By Lloyd Burton
Is a train more like a wagon or a ship? That was essentially the question facing common law judges in England and the United States in the early days of the nineteenth century, when they were called upon to decide what body of developed and accepted legal doctrine should be applied to an unprecedented phenomenon of the emergent Industrial Age: the incorporation, capitalization, and regulation of railway travel.
This historical event provides an apt introduction to our multi-method case study of drought in California for two reasons. First, it demonstrates both the uses and limits of reasoning by analogy. Whether used in scientific analysis or legal advocacy, analogical reasoning is one of the most important means by which we move from the known to the unknown, from the past to the future, and from the world as we have known it to the world as it is becoming. It is, in short, one of our most relied-upon ways for seeking to understand and manage change.
If the change seems incremental and moderately paced, reliance on existing models of thought may serve us well. But, if instead, it is rapid and disjunctive (like the Industrial Age example above), analogies may have less to tell us, and we must take much greater care in choosing them. Obviously, the researchers who wrote chapters in this monograph perceive the instructive similarities between California and other states in the arid West to far outweigh the differences, at least insofar as water resource management is concerned -- similarities described more fully below. However, we have also remained mindful of the limitations inherent in using the institutional behaviors in one governmental jurisdiction to predict behaviors in another; it is precisely because we wish to learn from California's experience rather than simply replicate it that this research was undertaken.
The other reason the nineteenth century common law example is relevant to this study is that it demonstrates some of the functional shortcomings in institutions that were basically designed to preserve settled expectations, maintain stasis, and reinforce reliance on the past, when they attempt to impose order on situations characterized by volatile, fast-paced, and very large scale technological and social change. Tradition-bound courts and corruption-plagued legislatures spent the better part of the nineteenth century playing catch-up in the wake of technological and economic changes in social organization (Hurst, 1956; Gilmore, 1977; Horwitz, 1977).
Similarly, those of us participating in this study have come to perceive some limitations on the ability of water resource management institutions to address the kinds of changes now becoming manifest in the Western United States. The difference between this and most Western water resource studies is that while most such work examines the environmental impacts of institutional action (e.g., Fradkin, 1981; Reisner, 1986), we are instead concerned with the institutional impacts of environmental change -- specifically, change resulting in the human demand for water exceeding its supply. As described in the following chapters, while we did find some examples of innovative adaptation to dramatically decreased water supplies, we found even more instances of institutional impediments to effective, efficient, and equitable drought contingency management.
Several factors in the Western states are now combining to make less water available than was previously thought to exist for state-level distribution and economic development. The senior water rights claims of American Indian tribes and the emerging habitat requirements of the Endangered Species Act are but two examples of largely unanticipated but currently felt demands on western water resources. But the environmental specter haunting more and more Western water resource planners in the closing decade of the twentieth century is global climate change.
Recognized by U.S. Government scientists as a potentially serious threat to the sufficiency of Western water supplies as early as 1979 (Stockton and Boggess, 1979), more recent work by Revelle and Waggoner (1983, 1989), Knox and Buddemeir, and Gleick and Nash (1991), have anticipated as much as a seventy-six percent decline in the water yield of the Rio Grande region and a twenty-five to forty percent drop in the flow of the upper Colorado River Basin, depending on modeling assumptions (Szekely, 1991). Even given the substantial degree of uncertainty attendant on these initial efforts to anticipate the regional effects of global warming, these numbers nevertheless convey a sobering and cautionary message to anyone concerned with the future of Western water usage and availability (Weatherford and Brown, 1986).
None of the scientists cited above (and certainly none of the authors in this volume) are assuming that California's most recent drought episode is a direct manifestation of global warming; localized weather phenomena in the eastern Pacific are more often alluded to (e.g., Gleick and Nash, supra). But for whatever reason it is occurring, California's two most recent episodes (1976-77 and the late 1980s-early 90s) do provide a rich opportunity to examine what may well be in store for the rest of the West if the global warming modelers are even half right.
WHY STUDY CALIFORNIA?
Anyone compiling a list of what makes California unique among Western states would have an easy time of it. With an estimated twenty-five million residents, it is by far the most populous state in the Union, containing over ten percent of the nation's population--and as a result, ten percent of the members of Congress. Furthermore, during its latest drought the state's population was still growing at two and one-half times the national average.
In sheer size, the state's population is matched by the scope and dimensions of its public institutions. California's is the twelfth largest governmental budget in the world; its $12+ billion deficit in 1991 was larger than the total budgets of many other states. Its diversified economy supports a large proportion of very profitable corporations and wealthy individuals at one end of the spectrum, and sustains an equally large and growing public assistance program at the other. The state is also just as diverse geographically as it is socio-economically and culturally; both the highest and lowest points in the forty-eight contiguous states are found within its borders, and its mountain ranges share the world snowfall record with the Himalayas while its deserts sometimes experience the world's hottest temperatures; it contains some of the wettest and driest locales on Earth.
But for our purposes, the significance of its similarities with the rest of the Western United States far outweighs its uniqueness. Seven such common features are of particular importance for anyone seeking to learn from the California experience what stresses future water shortages may work on their own institutions.
1. Distributional Dynamics.
The human demand for water is not geographically located where the surface waters naturally arise. As a result, local, regional, state, and federal agencies have built impoundment and diversion facilities to transport waters to distant sites for devotion to municipal, industrial, and agricultural purposes. This has also brought about occasional political and legal conflicts between interest groups favoring more interconnection between distribution systems and more centralization of the control of water resource management, and others who wish to maintain more local control over water and less opportunity for exportation out of its area of origin (see point 5 below).
2. Environmental Consequences.
The redistribution of water on the landscape has permanently altered and in most instances seriously impeded the ability of the natural environment to maintain diverse non-domestic plant and animal life. Marginal increases in diversions now oftentimes result in dramatically accelerated deterioration of rural and wildlands ecosystems.
3. Urbanization.
The fastest growing demand for water is municipal and industrial (M & I). Most urban areas in the West are continuing to expand rapidly (California being an extreme example), relative to the rest of the United States. Unfortunately, this is happening in a region of the country least able to meet the water needs of these expanding human populations.
4. Limited Capacity.
In addition to sheer limits on the quantity of water available, because of increasing demand much of the West is approaching the limits of its built storage capacity, at least as demand is defined by current use practices.
5. Increasing Tension Among User Groups.
Although M & I demand is growing quickly, it still accounts for less that 20 percent of water use throughout the West. As a result, there is mounting pressure on farmers and livestock operators, who use the other 80+ percent, to both free up more water for M & I use, and to use their water more efficiently. Resulting reallocations have come about both through the use of confrontational political force (as exemplified by Arizona's 1980 Groundwater Management Act), or on a more consensual basis, as in current experiments with water transfers and water marketing.
6. Federal Influence.
Access to and use of water resources is heavily influenced by federal policymaking and financing, especially in the areas of reclamation project management, flood control, hydroelectric power regulation, wetlands management, water quality control, wildlife habitat protection, and assurance of the water rights of federal properties and American Indian reservations. The federal government is thus in a position to either support and enhance state and local water resource management initiatives, or to substantially thwart them.
7.State Water Resource Allocation Regimes and the Water Quantity/Quality Relationship.
Every Western state administers some form of the prior appropriation doctrine, which generally grants a water right to the first party to divert previously unused water from its course and devote it to a specified "beneficial use" (domestic/municipal, agricultural, or industrial). Since the quantum of the right is based on the amount used and any amount claimed but not consumed is subject to forfeiture, the historic impact of the doctrine has been to encourage maximum development and consumption, and generally to discourage conservation. While water not used "reasonably" (that is, more wastefully than customary practices dictate) may be subject to reallocation, so is water saved by those who use it much more frugally than their right entitles them to.
One way federal and state regulators try to control water quality is by setting standards for the allowable concentrations of specific pollutants in receiving surface waters. But if the volume of pollutants discharged into fresh surface waters remains constant while the flow volume of the receiving waters declines (as in a drought), the pollutant concentrations in the receiving waters go up. This in turn leads either to rapidly deteriorating water quality or the need to impose much stricter (and therefore more costly) water quality standards or pollutant discharges. The old adage that "the solution to pollution is dilution" has thus become as much of an erroneous anachronism as the nineteenth century notion that plowing prairie sod would cause additional rainfall.
By keeping in mind these features that California shares with other Western states and by examining the role that each of them has played in its most recent drought episode, some important indicators of what may lie in store for those states begins to emerge. Whether those states will find themselves constrained to respond in similar ways to future water shortages of course remains to be seen.
DISCIPLINARY PERSPECTIVES ON DROUGHT
Each of the authors contributing to this monograph has brought a unique descriptive or analytic perspective to the study of West Coast drought. Larry MacDonnell begins by presenting an overview of California water law, and then focuses on the function of the state's two largest distribution systems (the Central Valley Project and the State Water Project) in facilitating water transfers between agricultural and urban users. Of particular note in his descriptive study is how these systems were used to technologically facilitate the emergence a statewide water bank.
Charles Howe then takes a much closer look at the water banking concept, both as it has been used in the past in California and elsewhere in the West, and how it has been applied in the most recent drought experience. Subsequent to his formulaic analysis of the supply/demand/market-based allocation issues, he then suggests how it might be applied more broadly (and in his view, more efficiently) in the future in the greater Colorado River Basin as well as in California.
Lloyd Burton's study begins with an examination of the incidence of disputes between and within the institutions responsible for distributing water. Drawing primarily on theories used to study the successful and unsuccessful governance of common pool resources and on contrasting legal viewpoints on the nature of water rights, he first describes his discovery of high levels of legal conflict between water use organizations, as distinguished from a near-absence of conflict and very high levels of end-user cooperation within each of those organizations. He then concludes with recommendations for regional conjunctive use management and the statewide application of the principles of water commons governance.
The next two papers examine how some of the legal and economic considerations discussed in MacDonnell, Howe, and Burton's work can or should be applied from the perspective of large-scale hydrologic engineering and computer-based environmental modeling. Lynn Johnson's paper examines some of the assumptions underlying management decision making during the drought by those controlling the state's largest distribution systems, and why those assumptions resulted in water being allocated the way it was (with particular emphasis on the uses and limits of forecasting). Both his and Reitsma's then suggest alternative means of computer-based environmental modeling to support water resource management decision making -- methods which might have the effect of obviating the kinds of sudden and dramatic decreases in supply which the State Water Project and Central Valley Project were forced to visit on its customers. Johnson and Reitsma also illustrate improved means of integrating public values and diverse public viewpoints into technical management decisionmaking.
Guy and Heidi Burgess' paper is perhaps the broadest of them all, as they seek to integrate many of the suggestions made by the previous authors into a "whole systems" approach to shortages-based environmental dispute resolution. Although their work is drawn in part from sociological theories of conflict, it represents perhaps the most trans-disciplinary approach to designing environmental conflict management and dispute resolution systems of any presented in this volume.
This final paper also serves to underscore some the general findings of this research panel: that no one disciplinary perspective is entirely sufficient to developing an adequate understanding of what California's experience of the drought has been; and that to an ever-greater extent it will take the efforts of trans-disciplinary teams factoring in information from a wide variety of sources and perspectives in order to successfully manage the inevitable Western water shortages of the future.
REFERENCES
Fradkin, P. A River No More: The Colorado River and the West. 1981.
Gleick, P. and L. Nash. "The Sensitivity of Colorado River Runoff to Climate Changes," Interim Report to the U.S. Environmental Protection Agency and Bureau of Reclamation. Berkeley: Institute for Studies in Development, Environment, and Security. January 1991.
Horwitz, M. The Transformation of American Law, 1780-1860. 1977.
Hurst, W. Law and the Conditions of Freedom in the 19th Century United States. 1956.
Reisner, M. Cadillac Desert. 1986.
Revelle, R. and P. Waggoner. "Effects of a Carbon Dioxide-Induced Climate Change on Water Supplies in the Western United States," in Abrahamson, E. (ed.), The Challenge of Global Warming. Washington, DC: Island Press, 1989.
Stockton, C. and W. Boggess. "Geohydrological Implications of Climate Change on Water Resource Development." U.S. Army Coastal Engineering Research Center, Ft. Belvoir, VA, 1979.
Szekely, A. "An Uncertain Future: Climate Change and the U.S.-Mexico Agenda." Transboundary Resources Report, Vol. 5, No. 3. Albuquerque: University of New Mexico School of Law, Winter 1991.
Weatherford, G. and F. Brown, eds. New Courses for the Colorado. 1986.