The public interest in Western water.

• Author: Babbitt, Bruce

1. Political History of Western Water

   In the spirit of this conference, I thought I'd see if I can broaden, just a bit, the issue of title navigability to streams and water resources generally, and give you my view of the public interest as it relates to these resources here in the West. The reason we are constantly at each other's throats - litigating these water and stream issues endlessly - is because of an historical evolution that is of enormous importance in the American West.

   On the threshold of settlement and development in the mid-19th century, the federal government made contrasting decisions with respect to land, on the one hand, and water, on the other. Most of the West beyond the 100th meridian was federal property, and, in theory, the federal government was in an ideal position to look to the next century and make some decisions about the use of both the land base and the water resource. To some degree, the federal government did make those decisions concerning the land base. But it did so in a very tortured, difficult, strung-out and incoherent way. There was continuing federal concern about maintaining control and ownership of the land base which is now the National Forests, the Bureau of Land Management lands, the National Parks, and a variety of other land holdings. The government presumed that this land would remain federal, subject to certain rules regarding settlement and transfer of title.

   But curiously, we made the opposite decision in the case of water, the lifeblood of western land. The federal government simply let the water go, divested it to the states early on. With no foresight or planning, and with none of the debate that characterized the issues relating to land, the federal government passed the Desert Lands Act(1) and other legislation that simply divested federal title to water, leaving water allocation largely to the states.

   As a result, in the rush to settle the West, water became a commodity to be privatized. The concept of a residual public interest was seldom in any of the discussions. Water was just divested, left to private markets. Worse, we then had the bad fortune to invent the Bureau of Reclamation. The Bureau became part of an extraordinarily powerful political force composed of the U.S. Congress, local interests, and a hungry bureaucracy. This coalition elected Westerners to Congress by promising to dam every single stream in the region, paid for with a continuous flow of tax dollars from people east of the Mississippi River. Thus did we create and subsidize a welfare state in the West, under the paternal guidance of the Bureau of Reclamation.

   I suspect there will be some that will say that this is a modest overstatement. But it is only a modest overstatement. I grew up in a reclamation state called Arizona. We learned the political game early in our history. We knew that in order to participate in a cornucopia of benefits at the expense of the environment, we had to select our Congressmen young, send them to Washington, watch them for a term or two and, provided that they were not drunks or total incompetents, we would send them back forever because we knew that the way to get those subsidies was to acquire congressional seniority. We knew we were a small boat on a very, very large ocean.

   Of course, Arizona did play the seniority game in an extraordinary way. We sent Carl Hayden to Congress the year that we became a state, and we kept him there for fifty-six years. There was one troublesome election in 1968. The dear old gentleman had not been back to Arizona within the memory of anybody under forty years of age and, at the last minute in October 1968, a rumor started circulating that Carl Hayden was actually dead. The Arizona Republic, understanding the game, sent a reporter to Washington in a frantic search for Senator Hayden. The reporter finally found him, almost totally covered by a white sheet in the Bethesda Naval Hospital. But the Senator managed to sit up and raise his hand off the bed. That picture was printed on the front page of the Arizona Republic, and Carl Hayden won re-election with the largest landslide in our state's political history.

   That's a thumbnail sketch of the history of Western water politics: an unthinking divestment of the water resource to the states and...