Headwaters News Forum: Water in the West
Topic - Who decides what's fair?

editor
Posted: Thu May 16, 2002 8:33 am

What place does equity or justice have in this discussion?

Gens
Posted: Thu May 16, 2002 7:17 pm

It stikes me that it would be misguided to depend on the justice system for equity on these issues. The justice system can see that laws are enforced, but if the laws don't address issues of equity, then it will still be missing from the solutions the courts create. It's going to be up to pepole, ordinary citizens, to get involved in the processes that can lead to any change to water law or water use!

Lynn Tominaga
Location: Idaho
Posted: Thu May 16, 2002 7:31 pm   Subject: Public involvement

There isn't equity in the system just because those who would like to use the water for the "public interest" want a free ride and are not willing to invested money or time in gaining the water from the present uses. The present beneficial uses have invested money and laws to protect those uses. The equity in the system can only be achieved through proper conpensation of those instrastructure uses and the election of public officials that look for a balance of multiply uses of the water and not just one main use whether it be irrigation, in-stream flow, or other uses.

Gens
Posted: Thu May 16, 2002 7:37 pm

Lynn, In states besides Idaho it seems easier for those that want to buy water rights from existing rights holders in order to keep water in the streams or rivers. Wouldn't it be in the interest of existing rights holders to work for changes in Idaho law to make it easier for people or groups who want to buy water rights for this purpose to do so?

Greg Lakes, editor of Headwaters News
Posted: Thu May 16, 2002 7:44 pm   Subject: What happens if ...

The most chilling scenario is an economic one. As more people move into the West, more residents demand water for their homes and lawns, and more subdivisions replace irrigated farmland, at some point the value of a farmer's water will become greater than the value of his crop.

Aurora and other Colorado cities are already shopping for more water to supply their municpal demands. There's an auction pending of a Front Range ranch's ground water rights, and the potential buyers include regional municipalities and cities as far away as Vegas and San Diego.

What happens when the value of Western water becomes great enough to attract the attention of corporations big enough to manipulate markets? Was the California energy fiasco a model? Will westerners eventually be forced to pay an Enron whatever price the market will bear?

Wendy Wilson
Posted: Thu May 16, 2002 7:48 pm   Subject: public involvement

Lynn, you handsome devil, are you saying that if the fish raise the money, you have some farmers that would be glad to sell out??? One of the big problems we have is that the Idaho Water Bank rules give other farmers preferential treatment over fish, and the rates for agencies trying to rent water for fish are higher and "last to fill". As for buying it (not just renting) the farmer may be a willing seller, but the next guy down the line can just suck it up anyway. Why should "public interest" buyers (those that are seeking water for the fish) play by these rules when they are stacked against them?

David Getches
Posted: Thu May 16, 2002 7:52 pm   Subject: Justic and the Public Interest in Water

Justice and equity should be fundamental to water law. Water starts out as a public resource. That's what most of our western constitutions and laws say. The notion that the public has a stake in what happens to water goes back to Roman times and is part of all cultures.

Our law lets private individuals and businesses get "water rights." The original idea was that if they invested money developing the water it would make society better off. But does the fact that someone has a water right let them disregard the public's interest in water and pollute it, dry up streams so that fish die, boats can't pass, and so on?

No right is absolute. We have zoning laws that determine what we can do with land, securities laws that limit how stock is traded and held, and the car we own can only be used in ways the law allows. All these laws are to accommodate property rights to protect the public interest, and promote equity. Why should water be any different?

Lynn Tominaga
Location: Idaho
Posted: Thu May 16, 2002 7:54 pm   Subject: Equity

Gens,

Idaho water law has flexibility because we have state and local water banks which can be used if there is a willing buyer and willing leasee. This water could be released for in-stream flow if buyers could be found and would be there on a consistant basis. There presently is no such group in existance. Usually the competition for water uses occurs when there are shortages. When this competitiion takes place other beneficial uses want or need that water use for continued economic survival.

Guest
Posted: Thu May 16, 2002 8:05 pm   Subject: Re: Justic and the Public Interest in Water

[quote="David Getches"] No right is absolute. We have zoning laws that determine what we can do with land, securities laws that limit how stock is traded and held, and the car we own can only be used in ways the law allows. All these laws are to accommodate property rights to protect the public interest, and promote equity. Why should water be any different? [/quote]

I wonder, if these equivalents to zoning laws, as applied to water...if they haven't been inexistance, are going to generate a cry of "uncompensated takings!" if put into law or regulation...to the extent they may diminish the value of an existing water right.

Any thoughts on that? How to avoid this potential "inequity?"

Lynn Tominaga
Location: Idaho
Posted: Thu May 16, 2002 8:12 pm   Subject: Public policy

Wendy,

If the fish have the money, farmers don't care where the money comes from. Ha! Ha! In most Western states, the stream beds and lake beds are owned by the state and a water right is given by a state because it is recognized as a benefit to the state both economically and socially. This right then becomes a private property right that can be transfered or changed in the nature of use of the water.

Jeff Fassett
Posted: Thu May 16, 2002 8:25 pm

As mentioned tonight in the Wyoming piece, a legislator introducted a bill, that did not pass this session, that woud broaden the ability for water right appropriators to temporarily sell, lease or donate there water right to an instream flow benefcial use. This is a controversaial idea, but worth further merit in my view. Instream flow water rights can only be held by the State, and often water users desire to evaluate new uses for their private property rights in another economic endeavor, but under these legal circumstances they would first have to deed over their water right to the State. That has acted as an impediment to getting some water back in a stream.

It is interesting that in many states in the west, the state laws provide the ability to change the use of a water right from irrigation to municipal or industrial use, but prohibits that same private owner to change the use to instream flow. I have heard some private property advocates protest this type of restriction on "their rights".

Wendy Wilson
Posted: Thu May 16, 2002 8:34 pm   Subject: Re: Justic and the Public Interest in Water

[quote="Guest"]I wonder, if these equivalents to zoning laws, as applied to water...if they haven't been inexistance, are going to generate a cry of "uncompensated takings!" if put into law or regulation...to the extent they may diminish the value of an existing water right.

Any thoughts on that? How to avoid this potential "inequity?"[/quote]

The answer is called the Doctrine of public trust -- and every state should state clearly what the public's interest in water is so that water users know what their limits are and therefore know what the value of their right really is. Does a water user have the right to divert the entire river in a drought year without consideration to downstream public needs? In Idaho the legislature has said, YES!! The courts may chose to disagree over time, but for this year the Snake River will be turned off completely at Milner Dam by a combination of irrigation and hydropower water rights. We will again see one of the biggest rivers in the nation turned off, stagnant, and dead because of human greed.

David Getches
Location: Boulder, Colorado
Posted: Thu May 16, 2002 8:48 pm   Subject: About "takings"

Although in the last few years many people have screamed about takings every time their property rights (land and water alike) were less valuable because of governmental regulation, the Supreme Court has not found this to be a violation of law unless there is no economic use left for the property. To get maximum value from my land (say, my house) I could turn it into a gas station or maybe a toxic dump. And to get the most value out of the stream that runs through my mountain land I might use it to carry away mine waste. If the government passes a law to stop these uses, and deprives me of the value of my property, there is no "taking."

Bill Loftus
Location: Moscow, Idaho
Posted: Thu May 16, 2002 8:52 pm   Subject: Justice

A key element in justice and equity is the confidence of people that the outcome will be fair. That confidence is the underpinning of whether any law, or interpretation of it, will stand. In the case of water, the law has already shifted substantially because of court interpretations of federal and tribal rights.

The financial changes that Greg noted early on are a visible sign that public attitudes and needs are shifting. Either the legislative or the judicial branches will respond to those changes. The only way to achieve public confidence is to make sure no individual is treated with such gross unfairness that a rebellion ensues. The other test is whether the law meets the needs of the public, defined as the majority or the group with the most political pull.

Look at Oregon´s Klamath Lake controversy. Look at the allocation of water from Dworshak Reservoir in northern Idaho for fish. Both issues generated a lot of controversy and tests of public will. Both controversies continue but traditional uses have been forced to yield, at least temporarily, in both cases.

David Getches
Location: Boulder, Colorado
Posted: Wed May 22, 2002 11:08 am   Subject: More on justice

"Justice" in water allocation requires that people be treated fairly relative to their interest in the resource. We know what that means in the case of water rights holders: they have property rights that must be respected and they must be compensated if rights are confiscated for a public purpose. But we haven't figured out what it means to "do justice" for the public -- the vast majority of people -- who "own" the unappropriated waters according to the laws and constitutions of most states, and who expect that some broad public interests in water will be protected, even when private water rights are exercised.

There is no such "public right" or "public trust" in land, yet we do have regulations on land that protect the public. Property owners have to put up with some limitations for the sake of the public general interest in things like consumer protection, environmental quality, and a community's quality of life. It seems harder for some people to accept the fact that water rights should be similarly regulated for the public benefit. Why is this?

Wendy Wilson
Location: Boise
Posted: Wed May 22, 2002 7:05 pm   Subject: What's different about water?

We don't really do much land use zoning in the old West, either. Especially not at the state level. And the willingness to accept land and water use regulation seems to be an old West versus new West thing...I hardly ever meet a "new West" person who understands why minimum stream flow water rights aren't enforceable to protect public values in a drought year.

Shutting off the Snake River at Milner Dam is a reasonable example of where the system defies logic. The 200 cfs minimum flow at Milner Dam is not recognized under state law, just by the Federal Energy REgulatory Commission. It won't be enforced even when the water is available on a willing buyer basis and Idaho Power is theoretically required to buy it. Of course that is only until some public interest group wins enforcement in federal court.

Farmers and ranchers are worried, because they are so vulnerable to change. But the system is such a House of Cards that it actually makes them more vulnerable to wholesale collapse if and when some federal law eventually intervenes to protect public interests. The state's vigilance to assure that no federal agency overrules an illogical system costs hundreds of thousands of dollars a year and keeps many U.S. Senators very busy. Wouldn't it be less risky to get the state into the business of solving these problems on a willing buyer willing seller basis rather than spending all of it's resources opposing all federal intervention?

Bill Loftus
Location: Moscow, Idaho
Posted: Mon May 27, 2002 11:18 pm

Who will decide what´s fair water policy in the future? A United Nations report released last week suggests the Middle East may remain a model of where we don´t want to be politically, and water policy wise. The report predicted that during the next generation the Mideast will encounter severe water shortages. Those shortages will be particularly acute in Syria, Iraq and on the Arabian Peninsula. More than 90 percent of the residents of those countries will be in severe water stress by 2032. The suggestion that water is already an integral part of the Israeli-Palestinian conflict has been floating around for years. A region already filled with peoples desperate for a fair shake politically won´t become any more stable if their countries have to escalate their efforts to secure diminishing water supplies.

In The New York Times piece about the new UN report, the writer notes the report is ununusal in one respect: it paints a bleak picture then offers no path toward a good results.

It´s doubtful that states contesting water policies could ever slide into a morass as deep as the Middle East, but disputes in a democracy can still set back efforts to find solutions.

Wendy Wilson
Location: Boise
Posted: Tue May 28, 2002 1:17 pm   Subject: Who decides?

Certainly looking at water issues in the Middle East is discouraging, but we have so many competing interests in play on the Snake River it is probably instructive.

Seems like all we've learned in the West (besides first in time) is to make a cast system for water users...DCMI trumps Ag, Ag trumps Power, Power trumps fish.

All of the "fish water" that Idaho Power is being paid to move for salmon is now being shaped for hydro at Brownlee Dam. So energy needs dictate how the river is run for fish.