California Water Policy Seminar Series: Professor Hap Dunning and Justice Ronald B. Robie discuss groundwater regulation and more

Robie and Dunning 2The 2014 California Water Policy Seminar Series, presented by the UC Davis Center for Watershed Sciences and the law school’s California Environmental Law & Policy Center, is bringing together distinguished speakers to discuss how water systems for both ecosystem and economic objectives.

In this set of speeches, environmental law professor Harrison “Hap” Dunning and California Court of Appeal Justice Ronald B. Robie discuss environmental-economic tradeoffs from a legal perspective, with much of the discussion focuses on California’s unregulated pumping of groundwater.

Professor Richard Frank, law professor and director of the California Environmental Law & Policy Center at UC Davis, began by introducing the two speakers.

Hap Dunning was the environmental program at UC Davis and he really did it single-handedly and is responsible for launching the careers of a whole number of environmental lawyers and academics and scholars and others,” said Professor Frank.  Hap Dunning began teaching in 1969 at UC Davis, and his expertise and passion is water, water policy, and water law, said Mr. Frank.  Mr. Dunning took leave from UC Davis to become the Executive Director of the Governor’s Commission to Review California Water Rights Law for Governor Jerry Brown’s first administration in the late 70s, where he generated a number of recommendations. “A few of those were implemented, not nearly enough in my view and it’s interesting again to come back to the legislation that was just signed into law by Gov. Brown 2.0,” said Mr. Frank. “We’re still seeing some of the recommendations that came out of Professor Dunning’s work and that of the commission that he served become transformed from policy recommendations to law.”

Justice Ronald Robie is the closest thing I know to a renaissance man when it comes to water and water policy because he has lived it and worked it for many years,” said Professor Frank.  “While he’s been on the bench probably since the mid-1980s, his first career was in water and water policy and if you were to ask him, that’s probably still his first love or at least an engaging passion of his.”  Justice Robie has worked in all three branches of state government, and has greatly influenced California water policy, said Mr. Frank.  Justice Robie was a member and vice-chair of the State Water Resources Control Board from 1969 through 1975, and was tapped by Governor Jerry Brown in 1975 to be the director of the Department of Water Resources.

Since the 1980s, he’s been a jurist, a judge first in the trial court system, the Sacramento County municipal court, when we had municipal courts in the state, and then the superior court,” said Mr. Frank.  “He was ultimately elevated and appointed to serve in his current position as Associate Justice of the California Court of Appeal, which is headquartered in Sacramento.”  He noted that Justice Robie also has taught at the McGeorge School of Law and participates in Dividing the Waters, a judicial education program for state and federal court judges around the country that focuses on resolving water disputes.

So, without further ado, Professor Harrison Dunning.”

Professor Harrison “Hap” Dunning

DunningI’m here to talk about groundwater. It’s always an important part of the California water,” said Professor Dunning, noting that in a normal year, it accounts for about 35% of water supplies, with the rest being surface water.  “Of course, when you have a drought, the way we do now, and the surface water is very unavailable, groundwater becomes a much higher percentage, because people who are cut-off on their surface water supplies turn to groundwater if they have it.  Not everybody has it. It doesn’t occur every place, but it occurs lots of places.”

Every hydrologist I’ve ever talked with has emphasized that water exists in a single hydrologic cycle,” he explained.  “It’s all part of the same system. The surface water, the groundwater, there’s interactions of all kinds. But, for better or worse, the law in California has turned a blind eye to that scientific observation, and has said, ‘We are going to treat surface water and groundwater differently. No matter what the hydrologists say, we’re going to do it differently.’”

Professor Dunning explained that back in the 1850s when mining was the big industry, California established an appropriative rights system.  “If you go to a stream, you physically divert water, and you put it to some beneficial use in connection with your mining activity, you will have a right, and if a lot of people do that, we’re going to sort them out by saying, ‘First in time, first in right.’ So, you have a priority system based on time.”

Other western states followed and also adopted the appropriative system, saying that the system of riparian rights, which gives water rights to people based on their ownership of land adjacent to the stream and was used in the east and Midwest, was not appropriate for the dry western climate.  “There was a lot of contention in California for a long time about whether we were going to have Riparian rights,” he said.  “Finally, in 1870s, it was settled on a four-three vote, with a 200-page opinion. … They said, “We’re going to have both appropriative rights and Riparian rights.”

Back in the 1800s, groundwater wasn’t much of an issue; there wasn’t the physical capacity to use it and there weren’t any rules, he said.  In 1903, the Supreme Court laid down an allocation system that paralleled in a way what had been done for surface water, said Mr. Dunning.  “A basic allocation scheme that was laid down in a case called Katz versus Walkinshaw was that the first rights go to what they called overliers,” he said, explaining that an overlier is someone who owns the land above and pumps the water for use on the land above.  “They go first, and they share among themselves, sort of riparian like, in a way,” he said.  “And then, if there’s any water left over, it can go to appropriators. Typically, an appropriator might be a municipality who puts in a well field, takes the water and sends it in a pipe to their city or town and uses it there.”

Initially, it reflected what they did with surface water, but later it got very different,” he said.  “After the Second World War, they got into a doctrine known as ‘mutual prescription’. I won’t go into that, it’s quite complicated. There’s no parallel to that in surface water allocation, so they went their own way.”

I want to go back to a very important development in California that happened in the time of the Progressives,” said Professor Dunning, explaining that the Progressive Movement in American politics was part of the desire to start to regulate natural resources which had been exploited without any regulation. Around 1911, the state government set up the Conservation Commission, chaired by former Governor Pardee, and they were to look at the state’s natural resources and make some recommendations.  The report mainly dealt with water, and noting that the current system of appropriation only had minor requirements for appropriators, recommended a new regulatory system be created for new appropriations.  “They didn’t try to go back to all the old ones. They said, ‘From now on, if somebody’s going to appropriate water out of a stream, they have to go through an administrative process.’ It’s commonly known as the permit and license process. You get a permit, you build your project, you go back and you get your license.”

Every hydrologist I’ve ever talked with has emphasized that water exists in a single hydrologic cycle. It’s all part of the same system. The surface water, the groundwater, there’s interactions of all kinds.  But, for better or worse, the law in California has turned a blind eye to that scientific observation, and has said, ‘We are going to treat surface water and groundwater differently. No matter what the hydrologists say, we’re going to do it differently.’” –Professor Dunning

The Conservation Commission report did consider groundwater, giving it just one paragraph in their report, Professor Dunning said.  “It’s a very significant paragraph in that report in which they said, ‘We don’t really know enough about groundwater. We don’t understand groundwater. Groundwater is a cult. Groundwater is mysterious,’” he said.  “And, of course, it probably was true in 1911, 1912. Who knew much about groundwater then? So they said, “We’re going to leave most groundwater out.” They made one small exception. They said that if the water underground is in what they called a subterranean stream in a known and definite channel, then it will be subject to the permit and license system.  But that’s a small part of the water. Most of the water which is underground is commonly referred to as percolating groundwater that is not subject to the permit and license system.”

“It was an inevitable consequence that if you say to people, ‘You can put a well anywhere you want and take all the water you want,’ there’s going to be overdraft,” he said, explaining that overdraft is what happens when you’re pumping more out than is coming in by way of replenishment. “Replenishment could be from nature, water percolating down into the groundwater basin, or it could be from human activity. There are programs where people deliberately percolate water into underground basins.  But we started to get overdraft because more was being pumped out than was coming in.”

Some people argued for overdraft, saying that the water would develop the economy that can pay to bring in supplemental surface water, but there are consequences for that, he said.  Those consequences including higher pumping costs the deeper you have to go, water quality degradation as you get lower in the basin, and subsidence at the surface as the layers collapse which can damage structures and canals, he explained.  “And by pumping out a lot of groundwater, you may, one way or another, be decreasing the flow of the surface water,” he said.  “Remember the hydrologists say it’s all related. So you can have a stream that was a gaining stream, gaining water as it went along, and the groundwater pumping happens, and it doesn’t get the replenishment that it might get from groundwater, one way or another, and so it’s suddenly a losing stream. So there are a lot of consequences that aren’t so good with regard to overdrafting.”

They had a dramatic situation in the coastal urban areas of Southern California in Orange and Los Angeles County where salinity intrusion into the aquifer from the ocean was occurring, he said. “It was a pretty serious problem and as early as the 1930s, they started developing localized groundwater management programs where they would limit pumping in various places and sometimes inject water to form a barrier to the salinity intrusion,” he said, noting that the Metropolitan Water District had built the Colorado River Aqueduct and so there was plenty of surface water to work with.

There was also a lot of overdraft on the east side of the San Joaquin Valley, he said.  He explained that the Friant Dam, part of the Central Valley Project that is run by the Bureau of Reclamation, was built to send virtually all of the flow of the San Joaquin River to the east side of the Valley to help overcome the overdraft problem.

So the theme is reconciling ecosystems and economy and you might say, ‘Well, okay. We’ve talked about how people have used this water for farming and for cities and so forth, how were the ecosystems impacted?’” said Professor Dunning.  “I mentioned in Orange County and LA County they were helped out because they had Metropolitan bringing in Colorado River water. … lots of people were taking Colorado River water but the consequence was the delta of the Colorado was pretty much destroyed by all of the upstream exports.”

Because they took all the water except in flood years when they couldn’t and sent it to the east side, the San Joaquin River was dried up for long distances below Friant Dam so a salmon run was lost, entirely extirpated,” he said.  “Now there are efforts to restore that, but it’s tough going.”

Flows were altered all over the place. Every time you put it in a big dam you’re going to change the flows; you’re going to change the temperature – the American River, the Trinity River, the Sacramento River,” he said.  “Shasta Dam on the Sacramento River cuts off enormous areas that once were available for spawning of fish like salmon.”

“I don’t know if anybody really thought much about reconciling the economy and the environment,” said Professor Dunning.  “My personal view is it’s a matter of water war all the time here and there with different groups, with different objectives. With regard to groundwater specifically I was fortunate enough to be part of this effort that was authorized by Jerry Brown the first time around in the late 1970s.  He set up a Blue Ribbon Commission, Judge Robie was ex-official on it because he was director of the Department of Water Resources at that time. I was head of the staff and we worked hard on groundwater. And we proposed a state law which in a way was quite limited. We said we should at least deal with the groundwater basins that are critically overdrafted.”

“Where there isn’t any imported water that’s feasible to bring in, if you’re going to deal with the overdraft, you’ve got to deal with the demand management …. Unless there’s significant support within the agricultural community, I doubt we will get it.” — Professor Dunning

The Department of Water Resources had a classification scheme at the time and they said there were 11 groundwater basins in California that were critically overdrafted, eight of them in San Joaquin Valley,” he continued.  “And we said that local entities should be mandated to do something about it – not stop it right away, that’s out of the question – but to develop a plan so that over a period of time you could reduce and possibly even eliminate the overdraft.  We said that the state should review these plans and if they’re not adequate the state should be empowered to step in and do the job. Well, this got nowhere in the legislature. We filed our report, and Justice Donald Wright gave it to the governor and he gave a brilliant press conference about how you couldn’t overdraft your bank account so how come you can overdraft your groundwater.”

Professor Dunning said the California Farm Bureau Federation, the Association of California Water Agencies, and the Chamber of Commerce all came out full force.  “They said, ‘You can’t do that. You can’t tell people what they can pump’. They said, ‘We do need groundwater management but what groundwater management is is more supplemental water, surface water from some other place. Just the way the San Joaquin water had been taken to the east side of the valley and other imported water had been used, Colorado water used in Southern California’. They said, ‘The north coast, a lot of water up there. There’s the Eel River.’”

They seemed to ignore the fact that Governor Reagan had taken the Eel River out of the plan for the State Water Project, maybe for environmental reasons but also because some of the Native American tribes up there were protesting, he said, noting that soon after the Commission finished their work, the Eel River received Wild and Scenic designations at both the state and federal level.

It seems to me, in a situation like right now they’re talking about this in Palos Robles area and in Eastern Stanislaus County, where there isn’t any imported water that’s feasible to bring in, that if you’re going to deal with the overdraft, you’ve got to deal with the demand management,” he said.  “From the statements I’ve seen from the Farm Bureau Federation, I don’t think their attitude has really changed. Unless there’s significant support within the agricultural community, which is politically very powerful in California, I doubt we will get it.”

He then turned the floor over to Justice Ronald Robie.

Justice Ronald B. Robie,

RobieI’ve been observing this situation for long a time,” began Justice Robie.  “Back in 1978, I was more naïve than I am now. When we went to the governor and suggested this commission …  we thought that the commission was going to be a really good thing. The reports that the staff people put out are still sort of the Bible for people who want to know what changes in the law should be made. I was always optimistic that things would get better, but they really haven’t.”

I have one general observation, he said.  “There’s the same amount of water in the world as we had back then and a long time before that. We don’t have any new dams. We haven’t had any new dams since 1980, since that commission.”

Justice Robie noted that local agencies have done things to stretch their water supplies, but the State Water Project doesn’t have the capability of delivering another drop of water beyond the capability it had back in 1983.  The Central Valley Project Improvement Act dedicated a large amount of the yield of the Central Valley Project back to the environment, so as a result, the Central Valley Project is delivering fewer acre-feet of water than it did back then, he pointed out.  “So we’re not going forward, we’re going backward.”

The other observation I have is that the weather goes up and down,” he said.  “The problem with motivating people is that when there’s a drought in bad times, people get motivated. In the drought of ’77 which I was chosen to preside over, everybody panicked and they did all these wonderful things like you’re seeing now. But as soon as the rains came again, everybody forgot about them. I had this Save Water motto for DWR and they threw it away. … The point is that that was really true of groundwater too.”

“If it’s ever regulated, the answer is going to have to be they’re going to cut back use because you cannot regulate the water and just let everybody do the same thing they’re doing today. And that’s why people don’t want regulation. Because they know regulation means less water, unless they can have a ready source of surface water to take its place, which they don’t have.” –Justice Robie

There was subsidence prior to 1978, but in the period after that, the groundwater basins came back a bit so it wasn’t critical anymore, he said.  Then the Central Valley Project Improvement Act was passed, dedicating more water to the environment for Delta outflow and other things, including, ultimately, San Joaquin River restoration, he said.  “All of that meant that people pumped more because they had less surface water and because with this system, you can do anything you want as long as you can afford to deepen your well.”

The combination of the CVP contractors getting less water and some dry years has caused a lot of subsidence, he said.  “The groundwater basins before the drought of this year were precariously sinking down,” he said.  “I know of 25 feet of subsidence in some areas. Those kind of numbers existed back in the 60s. But we hadn’t heard those kinds of numbers since and now you see pictures down by Bakersville and other places where the ground is now 25 or 20 feet lower than it was.”

What we have is this tremendously greater problem with groundwater than we had before,” he said.  “It’s the major issue and if it’s ever regulated, other than the kind of self-preservation regulation that took place back down in the coastal basins, the answer is going to have to be they’re going to cut back use because you cannot regulate the water and just let everybody do the same thing they’re doing today. And that’s why people don’t want regulation. Because they know regulation means less water, unless they can have a ready source of surface water to take its place, which they don’t have.”

To address the theme of the class, there’s tremendous economic dislocation if they actually did regulate that water, he said.  “Maybe if they had done it years ago and the system had been in place in 1940, or even 1978, it might be less of the dislocation,” said Justice Robie.  “But the current system is terribly inefficient because you can do whatever you want. And there are some really serious problems in the San Joaquin valley with small communities with nitrates in the water supply.  These small communities don’t have the economic resources of large corporate farmers who can just put in new wells, and so they have bad water supplies. They don’t even have the drinking water. … there is a whole social justice movement in the San Joaquin valley trying to make certain that some of the poorer and often minority areas of the valley have adequate water supply. Meanwhile, people are just pumping away all they want and nobody regulates what they do.”

Justice Robie said he had tried to settle a groundwater adjudication case in the Antelope Valley for almost over a year, he said.  “We had all the people in the room – the farmers, the urban users … I discovered that some of the farmers there were opposed to settling because to settle the law suit and agree on an adjudication means you have to reduce your use of water. Because the basin is in overdraft, that means, more is going out than coming in. So if you have an adjudicated basin, the basin is going to be managed so there is as much coming in as goes out, which means, if you don’t have that much water coming in, you have to stop what goes out.”

The courts can ultimately adjudicate that and the courts will do what they should have done voluntarily, he said.  “They’re going to go from 180,000 acre feet to 110,000 acre-feet, so there’s a substantial reduction,” he said.  “There’s no law that says that the farmers get cut back any more or less than everybody else and they are overlying landowners and so they have first priority. They are growing alfalfa in the Antelope valley, which is way down and over the Tehachapis … 7.5 acre feet of water per acre to grow alfalfa. Now, if anybody here who’s in doing agricultural economics, that’s just bizarre that in the hot southern semi-deserts where imported water is extraordinarily expensive because it has to be pumped all the way from Oroville …  And they use groundwater and 7.5 acre feet per acre of water. That is absolutely absurd. But the water board hasn’t gone in on a waste of water. Nobody wants to do it; no individual is going to do it so you have very inefficient uses of water.”

“Because so much of our water is used for agriculture, there’s an enormous California economy that is based on the use of mined, overdrafted groundwater, and the dislocations and the harm is that is going to come to the farmers and everybody related to the agricultural uses is going to be great.” –Justice Robie

That’s true everywhere that water is not regulated but the longer we go, the worse it’s going to be,”  said Justice Robie.  “Enough about groundwater. I thought his message was dreary enough and I just made it worse. But the climate change is coming. Climate change is already here. I’m involved with Dividing the Waters, a group of water judges from all over the country, but mostly the west. …  Our job is to try to help judges who do water cases understand better the physical and the biological facts and try to relate their adjudicatory functions to scientific facts.”   The group has regular conferences, including one scheduled for May of this year that deals with the interface between land use and water.  “California has struggled with this issue because frequently public agencies in California have said, ‘Sure, we’ll serve you water’ even though they knew darn well they didn’t have it to serve, and so then local government agencies approved subdivisions, new cities, and everything else on the promise of water which they didn’t have.”

So California created a statute that says you have to ‘show me the water’ if you have more than a 500-home subdivisions, he said.  “I noticed that there are a lot of 499 home subdivisions, but the point is that if you have 500 or more, then you have to show the water, and this is part of our California Environmental Quality Act analysis where you have to show that there’s water available.”

The land and water interface in California is fragmented because land uses local.  Water is either law of the jungle if it’s groundwater or the water board if it’s not, so that’s a coming issue,” he said.

Climate change is going to mess up everything because existing appropriations are going to be unable to operate the way they were,” he said.  “In other words, if the irrigation season runs from April to July or whatever, maybe with the change in the way the climate is bringing snow and everything, maybe the season will be later or earlier. But the water rights are very rigid because as they are based on first-in-time, first-in-right and based on when you used the water historically. And so my colleagues all over the West are trying to figure out what to do with the existing rights.”

The Public Trust Doctrine was created in 1983 by the California Supreme Court and the National Audubon Society case, and it is a doctrine which is just like the old public trust of tidelands and waters and it applies to the waters in the streams,” Justice Robie said.  “The Water Board has, under the opinions of our court and the Supreme Court, given a primary responsibility for implementing the Public Trust in the actions that they take in preventing waste and unreasonable use of water, and issuing new water rights.”

The best example of how water rights have been historically rigid is that once you have been issued a license for the water and you’ve used it, the State can’t take it away from you.

The water rights for Los Angeles exports from the Mono Basin were fixed, licensed, and guaranteed in 1974, he said.  “I actually voted on the water board to make that decision,” he said.  “Under the Public Trust, those water rights were changed. They were modified to reduce the amount that the city took so that more water could flow into Mono Lake; that decision modified an existing, vested water right.”

In other states, vested water rights can’t be moved by the Public Trust,” he said.  “They have to figure out other ways to try to accommodate their existing water rights system to the changes that might come with climate change, and so that is an extraordinary problem. And both with groundwater cutbacks and the impact of climate change on existing rights, there are potentially enormous economic dislocations.”

I’ve never understood economics, and I’ve always joked about it, but it’s real that because so much of our water is used for agriculture, there’s an enormous California economy that is based on the use of mined, overdrafted groundwater, and the dislocations and the harm is that is going to come to the farmers and everybody related to the agricultural uses is going to be great.”

The thing that bothers me most about why we ended up where we are today is that if we’d made an orderly effort to regulate things back in the 70s, then things wouldn’t come all of a sudden,” he said.  “And that’s what’s going to happen in the San Joaquin Valley. Things are bad enough now, and if we don’t have these huge gully washouts in the Basin suddenly start filling up again, there’s going to be people who are going to have to cut back. People are going to go out of business.  It’s going to be bad, and it’s going to be disorderly.”

It’s not the market that determines who survives, but just whatever and whoever’s located wherever the best location does, and the one that isn’t, doesn’t, he said.  “And the State is sort of standing by saying, ‘Well, can’t do anything about it.’ The legislation that came through in 2009 where they wanted to have everybody record what they took from the groundwater because then you’d have an idea of what’s going on, they said, ‘No. We don’t want to tell you. We don’t want you coming on our land to do a test well to figure it out.’ The only good thing I guess is that we have now infrared photography on things where you can take a look at the underground from above, and try to figure out what’s going on under.”

“If you start developing a program of regulation to accommodate land and water, and accommodate climate change and make the changes in water rights necessary – if you do that in an orderly manner, in a comprehensive way, you have the potential, I think, of making the system work.  Otherwise, it’s just going to be a little disaster here, a little disaster there and collectively, they’ll all be a total disaster.” –Justice Robie

Maybe science will come to our rescue, he said.  “Back in 1913, people said, ‘We don’t know anything about groundwater’ because nobody had ever been down there, and that sounds silly but that’s true. And there was no central registry of what people were pumping; you didn’t have to get a permit to dig a well and so consequently, we didn’t know anything,” he said.  “We know more now, and now the scientists are telling us that we know there’s groundwater overdraft. Even without the land sinking, we know. We’ve got an idea now about how much water is in the Basin and how much there used to be, but we don’t know which person is taking more and who’s doing what because that’s the missing link.”

The bottom line is in California, we are more flexible,” he said.  “We can more flexibly deal with the crisis of groundwater, and we can more flexibly deal with climate change if anybody has the political will to do it, and that is the critical issue.”

Governor Brown has talked about groundwater in his drought plan and in his water plan, said Justice Robie.  “I think back in 1975, other than the Commissions efforts, he wouldn’t have dared to mention groundwater because it was too radioactive to be even talked about. … Now he’s talking about doing something. He isn’t being explicit, because nobody knows for sure what to do. But it’s on the radar now, and I think if things get worse, as a matter of fact, then there’s going to be a potential for something coming. But the question that I have is, is it too little, too late?

On the same general topic, I’ve written down here, ‘The environmental component of water use hangs by a thread.’”, he said.  “ The Central Valley Project Improvement Act was passed in 1992. Surprisingly, it passed. It was something that congressman George Miller had wanted to do forever. And it put environmental quality on an equal footing under the federal law with the delivery of water supplies. It made them equal partners. But today, the house passed legislation to undo most of it or significantly undo that in the name of the drought, but people in the valley have never been satisfied with having the San Joaquin River restored. Dedication of water to environmental purposes has never been easy and it’s going to be harder than ever now.   How many times in the public discourse you will hear, “Water for people, not for fish. Water for people, not for – you name whatever else it is.”

In the drought of 1977, the water quality standards in the Delta were significantly just as they recently were in response to our current extreme drought conditions, and the governor suspended various laws under his emergency powers including certain laws that protected those water quality standards, he said.  “And everybody understood that when everything is as bad as it is now, when they’re delivering no water to contractors, you have to make cuts in the water dedicated to environmental protection, too. But the kind of harm that may come from that, if it goes too far or lasts too long, might not just be temporary. It might be more long-lasting.”

“Everybody understands that things have to be done in a crisis,” he said.  “The problem is that out of this crisis, will anything good come? That’s really the issue. And the economists should let everybody know that, unless you do some orderly management of groundwater, you’re going to have economic consequences that you can’t control.”

If you start developing a program of regulation to accommodate land and water, and accommodate climate change and make the changes in water rights necessary – if you do that in an orderly manner, in a comprehensive way, you have the potential, I think, of making the system work,” he said.  “Otherwise, it’s just going to be a little disaster here, a little disaster there and collectively, they’ll all be a total disaster.”

Remember, everything is connected to everything else,” he said.  “We take a lot of water from the Colorado River. Back in 1963, when California was basically ordered by the Supreme Court to cut back, California panicked, but it took almost 40, 50 years before they actually really had to cut back. So, like everything else, we lived on borrowed time and now we’re taking significantly less water out of the Colorado than we have been historically. So, not only do we have no more water supplies, we have less water from places that we used to rely on.”

And over the last 10 years, the Colorado River basin has had less runoff than was historically contemplated. The Colorado River Compact was in 1922 and the Boulder Canyon Project Act in 1929 were based on the water conditions that existed then,” he said.  “History has shown that those were wet years. And so the theoretical basis for all these water rights on the Colorado River are in real doubt now.”

My Dividing the Water colleagues in other parts of the Colorado system are not getting the amount of water they want out of the Colorado any more than we are,” he said.  “Lake Mead and Lake Powell are at all time lows so the whole system of just waiting until things take care of themselves has not worked.”

So that’s my message. It’s not much more cheerful than Hap’s.”

Robie and Dunning 1During the discussion period, an audience member asked how much flexibility there was to transfer and sell water rights and what role can legislators play in incentivizing better allocation of water rights.

Our Commission worked on that as well as groundwater, and there were a lot of economists said that one of the solutions is to have a much better water market, said Professor Dunning.  “Sometimes, we’ve had a market where government’s been involved. The department of water resources had a big program at one point where they would acquire water rights and then give them to other people or you can have transfers directly.”

A lot of times farmers can be more efficient but it costs money. So where do you get the money?” said Professor Dunning.  “One way to get the money is sell somebody your rights … the idea is to sell some of your water and receive money and use the money to increase the efficiency so you can maintain production. So whether it’s laser land leveling or drip irrigation or something else, these things can help, but they all cost money. And this is one source of money for the farmers.”

The State constitution since 1928 has prohibited waste or unreasonable use of water,” said Justice Robie.  “There are big arguments about what is waste. In some parts of say, the San Joaquin Valley, sometimes you find flood irrigation. The water’s just flooded across the land and some people look at that and say, “what a waste of water.” Other people say, “wait a minute, whatever the tree doesn’t take up, it’s going to percolate into the groundwater basin and the groundwater is resource so, there is no waste.” You can get in lots of things about evaporation and other things and debate that back and forth  … I think it’s kind of a sleeping giant, we have very few reported cases on the meaning of that provision.”

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