WESTERN WATER LAW AND THE CHALLENGE OF CLIMATE DISRUPTION.

Author:Tarlock, A. Dan
Position:ARTICLES
 
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  1. A PERSONAL NOTE ON THE FASCINATION WITH RUNNING WATER 2 II. THE CHANGED WEST: 1960S TO THE PRESENT 3 III. INCREMENTAL ADAPTATION 6 A. Farms Become Reservoirs 6 B. The New Federal Role: Not Much to Offer Except Bad News 8 C. Fish--White Water Rafting Power 9 IV. THE IMPERATIVE, CHALLENGES, AND OPPORTUNITIES OF CLIMATE 11 DISRUPTION ADAPTATION A. What Can We Expect and Will It All Be Bad? 12 B. The Emerging Global """""""" Consensus"" Adaptation 14 Framework C. No Baselines 14 D. All Previous Adaptation Assumptions Upended 17 V. WHAT ARE WE DOING ABOUT CLIMATE DISRUPTION AND WATER RIGHTS? 20 A. Let Old Prior Do His Job 22 B. Negotiate Around Old Prior 23 C. Squeeze More Water Out of Old Prior for Newer Uses. 24 D. Blow Up Old Prior: The Australian Solution, Volumetric 25 Rather than Fixed Entitlements VI. CONCLUSION 26 I. A PERSONAL NOTE ON THE FASCINATION WITH RUNNING WATER

    Let me begin on a personal note. I first became fascinated with flowing water when I visited my mother's relatives in Provo, Utah. Crystal clear water flowed along small concrete canals between the sidewalks and the streets, something that I had never seen growing up in the San Francisco Bay Area. My relatives explained the history of Mormon settlement in Utah and the crucial role that irrigation ditches played in the state's development. (1) My interest in water lay dormant until my second year of law school when it took me two weeks to discover that an excruciatingly boring assigned law review note topic was preempted. With trepidation, I asked for a replacement, and the editor-in-chief told me that all she had was a Colorado water rights case that no one wanted, recently sent down by a new professor. I grabbed it, and a fifty-year-plus fascination with water law was launched.

    The case brought me to Charlie Meyers, first as a research assistant on his landmark work on the Colorado River (2) and then to life-long friendship until his premature death in 1984. My interest deepened during a hospital stay my third year when a family friend gave me a new edition of John Wesley Powell's Report on the Lands of the Arid Region of the United States. (3) I decided to make a career around the West's use of its natural resources. My first step was to join the Sierra Club. In those days, you had to have a letter from a member. Charlie told me that a "relatively" well-known author and member, Wallace Stegner, taught in the English Department. I made an appointment to see him, laid out a half-baked idea of Unking law and the preservation of free-flowing rivers. He agreed to sponsor me and wished me luck.

    Armed with my Sierra Club membership, I asked Charlie if I could write a paper on the subject for his water law course. I still remember his terse, Texas-twang response: "I don't think there's much there but OK." There was enough to write the paper, which only earned a B-plus, but it became my first published article when I ended up at the University of Kentucky two years later. (4) The problem of securing what we now call "environmental flows" has remained one of the leitmotivs of my career and has taken me to all the continents except Antarctica. In the 1980s and 1990s, through work with the Water Science and Technology Board of the National Academy of Sciences, I became aware of the problem of climate change, or climate disruption (CD) as I now prefer to call it, (5) and what it might do to water, developing a second and related leitmotiv of my career.

  2. THE CHANGED WEST: 1960S TO THE PRESENT

    In this Article, I will examine the four major changed conditions that have impacted the West and water policy and law starting in the late 1960s. Solely due to the accident of my birth, my career has spanned the urbanization of the West, the twilight and end of the big dam era, the era of environmental protection and reallocation of water, and now the challenge of CD. I will first look backwards at the impact that the first three changes have had on western water law. Then, I will look forward and see what lessons, if any, adaptation to these changes have for CD adaptation. Finally, I sketch four possible, non-exhaustive CD adaptation strategies for western water law. I do not address the deeper questions of whether CD will force the West to revisit the long-running debate about the limits, if any, that the West's geography and limited water resources place on human settlement, (6) and what a truly radical new water law and landscape policy might look like. (7)

    In the early 1960s, outside the Pacific Coast, the West was still a relatively sparsely populated eastern commodity colony. (8) The assumption was that it would continue as such, supported by massive, necessary federal water resources investment. (9) Instead, the West and the federal role in water management changed dramatically in three ways. First, the West became the most urbanized region of the country. (10) Thanks to air conditioning and the internet, its generally harsh climate became a non-factor in settlement. (11) Second, the environmental movement, fueled by urbanites taste for beauty and recreation, (12) led to the withdrawal of many undammed stretches of rivers from development (13) and to the establishment of minimum environmental flows on others. (14)

    The second change helped produce the third: the end of new federally subsidized or funded dams and the federal government's retreat from its dominant role in the first six decades of the 20th century in western water policy. (15) This change resulted from the fusion of environmentalism and fiscal conservatism. Environmental activists, led by David Brower of the Sierra Club, joined with fiscal conservatives to end large federal water infrastructure investment. (16) Simultaneously, the federal role shifted from builder to regulator. The Clean Water (17) and Endangered Species (18) Acts imposed new regulatory constraints on the exercise of state water rights. (19) Today, the federal government is not powerless, but its main roles are the management of its aging legacy infrastructure (20) and, at least prior to 2017, as a source of credible scientific information and judgment about the challenges facing the ever-growing West in the face of CD. (21) In the process, and in the absence of a federal food policy, (22) substantial blocks of irrigated agricultural became the new "reservoirs" to support urban growth, and water rights began to converge with long-alienable land rights. (23) Fourth, starting in the 1990s, the West has gradually accepted the reality that CD is happening and that western landscapes and water budgets face serious risks of negative impacts. (24)

    [PI]I. INCREMENTAL ADAPTATION

    In the early 1960s, prior appropriation rested on a simple catechism that a water right could be perfected by diverting water and putting it to continuous beneficial use within a reasonable period of time. (25) The system was originally designed to support a small-scale irrigation economy, (26) but by the 1960s it had evolved to accommodate three major uses, two consumptive and one non-consumptive. Irrigated agriculture still took the lion's share (86%) of withdrawals, and cities took the rest (5%). (27) With limited exceptions, hydropower was able to use water upstream and release it for downstream consumptive use. (28) Irrigation withdrawals have modestly declined and urban uses increased, but the three major uses account for over 90% of all water use. (29) This relative stability among uses enabled prior appropriation to accommodate reasonably well to the new uses demanded by a changing West and to weather the end of the Big Dam Era.

    1. Farms Become Reservoirs

      Growing metropolises thrived because they were able to draw on law and economics to move water from farms to urban use. Prior appropriation had long supported urban growth. A water right was not limited to the watershed of origin, as the common law of riparian rights originally did, (30) and courts had long granted cities a de facto "super-preference" (31) to acquire water for anticipated future growth. (32) Cities got a big boost from neo-welfare economists. Starting in the late 1960s, economists leveled a devastating critique of prior appropriation and the permanent, Jeffersonian-irrigated agricultural society supported by western water law: seniority locked too much water into low-valued crops. (33) The solution was to turn water rights into marketable property rights so that water could move to higher valued urban uses. (34) Water marketing was endorsed by influential environmental groups such as the Environmental Defense Fund in the 1980s, (35) and cities were able to leverage their superior purchasing power to dewater parts of the rural West:

      [S]eventy-seven percent of all exchanges and sixty percent of all water originates in agriculture. Agriculture-to-urban exchanges are the most numerous, with fifty-six percent of transfers and eighteen percent of all water transferred, at 5,533,394 acre-feet. Urban-to-environmental and combination exchanges also involve considerable amounts of water. (36) Water marketing has largely ignored social costs "planned" decline of rural areas in many places. A study of the future of irrigated agriculture in northeast Colorado

      projected a loss of approximately 24% (175,000 acres) by 2030 and 68% (500,000 acres) by 2050 of total cropland, exceeding the estimated 33% loss in Colorado's Water Plan while undershooting other predictions of 400,000 acres lost by 2030. The net present value (NPV) of agricultural profit from production across the entire [South Platte River Basin] was about $6.1 billion, whereas sales from water rights purchases totaled about $17.9 billion. (37) "In Utah, the land in farms, including harvested cropland and pastureland, declined by 2.5 million acres, or 18 percent, from 1960 to 2008. " (38) Colorado lost 850,000 irrigated acres between 1997 and 2012. (39) Between 2007 and 2012, declines in irrigated acreage "exceeded 10...

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