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Don’t Blame Water Markets for Trouble With Western Rivers

When it comes to protecting the West’s rivers, water markets are not the problem, says University of Colorado law professor Mark Squillace. Instead, it’s our failure to protect the public interest.

Written by Mark Squillace Published on Read time Approx. 4 minutes
Fallowing for water
Farmer Eric Hanagan walks a water ditch used to irrigate a field of alfalfa on his farm near Swink, Colorado, in September 2011. Hanagan and other farmers in the Arkansas Valley are looking at a pilot project that would allow farmers to temporarily dry up land on a rotating basis and let cities lease the water that would have gone toward growing crops.AP/Ed Andrieski

As Western states grapple with the best way to allocate dwindling water resources to meet multiple needs, water markets have emerged as one tool. But the idea is not without critics, such as Gary Wockner, who wrote a recent op-ed for Water Deeply about his skepticism that water markets will protect Western rivers.

Wockner raises three concerns with water markets: They commodify nature, there’s a lack of information about how much water they can really save and they skew funding to larger advocacy groups at the expense of others.

I see things differently.

Water markets don’t commodify nature. Rather, it is the prior appropriation system of “first in time, first in right” used through much of the West that gives private water users vested property rights in water. That is the root cause of this problem. It is entirely fair to criticize the prior appropriation system and if we could do it over I would advocate for a temporal permit system that protects the public interest in water from the outset and allows for periodic adjustments to these water permits as new information becomes available as to how to better protect the public interest in water resources. But that is not the world that we live in and it is unrealistic to think that will change – at least in the short term.

When it comes to information, we know enough already to show that the potential for marketing is vast. Current law – not lack of information – is the main obstacle to moving water efficiently. I have written on this topic and so perhaps have my own set of biases, but I believe that incentivizing crop switching, deficit irrigation and rotational fallowing by streamlining water transfers could yield vast quantities of water for new consumptive uses as well as non-consumptive ecological needs.

With regards to funding these projects, we should all be wary of the role that private foundations play in displacing the traditional role of government, ostensibly to promote the public good. And while we should be grateful for the positive work that private foundations have done to benefit our world, we must also acknowledge that private foundations have their own agendas, and their priorities may or may not reflect the public interest as that term might be defined by public agencies.

Nonetheless, so long as government fails or refuses to fund and address public needs adequately, foundations will have an important role to play. That does not mean that we must simply accept the choices that foundations make. On the contrary, we should demand that they be transparent and operate under standards that are fair. But we should judge the work of foundations on the merits and not be unduly suspicious of their motives. (To be clear, my work on water markets has not been funded by private foundations.)

This leads me to the broader point that Wockner raises about the need to reform our laws to protect “the rights of nature.” While I share a passion for protecting the ecological health of our water systems, I am skeptical about the prospects for an Ecuadorian-style constitutional provision.

The good news is we do not need it.

For the most part, we have the tools under our existing law that would allow us to protect the public values associated with water. We just need to use those tools in more creative and effective ways. Most prominently, in every state with positive water law (statutory and constitutional law), water is understood to be public property and, in most states, that translates into a trust responsibility on the part of the state to manage water for the benefit of the public.

Most states further demand that water resources be managed to protect the public interest. (The only state to have denied this responsibility is Colorado – the home state that Wockner and I share.)

Properly understood and properly applied, the public interest/public trust obligation offers the prospect that the communal values in water that we all share – to meet basic human needs, and to protect aesthetic, recreational and ecological needs – must be met first, before private rights are protected. Viewed in this light, and subject to these constraints, water markets are simply a mechanism for reallocating private water rights once public rights have been fully protected.

To be sure, many states have effectively ignored their obligation to manage water resources in the public interest. Other states have defined the public interest in ways that allow for balancing public values with private rights, as if they can be placed on an equal footing. This approach misconceives the nature of the public interest in water resources management. Only by first protecting those shared, communal values in water can we truly protect the public interest.

Rather than chasing a constitutional right of nature that seems unlikely to be realized, we should use the tools that we already have to rethink our approach to managing water resources. This will pose its own serious challenges; but because it is grounded in existing law, it stands a far greater chance of success. Let the hard work begin.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Water Deeply.

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