Patterico's Pontifications

6/15/2015

On Water Rationing and Prices

Filed under: General — Patterico @ 7:41 am



The Washington Post describes water rationing coming to one California community, and the resentment that results:

Drought or no drought, Steve Yuhas resents the idea that it is somehow shameful to be a water hog. If you can pay for it, he argues, you should get your water.

People “should not be forced to live on property with brown lawns, golf on brown courses or apologize for wanting their gardens to be beautiful,” Yuhas fumed recently on social media. “We pay significant property taxes based on where we live,” he added in an interview. “And, no, we’re not all equal when it comes to water.”

. . . .

[A] moment of truth is at hand for Yuhas and his neighbors, and all of California will be watching: On July 1, for the first time in its 92-year history, Rancho Santa Fe will be subject to water rationing.

“It’s no longer a ‘You can only water on these days’ ” situation, said Jessica Parks, spokeswoman for the Santa Fe Irrigation District, which provides water service to Rancho Santa Fe and other parts of San Diego County. “It’s now more of a ‘This is the amount of water you get within this billing period. And if you go over that, there will be high penalties.’ ”

David Atkins at the Political Animal blog at the Washington Monthly summarizes his view:

Nothing better shows the infantility of the Republican mindset. These people believe that they’re all kings of their own little islands, that they have a right to use whatever they can get their hands on however they want. They have no concept of community or natural limits. For them, owning a Suburban is just as valid a choice as owning a Prius, climate change is a hoax that shouldn’t affect their choices, and anyone telling them they might have to cut back on something is a busybody interfering in their lives and waging a do-gooder war on their lifestyle. Their wealth doesn’t come at the expense of others because capitalism allows for endless growth and opportunity for those with enough gumption to pull themselves up by their bootstraps. And if they’re rich, the sense of the entitlement is exponentially greater.

That description, which is intended to be a withering denuncation of ridiculous views, largely describes my mindset, yes. Owning a Suburban is just as “valid” a choice as owning a Prius; would Atkins outlaw Suburbans? (I think he would.) People telling others they must cut back are busybodies interfering in our lives. Wealth does not come at the expense of others. Capitalism does indeed offer, if not “endless growth and opportunity,” then certainly enough, when the market is allowed to work.

I have this crazy idea: let the market set a price and let people pay that price. It might be a very high price, but the market should set it.

Here’s the weird part: inamongst all the comments at Washington Monthly that suggest that heavy water users should be killed (I’m not making that up; look at the comment thread yourself; where is that U.S. Attorney’s Office hassling Reason.com when you need them?), there is one guy who labels himself a “progressive” and yet seems to understand something about economics:

As a progressive, I confess this is one of those times when I’m mystified by a claimed “progressive” position. I get that these people all have odious politics and are rich, so worthy of our hate, but why exactly shouldn’t water be priced for them like it is for everyone else, such that they buy what they can afford? That works for filet mignon, caviar, champagne, jet fuel, horses, butlers and pretty much everything else I can think of except air. (And it even works for air in a scuba tank.) You want to change to a political economy of “everyone gets exactly 1/n of the total amount of Y”, (perhaps allocated by ration card) where Y includes both “caviar” and “water”, fine, but at least lay those cards on the table and be explicit about what political economy you’re advocating for.

Right now water is *not* being priced and allocated by the market, and the biggest water hogs (as in the Palm Springs cite earlier) are *not* paying for what they’re using. The people quoted *want* to pay for it. Why do they have less right to buy water than some farmer in the central valley has to continue to pump unpriced groundwater at a tiny fraction of its value, with no state restriction? We’re a long long way away from a per capita survival allocation of water. We have a huge excess above that. But that water gets wasted because it’s *not* being priced. You seem to be arguing against a straightforward solution to that problem.

Almost enough to make you stand up and cheer, isn’t it? To those who argue that an actual market price would make water too expensive for the poor, the commenter says:

[D]o you really think that pricing water at a market clearing rate for the whole state would mean you couldn’t afford the liter or two you need to drink and the handful of gallons for your shower & toilet? It wouldn’t. But it would make the wasters in Rancho Santa Fe pay for their excess. I really don’t see what’s wrong with that. The whole point of the article is that attempting to solve the problem by moral suasion isn’t working.

The problem here is that this commenter uses terms like “market clearing rate” — which indicates some knowledge of actual economics, which means he is not going to be popular with his fellow progressives. Indeed, the more he learns about economics, the more he might come to realize how progressivism always defaults to these inefficient and oppressive centrally controlled mechanisms.

Sounds like he is getting there. Maybe there is hope?

58 Responses to “On Water Rationing and Prices”

  1. Ding.

    Patterico (3cc0c1)

  2. most places strive to make water plentiful and cheap

    however, failifornia does the policies to make it rare and expensive

    as they have sown so shall they reap

    i just get a big kick out of it

    happyfeet (a037ad)

  3. moral suasion = fascism

    Why do progressives hate people? If you are a person, you don’t want to live in a place called The People’s Republic of whatever.

    Case in point: California. That the people cannot see that the elites hate them, or don’t care that they do, mystifies me. Famous Jerry Brown quotes: “Now I can really stick it to the people” and “no more of your green lawns”. I guess they are the proverbial frog in the slowly boiling water. Or maybe lapsed Christians who need to feel guilty and do penance.

    Just finished “Liberal Fascism”. Great book.

    Patricia (5fc097)

  4. It’s not the market’s water. Natural resources are the property of the state. Their harvesting and distribution can be licensed to private enterprise, but that licensing has to be such that the benefit flows to every citizen.

    nk (dbc370)

  5. Greetings:

    Of course, the government they look to to end this year’s water waste catastrophe is the same government that slept at the switch for 40 years while the population doubled lest it annoy those they love by building another reservoir or two.

    11B40 (6abb5c)

  6. the frog is already roasted, and ready for a kabob,

    narciso (ee1f88)

  7. how did “Republican mindset” get involved?
    Anyway, Yuhas is correct. Anyone should be allowed to buy a tanker of bottled water and do with it as they please to their garden, etc.

    seeRpea (0cf003)

  8. Of course, the government they look to to end this year’s water waste catastrophe is the same government that slept at the switch for 40 years while the population doubled lest it annoy those they love by building another reservoir or two.
    11B40 (6abb5c) — 6/15/2015 @ 8:26 am

    I agree. So why on earth do people trust them to fix their own failures??

    Patricia (5fc097)

  9. NK says that “natural resources are the property of the state”. Okay–welcome to Moscow. That house that NK lives in? It sits on a piece of land, which is a natural resource, which means it’s owned by the state. The family farm (okay one of the cotton “kingdoms” in the Central Valley developed by the Boswell family over a couple of generations)– will, in NK’s view, be owned by Sacramento.

    There are still a few (a very few) investor owned and operated water utility companies in California. They’ve built dams on some rivers to capture and hold water to be delivered for domestic water use. Well NK would say “You didn’t build that” so the dam is owned by the state, as is the water behind it.

    And don’t get NK started on oil and gas, gold and silver mines, or rare earth mines at Mountain Pass California. All that stuff–belongs to the State.

    Comanche Voter (1d5c8b)

  10. As many of us have pointed out Patricia, most big cities all around the country not just the left and right coasts, have been run by democrats for decades. Same with many states. They have many things in common:
    1. Most are social hell holes
    2. Most are cultural sewage pits of decline.
    3. Most are bankrupt or near so.
    4. Most have junk bond ratings.\% Most have very, very bad schools.
    5. Most spend an inordinate amount of money to fund these very, very poor schools.
    6. Most are run by my brother’s and sister’s.
    7. They are corrupt from the mayor/governor down
    8. They are all run by and have been run by leftist policies regardless of the failure rate.
    9. The people have been taught to be too stupid to even TRY something else by those very, very poor schools.

    10. They are Union towns, owned run and controlled by democrat unions.

    Feel fee to add anything you think of.

    Free at Last!

    Rev. Barack Hussein Hoagie (f4eb27)

  11. You know, it’s very liberating to be a black reverend without a congregation. Now I know how Sharpton and Jackson feel. I can say just about anything and if anybody has a problem I just brand them a racist and move on.

    Free at last. Free at last. Thank God Almighty, I’m free at last!

    Rev. Barack Hussein Hoagie (f4eb27)

  12. Almost enough to make you stand up and cheer, isn’t it?

    Until I get to the part where he wants to charge people for water pumped from private property.

    Why do they have less right to buy water than some farmer in the central valley has to continue to pump unpriced groundwater at a tiny fraction of its value, with no state restriction?

    Droughts are a fixture of California. We have plans for maintaining a water supply, even in the worst of droughts. The problem is that we’ve allowed “environmentalists” to destroy our backup systems. The water shortage has been inflicted on us by our elected officials. The legislated MTBE in gasoline until the public outcry after it poisoned our groundwater. They have had over 180 dams removed in the name of wildlife that wasn’t threatened. They have many projects that take fresh water and pump it into the ocean. They destroy existing dams causing water to be lost (50 million gallons recently).

    For an immediate solution let’s return to diverting the water from the Sacramento delta to farmers, reservoirs, and aqueducts.

    Tanny O'Haley (c674c7)

  13. But what about the Delta Smelt?

    daleyrocks (bf33e9)

  14. In a unanimous decision, the three-justice 4th District Court of Appeal ruled that the Orange County city’s method violated Proposition 218, a 1996 ballot measure establishing that municipalities cannot impose fees for services that exceed the actual cost.

    http://www.sacbee.com/news/state/california/water-and-drought/article19194072.html#storylink=cpy

    The LADWP charges customers on a tiered system. The 1st tier gives about enough water for a single person living in a studio apartment who never cooks and takes navy baths. Based on this new ruling does that mean I get a refund from the DWP?

    Tanny O'Haley (c674c7)

  15. There is some question as to whether the bait fish called the Delta Smelt is actually endangered. In my opinion, people are more important than the Delta Smelt. “Expletive deleted” the Delta Smelt.

    Tanny O'Haley (c674c7)

  16. They’ve built dams on some rivers to capture and hold water to be delivered for domestic water use.

    So can I build my own dams one mile upstream, and sell all my water to Oprah? Water law is a very complex subject, but its most libertarian form still entitles you to free-flowing water only in proportion to your land, whether its an aquifer or a stream passing through it. Behind every water right and every mineral right there’s a law or a covenant or a restriction on a deed that says how much fee title you can “prove up” and pass on to your successors. And that is granted by the state.

    nk (dbc370)

  17. If 50% of California water is used by government agencies, 40% by farmers, and only 10% used by the public, shouldn’t the government agencies be required to cut back water usage first?

    Hey, if government agencies cut back just 20%, not even 25% that would equal the amount of water used by the public. Governor Brown is suggesting some municipalities reduce their water usage by 35%. On the 800th anniversary of the Magna Carta which basically gave us the principal that the government (king) is subject to the same laws as its citizens, let’s make the government reduce water usage first.

    That sounds fair to me.

    Tanny O'Haley (c674c7)

  18. The problem is that there’s only so much free flowing water that the neighboring states will allow California to get, only so much that God will rain down on it, and only so much stored in its lakes and aquifers. It should start thinking doing 1) desalination (the only practicable long term solution), 2) sewage reclamation (a policy of desperation) or 3) people being 87% water, squeezing Californians in giant juicers for it (a Johnsonian modest proposal, no letters to the editor please).

    nk (dbc370)

  19. We in West Texas have suffered mightily from a multi-year drought that has been helped by the recent rains, but our reservoirs are still low. Our farmers have suffered the most but the cities have also been impacted. My region has had 2-3 years of water mandatory restrictions, increased pricing for basic water needs, and high monetary penalties for excessive use. On the plus side, it’s been a bonanza for businesses that drill deep water wells and install drought-resistant landscaping.

    Some people were willing to pay more for scarce water, some couldn’t afford to, but over time most of us used less water because we wanted to make sure there was enough for everyone. Market pricing is vital to convince people to conserve because it shows the drought is real and that people need to change their behavior. Here in West Texas, it took us a couple of years of drought to change our behavior, and it will probably take Californians some time, too.

    DRJ (e80d46)

  20. There is an excess of fresh water? Huh? What planet do those people live on?

    Ten gallons of water per day per person is more than adequate for human. You might have to wash dishes by hand. More that that, auction it off.

    htom (4ca1fa)

  21. At the same time farmers are required to let fresh water flow into the San Francisco Bay in order to protect the (estimated) 350 delta smelt that might be killed by their pumps, the State has introduced non-native Striped Bass twenty miles down stream in order to enhance recreational fishing. Striped Bass love delta smelt, and each bass is capable of consuming far more than one delta smelt a day once they reach a decent size. The question is, once the delta smelt are extinct, will the farmers be “allowed” to turn their pumps back on? Assuming of course, that there are still farmers with pumps.

    Water rights are the tragedy of the commons writ large. The EPA and the Corps of Engineers are actively preventing land owners from constructing holding ponds (reservoirs) on their own property. But in Bermuda, they build their houses so that rainfall is captured and stored for use. Necessity is the mother of invention … or better yet, since California is ruled by progressives, never let a good crisis go to waste!

    bobathome (f50725)

  22. Some places there is an excess of fresh water. After almost three solid days of it my driveway is flooded, the sump pump is discharging gallons and gallons into the back yard and I have two pans catching water leaking from the family room sky lights. No, I do not mean to make light of the current drought situation in a number of states because we’ve had them here, too. But it’s hard for people to understand extreme water conservation until it’s actually happened to them. And even then, most people observe and learn the lesson that water restriction policies are usually not, uh, equitable.

    elissa (fb85e8)

  23. Last one departing Cali turn out the lights pleeze.

    DNF (208255)

  24. if you see a delta smelt you should step on it and flush its lifeless carcass down the toilet

    happyfeet (a037ad)

  25. what does smelt taste like, can you fry it, or is that prohibited by the authorities,

    narciso (ee1f88)

  26. delta smelt recepie-
    start fire- 6-10 dozen delta smelt, depending on size of the party
    heat oil in pan with garlic fry till crispy.
    Put fire out with water.

    mg (31009b)

  27. I don’t know about delta smelt, but Lake Michigan smelt is delicious floured and fried and you can eat it bones and all. Unfortunately, the run is smaller every year because people who think natural resources are “first come, first served” fish them with illegal small-mesh nets and catch the fingerlings before they can breed.

    nk (dbc370)

  28. nk- as kids in minnesota with a net in one hand and a bottle of Canadian Mist in the other we would fill garbage cans with those delicious little fish. Raw- no problem.

    mg (31009b)

  29. Dont get your hopes up.
    Thats probably a plant or an impostor!

    Gil (febf10)

  30. NK at 17 – not only that, but the riparian water rights is for water which can ONLY BE USED ON THE LAND ADJACENT TO THE STREAM. If you’re diverting water out of the basin, it’s an appropriative right – a creature which is *entirely* a creation of state law.

    aphrael (5d993c)

  31. > There are still a few (a very few) investor owned and operated water utility companies in California. They’ve built dams on some rivers to capture and hold water to be delivered for domestic water use. Well NK would say “You didn’t build that” so the dam is owned by the state, as is the water behind it.

    This is an incredibly complex subject, unfortunately, but the basic rule here is that the investor-owned-and-operated water utilities have an appropriative right to the water, dated to the point at which they built the dam. Their appropriative right is junior to that of people with older appropriative rights. If there isn’t enough water in the system to satisfy the rights of the senior rights holders, the utility gets nothing, even though they built the dam.

    aphrael (5d993c)

  32. Patterico – broadly speaking, there are two kinds of property rights in surface water in California:

    * riparian rights, which is to say, the right to take water from a stream, for reasonable use on your property adjacent to the stream, without impinging on the reasonable use of other riparian rights holders

    * appropriative rights, which is to say, the right to take water from a stream and use it for a *particular defined purpose*, dated to whenever you started doing it, without interfering with the use of anyone who was taking water from that stream before you. First come-first served; if there isn’t enough water to satisfy the rights of the people who came before you, then you get nothing.

    The problem is that neither of these property rights allow sale in a free market.

    Appropriative rights are governed by the interpretation of Article 10 Sec 2 of the state Constitution:

    > The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served

    Riparian rights are governed by the interpretation fo a different clause of the same section:

    > Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled.

    Either way, when you have a property right in water, you have a right to use a *fixed amount* for a *specified purpose*. Farmers can use the water for farming, but they can’t *sell* it, because that isn’t the purpose for which they have an appropriative right. (This is broadly speaking how water rights works everywhere in the west).

    What muddies the issue substantially is that the state water project and the central valley project have appropriative rights *for the purpose of reselling water to customers*. So farmers can buy water from the state water project (consistent with the state water project’s appropriative rights) and then they have a *contract interest* in the water – but the SWP’s contracts all give it the power to cut back when their appropriative right is cut back. The situation with urban water districts is substantially similar – they have an appropriative right to some amount of water for the purpose of resale to urban consumers.

    [There’s a very, very, very wierd exception that applies *specifically* to the city of Los Angeles and some other cities that predate the Mexican-American war, based upon the California Supreme Court’s late nineteenth century misunderstanding of Mexican water law – those cities are held to have property rights defined by early eighteenth century Mexican water law, protected as a property right under the Treaty of Guadalupe Hidalgo).]

    aphrael (5d993c)

  33. Gil – I know plants that show more functional intelligence than you, and many of those leftist commenters.

    JD (e21475)

  34. Texas follows the Rule of Capture for groundwater (as it does for oil and gas), but not for surface water. As a result of the most recent Texas Supreme Court water law case, this has led to the development of groundwater conservation districts in some areas.

    DRJ (e80d46)

  35. waste not want not i always say

    happyfeet (a037ad)

  36. DRJ – yeah, I’m just talking about the surface water law. California just changed its groundwater laws and I don’t understand the changes yet, so I can’t talk about them.

    aphrael (5d993c)

  37. I was thinking about this more at lunch, and the answer boils down to this apparent absurdity: based on California property law, which is protected by the fifth amendment, a free market in surface water would almost certainly constitute theft.

    Here’s a long, drawn out explanation of this problem.

    Under an appropriative system, the first person (call him Pat) to encounter a particular surface water source and start using it has a property right to use the amount of water he was using, for the purpose he was using it – for as long as he wants to keep doing that. The next person (call him Rico) to come and start using water from that source has a property right (for as long as he keeps doing that) to use the amount of water he was using, for the purpose he was using it – subject to the restriction that if there isn’t enough water for the senior rights holder to use, he gets nothing.

    If Pat stops using the water for farming and starts using it for fracking (say), that’s a change in use, and while he can do that as long as there’s enough water in the stream, his right to use the water for fracking is now *junior* to the Rico’s rights, because Pat started fracking after Rico did. Furthermore, if he *chooses* to stop using his farming-water right for long enough, that right lapses entirely.

    This is the system which was set up by California in the 1850s and 1860s. Because it’s a *property right*, existing rights can’t be interfered with without (a) due process and (b) possibly state payment as a taking – this is why, when the rules changed somewhat in 1914, the new rules didn’t apply to pre-1914 rights holders, and why in some press accounts you’ll see unexplained talk about why different rules apply to pre-1914 and post-1914 rights holders.

    This works decently well as long as there’s enough water to go around. In fact, someone can decide to appropriate water for resale (easily if it’s within the basin, more difficult if it’s outside of the basin) as a junior rights holder – that’s the *simplified* version of what the urban water districts and the state and central valley water projects have done.

    But imagine you’ve got 100 appropriative rights holders, and you only have enough water (due to lack of rainfall) to satisfy the first 95. Now imagine that Rico decides he wants to stop farming, which is what he and his predecessors in interest have been doing since 1851, and sell the water instead.

    He stopped farming, so his 1851-era water right to [x] water for farming doesn’t apply to the water he’s taking for sale. But the water he’s taking for sale is JUNIOR to all other 99 rights holders, so unless he can somehow buy out rights holders 96-100, he is stealing from them.

    Now, there may well be technical, market-based solutions to that problem. But it’s not as easy as simply letting Rico sell the water.

    aphrael (5d993c)

  38. NK @4, that really depends on the state, right? I mean, it’s pretty clear that in Texas, groundwater is the property of whatever landowner above the water captures the water. In California, surface water is the property of whatever person puts the surface water to beneficial use first, etc.

    Saying categorically that natural resources are the property of the state is incorrect as a matter of law.

    aphrael (5d993c)

  39. > Until I get to the part where he wants to charge people for water pumped from private property.

    Groundwater is even more complicated than surface water, but in California the *general* rule is that groundwater is collectively owned by everyone who has property above the aquifer.

    Which is to say, if sixteen people own land above a given aquifer, all of the water in the aquifer is collectively owned by all of them. Which means that if one of them wants to use the groundwater, he has to obtain the permission of – and probably compensate – the other fifteen.

    As long as water use is below the rate of replenishment and therefore the aquifer isn’t being depleted, nobody cares, and you can pretty much do whatever you want (in theory; many aquifers, the above-ground landowners have created districts that govern the use of the water, so the situation varies from aquifer to aquifer). But once you’re depleting the aquifer, pulling water without a collective agreement infringes on the property rights of everyone else in the aquifer.

    This is diametrically opposed to the law in Texas, where the groundwater is governed by a rule of capture – you can take *anything you want* from the aquifer under your property, neighbors be d*mned.

    aphrael (5d993c)

  40. > At the same time farmers are required to let fresh water flow into the San Francisco Bay in order to protect the (estimated) 350 delta smelt that might be killed by their pumps, the State has introduced non-native Striped Bass twenty miles down stream in order to enhance recreational fishing. Striped Bass love delta smelt, and each bass is capable of consuming far more than one delta smelt a day once they reach a decent size.

    Bobathome, different agencies responding to different rules.

    The delta smelt are protected under a theory which says that the state has a senior water right for as much water as is necessary to secure certain public purposes, including environmental protection. The doctrine dates to Roman law, so it’s hardly a modern neologism. 🙂

    The decisions of whoever is introducing the smelt-eaters are not really related to the process by which the state decides to enforce its senior water right under the public trust doctrine.

    aphrael (5d993c)

  41. aphrael, thanks for a good summary!

    This is obviously not a good place for free market solutions.

    bobathome (f50725)

  42. I think some market solutions can be introduced, and the overall context makes it very, very difficult.

    It would be a different world if the ownership of water had been defined differently a century and a half ago, but changing that definition today would be … expensive.

    aphrael (5d993c)

  43. “The problem here is that this commenter uses terms like “market clearing rate” — which indicates some knowledge of actual economics, which means he is not going to be popular with his fellow progressives”

    The problem is CA doesn’t seem to need a water market that “clears” but something other than that. If you just want to charge more to people who use more then this will also do:

    “It’s now more of a ‘This is the amount of water you get within this billing period. And if you go over that, there will be high penalties.’ ”

    stir (0f3b82)

  44. Shockingly, imdw insists on proving it’s idiocy.

    JD (e21475)

  45. aphrael,

    As you know, the theory of the Rule of Capture isn’t about harming your neighbor. It’s about rewarding the property owner who goes to the expense and effort to capture resources so they can be used in the marketplace. If you view natural resources as finite, like a pie, then hoarding them in place is good. But many resources, including water, are naturally recharged or replenished so not using them can be viewed as letting them go to waste.

    DRJ (e80d46)

  46. Democrat mindset: We must share and ration our poverty.
    Republican mindset: We must create more so that there is no poverty.

    The state GOP is being offered a clear opportunity: come up with a workable plan to make water abundant forever. Thorium reactors driving desalinization plants in several places in SoCal, preferably on isolated spots like San Onofre and the Vandenberg area.

    The goal being to make Southern California self-sufficient in the end so that we don’t need northern CA water. The rest of the state has enough water always if they don’t have to supply the desert south.

    Oh, sure whining about nuclear (thorium units are small and safe) and where do you put all that salt (on barges to many different drop off points 50 miles out), but that’s what Democrats do: whine.

    Kevin M (25bbee)

  47. I was thinking about this more at lunch, and the answer boils down to this apparent absurdity: based on California property law, which is protected by the fifth amendment, a free market in surface water would almost certainly constitute theft.

    I know that there are all kinds of grandfathered rights, but there is a longstanding solution: windfall taxes. Put a giant windfall tax on “free” water and watch the usage change. Technically this is not theft.

    Kevin M (25bbee)

  48. how many desalinating plants could you build for the cost of your whore governor’s high speed train boondoggle?

    oodles i bet

    happyfeet (a037ad)

  49. Well, were I a GOP politician, I’d certainly claim that. Except for Deep Green (who talk about how they use their shower water on their vegetable garden) everyone is totally pissed off about water and the incredibly mismanaged drought.

    Kevin M (25bbee)

  50. DRJ – I agree that the rule of capture isn’t *intended* to be about harming your neighbor.

    The trouble is that while the rule of capture works decently well as long as extraction is happening at a rate which is below the refresh rate, once extraction is *faster* than the refresh rate, it’s literally true that any drop you take is a drop that isn’t available for the other people with property overlying the aquifer. Under such a circumstance the economically rational thing is for every overlying owner to draw as much as they can, extinguishing the aquifer.

    Many of Texas’ aquifers have reached the state where extraction exceeds recharge – which is a long-term problem for the viability of a number of industries, including ranching.

    aphrael (69b4f7)

  51. I think there are financial obstacles to desalination (the plants are expensive), environmental obstacles (what do you do with the waste products?), and engineering obstacles (how do you insulate against tsunami?) … AND desalination is also pretty clearly the best available option at the moment.

    That said,

    > The rest of the state has enough water always if they don’t have to supply the desert south.

    This is only true for urban supplies – there is insufficient water to reliably meet all of the *agricultural* demand.

    aphrael (69b4f7)

  52. California water law is a gold mine for smart attorneys right now.
    A good read is Cadillac Desert by Marc Reisner go here via the Patterico sidebar after looking it up here http://www.amazon.com/Cadillac-Desert-American-Disappearing-Revised/dp/0140178244
    I think it was Mark Twain who said “water flows uphill towards money” and “whiskey is for drinking and water is for fighting over”.
    California is odd because of its roots in wild gold miner west and old Mexican Pueblo rights law.
    But when you look at it, you come to realize that the law recognizes water rights as a type of property and after that it gets easier.
    Farmers and miners formed water cooperatives with appropriative rights and built dams, flumes, canals, aquaducts etc across their lands. There are still flumes in use over by Mineral King in the southern part of the Sierra Nevada range and the farmers developed and built those methods of conveyances and granted each other easements and rights based on contribution and then receiving water measured by a “miners inch” (the amount of water measured as a miners inch is different between Northern CA and Southern CA with Northern CA having almost a 1/3 greater allotment per “inch”) These water districts exist and abide by their own rules and the farmers are generally free to do whatever they want with their water regardless to what the State thinks.
    There are other districts that were formed by farmers who share a common aquifer. Those farmers measure the recharge rate of their aquifer after draw down and determine how much water is available within their time frame and divide it up according to acreage above the aquifer, and also by who was pumping there first.
    Often there are state and federal lands above aquifers, but they rarely have a large share of the rights because they never have used the water and have no recent claim to it… water rights often are “use it or lose it”.
    In the above cases, farmers can use their water however they choose and can sell water to LA if they want to as long as it is considered “reasonable and beneficial”.
    Other farmers are connected to state aquaducts and have a little less wiggle room to sell water rather than by growing crops, but because the farmers often paid for construction with cash and/or by trading easements, their rights are fairly legally binding and the state can’t do much over whether they sell the water(by not using it) and letting it pass through the system to LA or if they hate money and LA they can grow almonds. No one can really force a farmer with senior rights to do anything at all with their water as long as they can claim their use is “reasonable and beneficial”which is an easy standard to make.

    I got this from a State site: “Water right law in California and the rest of the West is markedly different from the laws governing water use in the eastern United States.

    Seasonal, geographic, and quantitative differences in precipitation caused California’s system to develop into a unique blend of two very different kinds of rights: riparian and appropriative. Other types of rights exist in California as well, among them reserved rights (water set aside by the federal government when it reserves land for the public domain) and pueblo rights (a municipal right based on Spanish and Mexican law).

    Riparian rights usually come with owning a parcel of land that is adjacent to a source of water. With statehood, California adopted the English common law familiar to the eastern seaboard; such law also included the riparian doctrine.

    A riparian right entitles the landowner to use a correlative share of the water flowing past his or her property. Riparian rights do not require permits, licenses, or government approval, but they apply only to the water which would naturally flow in the stream. Riparian rights do not entitle a water use to divert water to storage in a reservoir for use in the dry season or to use water on land outside of the watershed. Riparian rights remain with the property when it changes hands, although parcels severed from the adjacent water source generally lose their right to the water.

    Water right law was set on a different course in 1849, when thousands of fortune seekers flocked to California following the discovery of gold. Water development proceeded on a scale never before witnessed in the United States as these “49ers” built extensive networks of flumes and waterways to work their claims. The water carried in these systems often had to be transported far from the original river or stream. The self-governing, maverick miners applied the same “finders-keepers” rule to water that they did to their mining claims. It belonged to the first miner to assert ownership.

    To stake their water claims, the miners developed a system of “posting notice” which signaled the birth of today’s appropriative right system. It allowed others to divert available water from the same river or stream, but their rights existed within a hierarchy of priorities. This “first in time, first in right” principal became an important feature of modern water right law.

    In 1850, California entered the Union as the thirty-first state. One of the first actions taken by its lawmakers was to adopt the common law of riparian rights. One year later, the Legislature recognized the appropriative right system as having the force of law. The appropriative right system continued to increase in use as agriculture and population centers blossomed and ownership of land was transferred into private hands.

    The conflicting nature of California’s dual water right system prompted numerous legal disputes. Unlike appropriative users, riparian right holders were not required to put water to reasonable and beneficial use. This clash of rights eventually resulted in a constitutional amendment (Article X, Section 2 of the California Constitution) that requires all use of water to be “reasonable and beneficial.” These “beneficial uses” have commonly included municipal and industrial uses, irrigation, hydroelectric generation, and livestock watering. More recently, the concept has been broadened to include recreational use, fish and wildlife protection, and enhancement and aesthetic enjoyment.

    Up to the early 1900’s appropriators – most of them miners and nonriparian farmers – had simply taken control of and used what water they wanted. Sometimes notice was filed with the county recorder, but no formal permission was required from any administrative or judicial body.

    The Water Commission Act of 1914 established today’s permit process. The Act created the agency that later evolved into the State Board and granted it the authority to administer permits and licenses for California’s surface water. The act was the predecessor to today’s water Code provisions governing appropriation.

    These post-1914 appropriative rights are governed by the aforementioned hierarchy of priorities developed by the 49ers. In times of shortage the most recent (“junior”) right holder must be the first to discontinue such use; each right’s priority dates to the time the permit application was filed with the State Board. Although pre- and post-1914 appropriative rights are similar, post-1914 rights are subject to a much greater degree of scrutiny and regulation by the Board.

    Riparian rights still have a higher priority than appropriative rights. The priorities of riparian right holders generally carry equal weight; during a drought all share the shortage among themselves.”

    The state of CA is a fool run by fools.
    Here in my county we are doing this: http://lompocrecord.com/news/local/lake-water-released-for-steelhead-trout/article_963a4694-9f7a-11e3-8113-001a4bcf887a.html even though we literally have no water in our three reservoirs. We are wasting millions of gallons a day because there used to be up to 25,000 steelhead a year coming up the Santa Ynez river, so we created an artificial steelhead stream at Hilton Creek and we pump state and local water down it 24/7
    But we are to believe that we should not flush “if its yellow let it mellow, if it’s brown flush it down” and limit showering to every other day for less than five minutes.

    steveg (fed1c9)

  53. Oh
    I agree with the host.
    Let the market set a price (let the farmers put LA over the barrel) and when the true cost of water is realized, people will insist the state invest in desalinization, new dams, desiltification rather than the current investment in smelt

    steveg (fed1c9)

  54. Steveg – California actually has three systems for surface water. The third is the ‘pueblo’ right, under which any city existing at the time of the signing of the Treaty of Guadalupe Hidalgo has an appropriative right to *all water* in *any stream* passing through the city limits, dated to the founding of the city.

    —-

    Incidentally, your linked article says the blame doesn’t lie with California officials.

    > all the releases that are being done are being done based on an order from the federal government

    usually this is the result of someone suing either under the endangered species act, the wild and scenic rivers act, or the public trust doctrine.

    aphrael (69b4f7)

  55. Steveg, at 54: the point of my comments above is that if the farmers want to sell their water, rather than using it for the beneficial purpose, they would have to buy out all of the junior rights holders whose uses have been curtailed (as otherwise their new right to water for resale would be junior to them) … and they can’t put the cities over a barrel because at that point the municipal districts’ rights would be senior to theirs.

    To get a true market in water you’d need to either ensure that there were no appropriative rights that were not fulfilled OR you would need the state to eminent domain them OR you’d need to find a way to convince *everyone* with unfulfilled rights to sell. None of these three are practical options.

    aphrael (69b4f7)

  56. #51: aphrael, petroleum doesn’t replenish, and oil can be difficult to recover if withdrawn too quickly, so there are substantial differences, but Texas unitized their oil fields many decades ago. I think the Texas Railroad Commission maintains the records that are used to optimize the recovery of oil. A similar approach would work with water even with replenishment, but the computational effort and geological data gathering would be costly.

    bobathome (f50725)

  57. Bobathome – if you were to ask me, Texas should unitize its aquifers. But it hasn’t chosen to do so.

    Ultimately, it’s Texas’ choice, although I think that at a certain point neighboring states with shared aquifers may have a legitimate complaint.

    aphrael (69b4f7)


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