In the West, the water flows toward money

Felice Pace

Writer of Diatribes

February 11, 2008  

As fear grows that the great Western Drought will continue, western farmers are increasingly looking to fallow their fields and sell water for use in cities. While this would seem to conflict with the thrust of western water law (i.e. that the use right is tied to the land), the trend will continue because (as they say) in the West water flows toward money.

In the Klamath River Basin where I live, irrigators are not selling water to cities and towns, but they are selling water to meet the instream needs of fish.

For example, in the Scott River Valley , a water trust controlled by agricultural interests, is using California state funds intended for water planning and salmon restoration to lease water to the local Resource Conservation District (RCD), so that the water can be left instream for fish. Some of the irrigators can then turn on pumps - many of which were paid for with federal conservation dollars - and continue to irrigate with water that is interconnected to surface flow. Or that water may be pumped out by a different irrigator farther downstream who is also pumping interconnected groundwater.

It is a neat trick: get paid for leaving surface water instream, and then take the water back out with a government-financed well. This can happen in California because groundwater pumping is essentially unregulated: Counties can regulate groundwater but few have shown an inclination to do so.

The sad thing is that this leasing of water for Public Trust purposes is happening with the knowledge and approval of the California Department of Fish & Game and is supported by local “environmental” groups like the Audubon Society.

And in the Tulelake/Lost River Area of the Klamath River Basin, irrigation interests are unsustainably mining groundwater and selling it to the Bureau of Reclamation so that  agency can supply Klamath River water for irrigation water deliveries and still meet requirements for threatened Coho salmon and endangered sucker species in Upper Klamath Lake (the USGS has reported on the unsustainability of the BOR’s Klamath Water Bank).

Those irrigators who get water via the Bureau of Reclamation’s Klamath project want to lock in this boondoggle through the proposed Klamath Restoration Agreement, which Hoopa tribal Chairman Lyle Marshal has called “an old West irrigation deal, guarantees for irrigators, empty promises for the Indians.”

In these cases it appears that federal and state agencies are using, or want to use, taxpayer money to pay to get water that by Public Trust right belongs in the stream anyway. This could result in “death by a thousand cuts” to the Public Trust Doctrine and the famous Mono Lake Decision - both are undermined when water is purchased for Public Trust uses. Yet I can’t see that anyone is questioning whether this is good policy or even legal. If there isn’t a law against it there definitely should be one!

Leasing water on an annual or multi-year basis for Public Trust and other environmental uses would appear to be one strategy western agriculture is pursuing as a hedge against the coming demise of crop subsidies. The smart money in agriculture sees the end of crop subsidies because the big banks want access to global financial markets and countries like Brazil won’t give that access unless U.S. crop subsidies end.

The other way western agriculture will cope with the loss of crop subsidies is by substituting conservation payments. But that subject is for a future post.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted
material  herein is distributed without profit or payment to those who have
expressed  a  prior interest in receiving this information for non-profit
research and  educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

Source:  http://blog.hcn.org/goat/2008/02/11/547/