By Lloyd Burton
There is a Hindu saying to the effect that whether a pickpocket is with shoppers in a crowded bazaar or worshippers in a holy temple, he still sees only pockets. What this ancient bit of wisdom points out is the relationship between motivation and perception -- our tendency to focus only on what we wish to see in the complex and ever-changing life patterns before us.
From this perspective, events like severe drought provide something of a Rorschach test for environmental policy entrepreneurs. For water project lobbyists, droughts clearly and ineluctably demonstrate the need for more extensive and elaborate diversion and impoundments works. For environmentalists, drought only casts into greater relief the extensive ecosystemic damage already wrought by massive projects, and instead shows the need for more and better water conservation practices, for curtailing or cutting off completely fresh water uses which no longer seem wise, and for simply getting by with less.
For many economists, the maldistribution, inefficiencies, and inequitable pricing of current Western water resource allocation policies comprise a problem the solution for which is a free market in water. But for some policy analysts, this division and privatization of the water commons will result in the loss of the public's ability to manage water in its own and the natural environment's best interest, raising the possibility of even more direct control of the resource by an oligarchic cartel than may already exist; these analysts instead recommend more extensive government regulation of water allocation and use, in the interests of social equity and environmental protection. And engineers see in drought the compelling need to develop more elaborate methods of manipulating the resource, as well as more sophisticated means of managing the facilities already in place.
One of the reasons the papers in this volume were commissioned was therefore to demonstrate not only the value of bringing multiple perspectives to bear on the same environmental phenomenon, but the necessity of doing so as well. For as the Burgesses conclude in their contribution, if there is to be a consensus-based resolution of California's (and the rest of the West's) water policy conflicts, it will have to be based on the simultaneous accommodation of multiple political and analytic perspectives, rather than having one or two simply dominate the others.
As promised in its title, another reason this volume was prepared was to provide some insight into the question of what those of us elsewhere in the arid Western United States can learn from California's institutional responses to severe and sustained drought. In this concluding chapter, the similarities between California and other arid Western states first outlined in this introduction to this collection are used to summarize the contributors' findings, suggesting ways that policy makers and water resource managers facing shortages elsewhere in the West may, with a little foresight, benefit from California's difficult experience.
DISTRIBUTIONAL DYNAMICS AND URBAN GROWTH
Although rapid urban expansion in the American West appears to be mostly a post World War II phenomenon, the linkage between urban growth and huge impoundment projects in remote Western mountains was actually forged at least half a century earlier. In their politically controversial drive to create national forest preserves -- and thereby halt the devastation of Western wildlands by uncontrolled logging and mining -- President Theodore Roosevelt and his chief forester Gifford Pinchot offset the political influence of mining and timber interests by allying themselves with would-be urban developers, promising to protect mountain watersheds for the provision of urban water supplies.(1) At the same time Congress and the administration were initiating what would become the world's most extensive reclamation program for the support of irrigated agriculture, the Roosevelt administration was also using federal influence to bring high mountain water to low-lying Western cities. Permission for San Francisco to build a dam in Yosemite National Park, and the granting of federal rights-of-way needed for Los Angeles to bring water from the Owens Valley south to support that city's expansion(2) are but two examples of the West's century-long history of moving water to where the people (or at least some interest groups) wanted it instead of locating the people where the water was.
The first half of the twentieth century was without question the era of the `grand dams' in the West. The Salt River Project above Phoenix, Hoover Dam on the lower Colorado, Denver's trans-basin diversion of western slope waters via tunnel beneath the Continental Divide, California's Central Valley Project, the Grand Coulee and associated projects in the Columbia River Basin, and (more recently) Glen Canyon Dam below the San Juan-Colorado River confluence all reflected a policy orientation toward ever larger-scale, more ambitious, and more extensive water transportation systems than had ever before existed. By the end of this era serious consideration was being given to the possibility of building an extension of California's Central Valley Project northward from the Shasta Dam across the Oregon border and into the watersheds of the Pacific Northwest. Had this linkage been created, water project operators would have attained the ability to literally move water from Canada to Mexico.(3)@/1D:\WINDOWS@1E:\@/1F:\te the impacts of future droughts in California, the first response of the deputy director of the agency that operates the giant State Water Project was "Build more storage and build more interconnections".(4) Like a geographic insurance policy, the more water provision systems that are tied into the same distribution network, the better able network managers are to move water from areas that may have experienced near-normal rainfall to those that may be in danger of being devastated by drought. At the other end of the pipeline, the more provision systems a given demand area (like a large city) is tied into, the more confidence it can have that even if one or more sources dry up, it still has others to rely on.
For example, during both the 1976-77 and 1986-9? droughts, the Metropolitan Water District of Southern California (serving the greater Los Angeles and San Diego County areas), which during normal years relies heavily on deliveries from the watersheds of the Sierra Nevada to the north via the State Water Project, was able to compensate for the SWP's inability to deliver by purchasing more water from reserves held by Hoover and Glen Canyon Dams on the Colorado River. The Colorado River Basin, unlike the Sacramento and San Joaquin River valleys, had experienced sufficient precipitation during these coastal droughts to furnish southern California with enough surplus water to offset the State Water Project's inability to meet its contractual obligations with northern California water.(5)
As the MWD example also illustrates, increased inter-connection of water use distribution systems also consolidates demand and greatly increases user group influence. With over 200 delivery systems in its network serving almost 15 million customers, the Metropolitan Water District of Southern California is the largest municipal water wholesaler in the nation, wielding unprecedented political and financial power in its unending quest for additional water supplies.
But inter-connection is not without its attendant costs and risks, as evidenced by the political controversy over this issue in the coastal communities in Marin County in the San Francisco Bay area and Santa Barbara further south. Coastal cities like San Francisco, Berkeley, Oakland, San Jose, and those in the MWD service area rely not on coastal rainfall for their water supplies, but on usually prodigious Sierra Nevada snowfall, the spring runoff from which fills their mountain reservoirs and is then transferred as needed by river, canal, and pipeline to the cities. But for coastal cities without this capacity and which are not tied into a statewide delivery network such as the State Water Project, supply options are few. They must rely first on local reservoirs to catch coastal precipitation and impound runoff from nearby coastal streams and rivers. They can also rely to a much more limited extent on groundwater pumping, although overdrafting a fragile coastal aquifer creates the immediate risk of saltwater intrusion into the water table.
During this latest drought Santa Barbarans faced water shortages so severe that they began to seriously investigate the possibility of importing fresh water by ocean-going tankers from Canada; also under careful study is a plan to build a large-scale desalination plant to convert ocean water to drinking water. Yet another option was to issue bonds to finance the construction of a tunnel through the coastal mountains to allow Santa Barbara's distribution system to tie into the State Water Project in the Central Valley. Although this would provide an alternative source of water to the area, it would not necessarily eliminate the threat of future shortages if the northern California facilities feeding the SWP also ran short of water -- as happened in the most recent drought, when the SWP was forced to cut back some municipal deliveries by as much as 80 to 90 percent. But among the most telling arguments raised against tying into the SWP, aside from the cost of building the pipeline and the uncertainties associated with hooking up with a distribution network that is already contractually committed to supplying more water to southern California than it is consistently capable of doing, was the impact it would have on land development in Santa Barbara County.
For no-growth or slow-growth advocates, there is a certain appeal in the situation as it stands. With water as a limiting factor on growth, water use will be forced to become more efficient. Moreover, if an alternative like desalination is chosen, only those people will be attracted to the area who don't mind paying two or three times as much for water as current residents do. Additionally, some fear that inter-connecting with the SWP would politically transform the area from one that is struggling to live within its regional water resource means to just another water-hungry southern California city dependent on a remote and powerful centralized bureaucracy for its water supply; with this dependency might come political support for damming more northern rivers and removing more water from northern California ecosystems to satisfy the growing thirst of the south. To foes of an SWP tie-in, such inter-connection will lead to (1) loss of local control over water resource management prerogatives, (2) loss of a sense of the need to live within environmental constraints, and (3) a resultant loss in quality of life, as additional water supplies foster more intensive urban and suburban land development. Not surprisingly, opponents of this perspective find it elitist, risky, and short-sighted.
Precisely the same debate occurred in Marin County, just north of San Francisco, in the fall of 1991. Forced to use a third less water than they had before the drought, the water board put before the voters a bond proposal to finance inter-connection of the Marin Municipal Utility District with the Russian River to the north (a temporary, emergency interconnection had been made between Marin and the SWP during the 1976-77 by means of a pipeline mounted on oLtHmessage=on A:\@b/1B:\@/1C:\@/1D:\WINDOWS@1E:\@/1F:\l over water supply enhancement through regional inter-connection.
The Monterey Peninsula Water District has imposed a similar moratorium until new local water supplies are developed; also like Marin and Santa Barbara, the Monterey District is also carefully studying the feasibility of desalination as a new supply option. Unlike the other two jurisdictions, however, the Monterey District has conjunctive use management authority; that is, it can regulate groundwater pumping as well as surface water use. Having established a ground and surface water budget for the entire district, it can ensure that surface water use controls do not have the effect of causing local property owners to overdraft and damage delicate coastal aquifers through saltwater intrusion.
On the receiving end, the political question facing a thirsty city is whether it is worth the loss of local autonomy over water supply practices and prices in return for the likelihood of more reliable long-term water deliveries. But on the supply side, the picture looks a little different. The notorious tale of Los Angeles' destruction of the Owens Valley in northeastern California early in this century(6) (as well as its more recent attempts to divert most of the freshwater supplies away from Mono Lake) is still told and re-told throughout the rural West, whenever a metropolitan area proposes a new water project or the expansion of an existing which would have the effect of diverting more water from its (usually rural) "area of origin" to its (usually urban) area of need. In almost every legislative session representatives of Colorado's sparsely populated "Western Slope" propose legislation that would require local permission before water could be transported out of its area of origin for use in other parts of the state; and just as regularly, representatives of the populous cities along the "Front Range" east of the Continental Divide (who get much of their water from Western Slope projects that deliver it through tunnels under the mountains) make sure that such proposals never seriously considered.
Rural communities in much of the arid West have become deeply divided over the question of whether to supply water to distant cities. A private sector firm has bought up farmland in southern Colorado's San Luis Valley, which overlies the subterranean headwaters of the Upper Rio Grande; it plans to pump 60,000 acre-feet of groundwater a year out of the valley, and send it north by pipeline for sale to the Denver area's growing suburbs. Although local farmers recently won the first round in the legal battle against the enterprise, company representatives have indicated that they are willing to litigate well into the next century if that's what it takes to make their dream a reality.
Local resistance to such schemes is often understandably strong and sometimes successful. But with the cost of water going up and commodity prices anything but stable, the farming of certain crops is becoming an increasingly marginal activity throughout the Western states, and many farmers have realized that they can make a great deal more money selling their water to the cities than they ever could selling their harvest. For states that are actively encouraging the development of water markets, it has likewise been recognized that the market cannot operate effectively unless there is the physical capability to deliver the product; that is, unless there is the physical inter-connection of water transport systems to make such exchanges possible.
The inter-connection and transfer debate is also not just limited to rural versus urban interests within the same state. In the spring of 1992 the Colorado state engineer suggested that (1) since the state does not have the funds to impound and consumptively use the full measure of Colorado River water allotted to it by interstate compact, and (2) since the federal government is broke, it probably won't finance projects to do so either, and (3) even if such projects were planned they would probably be so environmentally damaging that they might never actually be built, and (4) since southern California was already getting surplus Colorado River water at bargain basement prices through the U.S. Interior Department anyway, then (5) perhaps Colorado ought to consider simply leasing some of its unused Colorado River entitlement waters to urban user groups in California. For having the temerity to share these views a public address, the governor of Colorado promptly fired him.
As politically controversial as the idea of interstate water transfers might be (especially in area-of-origin states), the concept will assuredly receive more attention in the future than it has in the past, Governor Romer's sensitivities notwithstanding). Huge amounts of electrical power are now regularly "wheeled" through a vast high voltage transmission grid that blankets the Western states, linking hydroelectric turbines at dam sites, coal, gas, and nuclear power plants, and growing Western cities. Many utilities have been able to avoid the expense and environmental impacts entailed in building new generating capacity by simply buying surplus power from other generators in the grid. To some planners, we can and should be building the inter-connections to allow us to do the same thing with water. But to others, the comprehensive physical inter-connection of water supply and delivery systems into a similarly vast regional network would result not so much in the amiable sharing of a scarce resource as it would in enhancing the ability of already wealthy, powerful urban centers and the centralized bureaucracies they control to suck the life-blood out of the already weakened and relatively impoverished rural West. Suffice it to say that the debate -- and the political struggle -- between advocates of centrally coordinated inter-connection and sub-regionally confined hydrologic self-determination is far from over.
CAPACITY LIMITATIONS AND THE ENVIRONMENTAL CONSEQUENCES OF FRESHWATER DIVERSIONS
"Conservation" to turn-of-the-century bureaucrats and project boosters meant keeping any fresh water from flowing `unused' to the sea.(7) But by the late 1950s the public appetite for recreation had been growing (not coincidentally) at the same rate as Western urbanization. The most efficient dam sites had already been developed or at least chosen, and concerned citizens were starting to pay as much attention to the immediate environmental costs of new water project development as they were the putative long-term benefits. By 1969 that concern had manifested itself in a congressional requirement (i.e., the National Environmental Policy Act) that the federal government at least document the environmental destruction wrought by any new project it was either planning or authorizing; in its passage of the Endangered Species Act four years later Congress took the unprecedented step of actually prohibiting federally funded or authorized projects which would jeopardize the status of threatened or endangered species of species of plants or animals.
Regardless of the political future of the ESA, it has become clear that wholesale destruction of the natural environment is no longer a price that the American public is willing to pay for limitless supplies of tap water, or for produce a few pennies a pound cheaper than it would be without governmentally subsidized agricultural irrigation water. Environmental degradation (and in particular, the effect on threatened and endangered species of aquatic life) occasioned by increasing freshwater diversions from their natural course is now commonplace throughout the West, and a new-found concern with the preservation of environmental integrity is making any new proposal for large-scale consumptive-use diversion of surface water an immediate cause for political and legal conflict.
Even in areas not affected by drought, the implications of new development on environmental integrity have begun to profoundly influence policy making. Would-be project developers, environmental groups, and local, state, and federal agencies in the upper Colorado River Basin are now wrestling with the problem of how to `recover' several endangered fish species without threatening the water rights of user groups who have acquired those rights under state law. There is evidence that even at currently authorized withdrawal rates some species may not be able to survive; yet rights granted via the Upper Colorado River Compact and various state court decrees will theoretically allow user groups to withdraw and consumptively use a great deal more water than they are now. One major federally funded project -- the Animas-La Plata in southwestern Colorado -- has already been put on hold because of these concerns. Environmental damage was also cited in the early 1990s as the reason for the U.S. Environmental Protection Agency's refusal to permit construction of the giant Two Forks Dam to serve the anticipated future water needs in the suburbs of the greater Denver metropolitan area.
Just as pervasive in its implications for future development is the endangerment of several salmon species in the Pacific Northwest. Though a region known for its abundant rainfall, the Seattle area is now also approaching the limits of its water storage abilities. Yet some of the sockeye salmon in the area are nearing extinction because of existing hydropower and storage facilities; any additional development will assuredly hasten their demise.
As in California, then, a century's worth of agricultural and municipal water project development has brought hundreds of thousands of acres under cultivation and attracted millions of people to expanding urban centers throughout the Western United States. In the process, this radical re-distribution of water on the land has altered the capacity of ecosystems to support a diversity of life forms, to the point that even marginal changes in the yield of existing distribution systems (such as California's regularly occurring droughts) can have drastic environmental consequences. Furthermore, this precarious environmental balance point has been approached at the same time that many of the agricultural and municipal water distribution systems in the West are beginning to encounter the limits of their built storage capacity. Not surprisingly, then, this combination of factors is inexorably increasing the social, political, and economic tension among various water use advocacy groups throughout the West.
INCREASING INTER-GROUP TENSION
Competition among user groups vying for scarce water supplies is of course a theme as old as the European conquest of the West itself. As Larry MacDonnell, Lloyd Burton, and the Burgesses all noted in their respective papers, the development of Western water policy was stimulated in part by the need to devise some orderly, predictable, nonviolent means of managing this competition and the legal disputes that inevitably arose therefrom. As they also pointed out, the preferred political solution pretty much throughout the twentieth century was simply to "make the pie larger"; that is, to divert, impound, and re-distribute more water. But now that the financial and environmental costs of resorting to this time-honored solution have become so high and technically feasible project sites are scarce, various user groups have instead re-focused their attention on how to acquire more water from each other, through either mutually beneficial exchanges or the use of legal and ??political force.
If there is one unifying theme among all the chapters in this collection, it is that heightened inter-group competition for water will engender heightened conflict among these groups. Each author also suggests in one way or another how such conflict may be anticipated and proactively managed.
The alternative, confrontational approach to Western water policy reform is to date perhaps best exemplified by Arizona's 1980 Groundwater Management Act.(8) After losing groundwater suits to farmers in the mid-1970s and failing to negotiate legislative reforms with them, in 1980 the state's larger cities and industrial interests joined forces to push through the legislature a highly centralized, highly restrictive new groundwater management policy containing several features that were overtly harmful to agricultural water interests. Among other things, the law forbade farmers from bringing new land into production using groundwater for irrigation if the land was in a designated critical overdraft area; it controlled the amount of groundwater farmers could use on their crops; and it controlled both the amount of water farmers could sell for non-agricultural purposes and the price for which they could sell it. Because of the state's growing municipal/industrial water needs and its heavy reliance on critically overdrafted groundwater supplies, powerful opposing interests in the state fought an historic political duel; the farmers were outgunned, and lost much of their former control over the state's groundwater resources as a result.
Tensions between agricultural and urban water users have also surfaced during the most recent California drought, although the outcome has not yet been the kind of destructive political confrontation that occurred in Arizona. As discussed in Larry MacDonnell's chapter, the managers of the State Water Project found themselves in a serious political crossfire between the farmers and the cities in the spring of 1991, when they started cutting off or cutting back on their water deliveries. The hostile criticism leveled against SWP management was aimed at some strategic decision making earlier in the drought.
By the end of the 1980s it had become apparent that the state was well into a serious drought. What no one knew, of course, was whether the drought spell was ending (the late 1970s drought had lasted only two years) or would continue (the 1930s drought had lasted over half a decade). If the drought were to continue, a conservative strategy in 1989 would have been for the SWP to cut deliveries to its urban and agricultural users by about 20 to 30 percent, in order to leave enough water in its reservoirs to ease the impact of future shortages if the drought were to continue. The other strategy was to gamble that the drought was coming to an end, and to maintain full deliveries to all customers in the expectation that upcoming years of normal precipitation would replenish storage facilities.
Much to their subsequent chagrin, SWP managers chose the latter course. When asked whether they preferred more modest cutbacks in water deliveries over a number of years or full deliveries of the contracted amount up to a point in time when they might be cut off completely, most SWP agricultural customers expressed a strong preference for the 100% delivery/total cutoff option(9) (in part because some of them were using surface water deliveries to recharge groundwater reserves, which they could turn to after surface water deliveries were terminated; and in part because it was easier to avail themselves of emergency agricultural relief programs if they experienced cutoffs rather than cutbacks in their surface water supplies).
But in acceding to the farmers' wishes and making full deliveries in 1989 (during a brief wet spell -- see MacDonnell, above), what the SWP did was to leave far less water in their storage systems for everybody, with the result that when the drought stretched into its fourth and fifth years and SWP storage was drawn down to less than 50% of capacity, the cities were forced to endure much deeper cuts (over 70 percent in most cases) in their water deliveries than would have been necessary had the SWP imposed more modest reductions earlier in the drought.
With the benefit of this hindsight, urban groups and conservation organizations took the SWP severely to task for "caving in" to agricultural interests, when project managers started shutting down deliveries in the spring of 1991.(10) Their gamble had not paid off.
Among other things, what this example illustrates is the complex and difficult nature of the relationship between technically oriented water project managers and the competing interest groups seeking to influence project management decision making in the pursuit of what are often wholly incompatible goals. In times of plenty, the resource managers are everyone's munificent friends; but in times of scarcity, they all too often become convenient scapegoats instead.
Both Lynn Johnson's and Rene Reitsma's chapters speak directly to problems in the relationship between manager and the general public, and both recommend that the relationship be changed. In Lynn's view, it is imperative that managers do a much better job in the future than they have in the past of educating the public regarding the operating assumptions that underlie water project management decision making. Further, an interested public needs experience in simulating the making of such strategic decisions, for the purpose of either legitimizing those operating assumptions, or of educating project managers as to how those assumptions should be modified or replaced.
Reitsma goes even further, in suggesting that both the relationship between managers and publics and the conceptual models underlying project operating assumptions need to be completely reformed. But what both of them call for is a great deal more public involvement in the water project managing process -- not just in telling managers what they want, but in actually working through the process of developing alternative means of simultaneously achieving multiple objectives in water project management.
What this implies is something relatively unprecedented in Western water project administration: ongoing direct public involvement in water resource management. Precedent does exist in other resource management arenas, however. As messy and extended as the process can sometimes be, the public participation and comprehensive planning requirements of the National Forest Management Act(11) and Resource Planning Act(12) have for the last fifteen years mandated the kind of public involvement in national forest management that Johnson an Reitsma are advocating in the management of water resources.
In order for that to occur, though, two barriers must be overcome. The first is what might be termed the `cult of expertise'. Many water project managers are accustomed to being encouraged, cajoled, and threatened by various interest groups into satisfying some party's management demand. These administrators' understandable tendency has been to recede into the jargon and comforting quantifiability of the hydrologic sciences -- to seek to draw a bright line between political conflict and `scientific' management. Johnson and Reitsma are of course arguing that managers should do just the opposite -- that they should work hard at becoming better public educators, and at inviting multiple competing interest groups to collectively try their own hand at resolving the Gordian management dilemmas facing many Western water project administrators. For if somewhat more meaningful decision access is not created voluntarily and informally in the present, it may be created forcibly in the future.
This leads to consideration of a second, related, barrier to greater early-stage public input into management decision making, which is perceived strictures in the statutory mandates governing water project administration. As Larry MacDonnell discovered in his study of water transfers in the Central Valley in 1991, operators of the U.S. Bureau of Reclamation's Central Valley Project are of the view that regardless of how much public involvement there may be in its decision making, the 1902 Reclamation Act and subsequent acts of Congress creating various units of the CVP are quite specific about who can receive water, how much they shall pay for it, and the uses to which they can devote it. Since the State Water Project was authorized to service both urban and agricultural customers, the same kinds of strictures are not perceived to exist in that system.
Federal reclamation projects authorized more recently than the CVP also usually have a more multi-purpose orientation, as well as requiring a much larger state/local contribution to project costs. The most recent large, expensive example of this new breed of federal facilities is the Central Arizona Project, built to deliver to that state's cities as well as its farms Arizona's share of the lower Colorado River. It is reasonable to assume that the managers of these urban/agricultural projects may become focal points for political controversy during the Western water shortages of the future, unless there is improved multi-party involvement in contingency planning and management decision making in the present.(13)
With regard to the federal Central Valley Project, legislation has been proposed in Congress which would give the CVP more administrative flexibility, and also direct it to become more involved in activities such as environmental protection and restoration, servicing urban water needs, and facilitating water transfers(14) (for discussion on the changing role of federal water projects, see the section below on federal influence).
The Burgesses' chapter catalogues a wide variety of measures that competing interest groups might take in an effort to reduce tensions and to more proactively, less destructively manage the conflicts which will inevitably arise among them, as does Lloyd Burton's earlier chapter on disputes and water commons management. A few of these options, like Charles Howe's analysis of water marketing, are also discussed in greater detail in the following section.
WESTERN WATER POLICY REFORM AND THE WATER RIGHTS/WATER QUALITY RELATIONSHIP
The state and federal laws governing natural resource management and environmental quality may be viewed historically as two centuries of consumption policy overlain by a veneer of two decades of excretion policy. Although American naturalists and conservationists dating back to the late nineteenth century publicly decried the tragic wasting of our natural resource heritage,(15) and the establishment of national parks and forests slowed and sometimes ended the destruction, it has been mostly within the last quarter-century that Congress and most state legislatures have moved to put the full force of law into the effort to both halt environmental degradation and to remedy the damage already done. In U.C. Berkeley professor Bob Kagan's terms, the problem is that the goose that lays the golden eggs is also fouling its nest; and the task is to figure out how to change the bird's toilet habits without slowing up egg production. As we now enter the third decade of the modern `environmental era' (if it can properly thought to have begun with passage of the 1969 National Environmental Policy Act), we are also seeing more policy emphasis not on simply cleaning up the mess after it has been made, but on preventing environmental despoliation in the first place.(16)
But in every state which uses the prior appropriation system to define and administer surface water rights (essentially every state in the West), emerging concerns with conservation and environmental protection have run headlong into a one-and-a-half century-old legal tradition favoring maximal exploitation of this scarce natural resource. Those provisions of the prior appropriation doctrine holding that water must be physically removed from the watercourse and consumptively used for a state-defined `beneficial purpose', and that water not used for its designated purpose is subject to forfeiture, have been a particular source of frustration for those seeking to reform Western water law. In an attempt to make the prior appropriation system more compatible with latter-day concerns with environmental preservation, most states now recognize some form of an `instream' water right, in which the holder of the right simply leaves the water in the watercourse, usually for the maintenance of a fishery or riparian wildlife habitat.
However, instream flow rights are administered very differently in different states, with resultant differences in the extent to which they are actually capable of protecting the natural environment. Some states allow very senior rights to be held by private parties for instream purposes; others only allow the state itself to hold such a right, and/or hold it to be inferior to any claim of a consumptive use right by a municipality or other public entity. Other states, like California, generally do not recognize an instream flow right per se, but instead impose instream flow conditions for environmental preservation on new and existing surface water rights permits.
Several authoritative descriptions of the prior appropriation doctrine and detailed analyses of attempts to reform it already exist;(17) it is certainly not within the scope of this collection to recount and critique those reforms. But it is worth remembering that instream flow protection, like popular environmental concern generally, is something of a recent arrival on the Western water policy scene; and its efficacy in protecting the natural environment varies greatly from state to state, as does general commitment to that policy objective.
Another feature of the prior appropriation doctrine that has drawn growing criticism is its `use it or lose it' function. A water right held for a specific use but not devoted to that use for a period of years is subject to forfeiture; some states allow others to simply take it and use it, while in other jurisdictions the right reverts to the state for re-distribution to other applicants (municipalities are usually not subject to this provision). Historically, this provision has had the effect of strongly discouraging efficient water use, especially in agriculture. If a farmer were to invest in more efficient irrigation technology and thus make possible the cultivation of the same acreage with less water, his reward under the prior appropriation doctrine would be forfeiture of the water conserved.
In addition, farmers in much of the West pay a great deal less for water than the cities, because they buy it from publicly financed water projects the original purpose of which was to supply small family farms with affordable water; depending on individual circumstances, cities in California regularly pay as much as ten times more for the same amount of water than farmers served by federal projects. During the drought, this disparity only exacerbated tensions between these two user groups. It is precisely this tension that water market advocates like Chuck Howe are seeking to relax by allowing voluntary transfers of water from those who can make more money by selling than using it (like many farmers) to those who are willing a great deal more for it than the farmers had to (like many cities).
There are others, however, who perceive serious equity problems in water markets as they are now generally promoted. Some urban critics of market-based transfers see no reason why farmers who receive subsidized water to grow crops that are often in surplus should be allowed to turn around and profit by selling it to the cities.(18) But proponents argue that if farmers are not given such incentives, and that if they do not also receive statutory protection from the loss of water they are able to conserve through more efficient irrigation practices, there is little hope for either near-term improvements in agricultural water use or the availability of ample water to meet urban needs.(19)
Another concern with the promotion of water markets is the effect on what are euphemistically called "third parties" -- that is, everybody else but the buyer and seller of the water resources in question who will nevertheless be affected in one way or another by the transfer. Moreover, when most of the public lands and resources of the West were sold off or given away in the nineteenth century, one of the results was the worst environmental despoliation in the history of the country. If the water commons of the Western states, most of which have constitutional provisions declaring their surface waters to belong to the people collectively and to be held in trust for the people by the state, are allowed to be dispersed by market forces, there is at least the potential for the states to lose a substantial measure of their ability to regulate water use in the public interest. Since wildlife cannot buy the water they need to survive and environmental organizations will never be able to out-bid either the cities or agricultural interests in purchasing enough water to maintain environmental quality, it is only the state's ability to act in the public interest in this regard that will keep the impacts of freshwater diversions from getting any worse than they already are. But at the same time, market proponents do score environmental points in their assertion that to the extent that water to meet growing urban demands can be made available through voluntary transfers from agricultural use, the construction of costly and environmentally destructive new water projects can be avoided.
At this point in time, it seems that neither an unregulated market in water with no public interest component nor a pervasively controlled public system with no settled expectations of rights in water will alone be able to improve the efficiency and the effectiveness of Western water use, as well as the fairness of its distribution. Attaining multiple objectives will evidently require a multiplicity of methods.
But among the greatest challenges facing all the Western states today, as evidenced by California's experience during its most recent drought, is how to manage the competing demands for water use and preservation of the natural environment while concomitantly protecting the quality of the water on which all life depends. The challenge is great because among all its competing tasks, Western state government with its prior appropriation legacy is perhaps least well suited to achieving the objective of maintaining and improving water quality; and because when water quantity declines (as in a drought) water quality inevitably does so as well.
Unlike the hydrologic cycle itself, most Western state governments are anything but unified in the way they are organized to regulate water use, in large part because different legal doctrines govern rights in surface waters, groundwater, and water quality protection. While most surface water distribution is administered by a state agency implementing the prior appropriation doctrine (with the exception of Colorado, which does so through regional water courts), a great diversity of doctrines govern groundwater rights and use. A minority of states (such as Arizona) seek to regulate groundwater use through a centralized state agency, but most treat ground and surface water rights as separable, and extend far less control over groundwater withdrawal and use. California does not regulate groundwater at the state level at all, except insofar as groundwater extraction and use has a direct impact on a surface water right.
Additionally, in some states the agency that sets water quality standards (usually in keeping with a federal mandate under the Clean Water Act or Safe Drinking Water Act) is not the same agency that administers water rights, which is not the same agency (if there is one at all, at either the state or local level) that oversees groundwater use. State water quality control agencies also have little control over what federal law refers to as "non-point" sources of water pollution such as pesticide and fertilizer-laden runoff from farmlands and feedlots, and drainage off of roadways. The result is a patchwork of protection, with overlapping authority in some areas (and accompanying interagency conflict) and a disturbing absence of coverage in others.(20)
As California learned during its latest drought, when point and non-point source pollution remained constant while the total flow of the state's major surface watercourses declined, pollution concentrations went up. In some reservoirs, as storage levels declined, naturally occurring concentrations of salts and minerals all went up, as well as water temperatures. In addition to fishery and wildlife habitat destruction, these circumstances also required higher (and more expensive) levels of water treatment prior to human use.
In the three latest years of drought, emergency water transfers from northern to southern California helped alleviate its effects on the human population, but these transfers were all administered under statutory provisions that waived environmental review. In some respects, then, the environment was the first casualty of the drought. If the same fate is not to befall other regions of the West when future water shortages inevitably occur, much closer coordination will be required among wildlife management agencies, water project managers, water quality regulators, and water rights administrators in order to anticipate these problems in advance, and perhaps lessen both the environmental damage that will be sustained and the increased burden of water quality control. And of pervasive importance in the area of coordinated control of water quality, as in many other aspects of Western resource management, will be the multiple (and sometimes contradictory) roles played by the federal government.
One commentator on American legal history has identified a perennial problem of our legal system as being that is so often called upon to interpret "the obscure metaphysical concept of an indissoluble union of indestructible states."(21) Our system of government is neither a wholly centralized, exclusively national one, nor is it the loose federation of nearly autonomous nation-states which existed from the end of the American Revolution until the ratification of the U. S. Constitution. For better or worse, the sometimes, fuzzy, sometimes clear, and frequently overlapping boundaries between the powers of state and federal government are among the more prominent features of our political heritage.
Federalism is the term most commonly used to denote this complex and shifting relationship between the legal authority of the states and the federal government. Scholars have defined various stages in the development of this relationship, from the "dual federalism" of the nineteenth century (with substantial mutual exclusivity between state and federal spheres of power) to the "cooperative federalism" of the mid-twentieth century (greater emphasis on federal largesse and federal policy prerogatives in the administration of state and local programs) to the "new federalism" of the Reagan era (return of responsibility for and control over many social programs to state and local government, but without the historic revenue levels to implement them) to whatever amalgam of the three we are faced with at present.(22) The study of this complex feature of American law and government has itself become inordinately complex; by various accounts there are now several dozen working definitions of federalism to be found in the contemporary academic literature on the subject.(23)
For the purposes of this report, the major policy areas of state-federal interaction (a term used here to denote local-federal interaction as well) are organized into three categories: those in which the federal government has traditionally deferred to state authority; those areas in which the federal government has substantially occupied the field, leaving only residual implementation authority to the states; and those in which the federal and state governments seek to exercise concurrent jurisdiction. It will quickly become apparent that as public preferences and values have changed over time, so have these policy topics shifted from one category to another.
Throughout the nineteenth century and the first half of the twentieth, for instance, Congress followed a policy of deferring strongly to state water rights doctrines. At the insistence of Western states' representatives, in §8 of the 1902 Reclamation Act, Congress went so far as to agree to be bound by state prior appropriation doctrine in constructing and administering federally funded irrigation projects; half a century later (in the McCarran Amendment to the act) it also agreed to adjudicate the water rights of federal lands in state courts, which would assumedly be more sympathetic to state than federal arguments in these disputes.
During the same period, however, the federal courts were developing a somewhat different perspective. In Winters v. United States(24) in 1908, the U.S. Supreme Court held that the water rights of American Indian reservations were impliedly established by Congress at the time that a reservation was created; and that unlike an appropriative right, this "federal reserved right" was not extinguished through non-use and its quantity might change over time. In subsequent decisions, the Supreme Court extended federal reserved rights to national wildlife preserves in 1963,(25) to groundwater underlying private property adjacent to national preserves in 1976,(26) and to national forests in 1978.(27) At about this point in time, though, the court's perspective began to shift, with the addition of more states' rights-oriented justices to the court. In 1976 and again in 1983, for instance, the court ruled that the McCarran Amendment required that the water rights of American Indian reservations (as well as properties held by the federal government directly) must usually be adjudicated in state courts.(28)
A very broad generalization, with several notable exceptions, is that federal programs established primarily to provide a public service to citizens or to local governmental entities (e.g., projects built and administered by agencies such as the U.S. Bureau of Reclamation to provide irrigation water, the Army Corps of Engineers for flood control, or the Soil Conservation Service to preserve cropland) have historically tended to be quite deferential to dominant local interest groups and to state law. In contrast, those programs that have been established to regulate private behavior in the national public interest have been much less respectful of and in many cases have directly over-ruled state and local law in achieving their objectives. Laws establishing national parks and forests, controlling non-federal hydro-electric power development, and regulating natural resource exploitation on public lands are early examples of such programs. But the most controversial ones, at least at the time of their imposition, have been products of the modern environmental era; examples with direct implications for Western water policy include the Clean Water Act, Safe Drinking Water Act, Endangered Species Act, Resource Conservation and Recovery Act, and Superfund.
Congress clearly understood that it was preempting traditional state authority in its passage of the Federal Water Pollution Control Act Amendments of 1972 (in later amendments to become collectively known as the Clean Water Act); so to soften the political blow, billions of dollars of grants-in-aid were also made available to state and local government for the construction of water treatments facilities to help bring them into compliance with strict new federal standards. As these monies were disbursed, the Clean Water program gradually evolved into a more cooperative state-federal partnership; until by the 1980's, when federal funds for local treatment plants began to dry up and a new presidential administration essentially ceased aggressive enforcement of the law, many states had become more forthright in their efforts to protect and improve water quality than was the federal government.
As is the case with many social programs, the Western states still find themselves with the requirement that they attain and maintain federal water quality standards, but without the formerly available federal funds to do so. And as California learned, the task becomes measurably more difficult if the quantity of receiving waters goes down while pollutant concentrations entering the watercourse remain constant; the pollution of what surface water remains becomes more severe. What must happen then is either emergency waivers of water quality requirements (which California did), or much higher (and more costly to attain) water treatment standards. With so many Western states as financially strapped as they are, in the event that something like a global warming-induced long-term drought does afflict the West, the federal government will be faced with the necessity of allowing state water quality to degrade, provide the funding for better water quality control, or trying the force the states to make their water cleaner with no financial assistance to do so. For Western state governments that are not particularly environmentally sensitive to begin with, this last alternative may prove difficult to enforce.
Endangered Species Act implementation in the American West presents another formidable challenge to federal and state program administrators. As an example, several fish species in the upper Colorado River Basin have come to the point of endangerment at least in part as a result of the great amount of water that is already being removed from the Colorado and its tributaries and consumptively used by a growing human population. Yet various user groups have the right under state law and interstate compact to remove a great more water than they have up until now, at the same time that scientific evidence indicates that doing so will result in an even greater threat to native fish species. U.S. Fish and Wildlife officials (and ultimately, the secretary of the interior) have authority under the act to block any new federal water project development in the basin that they believe will make matters worse; they have already done so once on the Animas La-Plata project, and may do so again. Further, they can also cause necessary federal permissions not to be given for the construction of private and local government projects on the river as well, if Endangered Species Act violation will result.
But at the same time, these officials also realize that if their power under the act is used (or is perceived to be used) to obstruct all future water resource development in the West, the result may well be the marshalling of enough angry political opposition to repeal or severely weaken the Endangered Species Act itself. In an effort to avoid such mutually destructive outcomes, federal, state, and local government officials in the upper Colorado Basin (as well as elsewhere in the West where ESA implementation is causing similar conflicts) are engaged in continuous and intensive negotiations, exploring alternative legal arrangements, inter-agency agreements, and management practices that will allow each party in interest to achieve its respective objectives to at least a self-defined minimum threshold.
* * * *
As discussed in several chapters of this collection, water law and policy in the West were developed in large part out of the need to reduce and make manageable the intense levels of conflict aroused among various interest groups competing for this most scarce and precious of renewable natural resources. Small wonder, then, that the relationships among them and the legal procedures for the representation of their interests tend to be highly adversarial. Unfortunately, it also appears that the positive-sum resolution of conflicts now extant in the debate over Western water policy reform will require unprecedented levels of cooperative interaction and mutual trust among these groups, cooperation and trust which neither their traditions nor their dispute-resolving institutions were established to support.
In fact, it has been noted at several points in this collection that California's water crisis is much more a function of institutional inflexibility than it is a sheer lack of water -- a lesson that could soon be repeatedly visited on other Western states as well. It remains to be seen whether all of us involved in studying and managing water resource management conflicts in the West will be able to learn from our collective history, or instead will be doomed to repeat it.
(1). Samuel Hays, Conservation and the Gospel of Efficiency (1959).
(2). William Kahrl, Water and Power (1982).
(3). As his price for supporting passage of the 1968 Central Arizona Project act, Washington's powerful U.S. Senator Henry `Scoop' Jackson demaLtHmessage=on A:\@b/7B:\@/7C:\
(4). Interview with Bob Potter, deputy director, California Department of Water Resources, Sacramento, California, July 29, 1991.
(5). Michael Glantz, ed., Societal Responses to Regional Climatic Change: Forecasting by Analogy. Boulder: Westview Press, 1988.
(6). Kahrl, supra note 2.
(7). Hays, supra note 1.
(8). ARIZ. REV. STAT. ANN. 45-102 et seq. (West 1987 and Supp. 1991).
(9). cite to Riebsame preference research.
(10). Nancy Vogel, "Tapped Out in California," 22 California Journal 154 (1991). In their defense, SWP managers have pointed out that had they curtailed deliveries in the absence of a compelling necessity, they might have been sued by agricultural and some urban customers for breach of contract.
(11). cite to NFMA
(12). cite to RPA.
(13). Ironically, however, now that the CVP has been built, one of its most significant management problems is a lack of agricultural customers for its water. At $52 an acre-foot, agriculture in the state is evidently so marginal that farmers can't make a profit on crops grown with water at that price. Without the overdrafted groundwater state law will no longer allow them to pump or heavily subsidized water from older, smaller, federal projects along the lower Colorado, irrigation of all but the most profitable and efficiently cultivated crops in that state may cease to be economically viable. "Underutilization of CAP Water Threatens State Allocation," 1(2) Arizona Water Resource 1 (Water Resources Research Center, University of Arizona, March, 1992). This turn of events has caused some observers to suspect that the CAP's real purpose all along was simply to bring Colorado River water to Tucson, Phoenix, and their suburbs, and that use of the agricultural reclamation program in the CAP's 1968 authorizing legislation was essentially a ruse, because of Congress' historic disinclination to use large amounts of federal money simply to bring water to already wealthy urban areas.
(14). cite to Bradley bill.
(15). See Roderick Nash, The Rights of Nature. Berkeley: Univ. of California Press, 1989.
(16). See generally Vig and Kraft, Environmental Policy in the 1990s. Washington, D.C,: Congressional Quarterly Press, 1990.
(17). See, for instance, Meyers et al, Water Resource Management. NY: Foundation Press, 1988 and Supp. 1992.
(18). See Joseph Sax, ?Selling Reclamation Water Rights: A Case Study in Federal Subsidy Policy", 64 Michigan Law Review 13 (1965).
(19). Marc Reisner and Sarah Bates, Overtapped Oasis. Washington, D.C.: Island Press, 1990, Part III.
(20). A good overview of the difficult juxtaposition of Western water rights doctrines and water quality imperatives, along with suggestions for reform, is in David Getches, Lawrence MacDonnell, and Teresa Rice, Controlling Water Use: The Unfinished Business of Water Quality Protection. Boulder: University of Colorado, Natural Resources Law Center, 1991.
(21). Grant Gilmore, The Ages of American Law (1977), p. 36.
(22). An instructive overview of federalism up to the first Reagan administration is in David Walker, Toward a Functioning Federalism (1981).
(23). For a more complete discussion of this plethora of definitions and doctrinal analysis, se Harry Scheiber, ?Federalism and Legal Process: Historical and Contemporary Analysis of the American System", 14 Law and Society Review 663, 669 (1980).
(24). 207 U.S. 564 (1908).
(25). Arizona v. California, 373 U.S. 546 (1963).
(26). Cappaert v. U.S., 426 U.S. 128 (1976).
(27). 438 U.S. 696 (1978).
(28). Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983).