Seminary Journal 2008 (August) - Virginia Theological Seminary

make environmental matters just one
of the many ways in which moral and
spiritual demands fi ght head to head
with the things our society promotes.
Perhaps there’s no avoiding that struggle,
but I would like to see a more
positive and radical re-formation. I
would like to hear us preach environmentalism
not as a matter of selfrestraint,
but as part of a new—and
newly urgent—moral and spiritual
vision of commonality with creation.
We need a theology that re-forms our
relation to the world and values our
interconnectedness. Seen that way, the
environmental crisis calls us not just to
refrain from sinning against the world,
but to love it, to make common cause
with it, and to accept and celebrate our
calling to be stewards of it.
III. The Peculiar History of
Water Law
I fi nd hope for such a theology in
meditating on water. This is so not
only for the reasons given above, that
water is essential to our spiritual and
physical lives, but also, unexpectedly,
in the secular fi eld of water law. As
I have tried to outline here, I believe
that, as environmental crises around
the world grow more threatening they
will force us, maybe unwillingly, to
face our interdependence with creation.
That story of being forced to
recognize and honor a community interest
in a natural resource has already
happened in the West in the fi eld of
water law. It has been painful and expensive
and people kicked all the way.
Nor is the struggle over. But the shape
of a way forward is beginning to be
clear. I want to offer a brief version of
that story as a pattern for how to step
slowly from a secular interest in pri-
VIRGINIA SEMINARY JOURNAL AUGUST 2007
vate property to an acknowledgement
of interdependence and community.
As with so much of God’s
work, the simplest thing about water
is also the most powerful and moving.
Water fl ows. It pours irresistibly
into every space that opens to it, over
ground and underground. This practical
fact that water fl ows has, in places
of shortage, made it very hard to treat
it simply as private property. Perhaps
it seems easy enough to divert water
from a river, or pump it from the
ground, but because these diversions
affect neighbors, quarrels arise very
quickly. As the quarrels play out, the
physical fl ow among oceans, rivers,
lakes, ponds, springs, wells—even
clouds—slowly understood over the
years, have brought people to recognize
ever widening communities of
interest in every water source.
Suppose I lay claim to a water
supply, taken from the river at a
certain point. I may have a legal right
to it, but practically speaking people
upstream from me can take it before
it gets to me. I can’t just build a fence
around my property the way I can
with land; somehow I have to protect
the water before it even reaches me,
and defend against all the ways it can
be diverted away from me. So, with
the best will in the world to reduce the
natural resource of water to a private
property right, I am forced to place
that right within a system. I must
agree with my neighbors on how the
water will be distributed. Land doesn’t
require a system for the enforcement
of a property right because people
can put up fences. Air doesn’t require
a system because it’s not possible to
put up a fence. But water, because of
its fl owing, in-between nature, needs
an entire legal scheme to back up the
private property rights that people
want to claim.
Thus, long before the environmental
laws pushed “tragedy of the
commons” issues into the forefront of
natural resource policy, water administrators
were struggling with how
to deal with a kind of property that
fl owed over boundaries, and made
people depend upon agreements with
their neighbors. The problem was so
intractable that people put a good deal
of effort into avoiding it, by looking
for how to increase water supply.
States and federal agencies, hoping
to promote development by keeping
water as close to free as possible, built
enormous water projects throughout
the West, stretching supplies by
storing spring fl ows for summer use,
and capturing fl ood events. These
developments fended off the need
to face our interconnectedness with
regard to water for a while. In the long
run, though, they did a great deal of
damage. Some of the damage was to
the eco-systems around the dams, but
these projects also made the problems
of water as property even more complicated
than they had been to begin
with. As a result of these projects,
we fi ght over who owns the private
property right that everyone wants so
much—is it the state, the federal agency,
or the farmer that irrigates? These
questions are still unanswered, still
bitterly fought, and present squarely,
over and over, the problem of how to
create a system which accommodates
both individual and common property
interests in a fl owing resource.
Some thought the problem
solved when the invention of turbine
water pumps in the 1950s made massive
groundwater use practical. In the
Southwest, this technological improvement
coincided with a severe drought.
So water users turned to wells to make
up for what was missing from the
river. Moreover, wells seemed easier to
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