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Tuesday, October 27, 2015

Hopeful Thoughts on the Drought

One of my pet peeves (and I am way too sensitive about this) sometimes happens when people ask me, "What kind of law do you teach/study?". When I respond, "Water Law," people will sometimes say something like, "That seems very narrow." Narrow?! Water?!

But that has really started to change as the drought in California has raised general public awareness of the scope and importance of water issues and the role of the law in water management. So I guess that's one silver lining in this whole "devastating drought" thing. There are other silver linings, though. I was talking to a friend who writes on police misconduct. She said, "I feel like your field is even more depressing than mine right now." The drought is awful. It is just as much a man-made disaster as a natural one, as it reflects a failure to plan and adapt. Still, I think there is a little too much gloom and doom on the drought. There are reasons to be hopeful.

A reduction of only 9% in agricultural water consumption in the Central and Imperial valleys would double the amount of water available for domestic and industrial uses in those regions. Improved irrigation efficiency will help farmers achieve those kinds of water savings. But legal reforms are necessary to create the right incentives for conservation. Right now, improved agricultural efficiency could mean farmers risk forfeiting rights to unused water. One possible approach is to establish a state water trust, similar to what the state of Washington uses to maintain stream flows for salmon fisheries. Farmers that conserve water could place that water in trust with the state for in-stream uses, and while in trust, the water would be shielded from forfeiture.  New techniques and technologies, like root demand irrigation, make these kinds of water savings possible.

Speaking of technology, other reasons to hope are the advances made in water augmentation. In the early 1980s, desalination plants required about 35 kilowatts to produce a single cubic meter of fresh water from the ocean. This made desalination sensible only for extremely energy-rich, and extremely water-poor nations. Now,a state-of-the-art desalination plant can produce a single cubic meter of water with as little as 2.5 kilowatts. There are still significant economic and environmental costs associated with desalination, but it has come a long way. The future could include using the brine waste stream as the medium for growing algae to use a biofuel - effectively turning desalination's waste into a renewable fuel. The desalination plant in Carlsbad that will be completed soon is planned to produce freshwater at 3.5 kilowatts per cubic meter. The cost per acre foot of Carlsbad's desalination water will be cheaper to San Diego water users that water imported into the city from the Colorado River.

Which takes me to my most Pollyanna-ish hope. Maybe the drought is increasing the political will to address how we share rivers between states, tribes, and countries. The entire law of the Colorado River is based on false assumptions about how much water the river holds. Currently, 7.5 million acre-feet is allocated to the upper basin, 7.5 to the lower basin, 1.5 to Mexico, and we lose another 1.5 million acre-feet annually to evaporation. That's 18 million acre-feet. But we know from recent research that the 1,000 year average amount of water in the river is closer to 13 million acre-feet. We have to change the way we share the river to correspond with reality, and have a system that adapts to changes in the river basin. In my article - Interstitial Federalism - I discuss why states struggle to share transboundary rivers and how to develop a more cooperative system. The biggest obstacle to my proposed approach is that it would require a significant change in the political climate. Well, the changing physical climate might be changing the political climate enough to consider meaningful reforms.

Posted by Rhett Larson on October 27, 2015 at 01:28 PM | Permalink


I went to law school many years ago, at an east coast school, and one of our pals was from Nevada. He took every course he could in water and gaming law and then convinced professors to sponsor advanced self-studies in those courses. We ribbed him constantly but he kept insisting that water law was the law of the future. I recall him saying that "In Nevada, we take gaming and water seriously." Paraphrasing his comments, "Water law is property law, is economic development law, is real estate law." We were wrong, he was right. Bet long on water law.

Posted by: anon | Oct 27, 2015 11:26:39 PM

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