The Water-Takers Are Coming
by Wendy McElroy

The farming township in which I live is rich in water and community spirit, but both have been depleted by the recent drought. In spring, the farmers turned up dust when they tried to turn the soil; they watched the level of adjacent lakes fall by inches each week; their wells ran dry. Some farmers began to sell their animals at less than cost because they could not maintain them. By fall, many had appealed for federal assistance. I don't believe any business or lifestyle should be supported by government funds, but where money is offered there will always be customers.

Meanwhile, the water-takers have arrived -- a water bottling company that wants to pump over a hundred thousand gallons a day out of the springs that remain stable. Under false pretenses (that is, under various assumed names), they 'discreetly' bought up several parcels of land a mile or two from my home and sank test wells. They wanted to keep a low profile prior to receiving a permit because a neighboring community had been able to shut them out during that process. My community is in an uproar.

I remain confused. The water-takers intend to pump water from their own land, the ownership of which is not invalidated by being purchased under a pseudonym. Surely they have the same right to use and dispose of their property as any other landowner in the area. But does the water under their soil --- water that extends under neighboring properties -- belong to them alone? Should the water-takers be allowed to pump springs dry as they did in a small town about thirty miles to the south? Yet, if I deny them this 'right,' how can I defend pumping water from my well or allowing neighbors to use the drought-resistant stream that runs through my property?'

Generally speaking, societies resolve the question of 'who owns the water?' by appealing to some version of the 'fair use' doctrine, a concept that dates back to English common law. The common law, as defined by Random House dictionary is "the unwritten law...based on custom or court decision, as distinct from statute law." Common law often evolves in response to a vagueness or inadequacy in statute (legislative) law. For example, to populate an isolated region, statute law might grant someone the right to own as much land as he can personally use. At this point, common law might evolve to define "use." Does planting rows of peas three feet apart constitute valid personal use of the land? A reasonable man would probably say 'yes' and consider the area so planted to rightfully belong to the farmer. How about planting the rows ten feet apart? Or a mile? Most likely, such questions will be answered by the customs of the community and/or court precedents.

The fair use doctrine addresses the question of how much of a shared commodity, like ground water, any one individual can use. Where I live, land owners are allowed pump enough water for their own use -- (it is a generous upper limit) -- as long as the water is not sold commercially. Unlike other land owners, the water-takers can both pump far above that limit specifically for the purpose of selling the water. There are two ways to look at this arrangement: either the government is granting special interest privileges to the water-takers who should be restricted in the same as any other land owner or the government is violating the property rights of other land owners who should be allowed to use as much water as they wish, and commercially so. Whichever view appeals to you, the government is wrong.

Government involvement in every area of community life ensures that conflict will only increase. Consider just one situation. If the water-taking permit is granted, a stream of tanker trucks will tear up the county back roads that lead to the highway. These roads are maintained by tax-dollars. In short, taxpayers may be forced to subsidize the transportation costs of the water-takers. If the roads were private, the company could be either banned from using them or forced to pay for the damage caused by their vehicles.

The water-takers and their government cronies make it difficult for me to defend the free market to my neighbors. However clearly I distinguish between State Capitalism (business in bed with government) and the laissez-faire variety, they keep returning to the matter at hand: they may be losing their land to the profit-motive. I argue in vain that the problem is not self-interest which pushes people to excellence and free trade, but the attempt to profit through an act of force that wears the mask of law. My constant theme is 'Get government out of the process!' My neighbors may nod at this sentiment, but there is a barrier to real agreement. The farmers themselves take federal money to support their businesses. They can follow my logic well enough to know I am criticizing them as well.

Critical or not, if the water-takers receive government privileges, then I will be at the protest meeting that will undoubtedly erupt. My placard will read "smash the state!" I'll have to explain that one to my neighbors as well.