In the arid West, water has always been scarce. To limit wars over this lifeblood, states during the 19th-century mining era began issuing to some of their landowners legal entitlements to a share of the water flowing through rivers and lakes. Called water rights, these formal entitlements now pass down, with the land, from owner to owner as a form of property.
The entitlements establish that when water supplies begin drying up, landowners holding the oldest claims are to get their full allotment of water before any is dispensed to holders of more recently established water rights. Legally, therefore, those who inherit or purchase land carrying the oldest water rights stand at the head of the line to the public water trough.
In practice, however, a new family of claimants–fish in danger of extinction–has begun trumping even the oldest water rights. These animals are protected by a federal law that is every bit as inflexible as the state laws protecting a landowner’s water right.
Over the past decade, a continuing drought has diminished western water resources, at times leaving only enough in rivers to keep the fish alive. When flows are better, gates to canals or water pipelines may open, giving farmers some of their allotted water–but it frequently hasn’t been enough or at the right time to slake the thirst of crops and livestock.
It’s come to a point in the West where “endangered species [protection] is the most significant factor in water shortages,” argues David Haddock, an attorney with the Pacific Legal Foundation in Sacramento, Calif.
An escalating conflict between the water rights of landowners and fish has begun spawning lawsuits that could redefine policy on endangered species protection.
Although the science of how best to protect endangered fish remains controversial, it plays almost no role in the new legal face-offs. They focus instead on whether federal agencies are, in effect, stealing private assets–the water, that is–or illegally meddling with state sovereignty.
Such clashes are causing some resource analysts to question whether the laws are too simplistic to deal with an increasingly complicated problem. Others are looking to use the marketplace for end-runs around the laws’ limitations.
How the problems are resolved could have implications for river management well beyond the arid West. Already, global warming and the demands of growing urban populations have strained the carrying capacity of many eastern U.S. rivers.
These factors may expand the previously circumscribed conflict between wildlife and thirsty consumers to a near-continental scale.
Inviolable rights
The conflict began with environmental issues, but it’s the laws that now bring it to a head. Whenever federal biologists list a species under the Endangered Species Act (ESA), a host of rules goes into effect. When the listed species are aquatic, the federal government can step in and restrict what had been seen by many for generations as inviolable water rights.
Technically, the federal government has a legal right to take private assets, such as rights to water, when, say, national security or some public good would otherwise be threatened, observes Haddock. However, the Fifth Amendment to the Constitution requires that the government offer “just compensation” for any private property seized. So far, Haddock notes, Uncle Sam hasn’t been offering compensation for the increasingly common takings of water rights to protect
endangered species.
Consider what happened in California several years ago, when the federal government instructed some of that state’s water agencies to withhold water from farmers. A preliminary ruling earlier this year in what has come to be known as the Tulare Lake case threatens to make protection of endangered species more expensive than anyone had anticipated, Haddock told reporters in October in Portland at the Society of Environmental Journalists annual meeting.
Owing to droughts during the early 1990s, water in the Tulare Lake basin in south-central California became scarce. When river levels began plummeting, the federal government told certain water agencies to limit sharply the amounts they diverted to rights holders. According to the National Marine Fisheries Service and U.S. Fish and Wildlife Service, a failure to keep significant amounts of water in streams would jeopardize the survival of winter-run chinook salmon and delta smelt. Both species are locally threatened with extinction.
Farmers who irrigate their land measure water in acre-feet. Each acre-foot corresponds to 325,851 gallons, or the amount of water needed to cover an acre of ground to a height of 12 inches. One of the California water districts held back nearly 320,000 acre-feet of water from 1992 through 1994.
For many farmers, these cutbacks amounted to between 40 and 50 percent of the water to which they had been entitled. Moreover, none received compensation, explains Haddock, who helped argue the case on behalf of the affected water-rights holders.
On April 30, Judge John P. Wiese of the U.S. Court of Federal Claims in Washington, D.C., ruled that “the federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so.”
Within a year, the court is expected to decide how much the U.S. Treasury must give to the aggrieved parties. It could “easily” total billions of dollars, Haddock says. If this case sets a precedent, many thousands of Western landowners may make claims for monetary compensation in subsequent lawsuits.
Endangered salmon
Last month, water-rights holders in Oregon and California filed a lawsuit, also in the U.S. Court of Federal Claims, federally mandated water curtailments in the drought-damaged Klamath Basin, where irrigators get water through contracts with the federal Bureau of Reclamation.
Citing concerns over endangered coho salmon in the Klamath River and endangered sucker fish in Upper Klamath Lake, the bureau had warned early this year that as many as 90 percent of water-rights holders might not receive any water whatsoever in the summer. Conditions proved less dire than predicted, so the bureau reopened its spigots in midsummer. Even so, Haddock says, “it was late in the season, and not all that helpful for growing crops.” Estimates of economic losses range well into the millions of dollars. Buoyed by the Tulare Lake decision, irrigators in the Klamath Basin are now suing for monetary compensation.
Calling this summer’s conflict in the Klamath Basin “the Perfect Storm of water-rights problems,” Donna M. Cosgrove of the University of Idaho’s Water Resources Research Institute in Idaho Falls says that the confrontation “has sent a ripple throughout the whole Pacific Northwest.”
This year ranks as perhaps the driest of the past quarter-century for much of the Klamath Basin. Even in the absence of endangered species regulations, the collective volume of water earmarked for use to fulfill water rights was more than the water available. Moreover, the recently reconstituted Klamath Indian tribe exercised water rights that legally supercede those of other rights holders.
This basin “probably couldn’t–in anything but a wet year–have [satisfied] all of the appropriations that were to have been made,” Cosgrove notes. “I can’t think of any other single basin that underscores Western water issues better.”
More legal skirmishes
There are yet more legal skirmishes involving the Endangered Species Act, notes attorney Galen G. Schuler of Perkins Coie, a law firm in Seattle. In mid-June, he filed suit against the National Marine Fisheries Service on behalf of irrigators in Okanogan County, Wash., 130 miles northeast of Seattle.
Those farmers get their water from the Methow River. However, to reach their fields, the water must pass across federal land in canals and conduits. The U.S. Forest Service has been issuing permits to cross this right-of-way for 99 years.
Four years ago, the federal government changed its permitting process. On the basis of its assessments of how the diverted water might affect river life, the government ruled that it would prohibit the passage of water across federal land when water levels in the Methow River were low. The action was taken to protect the river’s endangered chinook and steelhead trout and its threatened bull trout.
The irrigators’ complicated case alleges four major procedural and interpretive problems. Among them is a claim that the federal government has attempted to usurp state sovereignty by involving itself in state-issued water rights. Schuler says that the federal actions also made an assessment of risks to protected species that appears to violate the Endangered Species Act.
Previously, he says, actions such as the diversion of water for irrigation would be prohibited only if they jeopardized the continued existence of an entire species in the wild or adversely modified habitat critical to the conservation of the species. The National Marine Fisheries Service jettisoned such standards in favor of a far less restrictive one, Schuler argues. Now, it finds a risk “in any action that doesn’t help a [threatened or endangered] species to recover,” he says. Applying this new standard amounts to rewriting the law, the Okanogan lawsuit contends.
The science that the National Marine Fisheries Service and the U.S. Fish and Wildlife Service recently offered in support of withholding water also appears flawed, Schuler says, noting that even a 1992 federal study of the Methow concluded that diversions of water for irrigation help the river ecosystem by keeping water levels relatively constant.
But that subtlety wasn’t relevant this year. During late October in at least one stretch of this major river, “there wasn’t a drop of water,” observes Doug McChesney of the Washington Department of Ecology in Olympia.
Schuler notes that three cases similar to Okanogan County’s are now wending their way through the courts in Idaho, Arizona, and Colorado. Two of the cases have been filed since June. All charge that the federal government misapplied the endangered species law. At least one of these other cases pits endangered-species protection against stream diversions to provide municipalities with drinking water.
Competing claims
The lawsuits, Cosgrove says, demonstrate “that water law was never written for the complexity that we have today”–such as competing claims of landowners, tribal communities, and protectors of endangered species. She points to a host of unforeseen technologies, from hydroelectric dams to groundwater pumping, that further complicate water management.
But to George Landrith, executive director of Frontiers of Freedom, a think tank based in Fairfax, Va., the problem rests largely with the Endangered Species Act.
It’s so rigid and restrictive that “it makes people hostile to endangered species,” Landrith says.
Almost any government policy “requires that you weigh two competing goals” and then decide which provides the most benefits and least harm, Landrith says. ESA doesn’t do that, he argues. Once a species is listed under the law, it must be protected–often using “draconian sanctions” with high social and economic costs, he contends. With no water, some of the lands currently farmed and ranched would just dry up.
“I don’t see how it’s good for the environment to turn that region into a Depression Era dust bowl,” Landrith told Science News. Instead, he would prefer to see the conservation of endangered species encouraged with the proverbial carrots–perhaps grants or tax breaks to rights holders for conserving water.
McChesney says “a movement to roll back ESA” is being widely talked about by states’-rights advocates and farmers. It doesn’t help, he and Cosgrove note, that the science used to support actions under ESA is complex and often open to various interpretations.
Cosgrove suspects that “what would work the best would make all sides unhappy” – both permanent cutbacks for irrigators and other water-rights holders and a concession that “there are going to have to be some endangered species that we won’t try to sustain.”
In many ways, amending ESA may prove easier than trying to rewrite water laws. In western states, McChesney explains, “virtually every piece of legislation affecting water rights says that existing rights will not be affected by subsequent legislation.”
Western water law also generally embodies the principle of use it or lose it. If landowners don’t use their full allotment of water, the state can permanently cut their quota. As such, McChesney notes, users receive little incentive to conserve water or to apply their water to the highest-value uses–growing crops, for instance, instead of watering golf courses.
Win-win solutions
Some people are attempting to solve the problem with end runs around the legal line of scrimmage. Several water-marketing groups have sprung up over the past few years with the aim of bypassing litigation to create “win-win solutions for both the landowner and fisheries,” notes Clay Landry of the Political Economy Research Center in Bozeman, Mont.
Usually referred to as water trusts, these groups collect money from private and public donors–including state governments–to lease or buy an individual’s water rights. In Oregon, property owners may permanently trade away all or part of their rights to irrigation water for about $350 per acre-foot, Landry notes. In Colorado regions where the population is rapidly growing, each acre-foot retired can cost 10 times as much. The purchased water then remains in streams to support fish and other wildlife.
“We’ll likely have about 75 agreements–both permanent and temporary–in place this year that preserve about 50 cubic feet per second of flow in-stream,” or about 33 acre-feet of water, notes Andrew Purkey, executive director of the Oregon Water Trust in Portland. That’s enough to save some of the smaller waterways, he says.
In most cases, farmers sell their rights as they retire from farming, switch to growing nonirrigated crops, or reduce their use of water through conservation measures, notes Rachael P. Osborne, a Spokane attorney and board member of the Washington Water Trust. Typically, she says, these water trusts achieve the biggest impact by buying rights to water from small tributaries, where in some cases the entire stream flow can be saved. Such innovative solutions can work faster than passing new legislation.
Sandra Postel, director of the Global Water Policy Center in Amherst, Mass., says that current laws are proving anachronistic as “we try to figure
out how to protect newfound values” such as endangered species and recreational waters.
In a few isolated places, she notes, federal-government incentives have encouraged farmers to embrace drip irrigation and other water-conserving techniques. That’s what happened in California’s Central Valley, a region that raises 68 percent of the state’s crops–produce valued at $13.7 billion a year. “But if we address the problem on such a piecemeal basis,” Postel argues, “it’s going to take forever to increase the efficiency of water use in the West.”
Growing urban centers in eastern states are placing similar pressures on local water and its denizens. As a result, Postel says, “we’re starting to see some of the same issues and the same kinds of litigation pop up” as these eastern rivers run dry in drought periods, “stranding fish and destroying ecosystems.”
For the time being, resolution of most disputes over water tend to be battered out with anger and litigation. Landry says, “If we continue down the path of using this hammer, we’ll find it increasingly difficult to persuade people to experiment with market forces.” But stakeholders may have few alternatives unless and until the current laws change.
