westernriverlaw

The House of Representatives Appropriations Committee has approved a funding bill that would allow the Environmental Protection Agency to withdraw an existing Clean Water Act rule “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.”  This rule, known as Waters of the United States or WOTUS, was adopted by the Obama Administration EPA to clarify which waters are subject to Clean Water Act jurisdiction.  The House Appropriations Bill is extraordinary, because if approved it would allow the Trump EPA to eliminate this rule without going through the usually required process, including public comment on the EPA’s proposal.

Let’s back up a step.  Like many agencies, EPA has the authority to write rules that carry the force of law, because Congress provided that authority.  Long before EPA was ever created, however, Congress set up some basic requirements that agencies ordinarily must follow in adopting rules.  These requirements include publishing notice of a proposed rule, and giving the public an opportunity to comment on it before it becomes law.  Congress set up this requirement in the Administrative Procedure Act or APA, and it has stood pretty much unchanged since 1946.  Not only does the APA give the public a voice in agency rulemaking decisions, it also provides for judicial review of agency actions, ensuring that citizens can challenge agency decisions that harm their interests.

Under the APA, an agency that seeks to eliminate a rule must follow the same process as if it were making a new one, which includes notice and comment.  And when it makes its decision, the agency must provide a reasoned explanation for its choice that makes sense in light of all the information that the agency considered in adopting (or eliminating) the rule.  This means that before the Trump EPA could kill the Obama EPA’s rule on Clean Water Act jurisdiction, the agency would have to publish a proposal, take public comment (normally for at least 60 days), and then provide a reasoned explanation for why today’s EPA sees the issue so differently than yesterday’s EPA did.  The House Appropriations bill would mean the agency can skip the process and just kill the rule.

Why does this matter?  Not just because the rule is so important for water quality, and for many industries (including agriculture) that want to limit federal involvement in their activities.  There is a bigger issue here about the steps we expect (require) agencies to take before they make law.  These steps force agencies to spend time and money on rulemaking procedures; public involvement can be messy and slow, but it is a time-honored requirement so that the public has a chance to be heard.  By the same token, judicial review of agency action is an important check to make sure that an agency’s actions are grounded in law and not, in the APA’s words, “arbitrary” or “capricious.”

Killing this rule has been a top priority of the Trump Administration and most Republicans in Congress.  In their view, the WOTUS rule was a regulatory overreach by an out-of-control Obama EPA, and we need to get rid of it fast.  But the rule is already being challenged in court, and frankly, Congress created this problem (back in 1972) by using a term as vague as “Waters of the United States” to define the scope of the Clean Water Act.  Congress, of course, could clarify the law itself … but if it leaves the job to EPA, the agency should have to accept public comment and explain its decision.  You don’t have to like the WOTUS rule to believe in checks and balances on agency action.

The relentless, punishing California drought has gained a lot of attention from politicians and the media, as the Golden State struggles to deal with a set of problems that only get worse as the warm, dry conditions persist. The State of California has been forced to take unprecedented regulatory actions in an effort to reduce water use, more or less across the board: surface and ground water, agricultural and urban uses. Drought elsewhere in the West has gotten less attention, partly because other western states are not quite as dry (although Nevada and the Northwest are in tough shape), and partly because they are not California. But given that California is often seen as very different from the other states, is California’s experience with drought relevant for the rest of the West? In the big picture, it clearly is.

One interesting result of the drought is that it has raised questions about two fundamental factors– agriculture’s share of statewide water use, and state water law based on prior appropriation–that are hugely important but often seen as fundamentally immovable. The questions are not new, and while they have always been part of the academic literature on western water policy, they have typically had limited relevance in official decision-making about water in the West. But the length and severity of the current drought have more Californians questioning why irrigated farming (even of high-value crops) should take up about 80% of California’s water use, and why their famously forward-looking state continues to divide water among competing uses based primarily on how old those uses are, with the oldest taking priority. As climate change promises to make California generally warmer and drier, these questions grow in importance.

Water users and officials in other western states might be tempted to discount California’s experience, arguing that California is different from the “real West.” They might point to California’s enormous population–roughly 1 in every 8 Americans, very different from the Interior West. They might insist that California water law is different in some ways from that of other western states, and there are indeed some notable differences. And they might argue, also with some validity, that the federal government plays a more important role in California than in the other western states, especially in operating the Central Valley Project and applying the Endangered Species Act. And politically, of course, Rocky Mountain and Great Plains states are more conservative than California, which is left of the “real West” in more ways than one.

I acknowledge all those differences, but I think recent events in California offer some relevant big-picture lessons for the rest of the West, because our basic water challenges are more like California’s than many people would care to admit. Irrigation also accounts for about 80% of the water use, if not more, in most western states. As in California, the water laws of other states give users water rights that last forever, that offer no incentives to use less, that take priority in times of shortage if they are older than other rights, and that are not readily moved to new places or uses. Other states, like California, have fully allocated most of their surface water sources, and allowed groundwater pumping that some aquifers cannot sustain. Many other western states have been growing fast for decades, as California has. Major federal water projects, and water-dependent endangered fish species, are found in every western state. And the entire region should expect to get warmer, and the southern half especially to get generally drier, if climate change plays out as predicted across the West.

California’s water situation is unique in some important ways, and I am not suggesting that recent events in that state will soon repeat themselves in the other states. What I am suggesting is that the “real West” has many of California’s basic problems regarding the allocation, supply, use, and management of water resources, and that these problems figure to get increasingly serious as we get deeper into the 21st Century. The current drought, commonly viewed as the worst in the state’s history, has forced California to dig deeper for solutions than it ever has before. Every western state should expect that coming years will bring droughts longer, drier, and warmer than any living person has seen. Some states are engaging in planning efforts, seeking to prepare for future water supply challenges. As states and stakeholders across the West look ahead, the California drought frames a key question: if we dry up like never before, how can ensure enough water for our most important human, economic, and environmental needs?

I was quoted this week in a Washington Post GovBeat blog story about a bill in the Colorado legislature that would legalize, on a limited basis, homeowners using rain barrels to catch the water that runs off their roofs. (See below for directions on finding the story online.) What made this little issue worthy of a national news outlet like the Post? What intrigued reporter Jeff Guo was not so much that Colorado was considering a change in law, but what the ongoing ban on residential rain barrels said about how the West manages water. His story, and my quotes, focus largely on the fundamentals and the flaws of water law in the western states. And Colorado, like a few other states, has language in its Constitution that specifies a particular system of water law: prior appropriation.

The best-known feature of prior appropriation is “first in time, first in right”–the principle that gives priority to water rights based on how early they were established. This first-come, first-served principle is not only used to allocate water among would-be users, but also to regulate water use in times of shortage; thus, under what Guo called “the dibsies approach to water management,” junior users may get no water at all in times of drought, while senior users get every drop their rights allow. And because most of the big water users in the early West were farmers irrigating their crops, most of the top-priority rights in the West are agricultural–one reason why roughly 80 percent of the region’s water use is for farm and ranch irrigation. In some states, including Colorado, the percentage is even higher.

Prior appropriation is famous for favoring the oldest water uses, but there are other ways in which it tends to lock in the status quo. First, water rights are quantified based on how much is “beneficially used” for the purpose of the right, which has always encouraged users to take and apply as much water as possible; using less could diminish the quantity and value of the water right. Second, these rights are a species of property, and so long as the water remains actively in use, they last forever. Thus, prior appropriation is a system whereby the western states have allocated water to private users, under a system that recognizes perpetual rights, and affirmatively discourages conservation. And because water rights are ordinarily restricted to the particular places and uses for which they were established, any changes require state approval–a process that can be controversial, expensive, and uncertain. This backward-looking approach to water management poses serious problems in a region that is changing fast, and in many ways.

What does this have to do with rain barrels? Colorado, which has long been influential in western water law, practices a uniquely pure form of prior appropriation that scrupulously protects senior water rights. And senior water users understandably are concerned about any change in the law that might lead to a reduction in their water supplies. Enough homeowners collecting rainwater in barrels, and using it to water their gardens, could lead to less water getting to streams and aquifers that supply water to these users. Under this view, home rain barrels are basically petty theft of water that belongs to someone else–which explains why irrigators might not like them, and legislators might hesitate to legalize them. (Some might suggest that water users should be more concerned about the impacts of climate change on their future water supplies, but that is another story.)

Guo also quoted Arizona’s Robert Glennon–who is famous for a law professor, having once appeared on The Daily Show–as saying that prior appropriation is “deeply embedded in Western water law. We academics criticize it, but it’s not going anywhere.” That is certainly true, and I observed in the story that the fact that home rain barrels remain controversial in the 21st century shows “how well-entrenched that old tenacious legal system is.” The good news is that states have shown that they are sometimes willing to adjust prior appropriation to serve important policy goals; one example is that most states passed laws allowing for “instream flow” water rights that were not recognized by old-school prior appropriation. A key question is whether states will further revise their laws to improve flexibility, promote conservation, and provide for important environmental and recreational water needs. The Colorado legislation is worth watching, mostly because its fate will say something about whether states are willing to change their laws to tackle the West’s major water problems … which are far bigger than any rain barrel.

(To find the story, search “govbeat guo march 24” — the headline is “It is actually illegal in Colorado to collect the rain that falls on your home.” Sorry I was unable to provide a working link to it here!)

Last week, the U.S. Supreme Court issued its decision in Kansas v. Nebraska, a dispute over the waters of the Republican River. The Republican flows from Nebraska into Kansas, and for most of the last 17 years the two states have been fighting over whether Nebraska is taking more than its legal share of the water. (Kind of fitting, I think, that these two red states are squabbling over whether they are getting enough of the Republican.) By the time this case reached the Supreme Court, the parties had accepted that Nebraska took too much water in 2005-06; the key issues were about remedies for Nebraska’s excessive use, and what the Court said on those issues is potentially important for future interstate water cases.

First, a bit of context. This case dealt with the Republican River Compact, an interstate agreement involving Kansas, Nebraska, and Colorado (where the river originates). Interstate compacts are negotiated deals by which two or more states agree on the allocation or management of a water body that they share. There are more than two dozen such compacts, mostly in the West, and each one is unique. Under the U.S. Constitution, however, no compact can take effect until Congress has ratified it, making it the law of the land. Thus, every compact is both a contract and a federal law; in the new Supreme Court decision, Justice Kagan’s majority opinion tends to emphasize the “federal law” aspect of the compact, while Justice Thomas’ dissent stresses the “contract” aspect. Compacts are typically enforced in cases before the Supreme Court, and often there are intense legal and technical disputes over whether a compact has been violated. The new opinion does not address such “liability” questions–but its reference to the Court’s “capacity to prevent one state from taking advantage of another” might suggest that where a compact is unclear, the Court will interpret it based partly on the Court’s sense of what is fair to all the affected states.

Nebraska and Kansas had settled an earlier lawsuit over the compact in 2002, agreeing on a complex technical methodology for quantifying Nebraska’s obligations to Kansas and determining whether they were being met. The day of reckoning for the upstream state arrived in 2005-06, which was a drought period in that area. Nebraska delivered about 70,000 acre-feet less than it should have, and when the case reached the Supreme Court the parties had accepted that number, and also Kansas’ resulting losses of $3.7 million. Nebraska agreed to pay that amount, but Kansas asked for further relief in the form of additional payments and an injunction that would impose future obligations on Nebraska. The Supreme Court held that further relief was appropriate, largely because Nebraska–which has always been very reluctant to regulate pumping–had to know that its efforts to reduce water use were too little and too late to achieve compliance by 2005-06. The Court concluded that “Nebraska recklessly gambled with Kansas’s rights, consciously disregarding a substantial probability that its action would deprive Kansas of the water to which it was entitled.”

The Court agreed that Nebraska should have to pay more than Kansas’ losses of $3.7 million, in part because Nebraska had made far more money than that by keeping the extra water for itself. The Court noted that “the higher value of water on Nebraska’s farmland than on Kansas’s means that Nebraska can take water that under the Compact should go to Kansas, pay Kansas actual damages, and still come out ahead.” Unwilling to leave those incentives in place, the Court ordered Nebraska to pay an additional $1.8 million, despite a conclusion that Nebraska’s benefit was probably far greater than that. Three justices dissented on that remedy, arguing that the Court should not have ordered the extra payment at all. But all nine justices rejected the other relief that Kansas requested: an injunction governing Nebraska’s future conduct. On this point the Court said little, but it concluded that there was adequate assurance of Nebraska complying in the future, now that the state had imposed stronger legal controls on pumping.

What does this case (which involved additional issues that I haven’t addressed here) mean for other ongoing or potential disputes over compliance with an interstate water compact? I see three key lessons. First, the Court expects states to “take the medicine” by restricting or reducing their water uses as needed to meet their compact obligations, even when the medicine tastes bad to the states and their water users (and even in times of drought). Second, the Court will use its broad and flexible remedial powers to discourage states from taking the easy way out of these disputes, i.e., allowing ongoing overuse of water and simply paying compensation. Third, injunctive relief will be hard to get even when a state has knowingly violated a compact, as the Court is far more comfortable ordering payments to address violations. And because the Court ordered Nebraska to pay only part of the money it made from using too much, the new decision may not be enough to convince other states that they should take expensive, unpopular steps to reach compliance.

Earlier this month, Congress passed and the President signed a huge, wide-ranging bill to fund the federal government for the rest of Fiscal Year 2015. At a little over $1 trillion, the so-called CRomnibus spends a ton of money, and at more than 1600 pages, it uses a ton of words. Daunting as they are, spending bills like this one are important not only for the money they spend, but also for substantive “riders,” which have become relatively more important as Congress has found it increasingly hard to pass any meaningful legislation. Against my better judgment, I went looking for the part of the CRomnibus that funds the Bureau of Reclamation and the Army Corps of Engineers, knowing that it would contain some potentially interesting (for me at least) water policy provisions.

The Corps of Engineers section (pp. 431-445) is where the real money is, because while the Corps’ roughly $5 billion budget is modest by Pentagon standards, it dwarfs that of Reclamation. A few items from the Corps section are interesting from a policy standpoint. It directs the Corps to begin the study process for 10 potential new projects (“new starts”), of which 7 must be primarily transportation or flood control projects, and 3 must be primarily environmental restoration projects. (This kind of Congressional direction to emphasize the agency’s traditional mission ensures that the Army Corps of Engineers does not drift further into eco-radicalism.) On the regulatory side, the bill blocks the Corps from taking certain actions to toughen regulations under Clean Water Act section 404, and orders the Corps (and EPA) to withdraw guidance interpreting section 404 which had drawn objections from farm groups and some states. Regarding western rivers, the bill denies any funding for a ecosystem restoration study of the Missouri River system authorized by Congress in 2007, but allows (without actually providing) up to an additional $18.4 million for studies of measures to improve the survival of salmon populations in the Columbia River Basin.

The Reclamation section (pp. 446-455) delivers less money–about $1 billion–and less policy direction, but a few of the substantive provisions are noteworthy. One allows (without actually providing) up to an additional $100 million for the Bureau’s program of grants and cooperative agreements under the SECURE Water Act; these grants can help fund water conservation projects, ecosystem restoration efforts intended to benefit rare species, and other activities. A second provision revives (but authorizes no additional money to implement) expired portions of the Reclamation States Emergency Drought Relief Act, which as I noted in my 2012 DoubleWhammy article, has important authorities that Reclamation could use to help western rivers and water users endure droughts. The final section allows the Bureau to “fund or participate in pilot projects to increase Colorado River System water in Lake Mead” and Upper Basin federal reservoirs “to address the effects of historic drought conditions.” This authority allows Reclamation to provide grants for certain non-federal projects, or for renewing or implementing existing “water conservation agreements.”

What do these provisions suggest regarding Congress and water policy, especially for the West? I draw two lessons from the CRomnibus. First, the recently departed Congress believed that it was still necessary and appropriate to invest federal dollars in solving water-related problems, as shown by the “new starts” direction to the Corps, the new authorization for SECURE Water Act grants, and the authority for Colorado River Basin pilot projects. Second, some in Congress sought to block certain of the Administration’s environmental initiatives, and saw the must-pass spending bill as the best way to do it; this view is reflected in the Corps provisions on the Missouri and section 404, but perhaps most dramatically by a more famous provision (p. 725) barring the Fish & Wildlife Service from listing certain sage grouse populations under the Endangered Species Act.

But, of course, the CRomnibus was the last major action of the infamously divided and unproductive 113th Congress. What about the 114th, which will see both houses return to Republican control? I think it’s very safe to say that the second theme of the CRomnibus–blocking environmental efforts that the GOP opposes–will be a major focus of water policy in the next Congress. As for the first theme–federal action and investment directed toward resolving the biggest and most serious water problems–the immediate future is far less clear. The majority in the next Congress generally sees the federal government as the problem, not the solution, and that’s especially true when it comes to water in the West. Will the new Congress still believe in directing federal agencies and dollars to help address the region’s most important and urgent water problems? We shall see.

I recently had the pleasure of speaking at a conference hosted by the Utton Transboundary Resources Center at the UNM School of Law in Albuquerque.  The conference theme was “Water Resilience in a Time of Uncertainty,” and presentations addressed the need for laws, policies, and processes that can help the West prepare for coming changes that will place increasing stress on our water resources.  The focus was on ways to make our water allocation, management, and governance regimes more resilient, so that the region will suffer less harm from the effects of climate change, among other things.

I spoke on “Resilience and the Law” along with Dan Tarlock of Chicago-Kent law school–one of the great gurus of water and environmental law–and our moderator was Melinda Harm Benson, a professor of Geography & Environmental Studies at UNM.  We discussed the question of western water law in relation to the concept of resilience, focusing primarily on the foundational doctrine of prior appropriation, and asking if it helped or hindered the pursuit of resilience.  Our brief remarks focused less on the letter of the law than on how it has been applied over time, and while I primarily addressed practices in New Mexico, I think my remarks are more or less relevant in other parts of the West.

Since I am certainly no expert on resilience thinking, II emphasized a quote from a recent article by two authors who are, Melinda Benson and Robin Craig:  “[A] resilience approach would reorient current research and policy efforts toward coping with change instead of increasingly futile efforts to maintain existing states of being.”  In my view, a top priority of western water policy–especially in New Mexico–has been maintaining existing states of being.  Having allocated as much water as possible to some “beneficial use,” New Mexico and other states now mostly protect the water use status quo, even where changes would be legally sound, economically preferable, and environmentally beneficial.

New Mexico, especially, seems to have defined success in water policy for several decades based on a few key principles:  make sure water is put to use, prevent established water uses from being restricted, and limit the role of government in water management.  These principles are reflected in some basic facts of New Mexico’s water management:  the state remains mostly unadjudicated, largely because these proceedings are stubbornly and incredibly slow; it has almost never administered water rights by priority, despite the language of the state constitution; and it largely avoids the subject of water conservation in the agricultural sector, even though irrigation accounts for the vast majority of the state’s water usage.  These practices have been criticized, but if the goal is to keep government from messing with existing water uses, every one has been a big success.

Like some other states in the West, New Mexico’s constitution provides for water rights based on prior appropriation, but also declares that water belongs to the public.  For many years state water law and policy have been geared toward protecting private rights to water–that is, ensuring that private water rights are secured and protected from any interference.  In the future, however, New Mexico and other states will need to take a broader view, emphasizing management of a public resource for the long-term good of the entire state.  That would be a fundamental shift in focus for water law and policy, and I see it as necessary for building resilience to meet the enormous challenges of the future.