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Structural Considerations Regarding Domestic Policy to Combat Water Scarcity

Terrorism and cyber attacks are frequently mentioned in the discourse of national security because of their direct and visible effects but long-term environmental concerns rarely receive the same attention. Environmental threats to national security typically take years or decades to fully manifest but often result in devastating consequences. They often take decades to reverse, placing a premium on mitigation and prevention. Water scarcity is amongst the most severe environmental threats to national security.

Water scarcity is caused by inefficient use and climate change. The National Security Strategy of 2010 listed combating climate change as a national security interest with both domestic and international dimensions. Water scarcity is exacerbated by desertification, which is problematic for almost half of the United States. Given the dependency on agriculture for food, the concern is for the nation generally. Droughts during the years of 1980 through 2011 ran an estimated cost of $210.1 billion. As desertification continues with rising temperatures, this cost will rise, especially in western states like California. Given the recognition of water scarcity as affecting American national security interests, where do the US domestic policies stand on addressing water scarcity?

The domestic approach involves conservation efforts by numerous federal agencies like the Environmental Protection Agency and the Bureau of Reclamation, state agencies, various federal initiatives and grant programs promoting water conservation. The primary legal issues surrounding domestic efforts to combat water scarcity are coordination of state and federal actors and conventional property rights over water sources.

The Obama Administration in 2011 implemented a framework for executive branch agencies to expand upon the Clean Water Act, which authorizes federal coordination and grants. The Framework is only binding upon the federal government and attempts to incentivize landowners and states to engage in water conservation practices and provide funding for water management infrastructure. The Framework also focuses on federal efforts to restore key watersheds and aquatic areas, including the Great Lakes and the Chesapeake Bay. The context of common law water rights and federalism explains the limited approach of coordination and providing financial incentives.

Water has traditionally fallen under either riparian or prior appropriation doctrines. Riparian allows the owner of the land where water is discovered to use the water reasonably provided their use does not harm the water interests of another. Prior appropriation grants property rights to water based on the first person to use that water for their personal consumption. The assumption under riparian jurisdictions is that bodies of water such as rivers cross multiple lots of private property and are inalienable from the land. Prior appropriation assumes water is transferable and as such is a right to be sold rather than a right based on the land itself. Some states have chosen to merge the models by statute.

Coordination is harder because each state could exercise a different method of allocating water rights while having a cumulative impact upon other states further downstream. The absence of incorporating externalities into a baseline price because of limited jurisdictional powers of states over the exploitation of shared natural resources often results in a “tragedy of the commons” of water resources. There is minimal incentive to conserve or use water efficiently when it is free and any costs associated with its current use, such as filtration or scarcity due to overuse, is borne by others. This diversity of water rights allocation combined with minimal cost incentives for innovation in water use will likely continue to relegate federal efforts to piecemeal regulation efforts and provision of monetary incentives.

Water scarcity presents both a conventional and unconventional national security interest. It is conventional because it regards the health and welfare of the nation. Limited water supplies affect agriculture and public health, increasing the cost of food at a time that populations continue to grow. Unlike terrorism, water scarcity is unconventional because the effects occur over decades and are often seen as an environmental issue rather than a national security issue. Yet perhaps this distinction between environmental issues and national security issues is a false one and the issue is better understood as a hybrid of both.


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