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<br />Many marginal agricultural
<br />rights will be changed so
<br />that the water will be
<br />available for more
<br />economically advantageous
<br />municipal and industrial
<br />use.
<br />
<br />Nothing comes easily in the
<br />allocation of water.
<br />
<br />16
<br />
<br />Americans have always lauded free enterprise, Is it morally rightfor individuals
<br />or companies to make money from the sale of a commodity as essential to life
<br />as water? Should water belong to the state, so that profits from the sale belong
<br />to all of the people? Or should water in the ground belong to the owners of
<br />the ground, like coal or oil?
<br />
<br />For example, should New Mexico put a tax on all of its groundwater - that used
<br />in New Mexico as well as that exported - and use the proceeds to drill wells
<br />in Colorado where there is much more water in storage?
<br />
<br />These are only a few of the questions that the new freedom to transfer water
<br />raises, and there seem to be more questions than there are answers.
<br />
<br />The Future of the Ultimate Reservoir
<br />
<br />"The Great Lakes," says the Wall StreetJournal of February 5, 1985, "are the Ultimate
<br />Reservoir, They contain 95 percent of the surface freshwater in the U.S., fully 20
<br />percent of the world's surface water."
<br />
<br />The governors and premiers of eight U.S. states (Illinois, Indiana, Michigan,
<br />Minnesota; New York, Ohio, Pennsylvania and Wisconsin) and two Canadian
<br />provinces (Ontario and Quebec) have entered into an agreement to embargo
<br />diverting water outside the Great Lakes Basin,
<br />
<br />It won't do any good, though, according to Professor Joseph Sax of the University
<br />of Michigan , a noted water law authority, He states in theJournal article: "Even
<br />though many sympathize with an embargo on diverting water outside the Great
<br />Lakes Basin, you can't do it. The Supreme Court says we can't. . , . This is just
<br />blowing hot air for political consumption."
<br />
<br />While this state of transition continues, increased emphasis on conservation of
<br />our limited supplies will increase, and many marginal agricultural rights will
<br />be changed so that the water will be available for more economically
<br />advantageous municipal and industrial use.
<br />
<br />"The Struggle Has Begun"
<br />
<br />So long as there are states that see interstate water transfers as their principal
<br />source of additional water, legislation giving control back to the states of origin
<br />will have tough sledding in the Congress, although it seems clear that the
<br />Congress has the constitutional authority to regulate interstate commerce and
<br />has the power to control, regulate, prohibit or allow the export of state water,
<br />
<br />Many say that "water seek" its own economic level," or, put more crudely, "water
<br />will flow uphill to money." These people see an open market as the most efficient
<br />way to allocate water resources, and their bets are on those who will make water
<br />available to willing buyers, regardless of the engineering, legal or people
<br />problems involved. Others believe equally strongly that state regulation and
<br />existing river compacts will prevail.
<br />
<br />The outcome of the struggle is unclear and, at best, years away. The struggle,
<br />however, has begun and will continue until it is resolved.
<br />
<br />Nothing comes easily in the allocation of water. As the old-timers say, ''You can
<br />kick a man's dog, or you can steal his wife, but you'd better leave his water alone."
<br />
<br />Water is not going to be "left alone" - nor will it ever be the same again, as
<br />the struggle continues to resolve the dilemma of a changing water allocation
<br />policy.
<br />
<br />About the author: Raphael Moses has been practicing law in Colorado for 47 years, with special
<br />emphasis in the area of water law. He has served on numerous boards and commissions,
<br />including the Colorado Water Conservation Board, for which he was attorney for 18 years, He
<br />has represented Colorado in interstate water matters, and he is one of the founders and an
<br />early chairman of the Western States Water Council. He is also a noted author and speaker,
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