Louisiana Law Review Volume 53 | Number 6 July 1993 Water Rights and Water Policy in Louisiana: Laissez Faire Riparianism, Market Based Approaches, or a New Managerialism? James M. Klebba Repository Citation James M. Klebba, Water Rights and Water Policy in Louisiana: Laissez Faire Riparianism, Market Based Approaches, or a New Managerialism?, 53 La. L. Rev. (1993) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol53/iss6/3 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Water Rights and Water Policy in Louisiana: Laissez Faire Riparianism, Market Based Approaches, or a New Managerialism? James M. Klebba" I. DOES LOUISIANA NEED WATER LAW? Louisiana has historically been regarded as a water-rich state.' Water rights have provoked minimal litigation in Louisiana, and the state's legislators and bureaucrats have only recently attempted coordinating the development and protection of water resources and regulating the use of water. Benign neglect may be justified if there is abundant water for all-and Louisiana probably contains more than enough water to meet its foreseeable needs. But that water is not evenly distributed: in some areas, water is not always readily available, particularly when quality requirements are taken into account. One study published in 1957 indicated some concern on the part of industrial businesses and farmers that state water policy could not assure a sufficient water supply in the future.2 Indeed, data indicate the future will bring sporadic water shortages in portions of the state. In fact, many studies discovered actual and anticipate potential water problems in several parts of the state. The most pressing problems have related to ground- water. A number of these studies centered on the Baton Rouge area and surrounding parishes and indeed eventually led to legislation establishing the Capital Area Ground Water Control Commission,4 which has been, to date, Louisiana's most Copyright 1993, by LOUISIANA LAW REVIEW. * Victor H. Schiro Professor of Law, Loyola University, New Orleans. I would like to thank my research assistant Robert L. McKnight for his invaluable help in both legal research and translation. This article was made possible in part by the Bonomo and LaNasa endowed funds at Loyola Law School. 1. See, e.g., Warren Viessman, Jr. and Christine Demoncada, U.S. Libr. of Congress, Serial No. 96-12, State and National Water Use Trends to the Year 2000 (1980). 2. Louisiana Legis. Council, Research Study 1I, Water Problems in the Southeastern States 45-46 (1957). 3. A national survey in 1978 listed Louisiana as one of only eight states where over half or close to half of the state's land mass is subject to groundwater depletion-the others being Nebraska, Kansas, Oklahoma, Texas, Colorado, New Mexico, and Arizona. In fact, of all of these states, Louisiana appeared to have the largest percentage of its surface area affected by depletion. 2 U.S. Water Resources Council, The Nation's Water Resources: The Second National Water Assessment 12, fig. 11-2 (1978). A 1985 study listed Louisiana among the top four states with the highest overall withdrawal (along with Indiana, Texas, and Pennsylvania) of groundwater for industrial purposes. Wayne B. Solley et al., U.S. Geological Survey, Circular 1004. Estimated Use of Water in the United States in 1985 30- 33 (1988). 4. See infra text at notes 237-248, 1780 LOUISIANA LAW REVIEW [Vol. 53 comprehensive management approach to either ground or surface waters.' Southwestern Louisiana has also received considerable attention in this area. Several monographs have identified saltwater 6encroachment in that area of the state as an ever-present, if not immediate, danger. 5. Charles 0. Morgan, La. Dept. of Public Works, Water Resources Bull. No. 2, Ground- Water Conditions in the Baton Rouge Area, 1954-1959, With Special Reference to Increased Pumpage (1961); R.R. Meyer & J.R. Rollo, La. Dept. of Public Works, Water Resouces Pamphlet No. 17, Salt Water Encroachment, Baton Rouge Area, Louisiana 2-3 (1965) (citing data which indicates significant movement of salt water toward pumping centers, stating that "saltwater fronts occur in each of the principle aquifers in the southern pan of the [Baton Rouge area]," and speaking of a "crash program" which was begun in 1964 because "it was feared that the leading edge of the salt water fronts in some aquifers would reach pumping centers in as little as five or ten years."; id. at 3,5); Charles 0. Morgan, ' La. Dept. of Public Works, Ground Water Resources of East Feliciana and West Feliciana Parishes Louisiana 39-48 (1963) (study noting long-term declines of groundwater levels over 40 years, with the rate of decline increasing about 1940 because of industrial expansion of the Baton Rouge area). This study implied that many presently existing wells would become unusable because of the long-range decline in water levels. Id. at 48. L.H. Falk and W.J. Stober, La. Water Resources and Research Inst., Bull. 2, The Measurement and Comparison of Costs for Alternative Water Replacement Projects 1 (1966) ("[gleological studies conducted during the past twenty years indicate that the Baton Rouge, Louisiana area is confronted a ground water supply problem of potentially serious proportions"); La. Water Resources Research Inst., Bull. 5, The Present and Future Ground-Water Supply of the Baton Rouge Area (Raphael G. Kazmann ed., 1970) (includes a short appendix by George W. Hardy, III,on a few of the legal problems faced in protecting groundwater). Id. at FI-18. La. Water Resources Research Inst., Bull. 3, Salt-Water Encroachment into Aquifers (Raphael G. Kazmann ed., 1968) (comparing the problem in the Baton Rouge area to similar problems in southeastern Florida, Long Island, New York, and in southern California). 6. Alfred H. Harder, U.S. Geological Survey, Water-Supply Paper 1488, Geology and Ground Water Resources of Calcasieu Parish, Louisiana 3 (1960) (expressing concern about salt water encroachment); Alfred H. Harder et al., La. Dept. of Public Works, Water Resources Bull. No. 10, Effects of Ground Water Withdrawals on Water Levels and Salt-Water Encroachment in Southwestern Louisiana 4 (1967) (noting a steady decline in water levels in the Chicot aquifer). The most imminent threat to the fresh-water resources of southwestern Louisiana from salt water encroachment is the northward movement of salt water in the "500-" and "700-foot" sands and the "upper sand unit." The rate of northward movement of these fresh-salt water interfaces is calculated to range from about 30 feet to about 200 feet per year. Id. at 46. See also Paul H. Jones et al., La. Dept. of Conservation, Geological Bull. No. 30, Geology and Ground-Water Resources of Southwestern Louisiana at 228 (1954) (noting "the possibility that valuable ground water supplies might be ruined by widespread contamination, or be depleted seriously by over-pumping or improper development," and the problem of saltwater intrusion into the Vermillion River, which is relied on to recharge groundwater). Id. at 11. Allen L. Zack, La. Dept. of Public Works, Water Resources Pamphlet No. 27, Ground-Water Pumpage and Related Effects, Southwestern Louisiana, 1970, with a Section on Surface-Water Withdrawals 3 (1971) (noting that three-fourths of all groundwater pumped in southwestern Louisiana is used for rice irrigation). Zack notes rapid water-level declines in the Lake Charles area due to "concentrated industrial pumpage," which creates a "cone of depression, which spreads over most of Calcasieu Parish." Id. at 12. He also warns of both water-shortage and water-quality problems if water resources are not wisely managed in southwestern Louisiana. Id. at 23. See also Dale J.Nyman, La. Dept. of Public Works, Water Resources Technical Report No. 33, The Occurrence of High Concentrations of Chloride in the Chicot Aquifer System of Southwestern Louisiana (1984). 1993] WATER RIGHTS IN LOUISIANA The literature concerning groundwater in the New Orleans metropolitan area points out that existing sources are too saline or otherwise not satisfactory. Despite the availability of abundant surface water from the Mississippi River, several studies express concern about future, if not existing, water quality problems from two different sources: the accumulated volume of industrial and agricultural pollutants drained from a large portion of the continent of North America and the threat, particularly acute at times of reduced river flow, of a tongue of salt water coming upstream from the Gulf of Mexico. 7 Other studies look to the north of Lake Pontchatrain for alternate sources of better quality ground or surface water.' Of course, should the Old River Control Structure fail, making New Orleans a saltwater port, the development of such alternatives would then become a "crash project." Thus, other studies also explore what sources of water could be made available on a short- and/or a long-term basis in the event that "Old Man River" overcomes the U.S. Army Corps of Engineers.9 Another potential threat to Louisiana water supplies would be a political one; e.g., there have been periodic suggestions that Mississippi River water be used to replenish the declining Ogallala Aquifer, which provides irrigation water for the High Plains of Texas.'0 In response to these suggestions, empirical work has been done to determine whether and under what circumstances such a diversion would be a threat. But, for the forseeable future it seems that the "threat" is moot because the countermeasures are economically infeasible." There are less grandiose but more immediate threats to Louisiana's water supply caused by groundwater 7.