25 Apr 2009

Leshy on Water

John Leshy, professor of law at UC Hastings, has a lot of useful things to say about water law.

In this 2005 article [doc], he creates a dialogue between a California cotton farmer and government lawyer charged with the task of explaining why the farmer is facing reductions in water deliveries when she holds "rights." The dialogue gives a good feel for the evolution, complexity, complications and contradictions in California's water management. (Leshy also favors fish over farmers, mostly from a Public Trust perspective.)

Addendum: Leshy fails to address a critical question, i.e., what is the government's responsibility to compensate when a farmer's investment (e.g., land) depends on a government program that is subsequently changed? Although the farmer "should not" depend on a reliable government policy, it seems capricious to assert that a policy of xx years can be changed "because we changed our mind regarding fish, etc..."

This excerpt captures the wobbly ground under water rights:
The sad if not well-understood truth is that many states have little idea about who has rights to which water or what actual uses are. Unexercised, "paper" rights abound. Many Western management systems operate as much on assumptions and guesses as hard data, and only rarely are those assumptions and guesses entirely correct. Moreover, a good deal of water gets used in ways that would be, shall we say, of questionable legality if water rights were strictly enforced. This is not a Swiss watch. This is more like a sundial on a partly cloudy day.
Oh great. (He then says that clarifying/retiring paper rights would be tedious and expensive. I don't know what to say, except: "you broke it, you fix it!")
In this 2009 paper [PDF], Leshy suggests actions that states can take to improve their water management, i.e.,
  1. States should have better information and more capacity to manage and regulate water use within their borders.
  2. States should have effective programs to maintain sufficient water flows in their streams to ensure a meaningful level of ecological health.
  3. States should have effective groundwater regulation programs to sustain groundwater dependent communities over the long term and to protect associated surface waters.
  4. States should make stronger efforts to link regulation of land use and water use.
  5. States should vigorously promote measures to conserve and make more efficient use of water. [Raise prices!]
  6. States should have clear policies and processes for addressing transfers of water rights, particularly from agricultural to municipal, industrial, and ecological uses.
  7. States should more vigorously monitor and, where necessary, regulate the activities of special government districts to serve state policy objectives.
While I agree with ALL of these, I only partially agree with his suggestions for federal actions:
  1. Congress should make more money available for essential data gathering and analysis by the United States Geological Survey.
  2. National water policy needs to be closely connected to national energy policy.
  3. National water policy needs to be closely connected to national agriculture and food policy.
  4. The federal government should improve its efforts, including working more closely with the states, to ensure a base level of ecological health in every stream.
  5. The federal government should create a mechanism for systematic, periodic review of the operation of federal dams and other federal projects, to ensure they are being managed to meet these objectives.
  6. The federal government should move with vigor to complete the process of quantifying Indian and other federal water rights, favoring negotiated settlements wherever possible.
Numbers 2 & 3 would not be necessary if we allowed markets for energy and water (plus externalities!) to function and ended subsidies for agriculture. Leshy's recommendations are thus either more pragmatic or more state-centric than that. (I think the latter.)

Bottom Line: Read these papers to understand how water, economics and politics interact. Then pour yourself a stiff drink for the headache :)


  1. The Bureau of Reclamation is quite interested in a new fresh water Source of a million AF a year that can be accumulated in Lake Mead to keep it reasonably FULL and generating 2000 megawatts of renewable energy rather than go dry as predicted.

    As intriguing as the concept may be, the Bureau has no mechanism to confidentially investigate and verify such a discovery.

    There is simply no way for CA, the MWD, CA, NV, the SNWA, AZ, UT, CO and the Bureau to commumnicate, coordinate and cooperate to authorize an entity of their collective choice to verify such a vast natural resource that can help protect them all and be utilized to restore the CO River Delta, and freshen the Salton Sea.

    Sad too is the impossibility to develop such a resource so that it can be delivered in perpetuity without power and Quagga Mussel free.

    So much for government ...

    Ray Walker (Retired Water Rights Analyst) waterrdw@yahoo.com WaterSource

  2. You mention the roles for state and federal executive and legislative branches. What should be the role of the judiciary?

  3. The judiciary is tied up by contradictory laws. Perhaps they can revoke one form of water property rights (e.g., riparian vs appropriated) in favor of the more senior rights.


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