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A few thoughts from John Fleck, a writer of journalism and other things, living in New Mexico



Last Build Date: Sat, 21 Apr 2018 18:36:31 +0000

 



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by jfleck

Sat, 21 Apr 2018 18:36:31 +0000

Lawrence - Thanks for your comment, and in particular a nice explanation of CAWCD's interpretation of the law here. I'm not sure "nonsensical" is quite right, though, because the explanation you offer is clearly not the only one available. In fact, the history of western water law, especially in recent decades, is full of such "nonsense", as communities, legislatures, and courts have been creative in their interpretation of "use" in search of better policy outcomes because of the nonsensical disincentive to conserve that results from the sort of dogmatic interpretation you describe. * Neuman, Janet C. "Beneficial use, waste, and forfeiture: The inefficient search for efficiency in western water use." Environmental Law (1998): 919-996. * Benson, Reed D. "Alive but irrelevant: The Prior Appropriation Doctrine in today's western water law." U. Colo. L. Rev. 83 (2011): 675. * Tarlock, A. Dan. "The future of prior appropriation in the new west." Natural Resources Journal 41.4 (2001): 769-793.



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by Lawrence

Thu, 19 Apr 2018 18:38:53 +0000

This comment is completely nonsensical: “Phoenix had rights to some extra Colorado River water it wasn’t using,” By definition, in contract and in Western Water Law, a water contractor’s right is “usufructory,” meaning that right extends only so far as its use. If it does not use all of the water to which it is entitled, it no longer has the right to it, including any right to deny it’s use by a junior user, whether that is to conserve it in Lake Mead or any other reason, that is not their decision to make. CAP did not “block” this action because it could, as the story implies, it allowed other junior users to take the water, as it’s and Phoenix’ contracts require. Likewise, the characterization that “Arizona has two internal factions. One of them wanted to work with other states to save water. The other, the Central Arizona Project, wanted to take as much as possible” is an incredibly oversimplified, naïve and uninformed thing to say being passed off as some sort of insightful observation. CAP has reduced its deliveries by 200,00- acre-feet since 2015, about 12%. This is hardly “taking as much as possible.”



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by Lawrence

Thu, 19 Apr 2018 17:35:45 +0000

This comment is completely nonsensical: "Phoenix had rights to some extra Colorado River water it wasn’t using," By definition, in contract and in Western Water Law, a water contractor's right is "usufructory," meaning that right extends only so far as its use. If it does not use all of the water to which it is entitled, it no longer has the right to it, including any right to deny it's use by a junior user, whether that is to conserve it in Lake Mead or any other reason, that is not their decision to make. CAP did not "block" this action because it could, as the story implies, it allowed other junior users to take the water, as it's and Phoenix' contracts require. Likewise, the characterization that "Arizona has two internal factions. One of them wanted to work with other states to save water. The other, the Central Arizona Project, wanted to take as much as possible" is an incredibly oversimplified, naïve and uninformed thing to say being passed off as some sort of insightful observation. CAP has reduced its deliveries by 200,00- acre-feet since 2015, about 12%. This is hardly "taking as much as possible."



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by KS

Wed, 18 Apr 2018 19:28:11 +0000

Neither Arizona nor CAP has any interest in “blowing up” interstate collaboration. To the contrary, AZ and CAP have been active leaders in developing collaborative solutions to the problems facing the basin for many years. A prime example is the Outside the Box (or OTB) process that identified 41 measures (near-, mid- and longer-term) that could be taken by the basin states to promote system reliability and sustainability. That suite of actions was blessed by the basin states principals in Santa Fe in 2013. CAP has worked with partners in other states to accomplish a number of items from that list—including the system conservation pilot program and the YDP pilot run—some of which are now being criticized. What is now known as DCP was another of the 41 actions identified by the OTB group; it was by no means the only, primary or last item on that list. CAP was among the first to call for action in the Lower Basin to address the structural deficit—a phrase coined by CAP based on Reclamation’s work in quantifying the mass imbalance at Lake Mead. But now most parties—you apparently included—seem to think it is entirely AZ’s responsibility to fix the structural deficit and the way to do that is for AZ (CAP) to simply take less water. But the structural deficit is primarily attributable to two causes: evaporative losses in Mead not being charged proportionately to the lower basin states and CA not contributing anything toward the Mexican Treaty obligation, despite its obligation to do so under section 4 of the Boulder Canyon Project Act. Arizona is all for collaborative solution(s) to insure the river remains a reliable source for generations to come. But that does not mean that AZ should bear the overwhelming brunt of the burden in that effort.



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by jfleck

Wed, 18 Apr 2018 18:37:11 +0000

KS - I realize there are smart water lawyers in Arizona who make the argument that what I'm describing in the Colorado River Basin Project Act of 1968 doesn't amount to "prior appropriation" and the Arizona under the Law of the River doesn't really amount to junior status. Larry Dozier and Tom McCann of CAWCD wrote a smart paper to this effect for a CLE conference back in 2004 (which sadly I can't find on line). But the fact that they had to write the paper and make the argument is that, in functional terms, what we have precisely matches the notion of priorities and senior and junior users. Which means that, whatever legalistic labels we place on this, Arizona has a great deal to lose by blowing up interstate collaboration, because, in a way that is indistinguishable in practice from prior appropriation, Arizona's CAP water was the last major diversion from the system and will be the first to be cut off.



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by KS

Wed, 18 Apr 2018 18:15:39 +0000

John, don’t understand your reasoning at all. Prior appropriation does not apply between the basin states under the law of the river. That was Delph Carpenter’s primary goal and accomplishment. It only applies intrastate. As the largest junior priority user in AZ, CAP has the *most* to lose by abandoning prior appropriation. Likewise MWD in CA. Giving senior users who do not need their full entitlements the ability to prevent junior users from taking the unused water is contrary to law and contract; and it’s nothing more than an attempt to grab power and money. I don’t think you have a very good understanding of “CAWCD’s behavior” right now. You are being influenced more by rhetoric than facts.



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by jfleck

Wed, 18 Apr 2018 17:35:33 +0000

KS - It strikes me that a dogmatic adherence to the doctrine of prior appropriation does not serve Arizona well. Y'all are the junior on the river. Down that path lies an empty CAP canal. Collaborative alternative administration has worked well in many places, without having to scrap prior appropriation. It requires collaboration, trust, and reciprocity among all the users. Which is why I am so gobsmacked by CAWCD's behavior right now. Y'all have the most to lose.



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by Charles

Wed, 18 Apr 2018 17:04:25 +0000

KS: Yes, unfortunately the system will need to be scrapped (if long term sustainability is desired), it's inherently flawed. A manifestation of these problems is what has happening right now! Agencies and states are being punished for conserving, and drawing less river water. As I have said many times before, this is ludicrous, and needs to be changed! It’s happening in both the UB and the LB. If the UB wastes water to drive Powell below 3,575 ft, or the LB wastes water to drive Mead below 1,075 ft, each is rewarded to the peril of the other. Dumb, dumb, dumb, dumb! Working together collectively for the good of all seven states is what needs to happen. No more operating under a system that encourages an “us v.s. them” attitude that promotes failure. Above I have posted a couple of concepts for change. Obviously there are many more that can be had, but these are a good start. Unfortunately, it won’t happen naturally and it will need to be forced, but the end result will be a system that has everyone playing for the same team with good odds of succeeding.



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by Charles

Wed, 18 Apr 2018 16:51:58 +0000

Another issue is that the 8.23 nominal Powell release just isn’t enough (if the 7.5 maf / 7.5 maf / 1.5 maf structure is left in place). The current UBS are allocated 7.5 maf annually. Likewise, the current LBS are allocated 7.5 maf annually. Then there is Mexico’s annual allotment of 1.5 maf minus any Minute Order compliant adjustments. What should happen --if we are not in a shortage mode, and if we were all in this together as a set of CRBS-- is that Lake Mead would actually receive 7.5 maf for downstream use. This means that any evaporation, or ground loss, that takes place between Powell and Mead would be accounted for, and not be deducted from the 7.5 maf amount. Also sent from Powell to Mead would be Mexico’s water, again in a real amount (for any given year) such that this amount will actually make it to Mexico without losses along the way. Where I’m going with this is that 0.77 maf lower basin “bonus water” really isn’t bonus water! Sure it’s called that, and for whatever reason, was agreed to pre-Dec 2007, but it’s essential to Mead’s survival if we keep a split Upper Basin v.s. Lower Basin structure! A better idea is to switch to a CRBS (see previous post) structure and start thinking about all the states as sharing one resource, and managing it that way. If this is done one can quickly see that 7.5 maf for use downstream of Mead plus a 1.5 maf allocation to Mexico adds up to 9.0 maf and we haven’t even accounted for system losses yet! I understand that Mexico’s 1.5 maf can change annually, but that’s fine, then the amount sent from Powell to Mead, in any given year and assuming not in a shortage mode, would be: 7.5 maf + Mexico’s allotment + any loses sustained along the routes from Powell to Mead and from Powell to Mexico. Do the math, and one will quickly realize there is no bonus in the mix! If *either* Powell, or Mead, were to drop below trigger levels then all seven (yes California this means you too) would be forced into a shortage mode and need to cutback on river water draw. Again, this type of an approach would stop pitting the UBS against the LBS. All of the current bitching and finger pointing might make for a great show (of absurdity), but it’s not providing any real solutions. It’s long past the time for rolling up our sleeves with everyone working for the common good; as a team that, collectively, will either sink or swim.



Comment on The “anticommons” revisited: that time Phoenix tried to leave more water in Lake Mead by Charles

Wed, 18 Apr 2018 16:50:54 +0000

This goes back to what I have said before in that the system is flawed and is the underlying problem. Everyone agrees that it’s in the best interest for the lower basin states and the upper basin states to get along and work together at solving Colorado river water problems. Can this happen? Yes. Will it happen naturally? Absolutely not. I say this because under the current system there is way too much of an “us versus them” (Upper Basin v.s. Lower Basin) mentality. Thus, it will need to be forced. Having spent time in the military, I was exposed to how large units/teams were built, and how if one member fell short, the entire team would deal with the repercussions. It’s my belief that a little of this could do a whole lot of good when it comes to the Colorado River Basin States. The idea of Upper Basin States and Lower Basin States should be replaced with just Colorado River Basin States (CRBS), all seven of us in this together, and approaching solutions to our problems through this optic. I’m not talking about a warm and fuzzy change in lingo, but a real change. For real long term solutions this will have to happen. There are many of these kinds of ideas which could be implemented. An example would be to create lake trigger levels that force all the CRBS to enter into a shortage with reduced draws allowed. Both of the large lakes (Powell and Mead) would have their trigger points. If either lake fell below the limit then all seven states would have to deal with the repercussions. This would mean the Alfalfa farmer in the current UB would be just as concerned about wasting water as the rancher in the current LB.