Rising Waters: The Increasing Need for Water Attorneys
WHY YOU SHOULD CARE
Look what the tide dragged in — men and women in suits and ties, ready to litigate your right to valuable H2O.
By Lorena O'Neil
With droughts in California, water conflicts in Texas and the continued Southern water wars, it is no secret that water is becoming a more precious commodity. And as the value of water increases, a legal career path is rising in demand. Enter stage right: water rights attorneys.
More and more water disputes are moving into areas that traditionally have not had water issues.
“Historically, water attorneys were primarily in the area of Colorado and certain Western states,” says Kevin Patrick, senior partner at the firm Waterlaw-Patrick Miller Kropf Noto in Colorado. “In the last 20 years, and most definitely the last 10 years, we’ve seen that more and more water disputes are moving into areas that traditionally have not had water issues.”
Water rights disputes involve both surface and ground water. The fight over water bubbles up when there isn’t enough to go around. An impasse is all too common in places with severe drought, where arid cities with population booms pit farmers against municipalities. Water law also comes into play in endangered species protections and ecosystem restoration, for big industrial users, and for Native Americans and their reservations. Water rights law attorneys are also in demand when interstate compacts divvy up large water bodies like the Colorado River.
In 2011 the Texas state legislature authorized the state’s Commission on Environmental Quality to suspend water rights in emergency droughts by considering how water was used. Farmers fought back when the Commission allowed municipalities to leapfrog their rights. The farmers won, and now the case is on appeal.
“People need water, the environment needs water, and agriculture needs water,” says Eric Garner, managing partner at Best Best & Krieger. “How do you find the right solution to divide it up? It’s quite challenging.”
“The drought issue makes every drop precious,” he says, affirming Patrick’s point that disputes are cropping up in areas that didn’t historically haven’t had to worry about water. “I think it is becoming a bigger issue everywhere, even in stressed areas. We need lots of good bright minds.”
A lot of people aren’t really happy about lawyers getting involved.
Garner, the former chair of the International Bar Association’s Water Law Committee, has worked on water law in countries like South Africa, Trinidad and Pakistan. “It’s hard to have a stable government if you don’t have a stable water supply,” he points out.
Fights over water can get pret-ty dirty. Take the case of the Southern water wars, where Florida, Alabama, Georgia and Tennessee have been duking it out in various water-related battles. Florida and Alabama have both argued that Georgia’s Atlanta consumes too much water and that water legally available to the metro area should be significantly reduced. The trio of states often argue over the drinking water in Lake Lanier, north of Atlanta. Florida is suing Georgia for equitable apportionment of the Apalahicola-Chattahoochee-Flint River Basin. Meanwhile, Georgia is trying to rework its border with Tennessee to include part of the Tennessee River.
“As far as I’m concerned, Georgia can keep its greedy hands and its thirsty mouths away from our water,” said State Rep. Jason Powell.
“A lot of people aren’t really happy about lawyers getting involved,” says Joseph Dellapenna, a professor at Villanova University focusing on water management. He often shows students a postcard with the image of two men standing next to an irrigation ditch, facing off with shovels raised. ”This is the alternative to lawyers,” he says laughing.
Sales of water law textbooks are strong and rising, potentially signalling an increased interest in water rights litigation.
Dellapenna was one of the first law professors focusing on water rights law east of Kansas City. He says the number of students he gets in his classes varies from year to year. “When you get a drought, I get more students,” he says. “When it rains, the number of students go down.”
“We are not all going to be dying of thirst in the next month or two,” he says, but there are many parts of the world where demand for water is outstripping supply. “There’s not enough water for everybody, which creates the need for water attorneys.”
The stresses on water are only going to get worse. Population increases play a large factor. The world population is projected to reach 9.6 billion 2050. A new United Nation’s World Water Development Report says global water demand is likely to increase by 55% in that time period. Today, 90% of energy production uses water-intensive techniques. Global warming and climate change have also made it difficult to predict weather patterns, and thus plan water economies accordingly. Historically, water planning has relied on this assumption of stationarity, the idea that climate varies within a predictable range of highs and lows.
“There just aren’t enough people who are well-versed in the subject area,” says Robert Abrams, a water law professor at Florida A&M University. However, interest is growing. “In spite of the general shrinking size of law schools, I think water law classes are having a larger enrollment and being offered in more schools.”
“There’s a huge call for people that understand the current allocation of water and how that is done by laws, and institutions who are going to work hand in hand with water planners in order to create a more agile, adaptive system than the one we have right now.”
”I don’t want this to sound completely bleak,” adds Abrams. “We’re making a lot of progress. But the frequency of conflict I do think is going to go up until we establish some new norms about how to adapt to, in effect, a new water reality and the new demands.”
Well as the flood waters rise, maybe we should make sure Noah invites two lawyers on his ark – looks like we’ll need them.