Tennessee water resources. Assuming such tools already exist in some form - they could
be enhanced. Or, if they do not
currently exist - they should be developed.
These
tools include a clearinghouse for water supply data that would include a
compendium of
In
short, while the challenges of protecting long-term water supply are formidable,
the
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