Urbanized West Needs New Water Laws

Here in the West, range wars are a thing of the past. But the water wars only seem to intensify.

All over the map, cities are trying to wrest water away from rural areas. San Diego County is embroiled with promoters in a scheme to take water from western Colorado, 1,000 miles away. In Arizona, Phoenix has hired real-estate agents to buy up irrigated farmland 100 miles beyond the city limits. And Los Angeles is at it once again in the Owens Valley, pumping the tributaries of Mono Lake against the objections of environmentalists.

The flames of these urban-rural conflicts are fanned by archaic water laws. The old legal doctrines worked tolerably well when there was always another water hole over the hill. But times have changed. The water--all of it--is being used, the day of the grandiose reclamation project is over, and the question now for all Westerners is how to design a legal system to bring about necessary water transfers while protecting rural communities. Usually, although not always, that means transferring water from agriculture (which uses 90% of the water in the West) to urban uses.

Of all Western metropolitan areas, the San Diego case best illustrates the absurdities of existing transfer law. Just 100 miles from San Diego lies the Imperial Valley, where enough water for several million people is poured on the land to irrigate alfalfa and cotton. One might reasonably suppose that San Diego could solve its water problem by going to the Imperial Valley, checkbook in hand, to buy farms for two or three times their value, offering farmers the opportunity to retire and raise martinis in La Jolla. What’s more, San Diego wouldn’t even have to build a pipeline. The canal connecting California cities to the Colorado River runs right through the Imperial Valley.

So why isn’t it done? Because obsolete federal and state laws deprive individual farmers of that choice, requiring that the water be kept on the land to which it was originally applied. Both the federal government and the California Legislature need to legislate freedom for farmers by allowing voluntary water transfers.

In 1980 we did just that in Arizona. Our groundwater code unshackled the cities, giving them complete freedom to buy “water farms” and transport the water anywhere in the state. The result was a frenzied stampede to purchase farms in western Arizona. In La Paz County along the Colorado River, private speculators and cities have purchased 40% of the privately owned land. To some it seems like a rerun of the movie “Chinatown,” in which greedy promoters took rural communities into bondage, shattering their dreams of growth and independence.

The Arizona experience is not, however, an argument against water transfers. What it does prove is that complete freedom for cities can threaten the very existence of some conveniently situated rural communities that happen to be well endowed with water. In the absence of oversight and regulatory approval, economic Darwinism will carry the day--the large and powerful will prevail. Big cities will inexorably squeeze the water and the life out of small communities.

If California is guilty of protecting the status quo, Arizona has put too much faith in random free enterprise. The task facing both states now is to strike a reasonable balance between urban expansion and some phase-out of agricultural lands. It can be done by allowing farmers to sell their water, subject to regulatory oversight. Good regulation can minimize the damage to rural communities by ensuring that transfer losses are shared equitably among rural areas, by encouraging and mandating conservation to lessen the need for transfers and by protecting environmental values.

When legislatures won’t act, sometimes the courts will. In the latest struggle in the Owens Valley, over the drying up of Mono Lake, rural and environmental interests seemed fated to lose once again. But then the California Supreme Court stepped in to balance the scales by ordering Los Angeles to reduce pumping to protect the lake. To get that result, the court invoked a creative legal concept--the public-trust doctrine. But in the long run the courts are not a good place to formulate water-resource policy. Judges are no substitute for good legislative and regulatory policies.

What do these tales of three cities add up to? They tell us that water transfers will inevitably continue. The West is becoming an urban place, and the impetus of expansion cannot be denied. Some agriculture must go out of production. But growth and water transfers cannot be allowed to efface our history and environment, destroying rural communities, drying up streams and lakes and endangering wildlife. And that means better planning, up-to-date water legislation and strong regulation at the state level.