Lessons of the Arkansas

The Arkansas River forms in the Rockies near the old silver boomtown of Leadville, Colorado, then meanders east through Pueblo, Colorado; Dodge City, Kansas; and Wichita before turning southeast and moving at a stately pace through Tulsa, Oklahoma, and Little Rock, Arkansas, finally dumping into the Mississippi at Napoleon, Arkansas, a ghost town. At fourteen hundred miles, it is the sixth-longest river in America, behind the Missouri, Mississippi, Yukon, Rio Grande, and Colorado. It is the garden hose of the High Plains, sclerotic artery of midwestern commerce, and unamenable amenity in most of the towns and cities it passes through.

When Kansas Took Colorado to Court

Image by WaterArchives.org via Flickr

Originally published in City by City, out now from n+1.

The management of rivers in the American West has, at times, inspired great controversy. The Colorado, after lighting Las Vegas and watering Los Angeles, disappears into the middle of the desert; what reaches Mexico is so contaminated that it must go through a desalination plant before crossing the border. Salmon on Washington’s dammed Snake River must return to their birthplaces with the help of special elevators. The bounty of California’s Central Valley is fed by the pent-up water of four rivers. Throughout the West, some of the most famously beautiful landscapes of the 19th century have disappeared under impoundment lakes. And there is no relief in sight.

The Arkansas River forms in the Rockies near the old silver boomtown of Leadville, Colorado, then meanders east through Pueblo, Colorado; Dodge City, Kansas; and Wichita before turning southeast and moving at a stately pace through Tulsa, Oklahoma, and Little Rock, Arkansas, finally dumping into the Mississippi at Napoleon, Arkansas, a ghost town. At fourteen hundred miles, it is the sixth-longest river in America, behind the Missouri, Mississippi, Yukon, Rio Grande, and Colorado. It is the garden hose of the High Plains, sclerotic artery of midwestern commerce, and unamenable amenity in most of the towns and cities it passes through. Its history is, to a large extent, the history of all western rivers. It has been the subject of judicial whim, fractious legislative coalition, and blinkered administration, as well as, most recently, a major historical shift in attitudes about the environment.

Nineteenth-century colonization of the interior of the United States slowed significantly somewhere around the 96th meridian, which you can see on a modern map as the east–west border that runs between Minnesota and the Dakotas, Iowa and Nebraska, Missouri and Kansas, and Arkansas and Oklahoma (and Texas). Colonization slowed in part because the Plains Indian tribes fought unusually hard to keep their homelands; it also slowed because the plains were too dry for the agricultural practices carried by settlers from the eastern United States or Europe. The Dakotas, Nebraska, Kansas, and eastern Colorado are dry places, and for generations the colonizers had difficulty living in them. Before they arrived, professional soldiers and hired mercenaries killed and displaced the Plains Indian tribes. They also killed the American bison, of which there were as many as sixty million before the colonists arrived. Settlers claiming land under the Homestead Act, which gave ownership to those who could live on a parcel for several years, broke up the prairie sod and established farms with traditional crops. Certain crops, particularly drought-tolerant strains of wheat developed by Mennonites in Russia, enjoyed some success. The rest succeeded or failed depending on the unpredictable climate: natural cycles of drought and flood provoked economic cycles of boom and bust. Through it all, the settlers continued to impose old farming techniques on an unsuitable climate. They tore up the prairie grass that had sustained the bison and replaced it with uniform rows of corn and wheat. When the sky didn’t provide enough water for these crops, they went looking for the water where they could.

In the late 19th century, settlers throughout the West began diverting rivers to the work of irrigating their arid land. This was a practice commonly called reclamation. Carrying water away from the riverbed for otherwise nonviable farms necessitated the development of a new form of water law. In the eastern United States, rivers were (and are) governed by riparian law, which holds that all people owning land along a river are entitled to use the water, provided that they do not unduly impair the use of the river by landowners downstream. The right to use water is tied to a claim to the adjoining land; if you sell the land, you can no longer use the water, but the person to whom you sold the land can. The eastern states inherited this form of law from the British common-law tradition, with which it shared the basic premise that people would use rivers for swimming, washing, boating, and shipping. Diversion of water for irrigation was never an important source of legal conflict: in England and the American Northeast, there was enough rainfall for the crops.

In the West, things were different. There was not enough rainfall, and so the use of the river could not simply be left to whoever happened to have settled on the riverbank. Nor was there enough river to share between all possible claimants. In this situation, riparian law did not provide a way of deciding whose demands for water should receive priority. Making use of a different line of law that tied property rights to productive use of resources, the courts in the 1870s developed a doctrine that came to be known as prior appropriation. Whoever was the first to develop a “beneficial” use of river water was allowed to keep using that amount of water henceforth, even if it meant that no one else got any. Beneficial use was construed broadly, with land reclamation—a human battle against climate—at its core.

By granting priority to historical levels of water use, prior appropriation also implicitly assumed that baselines of use and unpredictable features of the regional climate were, in fact, measurable. Answers to complicated questions about the amount of water appropriated, the proportion of the water that ran back to its source, and how much water existed in the first place were necessary for prior appropriation to be a workable system. Insofar as courts were able to determine historical baselines, the results were misleading: the settlement of the plains, and thus the establishment of baselines, coincided with uniquely wet conditions. Rights to water were thus set at levels that would be unsustainable in the drier years to come.

And so the lawsuits began. In 1902, after several dry years put a strain on both states’ water resources, Kansas took Colorado to court. Colorado, Kansas wrote in its bill of complaint, had granted

to divers persons, firms, and corporations the right and authority to divert the waters of the Arkansas River and its tributaries in Colorado from their natural channels, and to cause said waters to flow into and through canals and ditches constructed for the purpose, extending great distances away from the natural channels of said streams, and to store said waters and to empty the same upon high arid lands, not riparian to said streams, where large portions of such waters are lost from evaporation, and the remainder sinks into the earth, as a result of which all of said waters are forever lost to such streams, and are thus and thereby prevented from flowing into or through the State of Kansas.

Kansas was concerned that “it [was] the intention of the State of Colorado to divert absolutely all of the water that does, can, or might flow down the Arkansas River into the State of Kansas.” Kansas asserted that riparian law, which would require that Colorado pass most of the water along, should take precedence over prior appropriation law, which Colorado claimed as an effective grant to keep the entire river for itself. The Supreme Court, the only court that could decide a dispute between states, refused to establish the priority of one set of laws over the other: doing so would deprive one state of the right to regulate its own affairs.

Setting aside these legal considerations left the Court with questions of scientific fact too complex to resolve with the available information, and so it gave Kansas what amounted to a massive homework assignment. “We think proof should be made,” the Court ruled,

as to whether Colorado is herself actually threatening to wholly exhaust the flow of the Arkansas River in Kansas; whether what is described in the bill as the “underflow” is a subterranean stream flowing in a known and defined channel, and not merely water percolating through the strata below; whether certain persons, firms, and corporations in Colorado must be made parties hereto; what lands in Kansas are actually situated on the banks of the river, and what, either in Colorado or Kansas, are absolutely dependent on water therefrom; the extent of the watershed or the drainage area of the Arkansas River; the possibilities of the maintenance of a sustained flow through the control of flood waters—in short, the circumstances a variation in which might induce the Court to either grant, modify, or deny the relief sought or any part thereof.

Furthermore, the Court appealed to a then-popular but entirely fanciful notion that irrigation and plowing actually caused rainfall. It therefore claimed that the more Colorado irrigated, the more rain would fall on Kansas. The Court was optimistic that things would work themselves out.

The farmers of Kansas knew otherwise, and five years later the state returned with what it believed was a stronger case, including many of the facts the Court had asked for. Colorado, for its part, countered with the dubious argument that the Arkansas River was actually two rivers, the Colorado Arkansas (“a perennial stream rising in the mountains of Colorado and flowing down to the plains”) and the Kansas Arkansas (a stream from the south of Wichita to the mouth of the river), and that Colorado had only drawn from the former. The Court dismissed this claim out of hand but in the end sided with Colorado, for, whatever one might think about agriculture causing rainfall, irrigation was producing economic growth in Colorado. “The appropriation of the waters of the Arkansas by Colorado, for purposes of irrigation, has diminished the flow of water into the State of Kansas,” the Court admitted. But, it went on, “the result of that appropriation has been the reclamation of large areas in Colorado, transforming thousands of acres into fertile fields, and rendering possible their occupation and cultivation when otherwise they would have continued barren and unoccupied.”

Meanwhile, it was impossible to say how this use of the river might be harming Kansas, if at all. By the 1930s, monocultural row crops had replaced deep-rooted prairie grass. The huge swath of exposed soil turned to dust in a long drought and was taken up by winds and carried in huge masses throughout the country. The plains came to be known as the dust bowl.

The lack of water only spurred further litigation. In 1943, we see the states before the Supreme Court again, with Colorado asking the Court to force Kansans to stop suing. While the resulting decision ordered a particularly irritating group of Kansas farmers to stay out of court, the justices again avoided a resolution of the broader question of how the river ought to be shared.

In the 1950s, things became much worse when farmers in Colorado developed a new irrigation technology called the center pivot, which employed a wheeled irrigating arm rotating through a field centered on a well. One irrigation arm was able to water a 160-acre “quarter section” of land. It is these irrigation devices, still in use, that cause large parts of the Great Plains to look from the air like mosaics of green circles nested in brown squares. The center pivot effected a revolution in Great Plains agriculture and society. By drawing from deep deposits of subterranean water, center pivot irrigation made crops far more reliable than they had ever been before, tempering the boom-and-bust cycles of the plains economy.

However, center pivot irrigation does not buy prosperity; it borrows it. Extraction of subterranean water in Colorado meant even less of it flowed to Kansas, touching off two more generations of litigation. In 2001, Kansas finally won: the state was entitled to damages, because Colorado was using too much water. But the judgment was a Pyrrhic victory: Kansas would receive its reward only in money (not in water, as the state had hoped), and much of this money would go to pay enormous expert testimony fees not covered by the judgment. The dispute is in abeyance, though probably not for long.

Why do these people need so much water? The answer, in large part, is corn. In the 19th century, cattle raised on the plains were shipped off to Chicago for slaughter, but over time meatpacking moved progressively closer to the cow. The stockyards grew so huge that their size became inefficient. Improvements in the railroads and, later, the advent of the semitruck made it cheap to transport meat without a central site of production. Decentralization also enabled management to escape Chicago’s strong labor movement. The industry is now dispersed across dozens of small plains cities: Dodge City and Garden City on the Arkansas in Kansas, and Liberal, which isn’t far, as well as Greeley, Colorado, and Grand Island, Nebraska, along the Platte. Each city and its small hinterland is a vertically integrated unit for producing beef, and corn is the cheapest means to fatten cattle before they are sent to the slaughterhouse. Consequently, many plains farmers now grow corn instead of dryland crops like wheat. But corn is water hungry and must have twenty inches of rainfall a year to survive and at least forty to thrive. Only one of the corn-growing counties along the upper Arkansas receives twenty inches of rain a year, and some places are so dry that they are, both technically and in outward appearance, deserts. Although corn is manifestly unsuited to the climate, it is grown in enormous volumes, and irrigation is what allows this to continue.

Farmers have an added incentive to grow corn because the federal government underwrites it. Initially created to shield farmers from the instability of the open market and the rapacity of local grain elevator and railroad monopolies, government subsidies eventually became an ideological tool to protect the American farm as a real enterprise and national ideal. Since 1995, the irrigated counties of Kansas and Colorado have received $500 million in subsidies for growing corn. Stanton County, Kansas, which receives fewer than sixteen inches of rain annually, is showered by more than $2,000 per person in annual corn subsidies. Across the irrigated area, the government has spent another $225 million in disaster relief for catastrophic crop failure, mostly as the result of droughts that may well represent the long-term climatic norm in the region. Along the way, farmers have also drawn down the underlying aquifer, a subterranean reserve of water produced over millions of years and exhausted in a hundred. In many places the aquifer is already dry, and in most others it will be gone in the coming generation. Dryland irrigation leaves the river unsuitable for other use. It becomes salty and polluted, unfit to be drunk by humans or cattle, and at times fatal to aquatic life. That is, provided it flows at all. In the summer of 2013, the Arkansas was only inches deep at the Colorado-Kansas border, and the bed ran completely dry for a stretch of over a hundred miles. Irrigators, exercising their long-standing rights to the water, had used every drop. This is plainly an undesirable regulatory outcome: one arm of the federal government attempts to douse conflict over the water, while the other stokes it with piles of money.

The outcome is not simply bad for the local environment. Direct and indirect subsidies make American agricultural products such as finished beef extraordinarily competitive on the global market. This has harmed farmers in countries that abandoned subsidies and protections to join trade groups like the World Trade Organization. Competing with the United States can require rapid exhaustion of unprotected resources. Viewed in this way, the incineration of the Amazon basin was sparked in the American feedlot.

This is also not an outcome that could easily be changed if anybody wished to change it. As a constitutional principle, the federal government usually does not regulate land use. The individual states cannot easily stop ill-conceived farming practices, either. It is political suicide to injure farms, and though Colorado has made some limited attempts to rein in profligate use of water protected by prior appropriation, the main irrigators in Kansas, the Associated Ditches, were granted irrevocable water rights in the 1940s and seem dead set on using them to the fullest each growing season.

Getting maximum agricultural use from the river has been one part of the effort to dominate the plains environment. Irrigation addresses the challenge of drought, but the Arkansas basin also suffers from floods that have, at times, been catastrophic. Before World War II, responsibility for flood control fell to states and localities, whose engineering resources were modest and protective works often inadequate. Furthermore, flood protection is zero-sum by nature: dikes and levees that protect one area raise the water downstream. This unsurprisingly led to another round of antagonism between the adjoining states along the Arkansas. Kansas felt that Colorado used flood-control works as a pretense to keep an unfair share of the river, while the Kansas congressional delegation sought to prevent the construction of dams whose purpose was to protect Oklahomans downstream. In 1927, floods overtook much of the middle of the country, including the Arkansas. Many towns mounted armed patrols atop their flood-control works; they had a well-founded fear that their neighbors would dynamite them.

After World War II, the Army Corps of Engineers intervened in flood protection on the Arkansas, building dozens of dams, dikes, and diversion channels, and, perhaps most important, elevating the issue above parochial interests. Of course, the Arkansas basin is still susceptible to severe floods. In 1998, my hometown in Kansas, on a tributary of the Arkansas, was flooded to the height of the billboards on Main Street.

Even as flood-control work progressed from the 1950s to the 1970s, a different attitude toward the environment was developing in parts of the American West. It came about from shifts in the larger culture, but also perhaps shifts in the nature of economic life. If the “Old West” attitude treated the river as, simultaneously, an enemy and a source of profit, the “New West” treats it somewhat differently: The environment is something to be treasured, rather than something to be subdued and exhausted, though it is treasured as a sustainable source of wealth rather than as an intangible or innate good. As industries such as mining and farming became less profitable, in part because of their extraordinary efficiency, many communities sought to make use of environmental resources as attractive lures for those with excess money. The same technologies used for flood control, some thought, might also be used for development. Advocates revived an old ambition to use the Arkansas, as rivers are so often used, for navigation.

Conceiving of the Arkansas as a passable waterway required some imagination. In spite of its great length, there had never been any real demand for shipping. One early effort, in 1885, relied on the unpromising business model of carrying wheat upstream from Oklahoma to Kansas, making “coals to Newcastle” look like canny strategy by comparison. The business collapsed in 1886 after a bad storm. The hometown of the ship captain (and main investor) commemorated his effort by naming a street after him—always the first to flood in a heavy rain. Another venture, which shipped crude oil drilled on Indian reservations, folded within five years. Aside from flooding and the lack of a genuine economic need, all efforts faced the problem of seasonal low water. Even before irrigation began to affect the flow of the river, the Arkansas had trouble keeping its water level up.

All the same, after much lobbying and the passage of an act of Congress, the river was dredged, channeled, dammed, and locked. The project proceeded over two decades, continually funded through the efforts of powerful members of the Senate and against the better judgment and veto of President Eisenhower. The McClellan-Kerr Arkansas River Navigation System runs nearly five hundred miles from Napoleon to Tulsa. Tulsa’s Port of Catoosa opened in 1971 at the final cost of $1.2 billion ($7 billion in today’s money), greatly exceeding the price of more promising ventures such as the St. Lawrence Seaway or the Panama Canal. Activists immediately sought to extend navigation to Wichita. The Kansas congressional delegation had voiced support for the McClellan-Kerr boondoggle partly in hope of this eventual continuation. The lobbying lasted a decade before the idea of a Wichita port died. In addition to extraordinary engineering obstacles, lobbyists faced the mounting costs of the Vietnam War and the opposition of Oklahoma, which had no incentive to give the terminus away.

In any case, the treasure was fool’s gold. Technological advances and deregulation in the railroad industry destroyed inland shipping almost immediately after the waterway opened. Today the Port of Catoosa is one of America’s least used, ranking behind such shipping dynamos as Brunswick, Georgia, and Alpena, Michigan. In 2013, legislators from Arkansas and Oklahoma began to make rumblings about the need for new investment on the waterway. Many of the navigation locks had become structurally unsound, and the decision to build them, once made, cannot be unmade safely. Locks are pairs of gated dams that, when closed, create a pool of water that can be adjusted to raise or lower a ship. When they work, locks create smooth, level waterways in place of waterfalls, rapids, or shallows. If they fail, the result is what happens whenever a dam fails: a big flood.

Though the navigational possibilities of the Arkansas proved to be limited, the spirit of the New West continued to assert itself. Beginning around 2000, Wichita has sought to make the river into a tourist attraction. Imitating San Antonio, whose downtown is cut through by a shady path along the spring-fed San Antonio River, Wichita constructed the River Walk, intended to draw visitors to the city and anchor the attractions of downtown. This effort overlooks a central problem: after passing through hundreds of miles of irrigated farms, the Arkansas is all but used up and enters Wichita at a trickle, often no more than braids on a wide bed of mud and sand. When the river channel does promise to fill, part of the water is routed around the city in a flood-control device called, with lamentable accuracy, the Big Ditch. Oklahoma City, Wichita’s more enterprising double, does not have a river and has turned this deficit into an advantage by building a much more compliant fake one. The last time I visited the River Walk it was Christmas Day. My brother had just obtained his driver’s license and drove me and my partner into Wichita. We parked behind Exploration Place, a science museum commanding the confluence of the Arkansas and the Little Arkansas. The Arkansas was, uniquely in my experience, more or less full of water, and the ground was uniquely covered in snow. I took a picture, my brother gallantly shielded me from snowballs thrown by my partner, then we left, having exhausted the pleasures the downtown could offer on what was, in fairness, a very quiet day. On the way out of town, we drove past what I consider a piece of the real Wichita, the Beechcraft plant, one of the several airplane manufacturers that dominate the commercial life of the city. (Though Kansas is poorly watered, it has plenty of empty sky.) At that moment, Textron, the parent company of Bell Helicopter and Cessna, was finalizing a deal to buy Beechcraft outright for $1.4 billion in cash. Massive layoffs were expected in the New Year.

The ecologist Garrett Hardin is well-known for describing the “tragedy of the commons.” According to Hardin, certain kinds of resources, called common-pool resources, are particularly vulnerable to destruction. A common-pool resource is easily exploited by many people, but users may be overcrowded and the resource finite. The tragedy occurs through destructive self-interest; users, fearing the loss of access to the resource, draw upon it as much as they can, ultimately ruining it. This may explain how sensible people can fish a species to extinction, or cut down all the trees in a forest, or suck all the water out of a river.

This problem suggests two obvious solutions. One policy is complete privatization: a forest, for example, can be sold off into distinct parcels, each with an owner. The other is for government to take control of the resource and regulate who can use it. Both of these approaches can be undesirable. Privatization excludes people from accessing a valuable resource, and experience from many countries has shown that outright privatization of water can be extraordinarily destructive. Government regulation is liable to fail if the government doesn’t understand the resource or can’t provide credible enforcement.

The Arkansas River is a good example of the problems of government regulation. The government has not understood the environmental issues, so its restrictions don’t restrict. The rules aren’t coherently enforced, so people dispute them instead of heeding them. Kansas and Colorado have, in effect, spent a century arguing balls and strikes with an inconsistent umpire.

The political scientist Elinor Ostrom, who won a Nobel Prize in Economics for her work on common-pool resources, describes a major alternative approach. Against those who saw privatization or government regulation as the best way to protect common resources from destructive self-interest, she argued that the communities of people who make their living from such resources are best equipped to manage them responsibly. Though she examined many cases, some of her prime examples were irrigation systems, including one in Valencia, Spain, that has been sustainably self-regulated since the tenth century. Many of these systems, even the very old ones, function by the sale of transferable water rights. People with a claim to water they do not need can sell it to someone who does, preventing a scramble for the water and pricing the resource at its real, high cost. Prior appropriation law, for all its perversities, provides a possible framework for such a market: it offers well-defined rights holders fixed shares of water for specific purposes, and because the rights are not attached to landownership, they could conceivably circulate among bidders. Because the number of legal claims usually exceeds the available water, the cost of a right to water use would presumably vary depending upon the likelihood that one will be able to exercise this right.

In this view, the tangled regulatory apparatus produced by American federalism is central to the problems of the Arkansas River: the people making the decisions—courts and government agencies—are not the people most interested in the outcome, and the extreme administrative complexity assures that nobody is in a position to possess enough of the relevant information to act responsibly. On the other hand, these complex regulatory decisions have also produced a legal and material history that cannot simply be cast aside. Rights, once recognized, are not easily revoked. A physical legacy of older attitudes about the western environment exists in the form of dams, irrigation networks, navigation locks, and the like. Moreover, the residents of a watershed, who may be presumed to have a shared interest in its sustainable management, are divided by political boundaries and centuries of bad blood. The “watershed approach” to management, which views such preexisting political divisions as secondary and seeks a holistic approach to the governance of river systems, is particularly difficult to implement along lengthy rivers, especially ones with a fraught history and compromised ecological integrity. Toward the end of her career, Ostrom acknowledged all of these matters as major challenges to self-governance.

One of the reasons for Ostrom’s influence is that her work is not prone to idle speculation: her argument is based on plenty of empirical evidence that communities can govern resources sustainably. However, the argument from actual communities disguises a cultural assumption: communities can only manage their resources sustainably if they are committed to their own long-term welfare. Yet the culture of the American West has rarely managed to produce such a commitment. When natural resources cannot be directly exploited, communities turn to boosterism, and when those ventures fail, people simply drift away. Part of the western sense of place is a sense that it is a big place, so big that opportunity—a new boom—can always be found somewhere else.

This culture becomes particularly pernicious in the American legal environment. Regulations and larger constitutional principles constrain local actors, often in ways that encourage destructive behavior, such as subsidizing the growth of climatically inappropriate crops while also guaranteeing access to artificially cheap water. Worse, the laws, and even the principles, keep changing, leaving people uncertain that what they have now can be relied upon in the future. This, in turn, reinforces the money-minded imperative that has always defined the culture of the American West: get yours or get out.

For many reasons, some of them non-environmental, “get out” has become the more common choice. The population of the plains is shrinking and aging, and nearly all of the plains, while remaining in extensive cultivation, has fallen well below the threshold of population density that once defined “frontier.” These withering communities may feel little commitment to the region’s future—après nous, la sécheresse. As Frank and Deborah Popper argued controversially in the 1980s, the collapse of irrigated society on the plains might not be a bad thing. The farming is economically marginal and ecologically ruinous, the system of property law ill-suited to the low density of resources, and the produce mostly destined for the feeding trough, not the table. Ruin could be a chance to start over.

But stopping the argument here misses a larger point. Major cities like Los Angeles and Las Vegas depend on western rivers for drinking water and electricity. Agricultural areas such as the Central Valley, which yield produce far more valuable and important than feed corn, make use of exhaustible irrigation waters. Though larger in scale, the basic problems are the same: complex, uneven regulations issuing from many different political authorities; strong water rights; and cultural indifference to long-term local sustainability. There is no easy solution. However, it is important to recognize that the problem is structural. Environmentally minded Americans often view ecological degradation as the result of conspiracy between political and economic elites, and there may be some truth in this. However, bad outcomes are much more likely to be the result of self-interest and regulatory accident than genuine bad faith. The American structure of government, which was designed to be inefficient, requires no special, malign effort to be dysfunctional. Yet dysfunction cannot go on forever. Though the exhaustion of the upper reaches of the Arkansas may not be of national or international importance, the drying up of the hydraulic civilization of the American West certainly is.

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