FEATURE: How dynamic are property rights in water?

Professor Holly Doremus is a leading scholar and teacher in the areas of environmental law, natural resources law, and law and science, bringing a strong background in life sciences and a commitment to interdisciplinary teaching and scholarship to her work at Berkeley Law.  In a webinar hosted by the University of California Ag and Natural Resources, Professor Doremus discusses water rights and how dynamic and adaptable they are to changing values and conditions. 

NoteThe views expressed in this presentation are those of Professor Holly Doremus, and should not be attributed to Maven’s Notebook.

The nature and evolution of property rights

Professor Holly Doremus
Berkeley Law

With the topic being property rights and water and the extent to which they are or are not dynamic, this first requires a discussion about property rights in general, because water rights are an aspect of the more general law of property rights, Professor Doremus began. 

In general, the history of Anglo-American property law is that it’s been designed to promote stability, or I should say the law, in general, is strongly pulled towards stability,” she said.  “We want people to be able to understand legal rules and comply with them.  We don’t want them to be hit by a lot of surprises, and that tends to require that legal rules not change too abruptly, too fast, or too strikingly.”

Strong, stable individual property rights are thought to encourage long term investment in property, and the paradigmatic property that the Anglo-American system thinks about and developed around is land.  “If you think about development of land, the socially useful things that we do with land, many of them require a great deal of investment that won’t be undertaken if there’s not long-term confidence that the owner of the property will continue to be the owner of the property and that the terms of ownership would continue to be roughly the same,” said Ms. Doremus.

It’s not just economic investment that’s promoted by stable property rights – it’s an emotional investment.  In the United States, we tend to think that the paradigmatic piece of real property, or land, is a family home.  People tend to be quite emotionally invested in their homes as well as that being their largest economic investments, so stable property rights allow them to make those kinds of investments.  They also promote societal peace by making clear that you can’t get resources simply be seizing them from someone weaker than you.”

But property rights also have to accommodate change at some level because circumstances change what we want our resources to be used for, change how many resources we have relative to demand changes, and our knowledge about resources change, and of course our societal values change,” said Professor Doremus, presenting a picture of hydraulic mining in California at the Malakoff Diggins. 

Some of you may have seen the landscape left by this kind of work in late 19th century, and it’s not a landscape we would choose to create now.  Our circumstances are different, what we value from the land is different, and our knowledge about what that would do – not only to the land, but the waterways into which the tailings being dumped and the length of time it would take to restore or the impossibility of restoring that damage changed over time.”

So we want our property rights to be stable but not too stable, dynamic but not too dynamic, and there’s been a theory for some time promoted by a number of economists that property rights evolve over time as economic efficiency dictates or requires.  That as resources become more scarce, the benefits of these stable rules of allocation become greater, and at some point, they exceed the costs of having a legal regime because it’s not costless for the government to create or enforce property rights.” 

The tacit assumptions of this evolution of property rights story are that evolution does and should run towards stronger individual rights and that change will happen as needed, to serve economic efficiency,” said Professor Doremus.  “It’s a happy story, if you think economic efficiency and individual property rights are the best goal.”

One of the reasons that these folks promote this economic efficiency story is that strong property rights do facilitate reallocation to some extent.  So as circumstances change, as knowledge changes, as societal values change, we want other things from our resources and we therefore want our resources to be reallocated to people who will put them to what is now the highest and best use.  And if individuals have strong stable property rights, that makes it relatively easy to market those rights and to trade those rights in markets.  And for the efficiency and evolution of property rights advocates, markets are and should be the primary mechanism for rapid adjustment of property rights when the primary factor needing adjustment is who holds those property rights which is something a market can change.  At the same time, the idea is that the changes in the law of property rights should be fairly slow because if what we want is strong, stable individual property rights, we don’t want too much destabilizing change.”

Property rights have changed over time, but those changes have not been rapid and have been accompanied by controversy and conflict, such as changes in the doctrines of trespass and nuisance which are private law doctrines that allow property owners to complain about what other people are doing around them. 

These changes have not all been in the direction of stronger individual property rights – they definitely have not been.  In particular, with the development of the industrial revolution, the nuisance doctrine was weakened to say that a property owner could not complain about any little intrusion onto his or her property or the uses he or she was making of that property but had to put up with some things that were societally important.”

Other changes have been made by legislatures, but the invention of zoning law relatively early in the 20th century imposed new unfamiliar limits on what people could do with their property.  That was not without controversy, it was not without litigation;  It had to go up to the Supreme Court to say yes, this can be done, it’s not inconsistent with property rights, at least not per se inconsistent.”

“More recently, we’ve had the development of civil rights laws, which say for example, you can’t refuse to sell your property to somebody on the basis of their race or ethnicity or you can’t refuse to rent to them on that basis.  And there are environmental laws that say you can’t do things with your property that exceed acceptable amounts of harm to the environment.”

None of those changes have been quick, they’ve all been the subject of controversy and conflict, and they’ve been limited to some extent by the doctrine of regulatory takings,” said Ms. Doremus.  “The Fifth Amendment to the U.S. Constitution says ‘nor shall private property be taken for public use without just compensation.’  What that’s been taken to mean is that the government has to pay.  If the government physically appropriates your property for something like a roadway or a reservoir, we often do that through eminent domain; in California, it’s called condemnation.  But it’s also the case that the government has to pay if it changes the rules of property ownership too drastically or too quickly.  If there is something you used to be able to do with your property, and either the courts or the legislature or regulatory agency tells you that you can’t do that anymore – if that goes too far, the government has to pay you for that under the regulatory takings doctrine.”

The regulatory takings doctrine is a limit on how rapidly and how drastically property rules can change,” said Professor Doremus.  “These are just the very basics.  If there’s a permanent physical invasion of property, the government has to pay, no matter how small that is.  If regulation eliminates all economically beneficial use, the government has to pay, unless that restriction was already inherent in the property rules that applied before – unless it’s not new, in other words.  If neither of those applies, the government still has to pay if the new restriction is deemed to be unfair.  The Supreme Court has developed a test that says we’ll look to the economic impact of the regulation to the extent that it interferes with investment-backed expectations and to its character, which means how close it is to a physical intrusion.”

The regulatory takings doctrine on its face allocates the cost of change between the government or the public if you will, and individual property owners.  It does not say the government can’t change the rules; it says the government has to pay in certain circumstances when it changes the rules.  In practice though, that presents barriers to change.  If the government thinks it can’t afford to pay or would rather put its money towards something else, it won’t make the change.  Also the takings doctrine allows the rhetoric to be framed in terms of the rights and entitlements of individual property owners and it turns out that there are political barriers to change that go well beyond when the courts actually require payment.  Governments often don’t go up to that line in imposing regulations.”

My own view is that there already are considerable barriers to change,” said Professor Doremus.  “There are these political barriers because property owners tend to be politically powerful, and people tend to be attached to the status quo.  So changes to property doctrine are actually pretty difficult to make, especially when they are weakening the rights of identified individual property owners, and the prospect of takings liability adds another layer of rigidity to that.”

Now, if you think strong property rights in the hands of individual owners are the best way to adapt to change because they facilitate market transactions, then this is all good.  We should have a lot of rigidity.  Actually I don’t think it works for land even before we were totally worried about climate change, but these days for climate change and water, I think it really does not work and that we need to worry more about whether our doctrines are sufficiently adaptable than about whether they are sufficiently rigid.”

Water and property law

Turning to water law more specifically, Professor Doremus said that water law could be more dynamic, but it’s worth asking, is it really in practice and should it be?  Does it need to be more dynamic than it is, and how would we get there? 

Should it be different?  Water is a different kind of resource than land.  The picture is of the South Platte River which is a river with a lot of sandbars in it which move over time.  The flow of the river goes to different places; it’s also fairly variable in terms of the amount of its flow.  Water is physically dynamic.  It moves in a way that land does not, and important characteristics of it: the amount, the place of flow, the chemistry of it – change more rapidly than land tends to do.

Flows can be extremely variable as we know out here in the west,” she said, presenting a graph of water flows in the Colorado River from 1906-2006.  “The black line is the five-year running average.  You can see that’s quite variable – even more variable if you look at it from year to year.  Where the land is or how much land there is doesn’t vary on that kind of timescale or in that amount.”

Another thing that makes water different is that it’s essential for life, both human life and aquatic life.  Yet another thing that may make water different for these purposes is that market reallocation is water more difficult than market reallocation of land.  In order to make reallocation of water work, we often have to move water across the landscape, and water is heavy, so that’s difficult and expensive to do.  When land is transferred, the new owner of the land typically relocates themselves and their activities to the land.  But when water is reallocated, it may need to be relocated, and that limits the effectiveness of markets to only if it is practical.  We can only get water from places where it’s practical to get it.

In addition, there are significant political barriers to market reallocation because water reallocation threatens the economic and social life of communities.  If a county loses a lot of its water, it’s going to lose the economic activities that were supported by that water and impact the communities that were supported by those economic activities.  And because of those political barriers and those realities, the law has imposed various restrictions on market reallocation.  Finally, it’s difficult because property rights in water are ill-defined in the sense that they may not be fully quantified like federal reserved rights often are not, and they are affected by an overlay of environmental requirements in vague ways that may be difficult to fully understand or quantify.”

So change in water doctrine may be more important over time than change in the doctrine governing property rights in land,” said Professor Doremus.  “Market reallocation is more difficult as it may be more directly supporting human and other life, and because of the nature of water, water rights owners have never been entitled to expect the kind of stability that landowners expect.”

Water law responds to those differences in ways that should facilitate some extent of change,” she said, noting that she is talking specifically about the law of appropriative rights which is predominant in the Western United States. 

There are some elements of appropriative water rights that should facilitate change.  One is that all you ever own is the right to use the water.  You don’t own the physical water, the way you own physical land.  And you don’t own it for all time to the exclusion of all others the way landowners do.  You own only the right to use it.  To the extent there is something like an owner of water that’s like an owner of land, that would be the state, and it can parcel out that right to use.  If the state was starting from a clean slate, it could parcel out those rights to use as it felt necessary, but it is constrained today by the fact that those rights have already been penciled out.”

In California, as in other appropriative water rights states, the right to use water is limited to reasonable, beneficial use.   And in California, that’s enshrined in our constitution, Article 10, which says that the right to use of flow of water is limited to what’s reasonably required for the beneficial use to be served and doesn’t include unreasonable use or method of use or method of diversion.  In other words, when you hold a water right, you hold only the right to use that water and that use must be both reasonable and beneficial.”

In California, there’s another layer that ought to help water rights be a little more adaptable to environmental change, and that is that the public trust doctrine limits water rights,” said Professor Doremus.

In 1983, in the Mono Lake case, the California Supreme Court said that Los Angeles’ established rights to divert water from Mono Lake tributaries were limited by the public trust doctrine.  Los Angeles had held these rights for decades before this case came up to the Court, but the Court said that the state has an obligation to consider public trust resources, and to protect them whenever feasible in allocating or regulating or implementing water rights.  In that case, the state, when it granted LA those rights, had been under the belief that it could not consider the effect on the environment and so it didn’t.  But the Court says later, you should have back then, and in fact, you’re still obligated to do so now.  And it characterized that obligation as a continuing one, meaning that Los Angeles’ rights, in this case, the state can’t grant new rights without considering public trust resources, and it has an obligation to reconsider existing rights when there are impacts on the public trust resources.”

So there are these doctrines that seem to make water rights more flexible and more adaptable than rights in land in might ordinarily be, but as a pragmatic matter, there are still pressures towards stability, and those have limited the impact of these other doctrines the extent to which water rights actually have changed and the speed of that.”

This idea that water rights are just use rights means they could have been limited in time at the outset, and there are places that limit water rights in time by only giving them out for a certain number of years.  But that’s not the approach that has been taken historically in the west generally or in California.  Water rights were given in perpetuity, so what you hold if you hold the water right is the right to use that amount of water at that season from that place for that use forever.”

Since California started giving out these water rights in the late 1800s, things have changed quite a lot.  The people who got those early water rights are the most senior ones and have priority under the appropriative rights system, or in other words, the oldest rights have to be satisfied before newer rights can be satisfied and there’s only so much water there.  So the most secure water rights and in many cases, the largest amount of water rights are held by people who must continue to be used for the beneficial uses for which they were granted.”

What that means in practice is that what we might now regard as low economic value agriculture holds an enormous proportion of the water rights in California.  And while it seems to be much higher economic value, municipal use holds less.  You might or might not think the environmental uses at risk have substantial economic value, but they have at minimum social value, and they tend to be the most junior rights of all.”

That would be fine if market reallocation was easy – at least the economic piece of that would be fine.  If cities could just easily buy out farmers, we would get that kind of reallocation.  There’s been certainly some reallocation through markets from ag use to urban use, but it’s difficult enough that there hasn’t been as much as would seem economically efficient.  And environmental uses, if you think those are important, they are often not going to win the economic efficiency game because they are supporting non-market uses.”

What about the limitation to reasonable and beneficial use?  Well, those seem pretty flexible; reasonable is a concept that would seem to change over time.  For example, reasonable would seem to mean ‘in light of current circumstances,’ ‘in light of current knowledge,’ or in light of current societal values, but the law being conservative, the interpretation of reasonable has tended to be pretty conservative, too, in all the places that the law uses it.  So for example, in torts doctrine, we look to what a reasonable person would have done.  Or under a number of our environmental regulations, we might look to what’s reasonable to do to control pollution.  When we use that term, we tend to be importing the status quo, and to say somebody that’s behaving in a way that is common or has been socially accepted is behaving reasonably.  The interpretation does change, but it hasn’t at least in the past changed very rapidly.”

Beneficial use is a term of art and it, too, should change over time as the circumstances change and as societal values change,” said Professor Doremus.  “Beneficial use essentially means a use that society wants to encourage.  And it definitely has expanded over time.  It used to mean manufacturing, domestic use, agriculture, mining; now it definitely includes recreational uses and environmental protection.  But it’s not contracted, so if what we think about, or at least only very rarely, at least if what we think we need to do is to reallocate water away from existing uses, the concept of beneficial uses has expanded the ability to get water rights to new kinds of uses.  It hasn’t really contracted what are considered acceptable uses.  Nor has it typically distinguished within broad categories, so it hasn’t generally been used to say, you have to grow the most water efficient crop for your area or something like that.  If agriculture is a beneficial use, then all agriculture is a beneficial use.”

The public trust doctrine also has not brought as much change as one might have expected, and again, I think we see here the kind of inherent conservativeness of the law.  The Mono Lake case seemed to say to the State Water Board and the state courts that property rights in water have to be reconsidered whenever they turn out to be causing problems for public trust resources.  These days, property rights in water are for sure causing problems for a lot of public trust resources.  But the Mono Lake case hasn’t done much about that.  It took a long time, it did get to reconsideration and reevaluation of the water rights that Los Angeles held, and it did help persuade Los Angeles to start emphasizing water conservation and reducing demand for water, but outside of that context, where that took many, many years, it’s not been an effective driver of reallocation.  Now it has done things, the State Board now explicitly does consider public trust resources when it creates new water rights, but for water that’s already been allocated, aside from Mono Lake, there’s been very little use of the public trust doctrine to try and contract that.”

Signs of hope

That was a pretty pessimistic look,” said Professor Doremus.  “Water law doctrine has all these pieces that ought to facilitate adaptability but when you look at those pieces, they haven’t played out as aggressively adaptive.  They’ve been to a large extent co-opted by the conservative nature of law.  But I think there are some recent signs of hope.”

One is that with the driver of the most recent severe statewide drought, the State Water Board has taken a more aggressive stance towards the reasonable use doctrine.  And in at least to some extent, it’s gotten away with that – meaning that the state courts have upheld that authority.”

A very recent example from this summer is the Stanford Vina Ranch Irrigation Company case, where there was a curtailment, which means the State Board told some water users that they could not take all the water that their water right on paper allowed them to take because that would reduce the flow of water in a couple of creeks below what was needed for fish.  The irrigators and the water users challenged the Board’s authority to do that, and the court said the Board has that authority and that it can declare diversions of water unreasonable where the diversions would harm public trust resources by causing the flow of water to drop below levels required to support instream resources.  So the Board gets to redefine reasonableness in a way that reduces the strength of individual property rights, at least when doing so protects public trust resources.”

The court went on to say that this curtailment was not a taking requiring compensation.  So even though the Board said you can’t use the full extent of your water right, that wasn’t a taking because it was supported by the Board’s authority to define reasonableness and the underlying limitation of water rights to reasonable use.  That was a fairly sudden change in response to drought and it was both made and upheld.”

There’s another case that the court relied on in Stanford Vina where again, the Board took a more aggressive stance when it saw that public trust resources were being harmed by diversions and it redefined what was reasonable use, or at least made explicit limitations on reasonable use, and that is the Light case.  The Board had adopted some rules restricting the use of water for frost protection of grapes in wine country and it said it would be unreasonable to divert water for that purpose unless there was a water demand management program in place that would ensure that there was enough water left in the stream that the young salmon wouldn’t be harmed by the loss of water.

So together, Stanford Vina and Light are pretty strong endorsements by at least the California appellate courts of the authority of the Board to define reasonable use in a way that restricts preexisting rights and to do so without paying the water rights users.

The other recent development is that the US Supreme Court has refused to take up a water takings case.  It was Baley versus the US, which is the latest decision in this very long-running takings dispute that started with the Bureau of Reclamation in 2001 closing the headgates of the Klamath Project temporarily and stopping deliveries to project irrigators in order to protect endangered and threatened fish, both upstream and in upper Klamath Lake and downstream in the Klamath River system.  The water users brought a takings claim where they said that you’ve deprived us of our property rights and therefore you have to pay us.

That’s been up and down and through a number of courts.  It went to the Ninth Circuit, it was referred at one point to the Oregon courts for an explanation of what the state property rights in water were, and it went back to the court of claims and the federal circuit, which eventually the federal circuit ends up holding that there are tribal rights in that system that are senior to those of the project water users, and which encompass water needed to protect fish because the tribes had fishing rights for those fish.  So the tribe’s water rights encompassed keeping those fish around, and therefore no property rights had been impaired or interfered with because the restrictions on property rights were really only recognizing the tribal senior water rights.”

That’s important in a couple of ways,” said Professor Doremus.  “One is that the federal circuit’s decision reminds us that there’s history that’s difficult, but there’s history that helps too.  The tribal rights tend to be the most senior water rights in any of the western systems.  They go back to time immemorial or at least to the creation of tribal reservations, so to the extent that they encompass fish protection, for those of us who are interested in fish protection, that can be very helpful.”

The other important thing is that the federal circuit held that there didn’t have to be a state procedure to quantify the tribal rights before they had this effect.  That helps on the takings side because if there was no such procedure, then the federal government might not be able to claim that it only did what was required.  There was an earlier Endangered Species Act takings case that held that the US Government had committed a taking when it imposed restrictions on Tulare Lake basin because there might well be public trust restrictions but the state hadn’t officially declared them.  So this seems a little more generous.”

The Supreme Court not taking this up is a good thing, because in the past, the Supreme Court has sometimes seemed to be reaching out to make new takings law protective of individual property right holders, and could have done that here and it declined to do so.”

Summing up: Water rights will need to adapt in the face of climate change. Can they do so rapidly enough?

If you believe as I do that water rights need to adapt in the face of climate change, and we’re already at the point in California where demands for water exceed supply, so if there’s less and it’s available at different times, that’s going to mean we need to fairly rapidly change what we’re doing,” said Professor Doremus.  “I don’t think markets can do that, so the question is can changes to legal doctrine do that?

The first thing to say is that market reallocation can’t help.  I don’t want to say that markets are useless; I just don’t think they can do enough quickly enough and because I think it’s important to protect the environment to some extent, I really think they won’t do that.”

So changes in water rights doctrine that are rapid enough and go far enough will require, I think, three things:

One is, a US Supreme Court that interprets takings doctrine in a way that leaves some room for adjustment.  Perhaps the fact that the court didn’t take cert in Baily and the fact that the federal circuit, which in the past has been seen as very friendly to individual property rights, made the decision that it did, maybe that means that the federal courts, there’s at least some hope that they will leave enough room for adjustment at the state level.

“Then we also need the state to want to make adjustments and to do so, and that requires leadership at the state level.  The Light case and the Stanford Vina case, those don’t happen unless the State Water Board is more aggressive at doing reallocation than it has historically been, and that means it needs courageous leadership which is had at that time, and we’ll see if it continues to have that in the future.”

“And then the third thing it needs which makes the leadership easier is a crisis sufficient to focus public attention on the shortcomings of current doctrine.  That’s maybe one silver lining in the big cloud that is that a severe drought is a crisis that definitely focuses public attention, and I think the next severe drought in California is highly likely to move water, at least from low value ag use to municipal use.”

“I think it’s an open question, the extent to which it will result in moving water to the environment or it will result in holding water for environmental uses.”

Questions and answers

Critical habitat designation

What about critical habitat designation? 

Professor Doremus:  “I can say a couple of things about critical habitat designation.  It doesn’t by itself restrict anybody’s rights, so it’s not a taking to impose a critical habitat designation if that’s the question.  The only thing it does is it imposes some duties on the federal government in consultation.  It’s wide perceived as heavily restricting private property rights, but it only does that to the extent that the private property owner needs a federal permit to do development and at that point, it would be subject to the takings doctrine test.”

It’s worth noting that empirical evidence demonstrates that critical habitat designation can reduce property value.

Sure, that’s because landowners think they restrict use, although there is very little empirical evidence that shows that they do that.  In fact, Dave Owen over at Hastings has done an empirical study of critical habitat and how it plays out in consultation, and essentially critical habitat alone never drives a finding that something that can’t happen under the Endangered Species Act.

Pubic trust doctrine

Had the public trust doctrine existed before the Mono Lake case or was it discovered in that case?

It existed before.  The story that’s told in the courts about the public trust doctrine is that it has always existed, but it was announced in California beginning in the 1970s and it was announced as a restriction on what people could do with their land.  In the Mono Lake case, the court says it applies to water rights.  That’s what is new there.”

Is the public trust doctrine well described or is it determined on a case by case basis?

It’s not well described.  In fact, the way it’s described is that there has to be some level of protection for these public trust resources, which include among others, access to waterways.  The one that comes out in Mono Lake is it includes protection of aquatic ecosystems, but the level of protection that has to be imposed is not well described.  In Mono Lake, the court is careful to say, only to the extent feasible.  It’s not an absolute requirement, so it ends up as something that has to be worked out in every individual case.”

In California, is the State Water Resources Control Board the sole and ultimate authority to define public trust and what is reasonable in terms of water rights?

No.  I would say the courts also have a role to play.  I think the Light case, the Stanford Vina case, those suggest that the Board has a clear role in defining reasonable use.  The legislature surely has a role in defining reasonable use as well, and the courts would be the ultimate check on either whether use was being made that was unreasonable or whether a redefinition of reasonable use had gone too far.  I think the same thing is true of the public trust.  In the Mono Lake case, the court refuses to say exactly what the public trust requires there and refers it back to the board, making it clear that the Board does have a role.  I think again, the legislature would have a role and the courts would have a role.”

Since courts tend to follow precedent, do you think that legal cases maybe the most efficient way to change water rights doctrine, or at least the implementation of it?  Consider what happened in Nevada.  The California court ruling gives hope of the public trust doctrine but the new ruling that came out in Nevada is exactly opposite to that, so two neighboring states ended up interpreting the same thing very differently.

It’s a good question what’s the most efficient way to do this.  Some courts are very conservative and change their doctrine very slowly.  Other courts are less conservative, and this changes over time too.  It depends who the judges are, how rapidly they are willing to change.  They always do have to change any departure from the past, that’s what precedent requires.”

My own view is that courts are unlikely to do this on their own, in large part because water has become such an administrative doctrine that the law of water is these days in the west the law of legislation and regulation and the courts, I don’t think they are going to step in if the water board or similar administrative agency and say this is what the Water Board should have done.  What they are going to say is, ‘we don’t want to touch that with a ten foot pole.  Like in Mono Lake, we might tell you what the doctrine is, but we’re going to send implementation of it to the administrative agency,’ so I think legislators and bureaucrats are where change is going to have to come from.”

Takings issues

What are the legal grounds that allow SGMA to restrict use without compensation?

We’ll see.  I think that’s a good question that remains to be played out.  Maybe it is unreasonable to use groundwater; groundwater too can only be used reasonably, so maybe it’s unreasonable to use it in a way that a groundwater management plan says you can’t.  Would that mean you don’t get compensation?  Maybe, maybe not.  We’d have to go through the takings test to see that.

You have praised the reason why we have the State Water Resources Control Board, but to users, their decisions were in fact takings, regardless of the view of the court.  Objectively, they are correct.  Isn’t the Board guilty of a kind of bullying by taking without compensation?

Let me say two things about that.  Absolutely, there are different views about what is the highest and best use of water.  For sure, mine tends to include fish.  But other people disagree.  And property owners always think that any change to what they are allowed to do is a taking.  They lost something.  Absolutely.  But the takings question for the courts is whether they have lost something for which they are entitled to be paid.  Objectively, that’s a question of law and what the courts determine is the answer, so yes, people have lost something, but whether they are entitled to be paid depends on how the courts construe the takings doctrine.”

I freely admit, I want to see the courts taking doctrine fairly narrowly because that serves my values.  Water users want to see takings doctrine broadly because that serves theirs.  And is the Board guilty of bullying?  Well, the Board is guilty of changing its view over time of what’s most important in implementing water rights, and whether that’s bullying or not depends on where you stand, I think.”

Use it or lose it

I often hear that farmers are concerned but if they don’t use water that they are allocated, that they will lose the right to it in subsequent years.  Are there actual legal grounds for this concern?  If not, have there been grounds for this in the past.  Where does this concern come from?

There are grounds for concern about this.  Because water rights are only use rights, if you don’t use your water, you can lose the rights.  The idea has always been with appropriative rights that they are not supposed to support speculation, so I can’t just lap up water that I don’t need in the hope that it will become more and more valuable.  So there is a doctrine that is ‘use it or lose it.’  I think this is a place where it is perceived as being stronger than it has been, but it is out there.  And it is possible to do a short-term transaction to sell your rights for one year or another year, and that would be enough to be sure they were being used.”

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