Beauty, just add water, if you can.
*I spent near a decade practicing water law in the American West. Though there are people with more experience, I have enough to share the basics. I was encouraged in several comments a while ago to diary this, and I believe we’ve had as much Trump-centered madness as I can handle.
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It is stunning to believe, actually. I am not sure which part is more head-spinning, the fact that water law in the west is designed to maximize the risk of desertification, or the fact that the system used traces its roots back to the time of shovels, sleuths, boom or bust near 200 years ago. Fitting, now that I actually think about it.
You are aiming to understand water law in the West?
Alright, take a walk with me right into our virtual time machine. We are going to San Francisco, circa 1849, but only to get our supplies and head off, to the hills. There’s gold in them there hills, and we aim to strike it rich. We better, we need the money, we’re not water lawyers after all, we have to invent water law first.
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You picked the perfect stream, lots of rock, lots of fall, and lots of water and no one there. It is May, 1849, and you build your sluice next to an unnamed stream, aiming to divert as much water and pebble as your back can muster. You have your sluice build, nice. Things are working well. You are efficient enough and your sluice is “modern” enough that you’re using half the stream, what we will call 1 cubic feet per second (a lot of water), for simplicity.
Indeed, you have discovered some gold. Not enough to quit yet, you aren’t “rich,” but you’re definitely on the right track. You, have established the use of your water. You do not own the land under your feet, but you do have a mining claim and a right to divert that water from that stream.
It gets to July. You have built up enough of a gold that you go back to town. Time to get some better equipment, better food, definitely a bigger shovel and some nice boots. Someone in town notices that you appear to be doing a little better than most, and that someone knows exactly what you do, and where you do it.
That person, whom we will call “Individual One” or “I-1, for simplicity, aims to “share in the wealth” a bit, and goes further up-stream to build his own sluice. You don’t mind, that guy isn’t near as good as you, he is only using about 30% of the stream, or about .6 “cubic feet per second” and he’s stirring it up about, sending even more gold down to you than when you came along. You still have more than enough water to get through your sluice, so much so that you still send 20% of the stream, about .4 “CFS” downstream. Nice.
Both of you are making money.
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August 1st, some dickhead we will call Individual 2, or I-2, goes a half mile downstream from you, and uses that last .4 CFS, but no one cares. He is downstream, he’s a moron, that water has been through 2 sluices. You and Individual 1 pay him no mind.
September 1st.
The water has been dropping, a lot. So much so that Individual 2 doesn’t have near enough for his sluice. You suspect he’s going to give up when he has no water at all. He is downstream, and he figures that he would have to talk you and another guy into limiting your amount, indeed he even mentions something about “sharing” but you and I-1 laugh at him, sharing is for little girls. You are a greedy chauvinist pig — you’re a miner, it is your job — and I-1 is the biggest asshole you have ever met. Somewhat insane, too. There will be no sharing.
Individual 2 huffs off, he isn’t taking you I-1 on.
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September 15th, water is really dropping now, and will be slow until April, you know it, Individual 1 knows it.
You do not have the original amount going through your sluice. You are down from 1.0 cfs to .7 CFS, while I-1 is still getting his full .6 cfs, because he is higher up stream. At first, you think that it would seem unfair to go tell him to deliver half his water to you, (.3 cfs) to get your full amount, because that would put Individual one down 50% from his full right. You think it over, stakes are high, people get killed making the wrong call on gold.
You decide you won’t do anything until the snow flies in a month or two, when you have to come down anyway, You are going to talk to the judge, and at least get a ruling on who owns what, that way I-1 will have to deal with the sheriff if you get a court ruling.
You wait.
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December 15th, you summon I-1 into court in a friendly manner, just to get the judge to help sort out how who owns what. It is public land, the judge won’t care at all who owns the land. Land doesn’t matter anyway, you want the water.
You think over your arguments for the judge. You definitely want your full right, the full 1 cfs if it is in the stream at all, you want it all. But that still sounds greedy and I-1 is going to say something about how you should both go down to 80% to minimize harm to both, or use it most efficiently. That sounds fair, sooo, how can one make it … You figure it out!
Your honor, I deserve the full 1 cfs for two reasons. I was there first, and I-1 saw how much I was using he had “notice” of what I was doing. He determined he could still use some upstream without harming me. He came second, after analyzing the situation. I let him use it because I had enough anyway. And when I was being dried up, I determined to come to you.
If you do not give me my full share, based on being there first, all water rights are going to be nothing but a race to the top of the stream! There must be a system whereby the race upstream does no good. The only way to do that is to declare that “first in time, is first in right” and that there will be NO sharing. If I even have to share a little, it will still be a race upstream.
The judge sees your logic.
I-1 argues that you have given up your right to that .3 cfs you let him have as the stream went down, because you didn’t call him out up on the mountain in September, you didn’t tell him you were going to make this argument! If that is how you felt, you needed to say it immediately.
“That’s ridiculous, you say. This is like a “real property right” and the law doesn’t allow people to forfeit real property rights unless they abandon the right for at least five years!
The judge agrees. “Damn right, where do I sign, this is your water right to 1 cfs so long as it is in the stream, you get the whole, you were there first, and you did not forfeit it by coming to me this year. This is akin to a real property right, because the water is more valuable than the land!
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Congratulations, not only are you a great miner, not only did you preserve your water right, but you showed some real thinking on your feet, enough so that you just became the world’s first water lawyer. You just invented every basic tenet of water law in the west.
1. A water right is established by diverting the water from the stream on a certain date.
2. Your right equates to the maximum amount you established on that date. If you get a much bigger sluice next year and divert 2.0 cfs, you may only get it in spring, bc the extra 1 cfs will be junior to I-1’s right, but the original 1 cfs is still senior.
3. The right to the water has NOTHING to do with land ownership, it is the West! No one owns the land out here! It is all federal land. Without water, the land sucks anyway! It is like a mining claim! Mining claims don’t require ownership!
4. You get your full amount so long as there is 1 cfs flowing, no sharing, though like any right I-1 can “buy” some sharing, but you’ll deal with that later. If he wants some, he’s gotta pay you.
5. It was good that I-1 knew you were there. So good that the judge makes you “post” your claim to that water, just to make sure everyone has notice before they set-up shop.
6. You did not give up your right by allowing I-1 to use it for a few months. If you let him use it 5 years, they judge would say you “forfeited” that right because you “abandoned it” for five years. He likes the idea of making it akin to a property right.
7. Water rights just became “real property rights.” It is NOT a license. The state cannot “manage” your right and give you “permission” to use water any more than the state gives you permission to stay in your house or farm. It must go through formal condemnation to get you. It is NOT a license.
8. You just completely fcked the West — though it will take a good 125 years to really feel it, because you made the most important tenet of water law “diverting water out of the stream” “for a specified use” and no sharing, it is NOT a license the state can yank for the benefit of all. You did, however, make water lawyers very very wealthy, if they are good.
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Do you see the 10,348 problems (at last count) with the above system?
Oh, you don’t even know the complications, yet:
- What if you own 1849 water rights to a spring, fed by a gigantic 200 mile wide aquifer. One-hundred years later, farmer are digging down into the aquifer and pumping that water out, indeed it is so great that 200,000 people pump water out of the aquifer, enough such that in 2000, your spring starts dropping. The only thing that gets your spring water right up is to shut down the people near your spring, make them stop pumping. But, they have water rights to an aquifer, like a lake, with 200,000 users, all with different dates. The people near you they just call out the younger ones, none of which help you bc they are too far away for your spring. That’s a problem.
- A Tribe has a reservation along a river, and the reservation was meant to allow the Tribe to fish as they have for hundreds of years. They believe they have a water right, on the date of the reservation, to the water IN STREAM. That’s a problem, because people have older water rights to take it out.
The Endangered Species Act doesn’t give a shit about your water right, it is meant to protect the salmon, and SOME water has to be in the river to protect the salmon. But this is not a license! This is real property, if the government wants to take your water — for any purpose — it has to buy it! But that’s ridiculous because it would cost millions of millions to buy up all the rights needed. But the Endangered Species Act says the government MUST preserve the species ...
These are just a tiny tiny few of the problems inherent in such a system.
You see what I mean.
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It gets far more complicated. Most of these laws are embedded into the constitutions of each Western state (as opposed to the east, where there is enough water that owning the land plays a big role). But even though the “first in time, first in right” is incorporated into the constitutions, most of the states have a complicated regulatory system built on top of constitutional claims, and anyone wanting to establish a “new” water right must get a permit — though old water rights are still respected.
There are canal districts, irrigation districts, municipalities, so many complications that one would have to have a textbook, longer than this diary/textbook to really set it all out, indeed there ARE textbooks. If it were simple, water lawyers wouldn’t be so well-paid.
But you see the point. We are dealing with rights upon which mortgages are secured, worth millions of dollars, it is NOT as easy as saying “take it” bc we need water for environmental reasons. The bank needs to ensure its loans are properly secured. If you win in “just taking it” you have fkt the economy of your state for decades. Which doesn’t do your environmental issue any good at all.
But the real bad thing is that the system was set up to maximize PRIVATE use, with nothing to do with land ownership. It makes it hellish to manage with environmental and municipal concerns. It is NOT set up to maximize the “best uses,” only the Oldest uses.
I haven’t even referenced when one state sues another state bc its senior water holders are getting screwed by your shitty state.
Phew.
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Alright, y’all. I am as tired as you. But I hope that helps you to see why the West faces true challenges, beyond just being an arid desert without enough water to begin with.
If you want to follow my writing more closely, I am at Politizoom, with Ursa, Murf, me, several others you’d know. Come on over, we’re a supplement, not a replacement to Dkos.
Peace, y’all
My novels, bc I can’t write enough.
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