2 Jun 2009

Powell on Arid Lands

I skimmed through the 1879 edition of Report on the Lands of the Arid Region of the United States [PDF] by John Wesley Powell, et al. and found these informative passages [pp 42-43]:
For the great purposes of irrigation and hydraulic mining the water has no value in its natural channel. In general the water cannot be used for irrigation on the lands immediately contiguous to the streams -- i.e., the floodplains or bottom valleys -- for reasons more fully explained in a subsequent chapter. The waters must be taken to a greater or less extent on the bench lands to be used for irrigation. All the waters of all the arid lands will eventually be taken from their natural channels, and they can be utilized only to the extent to which they are thus removed, and water rights must of necessity be severed from the natural channels.


The ancient principles of common law applying to the use of natural streams, so wise and equitable in a humid region, would, if applied to the Arid Region, practically prohibit the growth of its most important industries. Thus it is that a custom is springing up in the Arid Region which may or may not have color of authority in statutory or common law; on this I do not wish to express an opinion; but certain it is that water rights are practically being severed from the natural channels of the streams; and this must be done. In the change, it is to be feared that water rights will in many cases be separated from all land rights as a system is now forming. If this fear is not groundless, to the extent that such a separation is secured, water will become a property independent of the land, and this property will be gradually absorbed by a few. Monopolies of water will be secured, and the whole agriculture the country will be tributary thereto -- a condition of affairs which an American citizen having in view of the interests of the largest number of people cannot contemplate with favor.
Thus we see Powell et al.'s comments on the 1860 Homestead Act, which allowed up to 160 acres/person. They note that land in the Arid Region (which one could buy from the government for $0.25/acre after three years of habitation) is not suitable for 160 acre parcels, since there are few "minor" streams. Powell et al. suggest that settlers combine to form irrigation districts for the purposes of constructing and maintaining infrastructure to divert water from the larger streams in the Arid Region [p. 27].

They describe a law on irrigation districts on p. 30 et seq. -- suggesting that the district be formed by 9 or more people, together controlling more than 320 acres, but individually controlling not more than 80 acres. In addition, the irrigation water rights should remain attached to the irrigated land and not be separable from it.

Thus we see a balancing act in which water is taken from natural channels but associated with land that is part of a larger irrigation district made of smaller owners.

This view of water management is in direct conflict with modern opinions that "in-stream" flows are a valuable use of water, and transfers of water (or rights) from the land where it was traditionally used.

I wonder how enthusiastic Powell would have been about transferring these "appropriated" waters over 100+ mile distances -- to farms or cities.

Bottom Line: Powell's vision was right in an age of yeoman farmers and low population density, but we must consider how to change water use in an era of environmental flows, heavy urbanization, and high productivity agriculture. I am talking more about a need to change laws and norms, not taking water rights from owners. Once laws and norms adjust, markets can take care of the rest.


Mister Kurtz said...

Powell was a fascinating, visionary leader hounded out of office by hucksters and boosters. Stegner's "Beyond the Hundredth Meridian" is required reading for students of the West.
It is true that his vision, as outlined in the material you quoted, reflected the nineteenth century drive to promote industry and extract economic value from the natural world, with little or no regard for environmental consequences. In one of the odd quirks of history, California's recognition of the superiority of riparian rights (Lux v. Haggin) over appropriative rights may have actually helped preserve a more natural hydrological landscape.

WaterSource said...

Lux v. Haggin

California Doctrine
State Supreme Court ruling, 1886.

Riparian rights prevail on private lands.

Appropriation (use date) prevails over riparian (purchase date) if appropriator is first user.

Both riparian and appropriation are valid; timing of acquisition determines which prevails in event of conflict.

Miller (Lux) and Haggin build Buena Vista Lake dam together. They agreed to split the flows of the Kern River 1/3 Miller and 2/3 to Haggin months of March - August ( Miller/Haggin Agreement).

CO has a similar seldom cited law called the "Meadows Act". In essence, land historically flooded by high water is entitled to a water right dating back to the beneficial use of the flooding in spite of failure of original beneficiaries to file for a water right in the priority system at their first opportunity to do so. Very similar in many ways to Lux & Miller's claim against Haggin's prior appropriation.

Don't read too much into this one, as it is a "rare bird" in CO.

WaterSource waterrdw@yahoo.com

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