Riparian Reasonableness

"Under the riparian doctrine rights attach to riparian land, i.e., land
bordering on a natural stream or lake, by virtue of its location"

Water Law, 3d Ed. D.H. Getches "Nature of Riparian Rights"

Twenty-nine states (primarily Eastern) follow the riparian approach to water rights. The fundamental doctrine that water rights derive from ownership of land which is on the river bank or lakeshore dates back to European and especially English law. Early American settlers brought over the common law concepts and further developed them, particularly around the key concept of "reasonable use". This is the main limitation on riparian rights. Not only must the water use itself be reasonable (however defined), it must not injure the reasonable use of other riparians.

As with beneficial use, discussed in the last post, the range of reasonable uses is broad. However, some uses are more readily accepted under law as reasonable than others. So-called "natural" uses, which include domestic consumption and garden irrigation, are generally preferred to "artificial" uses such as industry, mining, or agricultural irrigation. Some of the criteria used to determine reasonableness are:

• Suitability to the body of water
• Economic value
• Social value
• Potential for harm to society
• Protection of other existing users

Most states which use the riparian doctrine also limit water rights through a permit system. Permits typically are restrictive with regard to the nature of the use, the volume or rate of flow that can be taken, and the location of diversion from the body of water.

One key difference between riparian and appropriation-based rights is the the latter is a fundamentally "use it or lose it" system, ie the beneficial use must continue in order to retain the right. Since riparian rights derive from ownership of waterfront land, they typically continue whether exercised or not. (The one caveat is that permits once granted may lapse if not used.)

On the face of it, appropriation and riparian systems seem radically different in key respects:

• Use it or lose it vs. perpetuity
• Not tied to land ownership vs. deriving from riparian ownership
• Senior rights dominate vs. all rightholders share

It's interesting then that ten states have hybrid systems which however uneasily try to combine the two systems. I'll take a stab at describing the typical hybrid system in a near-future post.

FITFIR

"There is keen competition among water users"
from the Introduction to "Water Law", D. H. Getches

OK, would-be water wonks, what does the title stand for? Don't know? Read on!

One painless way to start getting acquainted with water law is to read Ten Water Laws of the West, from the satirical website Frumious Bandersnatch. Not surprisingly, the author is a "recovering attorney", and he throws together some laws (as in Murphy's) with Laws (as in A-B Cattle Company vs. United States) of water in the western states.

So, get comfortable, we'll be here for a bit. There are three basic approaches to water law in the United States. The eastern states follow a system called "riparian", which I'll cover in the next post. It's older, and evolved from English common law. The driest states of the west use an "appropriation" system. This was developed more recently (mid-to late 1800's) and follows a system that miners came up with as they worked claims on federal lands. The Pacific coastal states and some of the semi-arid central states use a blend of the two, and these are called "hybrid" systems.

The term "appropriation" comes from the Doctrine of Prior Appropriation, also known as "First in Time, First in Right (FITFIR). What this means is that whoever started diverting the water first for a "beneficial use" has a more "senior" right to it forever after, and can force more "junior" users to stop taking water until the senior rightholder has all that his/her right allows.

In water discussions in the West, the term "beneficial use" comes up frequently since it's a key feature of an appropriative system. Beneficial uses come in a wide variety, and can include mining, irrigation, domestic uses, industry, and more recently, wildlife and recreation.

An important corollary is that the actual volume of water connected to a right is determined by the beneficial use, and can change over time. A key concept is that waste is not a beneficial use. So as irrigation methods become more efficient, in theory the amount of water tied to a right to irrigate a certain acreage could actually decrease. In practice there hasn't historically been much monitoring of the volume diverted and its connection to the beneficial use, but with increased stress on the resource overall this is beginning to become an issue. Hence the move towards requiring metering of irrigation water.

If you read the earlier post about Prof. Young and his presentation on Australia, you may remember that one of his recommendations was that water rights be disconnected from the land, expressed in volume terms (acre-feet or gigaliters, for example), and tied to individuals who can sell or trade them. You can already see some ideas here that would change an appropriation system of water law.

Strife!

"Whiskey's for drinkin' and water's for fightin'"
Old western saying

There was a piece in USA Today yesterday about the water situation in California's Central Valley. It highlighted the economic suffering of some of the Valley's growers, as in this excerpt:

For those like Allen at the end of the water-rights line, the flow has slowed to a trickle: his water district is receiving just 10% of the normal allocation of water from Federal Bureau of Reclamation reservoirs. He says he's been forced to lay off all his workers and watch the crops die on his 300 acres while bills for an irrigation system he put in are due.

"My payments don't stop when they cut my water off", Allen
says.

The piece goes on to give some of the history of the
situation:

The federal restrictions arise from environmental suits brought under the Endangered Species Act that argue pulling water out of the delta harms fish. A federal judge in 2007 ordered new biological studies and restrictions on water pumped out of the delta for farmers.

A group of water authorities filed countersuits. While the issue remains unsettled, the rulings have idled the water pumps for 11 months a year, Westlands spokeswoman Sarah Woolf says. Environmental groups say water officials and farmers are overstating the problem.

"This is not a fish vs. farms problem," says Peter Gleick, president of the Pacific Insitute, an environmental research group in Oakland. "I believe they're using the drought as an excuse to try and overturn these environmental decisions."

In yesterday's post I talked a bit about the situation in Australia as described by Mike Young, a professor at the University of Adelaide. Mike described the starting point in the Australian process as "strife" (a word probably more in everyday use in Australian than US English). I think that in the California situation we have a pretty good example of strife: conflicting uses for river water being battled over in court. As Mike pointed out, strife is useful in bringing the issues sharply into focus, but it's not a very good way to arrive at cooperative solutions. The problems are further compounded by laws and water rights structures which were constructed at a time when there was more water available and fewer claims on it. Another excerpt from the USA Today article illustrates this aspect:

Richard Howitt, professor of agriculture and resource economics at University of California-Davis, estimates that statewide about 30% of the water shortage is a result of environmental restrictions and 70% is drought. But the impact of the regulations hits particularly hard here in the farm region, he says, because complicated water-rights laws leave Allen and his neighbors at the end of the line in water distribution.

Prof. Young describes a situation in Australia in which all parties have moved beyond strife and into cooperative problem solving. He hints that the transition is neither full nor perfect, but he describes a situation in which problems similar to those in the Central Valley are settled relatively quickly and without the help of courts or lawyers. The main lubricant in this process is of course, money.

I'm curious as to how successful the Australian process really has been, and how applicable it is to the California situation (as well as others in the US). The panel discussion in Utah included Prof. Young and Dr. John Eckhardt, who has been a major participant in the California irrigation water situation (particularly in the Imperial Valley). In one exchange of views, it was clear that John was skeptical about the prospects for an Australian-type solution happening in California anytime soon.

It looks like I will be in the Central Valley two weeks from now, talking with some irrigation professionals. If that happens as planned I'll report on anything that I learn.

The Australian Experience

Yesterday I promised a post on the luncheon speaker at the IA Water Conference. Mike Young is Professor of Water Economics and Management at the University of Adelaide. He kept our attention by describing Australia's experience with extended drought (they now call it "climate change") and the changes it has brought about in water policy.

Mike opened with a number of slides showing how dire Australia's water situation is, particularly in the River Murray basin in the southeast. He gave the long-term average annual inflows to the river as about 7,200 gigaliters (GL) and the example year 2006-2007 inflows as 611 GL, obviously a very dramatic drop.

During the first few years of the drought, the collective response was similar to what it has been in the US when irrigation water supplies are stressed, using Mike's word, "strife". Battles raged over which of the water users would have to give something up. As he described it though, over time the realization sank in that all parties would have to cooperate, since in reality there was so little water left to fight over.

The model that eventually emerged through extended trial and error was what Mike described as "a robust sharing system."
Its key points, from one of his slides, are:

• Share rather than seniority system
• Formal volumetric allocation systems
• Minimal role for courts and lawyers

Key aspects include two classes of shares (high security and low security), universal metering of all water used, and individual rights to trade water shares, not tied to acreage but purely volumetric.

One interesting result of this new system was that some of the owners of water shares made a lot of money by trading them. Theoretically, this is a good thing because it puts the actual water in the hands of those who place the highest value on it. (This reminds me of an old saying in the American West, "Water always flows uphill to money.")

Mike ended with the following pieces of advice for US water professionals:

1. Encourage discussion of and planning for very long drys.
2. Encourage transfer of ownership to individuals
3. Encourage replacement of a seniority system with a share system
4. Encourage integrated management of ground and surface water
5. Encourage preparedness for a different water future and need to trade water on a daily basis.

I'm currently reading up on water law, so in a future post I'll talk about the contrast between Australia's current approach to water and typical US water law. It's not surprising that many of the ideas that came to the surface there are also being discussed here in the US as some areas experience similar levels of water shortage.

The IA Water Conference

Last Wednesday and Thursday I attended the Irrigation Association's first Water Conference, held at The Canyons Summit Resort in Park City, Utah. The IA has an annual trade show in November or December (this year it will be in San Antonio), but this conference was a new idea, and from the responses of the participants I would guess that it will be an annual event. Most of the relevant content came through a marathon series of presenters on Thursday, including a key presentation during lunch. The speaker seized our attention by suggesting that the US can use Australia as a crystal ball to see our water future. It deserves its own post, so I'll cover it tomorrow.

What I will most remember from the conference is the animated panel discussion, with participation from a very engaged audience of irrigation professionals. There seemed to be a strong consensus that it's time for the Irrigation Association and its leadership to step up their response to the looming water crisis. Since irrigation is generally considered to use about 2/3 of the world's available fresh water, that seems like a good place to begin in addressing our water challenges.