Back to Summer 2009 Newsletter
Adam P. Schempp contributed this Guest View. Mr. Schempp is the Director of the Western Water Program at the Environmental Law Institute, Washington, D.C.
As populations in the West continue to increase, regional, national, and global demand for the region’s resources, including water and products that rely on it, is also growing. With more people come greater water needs for drinking, bathing, laundry, private lawns, and public parks. People also demand groceries, energy, processed materials, services, and recreation, most of which require water inputs. In addition, the ecosystem services provided by a healthy riparian environment, including water quality, flood protection, and water storage, depend upon sufficient instream flows. But increasing water demands are not the only challenge. Greater uncertainty in water supply means an ever changing baseline for meeting those demands.
This challenge will not be met by a single solution. A number of factors contribute to the state of water management, including the frequency of measurements, the enforcement of the prohibitionagainst waste, the price of water and electricity, the availability of labor, and the lifestyle decisions of the public, to name a few. The laws governing water usage are an important consideration within this matrix. In that realm, water districts, the federal government, and interbasin and interstate transfer agreements impose legal constraints on water management, but the prior appropriation system may be the most important of these legal influences when analyzing how Arizona and other Western states could and should adapt to changing demand and supply.
The prior appropriation system has withstood extreme hydrologic events and changing pressures throughout its history, and there is nothing to preclude state water laws founded on this system from overcoming the next set of challenges. But instead of simply surviving difficult times through deep rooted entrenchment in practice and law, prior appropriation has the potential to prepare the West for what is to come and soften the impact of what could be significant crises.
A small but important first step is reducing the active disincentives against using less water and supporting future supplies. By adding to the definition of “beneficial use” or exempting more activities from forfeiture and abandonment, one cost of those actions — loss of the water right — is removed. The lack of enforcement of forfeiture and abandonment in some instances is beginning to achieve this end, but actually amending the law provides assurance to water right holders that they will not lose their right. It also allows the state to select activities for exemption that it views as beneficial for the purposes of sustainable water management. One example of this approach in Arizona is the exemption of water exchange arrangements, as provided under Section 45 141(E) of the Arizona Revised Statutes.
A second step is allowing the use of conserved water for Prior Appropriation Could be Modified to Meet Future Challengespurposes beyond what is permitted in the water right. Removing concern over losing a portion of the right for not using it only goes as far as allowing other costs, such as labor and energy, to have a larger influence on the amount of water that is diverted and used. By allowing a water right holder to use conserved water for another purpose, in another place, or to transfer it to another user even temporarily, improved efficiency can increase earnings as well as reduce costs. This financial incentive can make a greater number of efficiency projects viable and give sufficient reason for right holders to alter the status quo. The opportunity carries with it a threat of enlarging water rights, if the evaporative and seepage losses and/or consumptive use are not actually reduced, hence the common reluctance of state law based on prior appropriation to sanction this practice. But even if review procedures do not catch these mistakes, litigation can rectify impairments of other water rights. To date, California, Oregon, Washington, Montana, and New Mexico have had the most success, or at least have passed laws with the greatest potential for success, with flexibility in the usage of conserved water.
A third, and perhaps most important, step is accelerating the transfer process. State law based on prior appropriation often results in a long transfer process. Amendments to a water right must be approved in order to assure that they will not impair other water rights. The science required for determining consumptive use and whether a change will affect other right holders can be time intensive and expensive. There also may be a long line of other applicants, delaying the process further. High transfer costs make brief transactions financially infeasible and a long review may not conclude in time to meet the need. Therefore, an accelerated transfer process particularly benefits short-term water transfers. Responsive short term transfers can lead to timely adaptations to changing supply and demand, which in turn results in good use of water in both wet and dry years. Quick transfer review procedures reduce costs and the time lag between identifying a demand and filling it. Reducing third party impacts reduces opposition to a transfer, whether exercised through political pressure, administrative review procedures, or litigation, and accelerates the transfer process. Greater flexibility in permitted activity under a water right and the sanctioning of contingency transfer agreements essentially offers pre-approval of water transfers, hence very rapid transaction times when the demand arises. Examples from around the West are demonstrating the practical feasibility of these approaches.
The prior appropriation system as it has been manifested in state law, including that of Arizona, is far from perfect. But states have demonstrated, particularly in recent years, that amendments can be made to allow for and even promote adaptation in ways that are socially and economically acceptable. The key going forward is to learn from each other and build on that knowledge.