21 June 2009

Human Rights Redux

Aguanaut Jay Wetmore writes this:
I was pleased to see that our exchange on the human “right to water” developed into a blog post.

While I struggle to define how I would characterize the human right to water, I am still uncomfortable with using the term “right”.

Let me explain. As a person who tries to be very precise with words, I believe the word “right” has evolved considerably over time so it no longer has a precise meaning. It seems much of the change in the definition has been intentional, by individuals intent on creating new “rights”...

My own bias is for the term “right” to mean personal protections from government or other institutions in keeping with the definition of rights in the Bill of Rights, and natural rights as defined by classical liberal scholars. The term “right” has come to be used to mean, “wants” and “expectations”. These new “rights” are often proposed by individuals who seem to not believe that the Constitution protects individual liberties and places limits on the federal government, so I hope you can understand my discomfort with your use of phrase “right to water”.

[snip]

I may be able to come to terms that the “right to water” is a natural right like the right to breath after additional analysis, but I am not quite there yet. To me this is not just a quibble. The foundation for lasting institutions (and personal philosophies) must be solid. I agree with you that nature has first call on water and that just because man can control water, does not mean he has a moral authority to divert all of the water to his own uses. Governments certainly have no moral authority to withhold water from any of its constituents. However, if you as an individual, own water rights, I do not think you have a legal obligation to provide water to others. (I have left open the question of moral obligation because I think it is dependent on circumstances.) This hypothetical ignores the original mistakes that may have been made in granting of water rights, but as you said, there is little utility in unraveling the fairness of the status quo.
What do you guys think?

18 comments:

  1. When we use a phrase like "sell water rights," we are combining words ("sell" and "rights") that do not normally cohabitate. I agree that we might avoid some frustration if we referred instead to water rights as "allocations" or some similar term, if indeed this is causing some confusion.

    As for water being a natural right, it depends on the quantity of water - a small daily amount is necessary to survive, so it is included in the inalienable right to live, as with a right to air for breathing. Where water, air, or food is so scarce that a person must take them from someone else to survive, he should take such an amount that the victim's property rights but not natural rights (to his own minimum amount of survival-stuff) is violated. Further, if a people's lack of sufficient water for life is due to some government tyranny then the government has infringed on the natural right to live and it is the right of the people to alter or abolish the government, according to the Declaration of Independence.

    Beyond the minimum amount of water needed to survive, though, it becomes a commodity. I imagine the same would be true for air, if it were scarce.

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  2. There's always the definition of property rights as the exclusive rights to the stream of income (and costs) from the property to its owner. As a result, if the owner of the rights to water has the exclusive rights to gain income from that possession, from selling it (transferring the property rights) and all the cost of maintaining the property, I am quite happy with the usage of "water rights", and troubled because we often see those same rights limited, thereby skewing incentives.

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  3. WaterSource/WaterBank21 June, 2009 08:35

    To me, a right is something that has been bestowed upon me that I can legally defend.

    I received any right because the authority who legally provided me with it had jurisdiction to do so. Our state and federal constitutions certainly bestow upon us certain rights because they have jurisdiction. These entities have jurisdiction because, we as citizens, pledge our alligence and give them jurisdiction subject to provisions in the Constitutions. The "under God" part further solidifies the jursidiction all the way to the top ...

    As the word "right" applies to a water right, I can only speak for CO, but I see very little in other states that is much different...

    A water right is a right to USE. That USE is spelled out in the decree/document that was authorized by the governmental agency that had jurisdiction to do so. A water right is entitled to the conditions that exisited when the water right was awarded. The water right was awarded and the entity had jurisdiction because of PROPER NOTICE to all other water right holders that might be affected by the appropriation. My experience has been that the Courts are much better at insuring proper notice than other entities such as State Water Engineers.

    The described USE in the authorizing decree/document is as stated and nothing more, because that was all that the authorizing entity had jurisdiction to approve.

    An extended-expanded USE of the water right without proper authorization should never be approved unless the owners augment/exchange their old use for a new use that has been properly advertised to all others (PROPER NOTICE) and by those with authority to do so (usually Courts).

    Permits are ordinarily not water rights because proper notice has usually not been afforded and an opportunity given to object. Exempt well permits are a classic example. Well Permits in CO were issued on the "assumption" that there would be not damage to the water rights of others with no notice. It didn't take long for these "exempt" from the priority system wells were expanded for all sorts of unintended uses (subdivisions). For example, flowing springs were quickly declared "wells" to beat the senior water rights out of their historic supply.

    To my knowledge, there is no legally defined "human right" to a water supply for domestic purposes anymore than there is a human right to have others provide for food, shelter, health care, education, etc.

    When a "law/regulation" is passed it is always interesting to ask if those who are approving the law/regulation have jurisdiction to do so... They must be fully qualified or anything they sign can be later declared null and void! A law/regulation may be "voidable", but it is not VOID until the issue is taken before the proper authority that has jurisdiction to decide the jurisdiction issue.

    WaterSource/WaterBank waterrdw@yahoo.com Retired Water Rights Analyst

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  4. WaterSource/WaterBank21 June, 2009 15:49

    Water Rights ... addendum:

    A real adjudicated ( by the Courts) water right is REAL PROPERTY. Real property can be bought, sold and leased pursuant to its decreed description as specified in the decree confirming the water right ( again, by the Court).

    Ownership of land is real property. The right of ownership is not absolute, it comes with conditions: in the case of water rights, you cannot waste water, pollute water or USE it except as specified in your water right description because the authority that confirmed your water right only had the necessary jurisdiction based on its authority to recognize and the proper notice that was given to everyone potentially affected.

    What a water right owner can buy, sell or lease is the historic USE of the water provided it is in compliance with the provisions of what was confirmed. All of this MUST be done without damage to other prior vested water rights.

    Note: I used the word confirmed not awarded because the Court simply confirms what already exists, which is the description of your water right as to USE, source, point of diversion, Source and appropriation date and in some states, ownership ( CO specifically EXCLUDES any confirmation of ownership in it's water rights decrees!

    WaterSource/WaterBank

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  5. Very interesting comments. More please. I am a scientist and do not know much about 'rights' and 'use' in any legal sense.

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  6. I'm just about getting to grips with the fact that the economic definition of right might differ from the one mentioned above by WaterSource.

    When you say there is a right to use, depending on historical usage and NOT on the existence of water itself (and, I suppose, not on the stream of income that comes from the water usage), won't that mean an inefficient allocation of water? Won't that mean that it is used by the rights-to-use holder, and that he or she has no incentive to care for the quality of the water, its caption and distribution systems, beyond what his usage is?

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  7. WaterSource/WaterBank22 June, 2009 05:36

    Enviroecon ... hope this helps.


    USE of a water right ...

    (Some basic background is necessary)

    The actual USE of water creates an ABSOLUTE water right that can be applied for and confirmed usually by the Court which requires proper notice to everyone on the stream (sometimes hundreds of miles away).

    The intent to USE water creates a CONDITIONAL water right that can be applied for on the condition that the water is eventually beneficially used as requested. Once the water is DIVERTED and USED, it can be an ABSOLUTE water right. Conditional water rights must continually show diligence to the Court and others. Both types of water rights are subject to abandonment if there is an intent to abandon which can only be done by the Court with proper jurisdiction.

    In order to have either type of water right confirmed by the Court, it will be scrutinized by all other water right holders to insure that it is not excessive and that it is specific, for example as to the land to be irrigated. This procedure still goes on today in some areas where there is unappropriated water but for the most part the good water rights ( senior rights) were confirmed back in the 1870 - 1880 era. The tributary wells came into this same system, but not until the 1960's and evidently, not at all yet in California & Arizona.

    The system of USE is based on one water right using the water and the run-off (return flow) being used by a 2nd water right and so on down a stream-river basin many many times, sometimes for a hundred miles.

    Therefore, all use is monitored very carefully by the water officials & the users themselves to make sure, as much as they can, that the historic water use is not expanded, the water is not contaminated with new ingredients and even that the silt load remains the same. This doesn't always happen and law suits settle the issues of DAMAGE. There is a great incentive to care for one's water use and to care that others do the same ! There are fascinating examples: the first pollution case in CO was against the Division of Wildlife for polluting the stream with fish meal in their fish hatchery which rendered the water undrinkable for downstream users that had the water rights to store the water in cisterns for domestic use. Expanding the acres irrigated by installing sprinkler systems is been shown to consumptive use more water than historically consumed by flood irrigation, etc.

    Condemnation of water rights requires just compensation which is often calculated on the net economic return generated by the subject water right, so there is a direct connection in definition.

    Water rights and their resultant historic consumptive use pursuant to decrees is quite complicated. That is why it is so difficult to change water rights and provide water with the flexability to solve the drought scenarios and/or a water bank.

    Hopefully, the more you know about water & water rights, the more you come to appreciate what an outside Source (non-tributary) of a million acre feet a year could do to solve CA & NV's water problems ... it can be moved and stored without damage to the water rights of others, because historically, it was never in the system and the historic water right holders have no claim to it !

    WaterSource/WaterBank waterrdw@yahoo.com

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  8. Where do “inaliable" rights fit in to this discussion?

    If we all have an individual right to water, do we also have a right to all water, where ever it is located? And if this right is reasonable, then to we have a right to bring the water to where we need it? And if we have a right to bring it to where we need it, are we personally responsible for bringing the water to where we need it? And if others are responsible for bringing the water to where we need it, are they to be compensated?

    How and why?

    If society claims that we all have a right to water, then who is responsible for my water along this chain or rights?

    Where do rights stop and economics begin?

    I suggest that the next time it rains, stand under a cloud and open your mouth, both to obtain water and to pray.

    And when the water stops coming from the heavens, move yourself to another location and feel free to continue to pray for rain.

    For those who are religious, God will determine all our rights to water.

    But this is not practical.

    There are too many definitions of God.

    And not enough water in the right place.

    This argument about individual rights to water can be circular, or linear.

    Regardless, the argument leads us nowhere.

    Does it lead us to God through the path of water?

    What do you think?

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  10. The diversity of comments on this post illustrates a key point of working in water issues: what is possible in the legal arena is often impossible in economics or in physics, and vice-versa. Consider the legal concept of subflow, a critical term in Arizona water law referring to water flowing underground under a stream which is legally treated as surface water. This phenomenon is physically impossible as it makes vectors cross, yet is is legally very real and extremely influential.

    Working in water requires not only inderdisciplinarity but also an understanding that sometimes those disciplines can never be reconciled, so compromise is key. I'm glad the visitors to this blog are able to bring such a diversity of expertise to their comments is a cordial way.

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  11. @Watersource
    @Anonymous

    I like the discussion, but every time a question gets answered five more show up.

    Here are a couple of the new ones.

    If water rights were assigned to part of the Rio Grande water flow in 1870, these water rights were based on incorrect measures of the flow of the Rio Grande or on much larger than normal flows of the Rio Grande than are normal, in 2009 how might the mistakes be corrected and who does the correcting under what rules?

    In 1870, New Mexico was not a state of the U.S. A little earlier, it was not even part of the U.S. What laws and what rights should apply to water in New Mexico, for instance in the Rio Grande coming from watersheds in Colorado, and why?

    Should a landowner use lots of water for irrigation now on money losing crops to establish ABSOLUTE rights when the real plan is to use these same rights later on as water for a housing development and not for agriculture? Essentially, the landowner is locking in the rights while wasting lots of water.

    On inalienable rights to subsistence water, who pays for it? Would the system be the same as the Post Office where the Post Office covers the differences in cost to different mail recipients? If the government ran such a system, say at 5 times the cost of a market based system, who would bring market forces to bear? (David?)

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  12. @Will
    Exactly.

    On the other hand, as a scientist, compromising on the laws of physics does not work out well. I have been writing articles on proposed methods of carbon sequestration. The laws of physics and chemistry always rule the outcome.

    One story is:

    If you jump off a fifteen story building, laws and economics and compromises have no effect on the certainty that gravity and collision with the ground will kill you. Physics has senior rights. ;-)

    On the other hand, I have found that there are laws and economics that do not violate the underlying physics. It just takes some hard work and respectful discussions to make everything fit together.

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  13. WaterSource

    Thank you for explaining. As has been mentioned in the discussion, there is clearly an interface between economics, law and natural sciences at play here. From what I understand, you are discussing the issue from the legal point of view.

    Something not unlike that happens in my area of study, biodiversity offsets. Because of the lack of a market framework, offsets are frequently decided on the court, by a judge, based on technical and biological opinions, and carry a big old transaction cost. The process is neither efficient in allocating resources, nor cost-effective, and it takes a painful long time to reach a decision. I believe market mechanisms are much more efficient at this, as long as we can decide on a framework for the economic value of the resource - in this case, the value of a block of water, as translated by a permit for X litres.

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  14. I hope that we are getting closer to understanding the disconnects between law, economics, industry, and science.

    These disconnects, especially for water, would may point toward a path of resolution.

    One of the problems that I have in designing and selling novel engines is that the scientists, lawyers, economists,and CEOs all view the engine, its commercial potential, and the associated risks differently.

    The same situation seems to occur with water and with climate change. One of the points of disagreement, especially with markets, is the discount rate for future events. At least to me, a point of disagreement occurs in the discount rate (commercial or legal). What is the worth of a particular plant 50 years from now or the quality of life of a child 100 years from now?

    So, if scientists, say biodiversity folks, present scientific facts that are not completely certain and that occur in the future, what are their values today? If the values differ substantially from someone elses values, who gets to decide what the real value is?

    As a stalking horse, scientists value events 30 years in the future more highly than stockbrokers do. Stockbrokers appear to focus only on the stock price in the next quarter.

    These differences in the time scales of importance and the discount rate of future events seem important to talk about out loud, in this blog and beyond.

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  15. I agree with Jay in that the concept of "rights" has evolved over time and been used more loosely of late.

    The Bill of Rights and the UN’s Universal Declaration of Human Rights primarily outline "rights" that are for the most part natural, which is to say that people have them by default in limitless quantity unless someone (particularly governments) take them away.

    Water is undeniably a human need, but everyone everywhere does not by default have access to clean water (or water at all). As such, there’s no natural "right", because there’s nothing to take away.

    Enshrining it as a human right, as some have proposed doing, would require someone (most likely government) to provide the citizen with that to which they are now entitled.

    While the exception to the rule, the Universal Declaration does this in Article 26, calling for free and compulsory elementary education. But while there is precedent for this type of "right", it’s a much trickier situation with water:
    -As a non-tangible good (like other rights), education can be produced just about anywhere in theoretically limitless quantities for a fairly consistent price. Not so with water, which is scarce both in total quantity and location. The cost of providing water to different areas can also vary immensely as a result.
    -Education is centrally distributed in schools, and while we try to build them as close to people as possible, you still have to travel some distance (and maybe a great one) to obtain it. Most people (in the US, anyway) expect water delivered to them without traveling. Though one may have to travel to a pump in other countries to obtain it, how close would government have to deliver water to satisfy this new "right"?
    -Right to education was defined as a minimum free level. Above that, you have to pay. As you’ve suggested, any water right would have to work this way as well, begging the question of how much? (And from whom/where would they take it if it’s not abundant?)

    As someone who’s lived/traveled in Europe where (non-decorative) water fountains hardly exist, I would love a right to my minimum free ration of water while out and about rather than buying a bottle of it. But that’s impractical. So is providing water to fuel an exponentially large Phoenix or Las Vegas (though I have family in both), not to mention agriculture.

    We need food to live too, but should it also be a right, with a minimum of it given without cost?

    Food is generated by the market and offered with a price. Social welfare programs provide assistance so people can obtain a minimum amount of it. If there were food shortages in an area, prices would rise and presumably people would have incentive to move where food is available at lower cost.

    Water should be treated in a similar manner. Allow it to be priced correctly. Assist those who need help obtaining a minimum amount, but don’t subsidize waste or overuse.

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  16. @All -- What a great discussion!

    @Eric:
    1) "On inalienable rights to subsistence water, who pays for it? Would the system be the same as the Post Office..." The USPS delivers mail based on average cost. Water is often delivered at the same price, which implies a subsidy from people at "cheap" locations to "expensive" locations. My "some for free" idea does not provide location subsidies as much as use subsidies -- from heavy to light users. The government may be terribly inefficient; that's more a problem of monopoly than ownership.

    2) Scientists worry about stuff 30 yrs from now and stockbrokers worry about stuff 30 minutes from now because of the decision-reaction cycle: We make decisions about science that will have an impact in 30 yrs (plant a tree, etc.) but the stockmarket can be affected very quickly.

    @ Spencer -- thanks for the clarification on "things that cannot be taken away." Very useful.

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  17. @ David

    To me, the decision-reaction cycle in stocks is short because reacting quickly is what the brokers are paid to do. They are not paid to consider the consequences of their actions 30 years in the future or even two quarters in the future. This does not mean that their current actions do not have long term consequences, only that brokers are not paid to think about these consequences.

    Isn't the lack of reward for working out long term consequences exactly the situation in water management?

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  18. I'm impressed by the depth of discussion and the knowledge that was shared through David's posting my email discussion with him. I learned a lot from reading the comments. Thanks to all who shared their knowledge and views.

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