Thursday, October 17, 2002

 

Reserved Water Rights

Getting back to my intended subject matter for this blog, I commend to readers' attention the article in Sunday's NYT titled "US Eases Way for West to Control Big Volumes of Water". It's a decent article involving an issue that generally takes a great deal of background to understand. In a nutshell, in an ongoing water rights case that allocates the rights to water in the Gunnison river, the US has already been granted a right to sufficient water to protect the values of the Black Canyon of the Gunnison National Park. However, the Court has not yet quantified how much water is necessary to protect those values. The Park Service produced a study specifying the amounts necessary and the US, under the previous adminstration, sought to quantify the water rights consistent with the study. Now, apparently, the Bush administration is looking to settle with the other water users for significantly less water for the park. According to the article, "Mr. Comer said that based on a reassessment the total might fall short of what park officials identified last year as necessary. He also said that in contrast to the Clinton administration the Bush administration would claim a right significantly less that the park's needs. As part of any accord, he said, the government would seek to make up the difference by acquiring water from other sources ...". In essence, the new administration wants to undo the legal claims of the last administration.

This will sound familiar to those who were following the fates of the Roadless Rule and the arsenic standard for drinking water promulgated by the Clinton administration. And I would certainly argue that all these actions stem from the same "everything Clinton did was wrong" mentality, but I think there are a number of implications in this case that we should devote some more thought to.

Science vs. Policy -- It's becoming a bit of a tired refrain but, like the arsenic standards, it appears that a change of heart among political appointees is being allowed to trump the empirical scientific conclusions. However, it is a bigger problem here because the result will be a court decree. There will be no revisiting of this issue by a future administration and no opportunity for the public to speak through elections. The only way to get any of this water back will be to buy it back.

Of course that is exactly the situation the Bush administration is looking for. In fact, Mr. Comer (the political appointee within the DOI Solicitor's office in charge of Bureau of Reclamation water rights) admits as much in the interview with the times saying they will have to acquire the necessary water from other sources. Which leads me to :

Fiscal Responsibility -- "Acquiring water from other sources" means buying water from others that the US already had a legitimate claim to but refused to exercise. But it gets worse. The nature of federally reserved water rights is that they date back to the time of the federal designation; in this case 1933, the time the park was first designated a monument. Thus, all water users who began using their water after that time will have to yield to the park. If, instead, DOI decides to try and purchase water on the open market, not only will they pay money for water they had for free, it will almost certainly be far more "junior" in priority. As a result, the purchased water may never even be available when needed. Which leads me to the final, and most important issue:

Constitutional Responsibility -- What makes the Bush administration think they get to decide how much of a right to assert in the litigation? Federally reserved water rights begin with the 1908 Supreme Court case Winters v. US and have been further refined by several Supreme Court cases since. In short, these cases stand for the proposition that when the US sets aside land for some particular purpose like an Indian Reservation or National Park, Congress impliedly sets aside the concommitant water rights necessary to fulfill the particular purposes of the reservation. There are modifications to this principle depending on the kind of reservation we are talking about but they are not terribly relevant here; parks and monuments are pretty clear. In this case, since you have a monument/park that is actually a river, the need for water rights to carry out Congress' intent in the designation is clear cut. It seems to me awfully difficult to maintain the Executive is faithfully executing the law if they simply pass on exercising the legal rights necessary to support the designation. Federally reserved water rights were a fixture in the law when this monument was designated, any political calculations related to the water rights created by the designation were undertaken then. I don't see how this administration has any right, morally or legally, to second guess that decision. Their responsibility is to carry out the law.

Of course enforcing this responsibility on this administration is a different question. Maybe I'll visit that another time.

posted by Mike 4:08 PM

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