Inefficient Efficiency: Crying Over Spilled Water

Date01 December 2016
Eff‌iciency: Crying
Over Spilled
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.
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.,           
   
       
       
  
       
      
  
    
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 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®,, 1-800-433-5120.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT