Inefficient Efficiency: Crying Over Spilled Water

• Date: 01 December 2016

46 ELR 11046 ENVIRONMENTAL LAW REPORTER 12-2016

A R T I C L E S

Ineff‌icient

Eff‌iciency: Crying

Over Spilled

Water

by Vanessa Casado Pérez

Vanessa Casado Pérez is an associate professor of law at Texas

A&M School of Law and a research associate professor at

Texas A&M Department of Agricultural Economics.

Summary

As the drought in western states worsens, the agri-

cultural sector is being criticized for failing to adopt

technical responses, such as shifting to less water-

demanding crops and state-of-the-art irrigation

systems. However, these responses alone are insuf-

cient to reduce water consumption if unaccompa-

nied by changes in how the law denes and allocates

water rights. is Article proposes a redenition of

water rights to ensure that changes in crops or irri-

gation techniques are socially ecient. It proposes

“prior consumption” as an additional measure of water

rights in prior appropriation regimes, one that more

accurately reects the true social cost of agricultural

water use. is would prevent farmers from taking

advantage of technical responses to increase their water

use and would protect downstream users and the envi-

ronment. In addition, water markets would benet,

since water rights would be better dened and the

review process of water market transactions would be

streamlined. e proposal is consistent with the under-

lying principles of prior appropriation, and would sur-

vive a potential takings challenge.

As of 2016, California is facing the fth year of a seri-

ous drought. Other western states already suer or

are likely to suer from similar scarcity in the near

future due to climate change. As the largest water user, the

agricultural sector1 is widely criticized for misusing irriga-

tion water by employing inecient irrigation methods and

growing water-intensive crops. e critique even made a

 Sunday editorial.2

As a response to the scarcity crisis, it is often argued

that the agricultural sector should be more ecient, for

instance, by adopting so-called ecient irrigation sys-

tems. Sprinklers and drip irrigation, which have little to

no return ows, are thus expected to solve our water woes

by ensuring that the agricultural sector conserves water for

other users.3 However, this is not the case. Experts have

proven that technically ecient irrigation systems may

end up consuming more water than traditional irrigation

methods.4 is is because ood or furrow irrigation meth-

1. In California, agricultural use amounts to 80% of the water consumed,

while its contribution to the state’s gross domestic product is 2%.

2. , N.Y. T, Apr. 4, 2015.

3. Conservation is not a univocal concept. In this Article, it is used to mean

making more water available to others. However, A. Dan Tarlock notes that

“in this century [the 20th century] ‘conservation’ has been dened either

as maximizing the use of water by augmenting the supply or as an ecient

engineering method of using less water to achieve the objective.” A. Dan

Tarlock, , 66 N.

L. R. 145, 147 (1987).

4. Frank Ward & Manuel Pulido-Velázquez, Water Conservation in Irrigation

, 105 PNAS 18215 (2008); Ray Huaker & Norman

Whittlesey,        

, 24 A.

E. 47 (2000); Brian Venn et al.,  

, 130

J. I  D E 192 (2004); Aurélien Dumont

et al.,           







   



       

       





  



       



      

  





    







law.tamu.edu.

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

12-2016 NEWS & ANALYSIS 46 ELR 11047

ods do not consume a ll water diverted: a large part of it

goes back to the river via return ow. With drip irriga-

tion, this is not the case: plants consume almost all of the

water and there is no return ow. us, once some farmers

adopt technically ecient irrigation methods, other users,

including the environment, who were relying on the return

ow can no longer use that water and streamow down-

stream is reduced.5

Adopting ecient irrigation systems does not achieve

the goal pursued by conservation policies of saving water

for other users. Policies advocating for technological solu-

tions without taking into account this “rebound eect” are

misleading. Given how overallocated streams are, the extra

water consumed using drip irrigation is water that some

other user had been relying on for decades. e adoption of

drip irrigation or sprinklers may translate into water being

in fewer hands. e U.S. Supreme Court case Montana v.

Wyoming6 illustrates this point: the Yellowstone River that

these two states share had less water than it did in 1950

when they signed the compact. In the 2000s, there was

not enough water owing to Montana because Wyoming

farmers adopted sprinkler irrigation systems and consumed

more than before.

Drip irrigation and sprinkler systems are labeled e-

cient because they increase the yield at the plot installed

or lose less water to evaporation or return ow. However,

the desirability of their adoption should be analyzed on

the basis of their positive eect on the overall water use

value. If some farmers adopt drip or sprinklers and increase

their yields, but other farmers are no longer able to produce

because they are deprived of the return ow, the change in

the overall allocation is not a Pareto-ecient improvement.

Not only may the adoption of technically ecient irriga-

tion systems be unfair to users who have been relying on

return ows, it may also be inecient.

e burden should be on proponents of new tech-

nologies to prove that the a ggregate outcome constitutes

an improvement (or, in other words, is Kaldor-Hicks-

ecient even if not Pareto-ecient); that is, that their

increased prots could hypothetically oset the losses

imposed on users who can no longer irrigate. But this is

   

Process in Spain, 1 A P 64 (2013); Julio Berbel et al.,



a Spanish Case Study, 29 W R. M. 663 (2014).

5. T W G   I T F 

I E, I W U,  M, at

Glossary 1-5 ( June 1978 review draft), cit ed in George W. Pring & Karen

A. Tomb,  

Water in the West, 25 R M. M. L. I. 4 (1979) (“It is estimated

that return ow amounts to 92 million acre feet annually as compared

to the 79 million acre feet consumed by crops each year. Return ow is

commonly utilized downstream but it carries the problem s of erosion and

water quality degradation.”).

6. 131 S. Ct. 1765, 179 L. Ed. 2d 799, 41 ELR 20168 (2011).

not what prior appropriation, the regime that allocates

water in the West, establishes: as the Supreme Court

stated in the aforementioned interstate compact dispute,

farmers are allowed to cha nge irrigation methods even if

their consumption goes up.

e notion that conservation strategies may back re is

not new. However, the scholarship on water law has rarely

considered this possibility. e discussion in the energy-

eciency world has been heated for a long time. Fuel-

ecient cars may induce driving more miles because of

cheaper fuel, increasing overall emissions compared with

less-ecient cars. Ecient appliances may save less energy

than we expect because the amount a consumer saves in

her energy bill is spent on other goods in her basket that

consume energy. is is known as the rebound eect. e

increase in consumption when changing irrigation meth-

ods can be considered an extreme example of the rebound

eect. Users will increase how much they drive, but rarely

will drive twice as much. But with water-eciency mea-

sures farmers, particularly in water-short basins, are likely

to consume as much as possible if this allows them to

increase production.

An Intergovernmental Panel on Climate Change (IPCC)

report calls for taking into consideration the potential

rebound eect when calculating energy savings. Likewise,

water regulation should not accept at face value that tech-

nologically ecient measures produce real water savings

and bring our water allocation closer to eciency. Prior

appropriation needs to account for this rebound eect.

Prior appropriation denes water rights according to the

volume diverted and, thus, it allows farmers to consume as

much as they have the right to divert. Accordingly, when

adopting technically ecient irrigation systems, they can

consume more water than they were consuming previously.

Hence, prior appropriation does not ensure that when

changes in consumption happen, the new allocation is

equal or more ecient than the status quo. Even more, as

shall be seen, it encourages farmers to consume as much as

possible because those farmers may fear losing their rights

due to non-use. is is why I propose including an addi-

tional variable—historical consumption—in the deni-

tion of prior appropriation water rights; users will be able

to consume only what they have been consuming histori-

cally, thus preventing the rebound eect. Introducing con-

sumption as a limit allows farmers to change the irrigation

method if it is Pareto-ecient to do so; the farmer adopt-

ing drip irrigation increases her prots and the rest of the

users are not harmed. But as I explain, this proposal would

also facilitate the purchase of water from those less ecient

by those who need to increase the amount consumed once

they install a dierent irrigation system.

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.