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New definition of waste - Analysis of water use in desert sends a message By
John Krist
In the semi-arid West, where wealth and power so often are related to control of water, a great deal depends on the meaning of the word "beneficial." Like pornography, it is perceived differently by different individuals and different generations, and a shift in the socially accepted definition can have profound consequences. Recent events suggest that such a generational change in meaning may be occurring with respect to this key concept in Western water law, and farmers throughout the region might soon feel the effects. Rules governing the use of water in California and much of the West are dauntingly arcane, an accretion of court rulings, legislation, treaties, contracts and customs piled atop one another like layers of sediment in a river delta. Beneath it all lies the bedrock of one principle: the doctrine of prior appropriation. In essence, it means that water belongs to whoever grabbed it first. It is not clear where this notion came from. In the eastern United States, as in England -- source of most American jurisprudence -- a different means of regulating water use prevails. Under this system, known as riparian law, the right to use surface water belongs to those who own the land touching it, and none of those landowners can take so much of the supply as to interfere with the water rights of others. The doctrine of prior appropriation popped up in the California gold fields in the 19th century, when miners began kidnapping entire rivers and forcing them through flumes to help wash mineral wealth from heaps of gravel. Courts eventually upheld its legality, making it possible for an early claimant to pull every drop of water out of a river without any consideration for downstream landowners and other potential users. The only real restriction was that the water had to be put to "beneficial use." Aside from simply pouring water onto unplanted ground or dumping it into the sea, it's hard to think of a use for water that has not been regarded as "beneficial." To 19th century miners in the Mother Lode, it was beneficial to force water through giant nozzles and wash away entire hillsides to get at the gold within them. Farmers, who laid claim to most Western rivers long before there were any cities to speak of in the region, consider it beneficial to spread water onto cropland, no matter how poor, and even to grow crops no one wants to buy. In urban areas, piping water to homes and factories is beneficial, even for such trivial purposes as hosing leaves off sidewalks. All of these uses typically have involved inefficiency and waste. But it is virtually unheard of in the history of the West for someone to lose a prior-appropriation right to water on the grounds that it's being squandered. Until last week, that is. July 3, the Department of Interior announced that the Imperial Irrigation District's 2003 allocation of water from the Colorado River would be smaller than requested because IID is not putting all the water it receives to beneficial use. It was a remarkable ruling, potentially opening the door to a far-reaching redistribution of water from federal dams and aqueducts. Imperial Valley farmers have the senior right to Colorado River water in California, simply because their ancestors got there first. Although those initial irrigation diversions were primitive and ineffective, they established the priority of Imperial's claims, and that priority was recognized when the federal government built the dams that made it practical to send Colorado River water into the California desert. Earlier this year, the federal government tried to cut back IID's allocation, in a somewhat clumsy effort to force California to stop using more than its legal share of the river. IID sued, and a judge blocked the reduction, ruling that the department had failed to follow its own regulations requiring a water-use analysis before such a reduction could be imposed. So, the federal government conducted a meticulous study of water use in the Imperial Valley, to determine whether that use is reasonable and beneficial. The report concluded that IID is wasting a prodigious amount of water. The DOI looked at the acreage under cultivation, calculated the amount of water needed to keep those plants alive in such a climate, added the amount of water required to flush naturally occurring salts from the soil, and found that even with generous allowances for legitimate uses, IID is wasting at least 275,900 acre-feet -- 90 billion gallons -- each year. That's enough for more than 2 million urban dwellers. Reasonable people might argue that growing alfalfa in a salt-contaminated desert valley that receives less than 3 inches of rain a year is by definition unreasonable. Although the DOI ignored that broader question, future combatants in the region's intensifying war over water might not. -- John Krist is a senior reporter and Opinion page columnist for The Star. His e-mail address is krist@insidevc.com.
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