The Delta Vision panel asked Jerry Brown (California's Attorney General) to answer the following question:
What legal tools are available to the State of California to reduce and/or reallocate water among users in instances ofAnyone interested in water rights in the West should read the letter in its entirety [pdf], but here is my summary of the AG's answers:
- overallocation,
- needs for ecosystem protection, and
- emergencies (e.g., drought or interruption in supplies because of seismic or flood events)?
- Priorities matter, but Article X, Section 2 of the State Constitution allows reallocation of water when existing use is unreasonable, and "some presently-exercised uses of water may be unreasonable now or may be unreasonable in the future...where reasonable conservation measures exist."
- Ecosystem protection may be implemented by invoking the Public Trust doctrine. Under Public Trust, the State can redefine water rights.
- In emergency, urban and public-health uses have priority.
Bottom Line: If farmers don't want their water taken, they will have to demonstrate that they are being proactive at maximizing the value of water. One way that they can do so is by ensuring that water gets to highest and best use inside water districts -- preferably via markets and auctions. Anyone interested in such reforms should contact me. :)
hattip to CM
1 comments:
One other interesting note about application of the public trust doctrine: it's the theory that some uses of water (fishing, commerce, navigation, environmental) are so inherently perpetual public rights that they are beyond alienation, which is to say that the state never could have conveyed them away to private parties in the form of a private property right in the first place.
So, as a means of reforming private property rights in water, the public trust doctrine is incredibly powerful. If you can convince a panel of appellate judges (3, for a precedential court of appeal decision) to expand its scope at the expense of an existing use of water, you don't have to deal with any of the messy considerations otherwise applicable in the context of competition for water: compensation, for example.
A public trust use of water does not have to be paid for, in the form of either a "taking" of private right to water (remember, the public trust use of water was beyond the ability of the state to convey away as a private property right in the first place, so the Takings Clause of either the state or federal constitution does not apply) or any other cost-spreading mechanism like purchase through tax money.
As such, it's an elite and not democratic value, inasmuch as it is not put to the test of public finance, and depends only upon getting the right 3 guys in black robes to agree.
So you see why it's the holy grail of environmentalists in the water context.
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