Let’s imagine it is the Spring of 2025, and Louisiana is preparing to open three diversions on the lower Mississippi so fresh water and sediment can reach wetlands struggling to stay ahead of sea level rise.
But the river has dropped to a record low, and the Port of New Orleans warns taking that much water from the river will ground ships below Venice. At the same time, salty Gulf water moving upstream against the low river is threatening municipal water supplies as well as cooling intakes at oil refineries, chemical plants and power stations. They want the diversions to stay shut.
Meanwhile, all three needs could be disrupted when Arkansas opens a structure on the river to begin sending millions of gallons of water to western states paying top dollar to relieve a drought devastating farms and cities. So, who makes the call on first-use privileges?
“No one person makes that call," says Mark Davis, Director of the Institute on Water Resources Law and Policy at Tulane University Law School. “Navigation is controlled by the Army Corps of Engineers; water supply is controlled by the State of Louisiana and various utilities and whatnot; the ecologic issues would be controlled jointly by Louisiana and the Corps of Engineers; and, quite frankly, the upstream folks are going to make their own decisions. We don’t have a water budget, we don’t have a custodian, and if we did, it wouldn’t be a custodian who really had a comprehensive mission.”
Unlike some rivers, such as the Colorado, that have legal contracts between states and the federal government to parcel out water on strict quotas, the Mississippi is run on a much more laissez faire system: it’s a first come-first served basis, with each state more-or-less taking what it wants from that river as it flows through their borders.
“The Colorado River, and western rivers including parts of the Missouri, are covered by what we call the doctrine of prior appropriation, which is, whoever got there first has a privileged use or prioritized use for that water,” says Davis. “The Mississippi itself, and the Ohio, and most of our tributaries, come from a riparian tradition, which is, whoever lives next to the water has rights of use and access. But they’re not prioritized, and the states, all 31 in this watershed, have their own system of laws which govern who gets to use water, when and where.”
Louisiana, as the last state on river’s long march to the sea, gets what is left over — and also what is put into it, but that’s another issue. It’s becoming something of a grave, if not mortal concern, because the state is depending on this river and the sediment it carries to rebuild the sinking basins south of New Orleans.
The concern is that scientists believe there’s enough sediment in that river now — and enough water in it to carry it to us — for us to take it out and rebuild this sinking coast. But what if other people start tapping the river above us? Should that be a concern for the State of Louisiana?
“It should absolutely be a concern of the State of Louisiana — not because it might happen, because people are planning for it to happen,” says Davis.
Who else is in competition for this water?
“Colorado, New Mexico, Nevada,” says Davis. “States that are in the business of finding water, because they don’t have enough, are absolutely clear that their future is based upon not only conserving the water they have, but supplementing it with water from someplace else — whether that’s the Great Lakes, the Mississippi River system, it doesn’t much matter. They’re in the business of finding water.”
So, how do we solve this problem? Davis says there is beginning to be a conversation up and down the river, and even on some of its tributaries, about what the future might be.
“You can’t really determine a budget for the whole river if you don’t know what the budget is for the bottom of it,” says Davis. “If we don’t know how much water has to reach the coast of Louisiana — for navigation, water supply, ecologic purpose — then you have no idea really how much water you have to start conserving or making available farther up the system. So, this budget actually has to be built from the bottom up, if you really want to make it work.”
That seems like an argument that would play well here in Louisiana, because we’re on the bottom, but how do you make that sound logical to people in Illinois, in Iowa, in Minnesota, in Missouri, in Arkansas?
“Having talked to people in Iowa and Illinois and other places — obviously, they don’t wake up every day thinking about what’s good for Louisiana,” says Davis. “But every time that they put corn on a barge, or manufactured goods on a barge, or they’re looking to bring rolled steel into this country off a deep-draft ship, they’re depending upon south Louisiana being in business. That means a place where ships can come, they can off-load; a place where businesses and workers can buy homes and they can be insured; a place where there’s water supply for the factories that make the chemicals and the fuels that drive the rest of the country; a place that — to the extent that you have hunters and fishers in other parts of the country — you realize that changes very dramatically if you lose this habitat that’s essential to so many critical pieces of our wildlife heritage. When you explain it that way, it’s almost like explaining to people in the grocery store that, at some point you should care about farms, because food comes from some place. Well, this river goes some place and starts some place — and it starts on two ends, the headwaters and the mouth — but if the mouth isn’t working, it doesn’t work. Not just for Louisiana and New Orleans; it doesn’t work for America.”
Iowa farmers need to ship their grain, so they need the river at a certain height during certain times of the year to get their product south. But they also have to be aware that, if the port in New Orleans is closed, as it was after Katrina, they can’t get their crops out to market. People up and down this drainage all depend on each other — it’s not just that Louisiana needs this for Louisiana. If Louisiana doesn’t have this, it can’t serve the states north of the Gulf Coast, and those states can’t move their products and profit from it.
“I think it’s really important for us to remember that, as wonderful as we think Louisiana and New Orleans are, that’s not the reason that America cares about this place from an investment standpoint,” says Davis. “Never was, never will be. The United States bought New Orleans and the Louisiana Purchase because of an intersection between a continental water system and the oceans of the world. This was a place that they felt that America needed to control, because it was that transfer point. If you lose this transfer point — whether you lost it to another country, or you lose it because you lose function — all of America feels that.”
It is a compelling argument, indeed, for a water budget, and for Louisiana to get involved with its partners and try to figure this out. Before we spend tens of billions of dollars building diversions that we may or may not be able to use, depending on when that time comes.
Support for The Louisiana Coast: Last Call comes from the Greater New Orleans Foundation, an organization that addresses the challenges facing people who live and work in the coastal communities of Southeast Louisiana.
The Louisiana Coast: Last Call is written and reported by Bob Marshall of The Lens, and produced by Fred Kasten.
