Water Rights/Water Wars in Virginia

The rivers were here long before Jamestown, or even the first humans set foot in the state 10-12,000 years ago. So of course the rivers were in place before human settlements on the rivers - but that does not mean we humans have been constrained by the current location of the water. Water distribution has two facets - how Mother Nature provides it, and how we humans capture and distribute it.

Some Virginia cities and counties do not have unified "service authorities," consolidated utility systems that distribute water based on watersheds and gravities rather than political boundaries. Instead, water systems have been created to supply separate political unit. The water for the City of Fairfax comes from Goose Creek in Loudoun County. It is distributed through a pipeline down Hunter Mill Road, just south of Vienna.

In areas with political tension, where the "community" is defined by a political boundary, you can see service areas defined by the straight lines created by city charters and later annexation, rather than topography and natural divides. The customers have paid for different reservoirs and water treatment plants and pipelines, because politics really does makes water run uphill.

In Virginia, the 1998-99 drought showed that many communities lacked pipeline connections that would allow adjacent political units to sell large amounts of water to each other. Political geography does not reflect the physical geography in many areas, and political disconnects were mirrored by pipeline disconnects. Roanoke County and Roanoke City finally agreed to construct new facilities to share water between the jurisdictions, after years of rival planning and refusing to partner with each other.

Water law in the eastern United States is evolving to address water rights issues... or wrongs, depending upon your point of view. Danville Pittsylvania County Chamber of Commerce objects to proposals to export Dan River water to Greensboro Triad region of North Carolina:1

Because it is critical that our region maintain a strong water supply, the Chamber vehemently opposes the interbasin transfer of water from the Dan River Basin to any region outside the Dan River Basin. The Chamber continues to oppose a statewide permitting agency which would allow a locality to transfer water between drainage basins which is now controlled by the riparian rights doctrine and supports legislation protecting a locality’s water resources and providing legal means for compensation if a statewide agency is created.

The Dan River is a tributary to the Roanoke River, which flows into the Kerr Reservoir on the border of Virginia and North Carolina. The competition between the two states on allocating water stored in that reservoir could trigger a change in traditional water allocation procedures.

2009 proposal to export Roanoke River water to other river basins in North Carolina
proposal to export Roanoke River water to other river basins in North Carolina
Source: Kerr Lake Regional Water System Interbasin Transfer Request from the Roanoke River Basin,
Scoping Document, Interbasin Transfer Certificate and Environmental Impact Statement

In 2009, the Kerr Lake Regional Water System in North Carolina requested state approval for an interbasin transfer from a portion of Kerr Reservoir in North Carolina (in the Roanoke River basin) to river basins further south in North Carolina. All the water would move from one place in North Carolina to another place within the state, but Roanoke River water would be pumped over the watershed divide ionto other watersheds. The proposal would shift up to 24 million gallons per day from the Kerr Reservoir to the Tar River and Fishing Creek basins, plus up to 2.1 mgd million gallons per day from the Kerr Reservoir to Neuse River basin.2

Virginia shares the Kerr Reservoir, and local officials considered any interbasin transfer to be a potential raid on local water resources.

Legal authority to approve interbasin transfers in Virginia is confusing. The Virginia Department of Environmental Quality (DEQ) has said:3
A riparian owner may not divert water beyond the limits of his riparian tract of land, nor may he even use it on those parts of that tract which are outside of the riparian watershed, if by so doing he injures another riparian owner’s use. The theory is that any surplus water not consumed on the riparian land of the first owner would find its way back into the stream and be available for use by the downstream riparian owners. A riparian owner therefore has no right to make an interbasin transfer, which would be a diversion to another watershed.

While the Virginia DEQ claims the authority to approve interbasin transfers for watersheds within Virginia, interbasin transfers moving water across state boundaries are expected to end up in court. One or more Federal judges will get the final word, unless states negotiate solutions and Congress resolves an interstate issue through an "compact" that each state must adopt.

Assumptions about who owns the water in Virginia may be revised to match debates regarding projects that draw water out of the Colorado River basin for Denver, Phoeniz/Tucson, and Los Angeles.

Whiskey is for drinking; water is for fighting... is a traditional phrase in the Western United States. With its different climate, a reliable supply of fresh water is well worth a fight west of the 100th Meridian. The word "desert" is applied to areas receiving less than 10 inches of rainfall annually. Cities in one area that have maxxed out the supply within their watershed engage in "inter-basin transfers," building dams and reservoirs and pipelines to transport water from other watersheds.

Los Angeles' capture of Owens River and Mono Lake water was dramatized in the movie Chinatown. Denver has fought similar wars with the western part of Colorado, and Las Vegas with the communities upstream in Northern Nevada. Courts have had to adjudicate water rights for all users on some rivers to resolve the conflicts, and in some cases Congress has had to approve water pacts that settle multi-state water wars.

In land use planning dreams, people would move to the resources, rather than modify the natural environment to move the resources - like water - to excessive concentrations of people. However, people in Virginia communities don't passively accept natural limits on water supply any more than their Western counterparts.

Few residents in Tidewater move to Danville or Appomattox; it's a far-different lifestyle being near the bay and the ocean, compared to living in Southside farm country. As the Hampton Roads area has grown in Virginia, water distribution battles have heated up between Virginia Beach and North Carolina over a water pipeline from Lake Gaston (an interbasin transfer from the Roanoke River), and between Newport News and the Mattaponi Indians over a proposed reservoir moving Mattaponi River water to a city on the James River.

The King William Reservoir

Lake Gaston

Links

References

1. "2011 State Legislative Policy," Danville Pittsylvania County Chamber of Commerce, http://www.dpchamber.org/files/461.pdf (last checked September 11, 2011)
2. "Kerr Lake Regional Water System Interbasin Transfer Request," presentation for April 1 through 8, 2009 Public Meetings by CH2MHill, http://www.ncwater.org/Permits_and_Registration/Interbasin_Transfer/Status/Kerr/KLRWS_Public_Meetings_042009.pdf (last checked September 12, 2011)br> 3. "Who Owns the Water?" in Virginia Water Policy: Legacy and Challenges, Virginia Department of Environmental Quality, May 23, 2003, http://www.deq.virginia.gov/waterresources/pdf/fisher523.pdf (last checked September 11, 2011)


Virginia Rivers and Watersheds
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