DEVELOPMENT OF FEDERAL RESERVE RIGHTS1

ABSTRACT: The concept that has been termed “Indian Rights to Water” is one manifestation of the area of federal reserved rights that is a major concern of states in arid regions. The federal reserved rights are those that are reserved in fact or by implication in federal actions, acts, reservations, and treaties. Federal actions include such things as navigation improvement and flood control projects. The Federal Court System, since the Civil War has been promulgating, developing, and protecting federal reserved water rights. The development of those rights can be traced from early cases through the landmark cases such as U.S. v. Rio Grande and Irrigation Co. (1899); Winters v. U.S. (1908) with the origin of the Winters' Doctrine of Indian Rights; Federal Power Commission v. Oregon, commonly called the Pelton Dam Case (1955); Arizona v. California (1963); U.S. v. District Court for Eagle County (1971); to existing suits on surface water sources such as that on appeal in regard to reserved federal water rights on the Truckee River. It can be shown that the federal position has been consistent through all the years in that the federal rights have been protected, expanded, developed, and preserved in a more or less predictable manner.     

THE IMPORTANCE OF PERCEPTIONS IN THE DETERMINATION OF INDIAN WATER RIGHTS1

ABSTRACT The American Indian occupies a unique place in the federal system of government There are indications that this relationship will continue and that Indian reservations are at the threshold of economic development. As this occurs, the nature and extent of Indian water rights becomes more important to Indian and non-Indian alike. The determination of these rights is a matter of more than judicial decisions. To a large degree the determination of these rights will rest in the non-judicial arena and will be influenced by the perceptions of those rights held by Indians and water allocation officials, both state and federal. If the perceptions of these political actors are not congruent, then political conflict will occur as the rights become more important. To depend solely upon the judicial system to resolve these conflicts entails risks and costs to both Indians and to allocating officials. Indians are taking seriously the federal policy of Indian self-determination, and water allocation officials run decided risks in failure to realize this. An alternative suggested is to include Indians as consulting parties when decisions are being made that affect Indian interests.     

THE LEGALIZATION OF GROUNDWATER STORAGE1

ABSTRACT: California's courts have recently recognized the existence of underground aquifer storage rights that permit public agencies to (1) store imported waters in aquifers; (2) prevent others from expropriating that water; and (3) recapture the stored water when it is needed. The article describes the two appellate decisions that represent the common-law development of aquifer storage rights. Each decision related to separate aquifers that were subject to separate types of groundwater management programs. One decision involved an aquifer under the southeastern San Francisco Bay area that was managed under statutory authority and is entitled, Niles Sand and Gravel Co. v. Alameda County Water District 37 C.A.3d 924 (1974); cert. denied 419 US 869. The other decision involved an aquifer under Southern California's San Fernando Valley that was managed under judicial authority and is entitled, City of Los Angeles v. City of San Fernando 14 Cal.3d 199 (1975). The two decisions provide separate, but complimentary, public interest rationales for aquifer storage rights: (1) to protect water supplies necessary for the overlying community; and (2) to increase water supply efficiencies by using natural underground reservoirs wherever practicable. The Article reviews the relationship of aquifer storage rights to conventional groundwater rights and indicates aspects of the storage right that may need additional development.     

INSTITUTIONALIZED INEFFICIENCY: THE UNFORTUNATE STRUCTURE OF COLORADO'S WATER RESOURCE MANAGEMENT SYSTEM1

ABSTRACT: This analysis identifies two basic structural features of Colorado's water management system which inhibit constructive reform and perpetuate inefficiencies in water use and distribution patterns. These features are: (1) the fragmentation of authority and influence over water, and (2) the estrangement of interest in reform from formal control over water policy. These interrelated features have continued to produce: sporadic, high conflict battles over proposed changes in the status quo; decision making which tends to exaggerate the importance of narrow, special interests while virtually ignoring legitimate interests of major sectors of the public; an inertia which discourages innovation; and an agglomeration of rules and water rights that are predicated on obsolete social and economic needs. Two radical proposals for reforming the state's water resource management system in order to overcome these problems and to enhance the probability that wise water policy will result are offered. These proposals are: (1) the abolition of the present system of water rights founded on the doctrine of prior appropriation, and (2) the consolidation of authority over water allocation in a single board of governors.     

Valuing Improvements in The Water Rights System in South Africa: A Contingent Ranking Approach1

Speelman, Stijn, Stefano Farolfi, Aymen Frija, and Guido Van Huylenbroeck, 2010. Valuing Improvements in the Water Rights System in South Africa: A Contingent Ranking Approach. Journal of the American Water Resources Association (JAWRA) 46(6):1133–1144. DOI: 10.1111/j.1752-1688.2010.00480.x Abstract: In the context of increasing water scarcity, understanding is growing that irrigation water rights are important and that a lack of an effective water rights system constitutes a major reason for inefficient water management. This study carried out a contingent ranking experiment to study how smallholder irrigators in South Africa would value potential changes in water rights. Three specific dimensions of water rights, relevant for the South African case, are considered: duration, quality of title, and transferability. Results indicate that smallholder irrigators are prepared to pay considerably higher water prices if improvements are made in the water rights system. This implies that the proposed interventions in the water rights system would improve the efficiency and productivity of the small-scale irrigation sector. The increased willingness to pay could furthermore also assist the South African government to reach the objective of increased cost recovery.     

QUANTIFICATION OF INSTREAM FLOW NEEDS OF A WILD AND SCENIC RIVER FOR WATER RIGHTS LITIGATION1

ABSTRACT: The lower 4 miles of the Red River, a tributary of the Rio Grande in northern New Mexico, was designated as one of the “instant” components of the National Wild and Scenic River System in 1968. The Bureau of Land Management (BLM), as the managing agency of the wild and scenic river, was a participant in a general water rights adjudication of the Red River stream system. The BLM sought a federal reserved water right and asserted a claim to the instream flows necessary to protect and maintain the values of the river. Instream flows are not recognized under New Mexico water law. Instream flow requirements were determined by several methods to quantify the claims made by the United States for a federal reserved water right under the Wild and Scenic Rivers Act. The scenic (aesthetic), recreational, and fish and wildlife values are the purposes for which instream flow requirements were claimed. Since water quality is related to these values, instream flows for waste transport and protection of water quality were also included in the claim. The U.S. Fish and Wildlife Service's Instream Flow Incremental Methodology was used to quantify the relationship between various flow regimes and fish habitat. Experience in this litigation indicates the importance of using state-of-the-art methodologies in quantifying instream flow claims. The incremental methodology held up well under technical and legal scrutiny and is an example of the latest methodology that was applied successfully in an adjudication. On February 23, 1984, the parties involved in the adjudication entered a precedential stipulation recognizing a federal reserved right to instream flows for the Red River component of the National Wild and Scenic River System.     

THE EVOLUTION OF TEXAS WATER LAW AND THE IMPACT OF ADJUDICATION1

Texas' surface water law began its evolution during the Hispanic period of occupance. Later, the English riparian doctrine was adopted, and finally, in the late 1800's, the prior appropriation doctrine was superimposed, resulting in an exceedingly complex dual system. Though the judiciary, legislature, and state water agencies have wrestled with the problem of coordinating these diverse water rights and more accurately delineating and measuring riparian rights and water use since early in this century, until recently all attempts were unsuccessful. The unknown riparian element, in particular, made coordinated and efficient management and administration of the state's surface water resources impossible. Finally, measurable progress toward solution of these problems began in 1967 with passage of the Water Rights Adjudication Act, aimed at identifying all unrecorded surface water rights claims and eventually merging all claims into the permit system. This paper examines the gradual evolution of Texas' curious blend of Hispanic-English riparian rights and later appropriate rights; discusses the resultant problems of water resource administration; and traces the progress of the ongoing water rights adjudication, a lengthy, expensive, and complex procedure, which should eventually make possible more efficient administration of all surface water rights.     

THE IMPACT OF STOCKWATERING PONDS (STOCKPONDS) ON RUNOFF FROM LARGE ARIZONA WATERSHEDS1

ABSTRACT: Major water rights adjudications involving the Little Colorado River Basin and Gila River Basin are presently underway within Arizona. Water resource managers are faced with the prospect of evaluating and regulating tens of thousands of water diversions and uses. Stockponds comprise a large percentage of the total number of water diversions within these basins. Water balance studies conducted on the Little Colorado River watershed above Lyman Lake and on the Gila River watershed above Solomon, Arizona, indicate that the impact of stockponds on the water available to downstream users is insignificant when compared to total watershed production. Considering that there are an estimated 25,000 stockponds in the Gila River basin alone, rigorous case-by-case investigations and stringent regulation of individual stockponds may be impractical and unwarranted. Therefore, stock-pond claims within the context of the general adjudication process may be effectively handled by partial summary judgment, thereby allowing the court to concentrate on major water users and water rights issues.     

AN ECONOMIC OVERVIEW OF HAWAII'S WATER INSTITUTIONS1

ABSTRACT: The problem of allocating scarce water resources among competing uses and users over time in Hawaii is addressed within the context of analytical institutional economics. The nature of this problem has been, in recent years, highly complicated by important institutional changes that control operating decisions for water supply and water pollution. Whereas the imbalance in governmental initiatives regarding changes in the system of water rights (predominantly state) and environmental laws (predominantly federal) are based on U.S. constitutional provisions, the more fundamental roots of the crucial legal doctrines involved have been traced back to the common property concept. This suggests that the more promising opportunities for meeting the water policy challenges of the state are to be found in the historical common property system (ahupua'a) of Hawaii.     

Price Determination and Efficiency in the Market for South Platte Basin Ditch Company Shares

Water scarcity presents an obstacle to economic development in the western United States. Water rights markets help improve water allocation, allowing states to derive the highest economic benefit from available resources, and supporting new uses and economic development. However, the implicit (marginal) prices of water rights attributes are uncertain. To address this problem, we apply econometric analysis to a unique dataset to estimate the implicit values that market participants place on the attributes of shares of ditch company water rights in Colorado's South Platte River Basin. Our analysis demonstrates that ditch company share buyers value proximity of water diversion, reliability of water deliveries, and temporal flexibility of water use. To assess reliability we introduce the use of the coefficient of variation to capture, in one variable, the randomness of supply from ditch company shares that are not a single water right, but a portfolio of rights with different appropriation dates. Finally, we test and correct for spatial autocorrelation for the first time in a study of water market prices.     

A Transactions Cost Approach to the Theoretical Foundations of Water Markets1

Abstract: Water marketing is often cited as a means of alleviating the stresses attached to allocation of water use. Frequently, marketing is suggested in a context that implies substitution of competitive markets for the allocation based on the prior appropriation doctrine. This study examines water marketing from the perspective of a transactions cost approach to the private and broad social agreements (contracts) that support water allocation. It examines the major behavioral challenges faced by any contract, and the alternative approaches to those challenges, with respect to water allocation. It also examines the impact of market design on the existence of externalities, costs imposed by transactions on society and individuals not party to the transaction. It finds that the most robust water market designs will be found in systems with sufficient property rights protection to support investment, sufficient hydrologic information to provide accurate analysis of third party effects, conjunctive management of surface and groundwater, and a governance structure capable of administering the rules while not determining outcomes.     

Managing Drought Through Water Markets: Farmer Preferences in the Rio Grande Basin1

Abstract: Managing drought in agriculture has taken on growing importance as population growth and environmental concerns place increasing pressures on agricultural water use. One alternative for agricultural water resource management in areas of recurrent drought is allocation through market mechanisms. While past research has aimed to explain why farmers are reluctant to participate in already established water markets, this research seeks to identify the appropriate market mechanism given farmers’ preexisting attitudes toward water markets. Statistical analysis of survey data from 166 farmer interviews in the Rio Grande Basin indicate that farmers are significantly more likely to participate in short‐term water mechanisms, such as spot water markets and water banks than in permanent transfer mechanisms, particularly those that fully separate water rights from land. In sharp contrast to expectations, the choice of market mechanism did not differ significantly between farmers based on their a priori intention to buy, sell or both buy and sell in these markets. Choice of market mechanism also did not differ among farmer types although small, lifestyle or hobby farmers clearly preferred spot water markets to other types of short‐term mechanisms. Evaluating these attitudes a priori may help to design more suitable water market mechanisms for the basin.     

A rights foundation for ecological democracy

ABSTRACT

What would it mean to conceptualize some environmental relationships as bundles of rights, rather than as a good as generally defined by liberalism? Environmental rights are a category of human rights necessarily central to both democracy and global environmental protection and governance (ecological democracy). The world of democratic politics and governance since mid-twentieth century has been transformed by a rights revolution in which recognized rights have come to constitute a ‘global normative order.’ There are several policy spaces in which persuasive environmental rights discourses have been emerging from existing or foreseeable congruences of elite and popular environmental norms, including (1) rights involving access to information and decision-making processes; (2) rights ensuring access to food and water; and (3) rights providing environmental security to all. We analyze these three rights discourses and assess their current and necessary future trajectories. We identify next steps in achieving better understanding and more meaningful establishment of environmental rights and their integration into our thinking about human rights, with attention to how they can be reconciled with the social and cultural diversity of democratic environmental governance in coming turbulent times.     

PRIVATIZING THE GROUND WATER RESOURCE: INDIVIDUAL USE AND ALTERNATIVE SPECIFICATIONS1

ABSTRACT: While most inquiries into improving the efficiency of ground water allocation have focused upon various schemes involving centralized management, recently the focus has shifted towards exploring private property solutions to these problems. However, most of these studies, when modeling ground water use, have equated behavior under private property to that under common property conditions. This leads to the possibly mistaken conclusion that private property rights do not promote more efficient ground water use, because these models assume that producers ignore the future effects of current pumping. This paper attempts to correct this deficiency by formally modeling ground water use under common property, central management, and private property scenarios. Moreover, there are many ways that property rights can be defined over ground water, some establishing more exclusivity over the resource than others. Four specifications of property rights are analyzed for their likely effects on allocative efficiency: full stock-flow, partial stock-flow, limited stock-flow, and pure flow rights.     

COST FUNCTIONS FOR ADDITIONAL GROUND WATER DEVELOPMENT1

ABSTRACT Cost functions are determined which will allow compensation to existing users of ground water when new users require rights. These functions are dependent on the additional energy cost to existing users. The costs produced by these functions can be significant when large quantities of water are required.     

GLOBAL WATER ISSUES AND THE WORLD WATER COUNCIL1

ABSTRACT: The key events and the process that led to the creation of the World Water Council on World Water Day 1996 are reviewed and its characteristics summarized. The development of this new organization is discussed in the context of the major global trends in water and water-related issues, viz. growing water scarcity with its links to limits on food production and demographic patterns. In response to the need to find solutions to these pressing water issues, the development of a Technical Program based on the deliberations of the founding member organizations and a number of short-term activities have been outlined to demonstrate the evolution of the Council in this first year of its existence. Given the importance of complementarity between the Council and the Global Water Partnership, an attempt has been made to articulate the mutually-reinforcing roles of the two organizations.     

INSTITUTIONAL BARRIERS TO WATER MARKETING IN THE WEST1

ABSTRACT: Water marketing has been proposed as one means of reallocating water supplies in the western United States. While markets for western water currently exist and may be expected to expand, the institutional constraints within which the markets must operate will limit the ultimate size and efficiency of those markets. Lack of articulation of public interests in the water resource itself leads to incomplete definition of the private rights to use the water, and it is those private rights which are sold or leased in the market. The increase in size and efficiency of any market in water rights will be dependent on the willingness of legislatures to specifically define the nature and extent of public interests in water supplies, and detailed definition is unlikely.     

Agriculture,ethics, and restrictions on property rights

The argument in this essay is twofold. (1) Procedural justice requires,in particular cases, that we restrict property rights in natural resources, e.g., California agricultural land or Appalachian coal land. (2) Conditions imposed by Locke's political theory and by dense population require,in general, that we restrict property rights in finite or non-renewable natural resources such as land. If these arguments are correct, then we have a moral imperative to use land-use controls (such as taxation, planning, zoning, and acreage limitations) to restructure land ownership and land use in a far more radical way than has ever been accomplished in the past.     

Institutional reform in the Andean irrigation sector: Enabling policies for strengthening local rights and water management

For centuries, local and indigenous water rights and rules in the Andean region have been largely neglected and discriminated against. The process of undermining local communities’ water access and control rights continues up to today and not only is it headed by powerful local, national and international water‐use actors encroaching local rights — it is also a direct consequence of vertical State law and intervention practices, and the latest privatization policies. Recognition of and security for the diverse and dynamic local rights and management frameworks is crucial for improving rural livelihoods and even national food security in Andean countries. At the request of the Government of Ecuador — in which at that time the indigenous movement had its political participation — a research mission was organized to formulate a proposal for institutional reform, aiming at the strengthening of the national irrigation sector. In this article, some basic mission results are outlined and analyzed within the scope of four concepts (institutional viability, political democracy, equity, and water rights security), and practical elements for institutional reform are suggested, not only for the Ecuadorian irrigation sector but also other settings. The complementary roles of central Government, local governments and water user organizations in water resources management are emphasized as is the need to strengthen enabling legal and policy frameworks. The importance of translating constitutional recognition of local and indigenous rights and common property systems into practical procedures and institutional structures is also stressed.     

WATER RIGHTS,EMINENT DOMAIN,AND THE PUBLIC TRUST1

ABSTRACT: Faced with the necessity of meeting growing municipal water requirements in areas where available supplies are completely allocated, numerous cities throughout the West are turning to their eminent domain powers to affect a reallocation of water from less preferred uses to municipal uses, thus bringing about a sharp conflict with agricultural interests. As a basis for discussing these eminent domain powers, this paper begins with a brief review of the development of property rights. The existence of both private and public (social) rights in the “bundle of rights” is noted. In recent years the Public Trust Doctrine has been used to limit private rights in property, and to protect and strengthen social rights. A case study which focuses on a conflict between individual and social interests in water rights is discussed. This case involves the City of Thorton, Colorado which initiated municipal condemnation proceedings to acquire the water rights and structures of two nearby irrigation companies. The case represents an attempt to incorporate the spirit of the Public Trust Doctrine into legislation which sets forth procedures for resolution of similar water rights conflicts that will inevitably become more numerous throughout the West in the future.