Fish vs. Farmers

By Helen

This morning’s fish vs. farmers debate [Woolf Farming and Processing] points to a much larger, all-encompassing problem: water scarcity. In all likelihood, it’s a lose-lose situation.

Why is the water allocation system so complex?

In digging a little bit deeper into the root causes behind this seemingly irresolvable debate, I discovered two very different legal frameworks governing individuals’ property rights to water. Each has its own merits, but neither will solve the water scarcity issue. While most states employ a combination of the two in practice, the “Riparian Doctrine” dominates the Eastern part of the United States, while the doctrine of “Prior Appropriation” dominates in the West.

Riparian Rights: In the East, water rights are attached to lands that are adjacent to water. The “riparian” doctrine means that the land owner does not own the water itself – rather, he or she has a right to use the water to the extent that it does not harm upstream or downstream neighbors. While the idea that you should have the right to use water on your own property, it clearly rests on the assumption that there is enough water for everyone – that even those who own property without a body of water can access water through a municipal, rather than private, source.

Prior Appropriation – First in Time, First in Right: The Prior Appropriation doctrine is the dominant legal framework for states west of the Mississippi river. In the West, land is plentiful, but water is scarce. It was for this reason that the Supreme Court ultimately rejected the riparian doctrine in the 1922 Colorado v Wyoming case, in which the court upheld the Wyoming’s prior appropriation water rights and prevented Colorado, the upstream user, from diverting the river for its own use. This meant that the first person to use water for “beneficial use” (whether it’s industrial, agricultural, or household) is a “senior appropriator” and thus has the right to use the full allocation before everyone else. While this sounds fair in theory, in practice it’s unclear whether it fully accounts for society’s evolving values.

In the context of today’s Woolf Farming & Processing case, it seems ironic that the water-intensive agribusinesses (almonds, pistachios) would never have had intrinsic water rights had they been subject to the riparian doctrine from the East, because the Central Valley land is not physically adjacent to freshwater sources. Instead, the farm is entitled to a specific allocation, or at least a portion of it, based on historical use. Clearly, based on the number of stakeholders involved in the battle over water rights, the prior appropriation doctrine is clearly outdated and becoming less meaningful as society evolves to “care” about issues such as endangered species and Native American tribal lands.

To resolve these issues, the courts are not going to help. The legal framework is both ancient and conflicting. It seems like the only way to address the issue is for individuals to actively manage the situation. There is no clear winner amongst the agribusiness CEO, tribal chief, environmentalist, or LA resident. Perhaps whoever “wins” will be the person who dares to take a public leadership role in getting the different stakeholders to talk to each other and come to a mutual agreement.

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About macomberjohnd

HBS Finance faculty interested in sustainability in the built environment including devices, structures, townships, and cities.

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