The rhetoric of water reform resistance: a response to Hobbs' critique of Long's Peak.

• Author: Blumm, Michael C.
• Position: Response to article by Gregory J. Hobbs, Jr. in this issue, p. 157 - Long's Peak Report: Reforming National Water Policy

Greg Hobbs is an unusual talent. Both practitioner and scholar,(1) he is also an able and entertaining speaker, even if you do not agree with his perspective.(2)

Unfortunately, Hobbs' critique of the Long's Peak report(3) is not up to his usual standards. Instead, it is a hyperbolic and bombastic attack on a well-reasoned, moderate call for evolutionary change in water allocation, a system largely grounded in the ideas of the Nineteenth Century. For some reason, defenders of the water law status quo seem to feel that mischaracterization and overstatement is a better defense to calls for reform(4) than reasoned discussion of the deficiencies of a system of water allocation which shortchanges latecomers, instream uses, and Indian tribes.(5)

Hobbs' attempt to indict the Long's Peak report as advocacy of "an imaginary Western wilderness" and "a one-dimensional argument for the exercise of federal agency power"(6) is easily refuted by a reading of the report itself, which the editors have been good enough to reprint in these pages.(7) Nowhere in the report's 47 recommendations is there anything remotely resembling a call for more wilderness or new federal authority over water management. Instead, the Long's Peak report is an appeal to the federal government to exercise authority it already possesses to increase efficiency, fairness, and environmental sensitivity in water use decision making. Hobbs does recognize the report's "timely message" about the need for efficiency, environmental protection, community participation, and market principles.(8) But his critique largely ignores these necessary reforms in an effort to characterize the report as a "strident preservationism."(9)

I want to use this space to attempt to identify the nature of Hobbs' objections to the Long's Peak report,(10) for his criticism reflects the deep divisions in the West over water use as we near the twenty-first century. He indicts the Long's Peak report for being anti-use, anti-storage, and anti-local.(11) Because it is necessary to understand what he means by each of these allegations in order to comprehend the nature of the divide over Western water, the first three sections of this response consider these charges in turn. Section IV then examines Hobbs' suggestion that the Fifth Amendment's takings clause may bar efforts to modernize Western water. Section V concludes by explaining why Hobbs' views, although dominant throughout this century, might prove to be too expensive to prevail in the next.

1. ANTI-USE

   Western water law is one of the two remaining legacies of the prior appropriation ("first in time, first in right") principles which dominated Western settlement in the nineteenth century,(12) the other being the General Mining Law.(13) Unlike the mining law, which is a federal statute, Western water is governed largely by state appropriation systems.(14) But like the mining law, water uses obtain property rights.(15) Only those who use water "beneficially" obtain water rights,(16) and their property rights are defeasible if they waste water.(17) Because it is the basis and measure of a water right, the definition of beneficial use is the key concept of Western water law.

   Traditionally, beneficial uses required diversions from the stream in order to put others on notice of their claim to water, but modem recording systems obviated the need for physical diversion. Consequently, over the last generation most Western states amended their definitions of beneficial use to include instream uses. For example, Colorado did so in 1973,(18) and Hobbs indicates that there are now some 8,000 stream miles "protected" under that law.(19) But because these instream rights could have a priority date no earlier than 1973, on overappropriated streams--of which there are many in Colorado--instream rights with late priority dates supply precious little "protection" to instream uses. And because diversionary water rights with early priority dates are inheritable and passed on from generation to generation, the disadvantaged position of instream uses is not likely to improve in the future. True, as Hobbs points out, for the past seven years the Colorado Water Conservation Board has had statutory authority to purchase or receive by donation (but not condemn) senior water rights for conversion to instream flow rights.(20) However, purchases will prove to be extremely expensive to the taxpayers, and donations are likely to be infrequent. Imagine the state of the environment if the Environmental Protection Agency had to purchase or acquire by donation pollution rights from polluters. The prior appropriation, in short, relegates instream uses to a virtually permanent disadvantaged position.

   It is this system that Hobbs seeks to defend in his diatribe against the Long's Peak report. But he has clearly picked the wrong target. There is not one word in the report suggesting the need to overthrow the prior appropriation system. In fact, among the report's general principles is the following:

   Where a transition from old to new values demands reallocation of

   water from existing supplies, the equities of people with existing

   uses established under lawful prior policies should be respected.(21) This seems to me to be a clear statement that the Long's Peak report recognized prior appropriation as the operative principle of Western water law and sought only its adaptation to the imperatives of the next century.

   Perhaps Hobbs simply misunderstood the pragmatic nature of the Long's Peak recommendations. However, I think his overreaction is one that other defenders of diversionary water uses would share. The thinking seems to be: better to savage calls for moderate reform than to squarely face some of the inefficiencies and injustices in the current system of allocating Western water. For example, Hobbs' attempts to depict the Long's Peak report as a call for Western riparianism,(22) despite the principle quoted above. Not only does he misunderstand riparianism as it is practiced in the East,(23) but he overstates the nature of the "legal severance" by which riparian rights ceased to exist on Western public.(24) It is true that, as a result of this severance, most Western water is allocated through state prior appropriation system, but some Western states do recognize some riparian rights,(25) and federal and indian reserved and regulatory rights co-exist with state-granted rights.(26) The Long's Peak report simply recognizes these realities by calling for federal land managers to exercise their existing authorities to protect instream flows, especially through expenditures of federal funds and conditioning federal approvals.(27)

   Hobbs is right to claim that the chief problem of Western water is one of scarcity, although his attempt to characterize prior appropriation as doctrine of sustainability(28) turns the latter concept on its head. Prior appropriation certainly has not sustained streamflows and instream uses in the arid West.(29) Waste of water, nominally prohibited by the prior appropriation doctrine, is rampant Westwide.(30) Instream ecological uses, which were well established (if not legally recognized) before any appropriator diverted a drop of water, are not the prime cause of water scarcity; it is instead the inefficiencies countenanced by the prior appropriation doctrine and its relegation of instream uses to a perpetual position of disadvantage which are the true causes of water scarcity in the West.

2. ANTI-STORAGE

   Hobbs' real beef with Long's Peak is that the report is antistorage. Although it contains no statements opposing new storage projects, the report does contain some cautions about new storage in recommendation 30:

   Economics will dramatically limit the development of new water

   supplies. New projects should be planned and authorized by Congress

   only to meet the highest priority needs. The Administration

   should treat environmental quality as equivalent to regional economic

   development in applying the Principles and Standards. Modifications

   to existing projects should be considered only after the

   existing project has been reevaluated in light of new needs and

   water conservation objectives. Reallocation of existing supplies

   should be preferred as an alternative to new storage.(31) Hobbs uses the last sentence of this recommendation to excoriate the entire report for advancing an anti-storage bias. For Hobbs, the answer to the West's water scarcity lies in new water projects.(32) However, water storage projects were a product of an era during which the federal government saw fit to subsidize Western water use with projects like Colorado's Big-Thompson project, which Hobbs considers to be the epitome of wise water management, including the gold medal trout fishery downstream.(33) According to Hobbs, the Big-Thompson project is a reflection of the fact that "[w]ater...