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Water Scarcity in the American West: Unauthorized Water Use and the New Future of Water Accountability
 3030231496,  9783030231491

Table of contents :
Acknowledgements......Page 5
Contents......Page 6
Acronyms......Page 7
List of Figures......Page 8
List of Tables......Page 9
Chapter 1 The American West Responds to Climate Change......Page 10
Unauthorized Water Use: The Now and Future Problem......Page 13
The Rise of Water Accountability......Page 17
Climate Change in the American West......Page 18
Population Growth......Page 23
Why Water Matters......Page 26
Considering the Importance of Environmental Security......Page 30
Organization of This Book......Page 33
References......Page 36
Introduction......Page 39
There Is a Water Crisis in the West......Page 40
Water Policy and Management......Page 45
Environmental Security......Page 48
Making Sense of the Water Literature......Page 53
References......Page 56
Chapter 3 American West and Unauthorized Water Use: An Examination of the Status Quo Protection of Water Rights......Page 58
The Stakes of Water in the American West......Page 59
The Legal Dimensions of Water......Page 61
The Distribution of Water Right Enforcement Authority......Page 67
The Role of Unauthorized Water Use......Page 68
Unauthorized Water Use Trends in the American West......Page 70
What Are the Implications of Unauthorized Water Use?......Page 74
Political Dynamics at Play......Page 76
Agriculture......Page 77
Urban Users......Page 80
Environmental Movements......Page 83
Status Quo......Page 84
How Complaints Get to the State......Page 88
State Investigations......Page 92
Conclusion......Page 96
References......Page 98
Chapter 4 Water Accountability, Environmental Security, and “Adaptation Interactions”: Explaining Water Right Enforcement Capacity Among Western States......Page 101
Adaptation Interactions......Page 103
Securitization Theory......Page 107
Water Accountability, Adaptation Interactions, and Securitization......Page 112
Unauthorized Water Use Response......Page 113
Outreach and Education......Page 114
State Compacts......Page 115
The Future of Water Accountability......Page 116
Conclusion......Page 120
References......Page 124
Methodology......Page 125
The Data......Page 126
Collect Data (Is There a Centralized Process to Collect Data?)......Page 127
Make the Data Available to the Public (Publication on the State Website)......Page 131
Fund the Field (State Spending Per Irrigated Acre)......Page 132
Publish an Annual Report on Unauthorized Water Use......Page 134
Implement a Robust Groundwater Management Plan Built on Accountability......Page 135
The Typology......Page 136
Determining State Outcome......Page 139
Explaining the Pattern......Page 142
Illustrative Case Study: The Story of Elmore County, Idaho......Page 149
Conclusion......Page 153
References......Page 155
Chapter 6 The State and Federal Response: Probing the Possibilities......Page 157
Improvement of Record-Keeping Practices......Page 158
Increase Penalties for Unauthorized Water Use......Page 161
Increase Investigation Budget and Staff......Page 164
Community Partnerships......Page 165
Groundwater Management......Page 168
The Federal Government Response......Page 170
Federal Government Outcome 1: Extensive......Page 177
Enforcement Actions......Page 178
Major Water Infrastructure......Page 179
Managing Crop and Water Access: The End of Prior Appropriation......Page 180
Export Ban......Page 182
Farm Subsidies......Page 183
Federal Government Outcome 2: Securitization......Page 184
Conclusion......Page 187
References......Page 188
Chapter 7 Moving Forward: Policy Actors and Strategy......Page 190
The Cost of Inaction......Page 191
Agriculture......Page 193
Environmental Groups......Page 195
Urban Users......Page 197
Research Weaknesses and Moving Forward......Page 198
References......Page 200
Bibliography......Page 201
Index......Page 213

Citation preview

Water Scarcity in the American West Unauthorized Water Use and the New Future of Water Accountability Isaac M. Castellano

Water Scarcity in the American West

Isaac M. Castellano

Water Scarcity in the American West Unauthorized Water Use and the New Future of Water Accountability

Isaac M. Castellano Boise State University Boise, ID, USA

ISBN 978-3-030-23149-1 ISBN 978-3-030-23150-7  (eBook) https://doi.org/10.1007/978-3-030-23150-7 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG, part of Springer Nature 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

The process of writing a book, even with a single author, is a group effort. I would like to thank my editors John Steger and Meera Mithran, as well as their team at Palgrave. Jennifer Morales, the anonymous reviewers, and Conference participants at the 2018 Western Political Science Association Annual Meeting, all contributed to improving the quality of this work. A big thank you goes out to Monica Hubbard, who answered numerous questions and allowed the frequent barrowing of books and related materials, and my colleagues at Boise State who attended brown bag presentations and endured numerous conversations on this topic. I am grateful for the state officials and Elmore County Respondents who gave up time to speak with me. I would also like to thank my two children, Emre and Saul, whose patience through this process is appreciated. Most of all I would like to thank my best friend and partner, Rebecca, whose support and love made this project possible.

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Contents

1 The American West Responds to Climate Change 1 2 Water in the American West, Water Policy and Management, and the Role of Environmental Security 31 3 American West and Unauthorized Water Use: An Examination of the Status Quo Protection of Water Rights 51 4 Water Accountability, Environmental Security, and “Adaptation Interactions”: Explaining Water Right Enforcement Capacity Among Western States 95 5 Empirical Assessment of State Water Rights Protection Efforts 119 6 The State and Federal Response: Probing the Possibilities 151 7 Moving Forward: Policy Actors and Strategy 185 Bibliography 197 Index 209 vii

Acronyms

AF Acre Feet BOR United States Bureau of Reclamation CDWR Colorado Division of Water Resources CFS Cubic Feet per Second CSWRCB California State Water Resources Control Board EPA Environmental Protection Agency IDWR Idaho Department of Water Resources MHID Mountain Home Irrigation District MWRB Montana Water Rights Bureau NDWR Nevada Division of Water Resources OWRD Oregon Water Resources Department UDWR Utah Division of Water Rights USDA U.S. Department of Agriculture WTO World Trade Organization

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List of Figures

Fig. 1.1 Fig. 1.2 Fig. 3.1 Fig. 3.2 Fig. 3.3 Fig. 3.4 Fig. 3.5 Fig. 3.6 Fig. 3.7 Fig. 5.1 Fig. 5.2 Fig. 5.3 Fig. 5.4 Fig. 5.5 Fig. 5.6 Fig. 5.7 Fig. 5.8 Fig. 5.9 Fig. 5.10 Fig. 5.11 Fig. 5.12 Fig. 5.13 Fig. 6.1

Reprint of EPA figure: trends in April snowpack in the Western United States, 1955–2016 Western U.S. population 1950–2025 California complaint data 2008–2015 Montana complaint data 2008–2015 Idaho complaint data 2013–2015 Nevada complaint data 2010–2015 Utah complaint data 2003–2015 Washington complaint data 2010–2015 2012 Agricultural sales by state (billions) Typology of water accountability levels Drought classification Arizona drought history 2000–2015 Colorado drought history 2000–2015 California drought history 2000–2015 Idaho drought history 2000–2015 Montana drought history 2000–2015 Nevada drought history 2000–2015 New Mexico drought history 2000–2015 Oregon drought history 2000–2015 Utah drought history 2000–2015 Washington drought history 2000–2015 Wyoming drought history 2000–2015 Typology of water accountability levels

11 16 65 65 66 66 67 67 72 131 137 137 138 138 138 139 139 139 140 140 140 141 170

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List of Tables

Table 1.1 Table 1.2 Table 1.3 Table 1.4 Table 1.5 Table 3.1 Table 3.2 Table 3.3 Table 3.4 Table 3.5 Table 3.6 Table 3.7 Table 5.1 Table 5.2 Table 5.3 Table 5.4 Table 5.5 Table 5.6 Table 6.1 Table 6.2

Mountain home Idaho irrigation district delivery and cutoff history 2 Western U.S. hydro generation profile, 2013 13 Cost of electricity across the Western U.S. 14 Population in American West, 1950–2025 15 Population retention rates in the Western U.S., 2012 17 Available years of unauthorized water use data in 2015 63 Average number of complaints for available years 64 Agriculture productivity by state 73 Average water use per day 74 Water management agencies 79 Source of violation complaints, Idaho, 1994–2017 84 Oregon rate of water of compliance 2009–2016 88 Data break down by state 2015 124 Typology outcome breakdown 133 Designation of typology outcome by state for 2015 134 Legislature professionalism 142 League of conservation voters U.S. house seat scorecard 142 MHID water flow, Elmore County, 2006–2016 144 Farm payments among Western states 169 USDA agricultural disaster assistance program spending 169

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CHAPTER 1

The American West Responds to Climate Change

The landscape of Elmore County, Idaho, seems a barren one. If you stand on the south side of Ditto Creek Road just west of the Chevron station, where Exit 90 off Interstate 84 takes you onto the east-bound lane of the old Idaho Highway 30, and you look north, you see the Boise Range. Beyond this lies the Sawtooth National Forest and the acres of trees, streams, and mountains contained therein, beckoning those inclined to explore the outdoors. To the southeast lies a seemingly endless flow of sagebrush, and to the southwest the treeless Owyhee Mountains greet the eyes. To a newcomer, this region may appear barren and without hope. However, no one knows what is possible on this land more than the farmers of the Elmore County, who for decades have been pulling water from the ground in order to establish and maintain a thriving agricultural community. The county, with a population of 25,000, many of whom are tied to the Mountain Home Air Force Base, produces $300 million in agricultural sales annually (USDA 2012). Elmore County is one of those places that makes Idaho the highest per capita agricultural state in the nation, producing more per person than any other state in the nation. Just outside of the county seat of Mountain Home run the long, dusty roads that line the fields producing beets, potatoes, and cattle feed, alongside the newly arrived dairies from California’s Central Valley. These agricultural operations are only possible because of the free flow of water. But that system of surface and ground water is under great strain. The aquifer underlying this rich agricultural zone is quickly being depleted. Since the 1960s, the aquifer level, depending on where it is © The Author(s) 2020 I. M. Castellano, Water Scarcity in the American West, https://doi.org/10.1007/978-3-030-23150-7_1

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measured, has lost between 100 and 200 feet. Each year has seen a three to five-feet reduction, as some 79,000 acre feet (AF) are pulled from the ground annually (State of Idaho 2016). This drop in water level has resulted in many water users having to invest in well drilling or abandon their wells altogether. Wells that were once productive at 100 feet have had to be dug deeper, costing the county’s farmers thousands of dollars. Late-season pumping has become more complicated, as the surface water supplies that many growers have used to supplement their ground supplies are also running short. The Mountain Home Irrigation District, which supplies thousands of acre feet of water to the county’s growers, historically has been able to offer water from its two major reservoirs until September, with a dry year here and there. However, as illustrated by Table 1.1, in recent years this irrigation district has cut off the water supply as early as late June. In March 2016, fearing aquifer collapse, the Idaho Department of Water Resources (IDWR) issued an order creating a new water district for the Mountain Home area (Water District 161), which included much of Elmore County. Idaho law authorizes the director of the IDWR to create water districts to manage the distribution of water to water right holders. Given that the Mountain Home area had been under a previous water management plan dating back to the early 1980s, combined with the continued reduction in the aquifer level, the state argued that the new district was “necessary in order to properly administer ground water rights within the proposed water district boundary” (State of Idaho 2016). Later in 2016, IDWR issued another order, this time requiring measuring devices for the 365 wells within the water district by 2019 (State of Idaho 2016). The state outlined an approved list of meter devices, several of which can cost several thousand dollars each, depending on model and size. The meter requirement added to the financial strain on the district’s users: The funds for the new water Table 1.1 Mountain home Idaho irrigation district delivery and cutoff history

Year 2011 2012 2013 2014 2015 2016

Total delivery (acre feet) 11,794.56 12,957.84 4,655.78 4,642.88 4,930.22 8,728.00

Cutoff date 30-September 30-September 26-June 23-June 5-July 7-August

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district are being drawn from water users, and each member has been assessed an annual fee based on how much water they use. Although surface water users pay roughly $75.00 for an acre-foot from the Mountain Home Irrigation District, and nothing for groundwater, it is unlikely those prices will be maintained. While there have been some pushback and phone complaints to the IDWR offices about the creation of the new district, in general, opposition to the new water management plan and the implementation of the new water district has been minimal. However, IDWR officials believe this will change in 2019 when users will actually have to purchase a meter or face their water being cut off (Western State Response to Unauthorized Water Use-Idaho Interview). After 2019, IDWR will monitor groundwater use and start determining who needs to cease pulling water from the ground if there is no stabilization of the aquifer. It is at that moment that the State of Idaho will have to make some tough choices, which may include denying new water right development, reviewing the beneficial use among the water users in the district, cutting off junior water right holders, or allowing the aquifer to continue to decline. Elmore County was concerned enough with both the decline of the aquifer and the state action regarding it, that it took a significant and unpopular action: It applied for a trans-basin water transfer. Directly north of Mountain Home, but before the Boise Range, is the South Fork of the Boise River. The South Fork is nestled deep in a canyon, just beyond a ridge that rises above the small city. Regarded as an excellent fly fishing spot in a state known for them, the stretch of the South Fork below the Anderson Ranch Reservoir is the place where Elmore County officials proposed to withdraw 200 cubic feet per second of water up over the ridge and down into the reservoirs of the Mountain Home Irrigation District, with a limit of 10,000 acre feet a year (State of Idaho 2016). The project requires the construction of a pumping facility that will raise water out of the Boise River some hundreds of feet over the ridge, costing some unknown millions of dollars. Not a drastic measure for a community whose livelihood is dependent on agricultural productivity. Meanwhile, the community works to adjust to the new regulatory structure that will rest on the capacity of IDWR to obtain compliance from the water users in the county. While there is no inherent reason to suspect that many will dismiss the new regulations and pump unauthorized water from their wells, IDWR will need to direct their enforcement

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activities to ensure compliance with the metered wells and to enact a system of punishments for those who violate it, or at least the appearance of the capacity to do so. While IDWR has been working to enforce compliance on water rights for decades, this is a new group of groundwater users, unaccustomed to regulation and the related oversight. At stake are the level of the aquifer and the long-term ability of water users in the county to supplement groundwater during low-surface water years. The overall research question driving this project is, “How capable is IDWR (and other state water agencies) in protecting water rights of their citizens?” This enforcement component is a critical element of any policy designed at managing a scarce resource like water in the American West, and is the focus here; however, there are other policies and actions states can take to protect water rights. This book addresses the question of water management agency capacity to protect water rights in the American West, by explaining the variation in a state’s ability to provide accountability to water right holders. It finds that states in the region have a varying degree of sophistication and preparedness to combat demands for accountability in how water rights are protected, something this project argues will be a growing problem—a problem that is only going to get worse with climate change and population growth.

Unauthorized Water Use: The Now and Future Problem Elmore County and the State of Idaho are not alone in dealing with water scarcity. As a global concern, people across the world are reacting to water crises in diverse ways. Water is essential for life. Therefore, a core assumption of this project is that there is a range of individuals and organizations that will violate legal constraints on water use to advance their interests. This known unknown can include a range of outcomes, unintended and unforeseen. Obtaining water illegally is one common response to water scarcity in places that have already struggled with this issue. Kenya (Nier 2012), India (Sethi 2015), and Brazil (Los Angeles Times 2014) are just a few of the countries experiencing increased rates of water theft as supplies decrease and firms and individuals scramble to respond. In the Indian capital of New Delhi, for example, organized crime syndicates control a critical black market for water used by a range of actors, legitimate (such as hospitals) and otherwise, as the government system has proven unreliable in meeting the demands of the city’s

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population (Sethi 2015). Criminal activity is draining the city’s aquifer, which makes up 85% of the city’s water supply (Sethi 2015). Such a breakdown in water regulations poses serious risks, and while the case of New Delhi is particularly problematic, such action is not limited to the developing world. Water theft is becoming increasingly common in the western U.S., as well.1 For an illustrative example in the U.S., consider drought-stricken Thousand Oaks, California, where, on several occasions between 2013 and 2015, residents noticed that a tanker truck would regularly arrive in the early morning hours to siphon water out of a fire hydrant linked to Ventura County’s Calleguas Municipal Water District (Hamilton 2015). The water district hired an investigator and concluded that the actor Tom Selleck, most famous for his portrayal of gumshoe detective Thomas Magnum in the 1980s TV show Magnum P.I., was behind the water theft, using it for his nearby ranch. In Madera County, some 250 miles away, District Attorney David Linn instituted a Water Crime Task Force in the summer of 2015, to address the growing problem of water theft there,2 while Calaveras County established a hotline for residents to report water theft. Unauthorized water use does not have to be about one person; it can also come from systemic failure to enforce water law. Agricultural producers tied to the Wapato Irrigation Project on the Yakima Nation Reservation in Washington State reported in 2015 that an increase in the number of water thefts had reduced their capacity to meet production expectations by 25–50%, suggesting that unauthorized water use is a problem with serious economic consequences (Bernton 2015a, b). Residents there reported that the lack of enforcement and action created a culture of non-compliance, and undermined the local economy. While there are ways to determine if someone is overusing their right, such as the use of GIS, aerial photography, and computations on water right allotment and estimations of cultivated land, many of these strategies are expensive, time-consuming, and require well-trained staff. These discoveries can then lead to litigation, a costly endeavor for budgetstressed state governments. Further, the limited number of water compliance officers in the field likely means that some unauthorized water use is going undetected. State and federal fiscal policy may work to further undermine the capacity of states to address water scarcity and unauthorized water use, especially as the effects of climate change deepen across the region. As of yet, it is not a priority for many states. For example, the State of Montana cut the 2017 budget of its water management

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agency, the Water Rights Bureau, by 10%, undermining their capacity to be proactive about unauthorized water use violations, and preventing them from investigating all the complaints the agency received (Western State Response to Unauthorized Water Use-Montana Interview). Some states lack the requisite resources to tackle the problem, even as they face a growing population and diminishing supplies brought on by climate change. The centrality of water for the economic well-being of the American West is clear. The Magic Valley region of Idaho, for example, experiences desert-like conditions with annual rainfall under 13 inches.3 Yet the region produces numerous crops such as beans, sugar beets, corn, and potatoes through irrigation from the Snake River and its tributaries. Farm cash receipts from the Magic Valley were valued at $3.1 billion in 2010, indicating that irrigation-based agriculture is a substantial economic activity (Taylor et al. 2015). Water use is the bread and butter of the Magic Valley economy, and additional water equates to increased yields for agricultural operations. This source of economic growth is under severe constraints, as snowpack levels shrink across the American West due to climate change and population growth increases demand (Mote and Sharp 2016). These trends, taken together, suggest a serious problem of water scarcity in the future, compounding the current crisis, and increasing the motivation for violations.4 In the U.S., the responsibility to combat unauthorized water use falls to the states which have water compliance agencies that adjudicate and enforce water rights. States have two basic options in administering these rights: prior appropriation and riparian water right systems. In riparian water right systems, landowners whose lands are next to water or have water flowing through it can make reasonable use of the water, with allotments being given to those without water sources on their property. Water cannot be moved from the basin without some review of the needs of those whose land adjoins the water. In the prior appropriation system, water distribution is determined based on water-right seniority, regardless of the waterway’s path. Many sources of water across the region are fully appropriated or over-appropriated, meaning that there are more claims than water, something that is likely to grow worse with time (Whittlesey and Huffaker 1995). However, enforcing water rights and ensuring that users do not overuse their legal amount is quite difficult. This is in part because there is little reliable data on water flows for most

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basins in the American West, including if and how much of the water supply is lost to theft or is misuse. Several western states do not collect data on unauthorized water use, while others have limited enforcement systems in place, raising serious questions about how prepared western states are to manage an essential resource facing severe scarcity concerns. And unlike other types of items that can be stolen, water is inherently fungible, allowing various actors to use it without being detected. In the Tom Selleck example, it was human eyes, not a measurement device, that detected the theft. And consumers of agricultural products often have little information on its origins or how it was produced. The presence of Selleck’s tanker truck at odd hours of the morning triggered neighbors to report the suspicious behavior. And while the vastness of the water supply in many rural, agricultural settings undermines the notion that water scarcity is an issue, the argument laid out in this book is that climate change and population growth in the American West represent dual threats to the supply. This project finds that many of the states across the American West do not have the regulatory capacity to respond to this issue. This project examines the role of unauthorized water use in the American West, defined as the states of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming,5 and the coming demand for what I call “water accountability.” I address two broad issues that are closely linked: (1) the capacity of western states to protect water rights through mainly their response to unauthorized water use in their jurisdictions, and (2) “water accountability,” which I argue constitutes the continuum of pressure on state agencies (and sub-state agencies, such as irrigation districts, as well as individual water users, however this project focuses on state water agencies) to enforce water rights and take steps to protect those rights through a variety of means. I argue that status quo responses to unauthorized water use (or water theft) are largely inadequate, and illustrate the focal point of the state’s role in protecting property rights. I argue, as many scholars have argued before me, that growing water scarcity in the American West will have far-ranging impacts on issues ranging from food production to urban livability. There will be intense pressure at both the federal and state levels to address the problem. This book maps out the current response to unauthorized water use and protection of water rights more generally. I address a series of research questions:

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• How does previous literature on the Western United States, Water Policy and Management, and environmental security inform out understanding of water right protection and unauthorized water use response? (Chapter 2) • What is unauthorized water use and how big of a problem is it in the context of water use throughout the western U.S.? (Chapter 3) • What are the current responses of state governments to unauthorized water use? (Chapter 3) • What explains the variation in response across the western states? (Chapters 4 and 5) • What are the possible future state and federal government responses to water scarcity and unauthorized use? (Chapter 6) • How will the various stakeholders be impacted by the possible policy changes implemented at the state and federal levels and how should they strategize moving forward? (Chapter 7).

The Rise of Water Accountability This project introduces a new term into a long-standing discussion of water in the American West. While there has long been some level of what I call “water accountability,” the focus on water issues has largely remained confined to a small group of stakeholders, mainly agricultural users, environmental groups, tribal governments, and state and local governments. One argument advanced here is that water use and management issues will proliferate in the public consciousness, as water scarcity across the region will grow into a major policy issue at the household level. Certainly, those in Southern California and elsewhere who have experienced alternate-day watering regulations and have been exposed to endless conservation public information campaigns can attest to the centrality of water as a political, economic, and social issue. However, this scarcity has largely been confined to a small portion of the region’s population. A core part of the argument, which is reflected in the empirical record, is water availability is going to decline, and already has, a process that will only grow worse as climate change increases the cost of water for agriculture, electricity, recreation, and drinking. Even if the margins are small, greater attention will be paid to how water is used, and particularly to how fair and efficient water use and distribution is across the region. Perceptions of misuse will create demand for action. When there is increased demand and decreased supply of a resource, and

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government regulations are introduced to manage that scarcity, there is renewed attention to any cheaters in the system. Whether it be human instinct to compare individual outcomes, or U.S. view on fairness and equality, if people are asked to undertake measures of conservation that undermine their previous habits and business models, they are going to want to see the state ensuring fairness across the population. If the highway patrol does not pull people over from time to time and issue citations, the speed limit has less meaning. There is already some amount of “water accountability” across the western region, and each state has a varying level of policies and programs established to protect water rights. One such example of this is a water call, where senior water right users can ask water management officials to ensure they get their water before the junior water right users, and often includes cutting off those junior water right holders. Witnesses to unauthorized water use in most states can report violators and expect some form of action from the state. However, the agencies in charge of enforcement in most states are not prepared for the increased political pressure they are likely to bear as supply and demand issues continue to increase. To understand why these questions matter, we first must address the drivers of water accountability and why unauthorized water use will become a larger issue in the near future. Two major issues are driving the need for stronger and more robust institutional arrangements to manage the problems of water accountability: The first is climate change, which will ultimately limit water availability in the American West; the second is population growth and associated development, which will increase the demand for water.

Climate Change in the American West It has been widely accepted by the scientific community that the global climate is changing, and the predicted effects on the American West can only be characterized as substantial (Walthall et al. 2012). The focus of this book is on water flows and how they relate to the social, economic, and political dynamics in the region. Thus, in this section I will focus on climate change as it relates to water availability and accountability. The USDA’s 2012 report on climate change and adaptation begins with these simple words: “Increases of atmospheric carbon dioxide (CO2), rising temperatures, and altered precipitation patterns will affect agricultural productivity” (Walthall et al. 2012). The USDA’s findings

10  I. M. CASTELLANO

are clear: There are going to be a multiple stressors related to climate change that will affect the agricultural sector in the western U.S. Two of these stressors relate to the issue of water accountability: (1) high temperatures will make successful irrigation more difficult and cause droughts; (2) reduced snowpack as temperatures increase will result in more rain and less snow, which feeds surface water sources widely used by irrigators and other water users. The 2014–2015 California drought made national headlines and resulted in major agricultural losses. Climate scientists predict the increased prevalence of these western droughts, as well as mega droughts in the Southwest (Walthall et al. 2012). Reduced snowpack is a problem for water use, as it is the predominate source of surface water, which is primarily used by the agricultural sector and for hydroelectric production. The state of water flows 50 years from now is a major question facing climate scientists, and is central to the topic of this book. As Fig. 1.1 demonstrates, the U.S. Environmental Protection Agency (EPA) has documented a major decline in snowpack levels in the previous 50 years. This major shift in snowpack undermines the flow of rivers in the spring and summer, and reduces the available water for aquifer recharge. Projections of water flows in the future vary significantly, however, the hydrology literature strongly suggests that snowpack levels will decline in the twenty-first century (Georgek 2015). The entire region of the American West is expected to experience this pattern of declining snowpack, undermining late season water flows, and decreasing the ability of agricultural operations to irrigate (Mote and Sharp 2016). While snowpack may decline in reliability and size, precipitation will continue to flow into the region. However, it is predicted that this precipitation will increasingly come in the form of rain, which will likely be more difficult to manage given the current system of dams which have been built upon assumptions of snowpack. The capacity of water storage currently in place throughout the region is designed for the slow melt of the snowpack, not for rain. Under conditions of lower snowpack and greater rain, reservoirs around the region will quickly fill up during the winter, and dam managers will be forced to allow more water to drain out of the basin, as opposed to having the same amount of precipitation in the form of snow come slowly through the growing season. This will limit the available surface water available for irrigation. The capacity of hydroelectric dams to produce electricity throughout the year will also be reduced. Some 50–70% of precipitation in the western U.S. comes in the form of snowfall (Marshall 2014). While

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Fig. 1.1  Reprint of EPA figure: trends in April snowpack in the Western United States, 1955–2016 (Source Mote and Sharp 2016)

12  I. M. CASTELLANO

hydropower is a small portion of the nation’s overall sources of electricity, at only 6.1%, it makes up a third of overall renewable sources. Moreover, it is and has been a substantial source of electricity for much of the American West since the start of the twentieth century (U.S. EIA 2017). One of the most famous dams in Washington state is the Grand Coulee Dam, a mountain of concrete that can supply power to some 2.3 million households. Sitting on the Columbia River, it is joined by 20 other major dams across the state that generates two-thirds of the state’s electricity.6 As Table 1.2 shows, hydroelectric power has been a major source of electricity for some states, and it costs much less relative to other sources, excluding environmental damage. In large part because of this supply of hydropower, Washington state maintains the cheapest electricity rate in the nation, at 9 cents per kilowatt hour. Other western states are not far behind. For instance, Idaho has the 47th cheapest electricity, and Oregon ranks 44th (U.S. EIA 2017). The result has been certain economic benefits, such as the location of server farms close to the tech hubs of Portland and Seattle (Glantz 2012). Among other users who benefit from lower rates are the 13 U.S. states and several provinces of Canada to which Washington exports electricity. Moreover, research indicates that electricity rates and economic growth are related, with many energy-intensive industries dependent on lower energy prices to stay competitive in the globalized market (Patrick et al. 2015). In short, hydroelectricity is a substantial factor in the overall management of the economy in the American West, particularly in the Northwest and Intermountain West, and thus the flow of water is an important component for electric power and the regional economy more broadly (Table 1.3). In summary, the impacts of projected climate change in the western U.S. are significant. Increasing temperatures and changes in snowpack will both influence water accountability in the region. By mid-century, the snowmelt is projected to begin three to four weeks earlier than the last century’s average, the region will see increased fire risk, insect and disease outbreaks, loss of high-value specialty crops, and an increase in severe heat waves (Mote and Sharp 2016). The supply of available water in the region will decrease, while longer, hotter, and geographically larger droughts and disruptions will increase. At the same time, the population will continue to rise.

5,950,654 24,541,380 1,258,341 9,100,528 9,953,300 2,681,573 185,477 33,457,372 633,830 77,906,959 716,600

Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming

Source National Hydropower Association

Conventional hydro MWh

State

110,126,600 199,997,700 53,396,300 15,741,960 27,573,220 36,494,480 36,042,320 60,164,740 42,822,570 113,321,300 52,395,110

Total MWh

8,597,650 61,105,380 8,901,340 12,274,530 11,614,300 6,493,570 2,802,480 41,984,370 1,576,830 86,657,960 5,131,600

Total renewables MWh

Table 1.2  Western U.S. hydro generation profile, 2013

5.40 12.27 2.36 57.81 36.10 7.35 0.51 55.61 1.48 68.75 1.37

Hydro as a % of total (%) 69.21 40.16 14.14 74.14 85.70 41.30 6.62 79.69 40.2 89.90 13.96

Hydro as a % of renew­ able (%)

346 1468 1795 428 2916 512 519 935 795 746 1416

Powered & non-powered dams

11 4 30 43 41 35 39 26 33 13 31

National rank in electricity production

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13

14  I. M. CASTELLANO Table 1.3  Cost of electricity across the Western U.S. Rank from most expensive to cheapest

State

6 19 22 28 30 37 39 40 43 47 50

California New Mexico Arizona Colorado Wyoming Utah Nevada Montana Oregon Idaho Washington

Average retail price of electricity to residential sector (cents/kWh) ₵18.85 ₵13.57 ₵12.74 ₵12.45 ₵12.15 ₵11.91 ₵11.64 ₵11.59 ₵10.94 ₵10.58 ₵9.87

Source U.S. Energy Information Administration

Population Growth Population growth is a particular concern for water distribution in the American West. The westward expansion of the nineteenth century started with Lewis and Clark making their way to present day Astoria, Oregon, to view the Pacific Ocean. This expansion appears to be as yet unfinished. In just a few decades, the landscape, the culture, and the population of the West have been radically altered. Between 1950 and 2013 the population of the 11 states examined here grew from 19.5 million people to 72.1 million.7 Table 1.4 shows the rapid growth the region experienced in the second half of the twentieth century (Fig. 1.2). In the last 25 years, the population in the region increased 32%, a good 50% above the national average (Fort 2002). The American West continues to grow, holding several of the fastest-growing metropolitan regions in the country as of 2017, including Provo-Orem (ranked 3rd), Seattle-Tacoma (7th), Portland (9th), Salt Lake City (10th), Boise (11th), Ogden-Clearfield, UT (13th), Phoenix (16th), Las Vegas (17th, tied with Phoenix), San Jose (22nd), Denver (23rd), and Sacramento (25th) (Sharf 2017). Boise, Idaho, for example, has seen its population grow from 30,000 in 1980 to over 205,000 in 2010 (U.S. Census 2016). Seven of the fastest-growing states in the country are also in the region, including Nevada, Idaho, Washington, Colorado, and Arizona. Evidence of the growth in the region is the number of residents who

749,000 10,580,000 1,325,000 570,000 569,000 162,000 735,000 1,532,000 696,000 2,387,000 270,000 19,575,000

Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming Total

Source U.S. Census

1950

State 2,718,000 23,670,000 2,890,000 944,000 786,000 800,000 1,333,000 2,633,000 1,461,000 4,132,000 469,000 41,836,000

1980

Table 1.4  Population in American West, 1950–2025

3,665,000 29,760,000 3,300,000 1,102,000 800,000 1,221,000 1,522,000 2,860,000 1,731,000 4,903,000 453,000 51,317,000

1990 5,130,000 33,870,000 4,327,000 1,299,000 903,000 2,109,000 1,821,000 3,430,000 2,245,000 5,911,000 493,000 61,538,000

2000

6,392,000 38,290,000 5,049,000 1,571,000 990,000 2,705,000 2,066,000 3,839,000 2,776,000 6,744,000 564,000 70,986,000

2010

6,412,000 49,285,000 5,188,000 1,739,000 1,121,000 2,312,000 2,612,000 4,349,000 2,883,000 7,808,000 694,000 84,403,000

2025 projected

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16  I. M. CASTELLANO

Fig. 1.2  Western U.S. population 1950–2025

were born in the state. Examining U.S. Census data, it can be observed that southern and midwestern states have high retention rates. For instance, Mississippi has 72% retention rate, and Pennsylvania has 74% retention rate. This means that in Mississippi 72% of the population that lives in Mississippi was born in the state. This stands in stark contrast to the retention rates in states in the American West, which often reach 50% or lower. For instance, the 2012 retention rate in Montana was 52%, 52% in New Mexico, and 62% in Utah. These figures indicate that western populations contain high numbers of new residents who have moved to the region during their lifetime (Table 1.5). One of the many factors driving the population increase in the region is the sharp increase in property values in the coastal regions, which has prompted relocations, particularly from southern California and Seattle. People have come to Idaho from all along the West Coast, escaping crowds, traffic, and high home prices. Nearly all (99%) migration into Idaho from other states is concentrated in the Boise Metropolitan Area, also known as the Treasure Valley (State of Idaho Department of Labor 2016). Of the population that has settled (and continues to settle) in the Treasure Valley, a high percentage have college degrees, and many are employed in the growing tech sector. The burgeoning population in the region has also spurred further economic growth. The projections for population growth in the region suggest a dramatic pace of growth similar to that seen in recent decades. Drawing from Table 1.4, the total population gain across the 11 states of the

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Table 1.5 Population retention rates in the Western U.S., 2012

State

17

% of population born in the state (%)

Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming Average

38 55 42 47 54 25 53 46 62 47 40 46

Source Aisch and Gebeloff (2014)

American West between 2010 and 2025 is estimated to be approximately 14 million people, compounding the demand for scarce water resources, as people need water to live, for their lawns, for economic development, and other uses. While there has been some discussion of Phoenix and other dry areas losing population, it is likely the bulk of those leaving the Phoenix area will move west or north, as opposed to east. Many people are drawn to the region due to the sense of space and the mythology of the West as a place capable of anything.

Why Water Matters Most people understand that water is an important resource that should be well managed. Intuitively, it is understood that water matters for so many facets of life, the economy, social relations, and, of course, politics. Water can also be confusing. The overall per capita rate of water use has declined in recent years, with its peak in 1980 (Donnelly and Cooley 2015). From 2005 to 2010, there was a 17% decline in per capita water use (Donnelly and Cooley 2015). The growing efficiency in domestic use can be traced in part to the National Energy Policy Act of 1992, which established efficient standards for household water uses such as toilets, urinals, faucets, and showerheads. Similar legislation set standards for water efficiency for appliances such as washing machines and dishwashers. This national trend serves to illustrate a larger point: Some water users are able to adapt, change, conserve, and even thrive

18  I. M. CASTELLANO

under water scarcity, but these adaptations require coherent leadership from institutions to help water users adjust to the new reality. But these improvements simply mask the fact that overall domestic water demand in the West has increased over time (Fort 2002). Individually, Americans are able to rationalize the use of science and technology to undermine any sense of crisis, as their own lives are filled with everyday examples of water conservation and progressive acts. Likewise, in the agricultural sector, water efficiency has increased: The average amount of water used dropped from 4 acre feet to 2.1 acre feet per an acre in the region in a 20 year span (Donnelly and Cooley 2015). However, by 2010, Americans were irrigating more land than ever before (Donnelly and Cooley 2015). Domestic water use, which is defined as indoor and outdoor use, including watering lawns, drinking, food preparation, maintaining pools/ponds, flushing toilets, and so on, has its own western problem (Maupin 2014). The western states maintain a higher rate of per capita water use than those in the East and Midwest. Eight of the 10 highest domestic per capita use states are in the region of study for this project, and only Montana, Washington, and New Mexico maintain rates similar to those of the Midwest, which is still more than most of the eastern seaboard (Keney et al. 2009). Nevada, Idaho, and Utah lead the nation in rates of domestic water use per capita, and are also some of the driest states in the country. Boise, Idaho, for example, gets some 11 inches of precipitation a year on average, yet tour the city and you will find well-watered lawns, golf courses, and city parks; access to irrigation makes all of the greenery possible. Domestic use of water is certainly important, but agriculture is the main driver of water use in many of the states examined in this study. From early on, particularly in the intermountain West, it became clear that irrigation would be necessary for agricultural production to thrive. The area is more or less dependent on snowfall for surface water, as snowfall, in general, makes up the majority of precipitation in the region. In the early 1900s, the federal government invested millions into a far-reaching dam system on most rivers in the western U.S., providing storage capacity and thus facilitating irrigation throughout the long, hot summers. An example of the benefits of this irrigation can be found in the dry deserts of eastern Idaho, which have become rich and productive farm land. However, while irrigators still consume some 90% of the available water in the region, the growth of cities and urban centers

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has begun to reduce their share. What makes the intermountain West a region particularly susceptible to population growth-induced scarcity is that this growth has come in areas with some of the lowest rates of precipitation. Many of the cities mentioned above as among the fastest growing in the country, are in the intermountain region. Little of this new growth is high-rise apartment buildings, but rather suburban subdivisions with lawns that need irrigation systems, since the region’s limited rainfall is not a reliable source for watering grass. Increased demand for electricity from new arrivals to the region creates another issue. Water managers face pressure to ensure enough water is left in the rivers to create enough flow for optimal power generation. Industrial development in the region has also increased over the last 50 years, further complicating the problem facing water managers. Some communities lack the water resources to support economic development. For example, in 2015, the City of Mountain Home, in Elmore County, Idaho, was approached by a food processing company with a proposal to build a 1.3 million square foot facility employing 450 workers; however, the required water for the facility exceeded the available rights.8 As the economy continues to shift from manufacturing to service-based industries, missed opportunities like these only deepen the crisis over water availability (Donnelly and Cooley 2015). Water shortages can have other serious economic consequences. One example is the impact of the recent drought in California in 2007–2009, and 2013–2015. Hundreds of thousands of acres of farmland went unplanted, including 250,000 acres in 2016 and 540,000 acres in 2015 (Sahling and Kowalski 2017). Forests in the Sierra Nevada mountains lost thousands of trees to the pine beetle, fish stocks declined across the state’s rivers, and the state ordered a 25% reduction in urban water use (Boxall 2017). Some researchers examining the economic impact estimated the total cost to the agricultural sector to be $603 million for 2016 alone (Medellin-Azuara et al. 2016), while others put it higher, at $1 billion to $1.5 billion (Sahling and Kowalski 2017). The figures for 2015 were even higher, with some estimates reaching $2.7 billion. During the drought the value of farmland dropped, food prices increased, particularly for specialty crops such as almonds, artichokes, olives, and raisins. The drought also caused a shift in other aspects of the agricultural economy. For instance, some dairies moved from California to Idaho and other states, resulting in job loss and reductions in tax base. There have also been shifts for residential water users. Homeowners

20  I. M. CASTELLANO

across California, encouraged by a subsidy program, tore up their lawns to plant native succulents and other xeriscape landscaping. The saving grace has been access to groundwater, as large aquifers have fed agricultural fields for decades. However, groundwater is quickly being depleted and new groundwater regulations in the state restrict the use of that source. Future droughts may not be mitigated by the use of groundwater if there is none available. Second and third-order outcomes suggest other economic consequences of water shortages. For instance, consider employees who have lost their jobs, and subsequently move their families, or the impact on agricultural suppliers, such as tractor dealers, veterinarians, truck drivers, and others when agricultural producers reduce their operations. While it is too soon to estimate the social cost of the drought, we can draw on lessons from previous droughts in California and the country more broadly. While the situation in the West might not end up being as bad as the Dust Bowl or present-day New Delhi, the impact is similar, forcing people to make tough choices about whether to stay where they have made a home, leave, or find new lines of employment. The economic consequences of drought in places like California also extend far beyond the borders of that state. For instance, consider that rising food prices are not contained just to the states with droughts, but impact the entire country, and often have global consequences. This is all to say that the costs of inaction and failed policies on water shortages will be substantial. Some states have recognized the problem of water shortages and are trying to figure out how to manage the consequences. Oregon, for example, has estimated that by 2050 the state will require an additional 424 billion gallons of water (or 1.3 million acre feet) to meet the demands of agricultural irrigators (State of Oregon 2016). This is a sizable sum for a state known for rainfall. Similar increases in demand in many of the other western states, particularly those in the intermountain West, would put them in danger of water shortages that could upend their current use patterns and the lives and economies built around them. Water is critical to the economic, social, and cultural life of the western U.S. This is not a new fact or a new problem. Scholars, activists, and policymakers have been writing and talking (and sometimes yelling) about water policy in the region for many years. Central to the argument presented here is the nature of the water accountability that has and will continue to reshape the institutional response to this problem. This book provides both an empirical examination of how water accountability has

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come to play a central role in how states deal with water right enforcement, but also makes the case that such changes are far from over.

Considering the Importance of Environmental Security Climate change and population growth are presenting major challenges to the future of western economic, environmental, and social conditions. As this book is being written, fires in California are dominating the headlines, drought on the Colorado River is raising questions of sustainable water practices, and acidification of the oceans is resulting in die-off of starfish throughout the Puget Sound (Mapes 2016). Government agencies unprepared or unwilling to address problems that arise because of climate change and population growth, including water shortages, will find themselves with a set of complicated and expensive problems. This book aims to address the uncertainty that surrounds climate change in the American West from a state institutional perspective. How well prepared states are to adapt to the effects of climate change is critical for predicting how the future of the American West will unfold. Water is a strategic resource, whose management can determine the well-being of a community. With the increase of demand and decrease of supply, communities in the West face great pressure on water systems. This book helps understand that pressure and frames the issue in the context of climate change adaptation policy. Climate change adaptation has quickly emerged as a cutting-edge field connecting the natural sciences with the social sciences. The election of Donald Trump to the U.S. presidency, the subsequent U.S. withdrawal from the Paris Climate Accord, the gutting of the Obama-era EPA regulations on coal power plants, and the lack of bipartisan consensus on some of the most basic questions concerning climate change have only fueled the need for academics, policy leaders, and government agencies to examine how and where climate change adaptation policy can be adopted. The research on hydrology is rapidly advancing, and utilization of advanced modeling techniques has brought important scientific tools to the public policy debate on climate change. Dozens of research projects have mapped the western region’s climate outcomes (U.S. EPA 2016). The findings are stark and clear—problems of water scarcity are going to increase not decrease—and state agencies should consider the right course of action given this growing body of evidence.

22  I. M. CASTELLANO

States’ policy apparatuses will need to adopt and advance policy innovations in order to address the increasing pressures on water supply. In this book I introduce the term “water accountability,” the process by which stakeholders politically mobilize in more visible and significant ways in order to create a regulatory system which can respond to growing pressures of water scarcity. While there are many established actors in the realm of water policy, and excellent models of cooperative governance in many water basins throughout the West, I argue that the degree to which change in water demand and supply is occurring will alter the political landscape. A core assertion here is that regulatory agencies, such as Idaho’s Department of Water Resources, are going to have more work in the coming years in managing the competing demands for water flow, and the issues of compliance. There is a vast body of research on water management. This research articulates that there are many different types of schemes used to manage scarcity of natural resources, including place-based management, adaptive collaborative governance, adaptive management, adaptive collaborative management, among others (Cech 2009). But these approaches have mostly skirted the issue of compliance and enforcement, as they handle water distribution, while unauthorized water use occurs after the distribution of rights and any subsequent arrangement to utilize water banks, temporary transfers, and other arrangements to manage low water years (Rogers and Weber 2010). Regardless of the management approach, this raises the question of how the rules are enforced and regulated. The water management literature, along with most of political science, recognizes how government agencies can easily become isolated and operate with a separate agenda (Rogers and Weber 2010). In water compliance, the focus on a goal-based compliance agenda and strong statutory guidelines ends up excluding innovative solutions to managing scarce resources. The strength and resilience of the institutions tasked with managing a scarce resource is the focus of another branch of literature relevant to this topic; environmental security. Environmental security as an academic field emerged in the 1990s, and has grown in strength in the past two decades, as scholars, policymakers, and activists tie the roots of many conflicts worldwide to resource scarcity. Researchers such as Homer-Dixon (1999) have identified scarcity as a driving force in many civil wars around the world, such as in the Philippines, Darfur, and Rwanda. Homer-Dixon (1999) and many other scholars in the field fall into a category referred to as neo-Malthusians, whose work builds on the eighteenth-century writer

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Thomas Robert Malthus. Malthus’ 1798 Essay on the Principle of Population outlined a concern that population growth would outpace agricultural production and lead to a major crisis. Long associated with an effort to control population growth, Malthusian theorists have been concerned with the balance of caloric production and the size of the global population. Neo-Malthusian literature, of which Homer-Dixon (1999) is a staple, has produced in recent decades a set of arguments outlining how current environmental issues such as climate change, deforestation, soil erosion, and air pollution will undermine the capacity of modern society, particularly in poorer countries. To be clear, Homer-Dixon and much of the neo-Malthusian literature does not single out scarcity as the only cause of conflict, rather, they argue that “[e] nvironmental scarcity is never a sole or sufficient cause of large migrations, poverty, or violence; it always joins with other economic, political, and social factors to produce its effects” (Homer-Dixon 1999). These other factors can, and often do, contribute to the breakdown of the social contract and the ability of states to provide public goods that are the glue that holds societies together. What becomes very important, and is at the center of this project, is the institutional capacity of the state to manage scarcity. Homer-Dixon (1999) focuses on the role of social actors who respond to scarcity and highlights where ingenuity can mitigate the damage and manage the instability that resource scarcity can create. This ingenuity can come in many forms, such as creative institutional responses to scarcity that can undermine conflict-creating dynamics. Much of the research on water policy in the West has field tested new approaches to water management, and many innovative policies have been put in place to do just that. In Idaho, for example, the Eastern Snake River Plain Aquifer Comprehensive Aquifer Management Plan creates a long-term program for managing water in the aquifer with a phased, adaptive management process. The plan allows for changes as issues emerge, involving a complicated process of negotiation and collaboration between a diverse group of water users, the state government, and other stakeholders. The need for a plan was sparked by the significant and unsustainable drawdown of the aquifer. Left unabated, the drawdown would have created a major economic crisis in eastern Idaho, an area whose economy has long been dominated by agricultural production. The intervention by the state, and the balancing of the various stakeholders, represents the Homer-Dixon (1999) concept of ingenuity, specifically, institutional adaptive capacity to manage scarcity.

24  I. M. CASTELLANO

The impact of such ingenuity and capacity is no small thing. HomerDixon (1999) documents the breakdown of institutional capacity and lack of ingenuity in many cases around the world. As the 2014 National Climate Assessment summarizes, the success of the U.S. is dependent on creative solutions that require a range of actors and assets to come together. The climate report cites a partnership between the conservation group Ducks Unlimited and the Nisqually Indian Tribe, which restored an estuary in Washington’s Nisqually River Delta by removing a 100-year-old levee and reconnected the isolated wetlands with natural tidal flow. The project restored 21 miles of historical tidal channels and floodplains, while also building a new exterior dike to protect from future sea-level rise a freshwater wetland habitat for a number of migratory birds (U.S. Global Change Research Program 2014). The institutional capacity of states to be flexible, adaptive, and effective in managing the problems of climate change is and will continue to be a major political issue. This book is an attempt to establish a baseline understanding of what capacity exists among water management agencies across the American West, where improvement is needed, and how best can the stakeholders involved adapt to the changes on the horizon for the region.

Organization of This Book The rest of the book is organized as follows. Chapter 2 covers three areas of the water policy literature. The first body of literature examines the unique nature of the American West. Activists, journalists, and political leaders have written about the region and its issues, sometimes focusing on one particular basin. The second body of literature is the rich and large water policy and management literature, conducted by traditional social science and geoscience researchers and typically published in peer-reviewed academic journals. This literature has documented and empirically evaluated a number of water policies as well as management techniques employed not just in the American West but around the world. The third sub-field of the literature addresses environmental security and serves as a balance to the other two. The focus of environmental security as a sub-field is the relationship between scarcity and conflict, particularly how institutions and institutional breakdown serve to inform the political outcomes. This body of work emerges from the more critical elements of the security studies literature,9 and complements nicely the American West literature and the water policy and management literature. It brings together the disjointed conflict theorizing from the

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American West literature with the water policy and management contributions highlighting the importance of institutional capacity and competency. In Chapter 3, I investigate the dynamics of water use in the American West, focusing on the supply and demand factors for water in the region. I first examine the history of water use in the American West, and detail the economic impact water has on the region. Agricultural and industrial uses were historically dominant, but urban growth throughout the later part of the twentieth century and the start of the twenty-first century, combined with the continued trajectory of that growth, will continue to put pressure on watersheds throughout the region. I include in my examination the historical dimensions of water rights. I then establish what the status quo response is by western U.S. states to unauthorized water use, paying particular attention to the investigation methods employed by states, the data they collect on violations, the budget allocation for enforcement, and the personnel assigned to enforce water rights. In Chapter 4, I lay out my theoretical argument to explain the variation in capacity that western states have developed in response to scarcity. I introduce my argument that “water accountability” puts pressure on state agencies to take steps to protect water rights through a variety of policies and actions. The demand for the protection of water rights varies across time and space, and is largely an outcome of the combined impact of “adaptive capacity” and the threat of securitization, two concepts discussed in more detail in Chapter 4. This variation in water accountability has produced varying outcomes and policy adoptions which are captured in the typology presented in Chapter 5. In Chapter 5, I empirically test my hypothesis, by utilizing a typology that captures the range of capacity to handle water accountability. I measure the impact of “adaptation interactions” by utilizing data on the agricultural sector, the power of environmental movements, the professionalism of state legislature. The dependent variable becomes the outcome in the typology, which captures the range of policy options for states to utilize. In Chapter 6, I examine the additional steps states and the federal government might be pressured to take to further protect water rights, as the growing regional water crisis undermines the ability of states to properly deliver water supplies to essential components of their economy. I examine the possible policy responses from the state level on this issue, including from the perspective of water users, environmental groups, and the political elite. I also examine the possible federal government

26  I. M. CASTELLANO

responses to water scarcity, and propose two general sets of options. The first is an examination of what can be done in the status quo, while the second addresses what options would be available if the federal government suspended the prior appropriation system. The conclusion for many of the states in the region is that few of them are prepared to handle the growing water scarcity and the required water adaptation. This chapter offers insight on how the federal government can proceed if the states fail to act. Chapter 7 provides some conclusions and draws together a coherent picture of the present and future policy environment surrounding water policy in the American West. I outline strategies that non-state actors can pursue to advance their agendas. I focus first on agricultural water users’ interests and possible options, and then on environmental groups looking to continue protections for fish and wildlife habitat. I close with a discussion of weaknesses of my approach, and offer suggestions for future research.

Notes 1. Water theft has been reported in non-western states such as Iowa and West Virginia, however, mainly in residential zones. See also Guay (2017). 2. See the Office of the District Attorney County of Madera’s press release on March 4, 2015 detailing the action. “District Attorney David A. Linn Announces the Formation of Agricultural/Water Crime Task Force.” 3. The Magic Valley consists of Cassia, Lincoln, Minidoka, Gooding, Jerome, and Twin Falls counties. 4. These are among many other contributions from a variety of disciplines (Reisner 2013; National Research Council 1992). 5. I choose these 11 western states because they are the 11 states completely to the west of the 100 degree longitude with a portion of a majority of their river systems flowing west with prior appropriation systems. 6. There are over 1000 dams in Washington State, the vast majority of them being minor. 7.  Population data from U.S. census. Western states examined here Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Utah, Wyoming, Colorado, and New Mexico. Data on snow pack from USGS. 8. Internal proposal provided by the City of Mountain Home. 9.  Buzan et al. (1998) works to dismantle this narrower focus of Walt (1991), who argued security studies as a sub-field remain contained to the state decision-making process.

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References Aisch, Gregor, and Robert Gebeloff. 2014. “Mapping Migration in the U.S.” New York Times, August 15. Accessed October 17, 2017. https://www. nytimes.com/2014/08/16/upshot/mapping-migration-in-the-united-statessince-1900.html. Bernton, Hal. 2015a. “Water Theft Is Symptom of Bigger Troubles in Wapato Irrigation Project.” Seattle Times, July 15. http://www.seattletimes.com/ seattle-news/environment/water-theft-is-symptom-of-bigger-troubles-inwapato-irrigation-project/. Bernton, Hal. 2015b. “Yakima Farmers Say Mismanaged Water Made Crop Losses Much Worse.” Seattle Times, September 8. Accessed December 8, 2017. https://www.seattletimes.com/seattle-news/environment/yakima-farmerssay-water-flow-or-lack-of-it-added-to-woes/. Boxall, Bettina. 2017. “Gov. Brown Declares California Drought Emergency Is over.” Los Angeles Tims, April 7. Accessed November 1, 2017. http://www. latimes.com/local/lanow/la-me-brown-drought-20170407-story.html. Buzan, Barry, Ole Waever, and Jaap Wilde. 1998. Security a New Framework for Analysis. Boulder: Lynne Rienner. Cech, Thomas. 2009. Principles of Water Resources: History, Development, Management, and Policy. 3rd ed. Hoboken: Wiley. Donnelly, Kristina, and Heather Cooley. 2015. Water Use Trends in the U.S. Oakland: Pacific Institute. Fort, D. D. 2002. “Water and Population in the American West.” Yale: F&ES Bulletin 107: 17–24. Georgek, Jennifer. 2015. “Shrinking Snowpack Projected in Western U.S. as Rain-Snow Boundary Climbs Higher.” Accessed March 21, 2017. https://www.earthmagazine.org/article/shrinking-snowpack-projectedwestern-us-rain-snow-boundary-climbs-higher. Glantz, James. 2012. “Data Barns in a Farm Town, Gobbling Power and Flexing Muscle.” New York Times, September 23. Accessed November 22, 2017. http://www.nytimes.com/2012/09/24/technology/data-centers-in-ruralwashington-state-gobble-power.html. Guay, Jessica. 2017. “West Virgina American Water Cracking Down to Stop Water Thefit.” WSCH News, September 14. Accessed March 20, 2019. https://wchstv.com/news/local/west-virginia-american-water-crackingdown-to-stop-water-theft. Hamilton, Matt. 2015. “Tom Selleck, Water District Reach Tentative Settlement in Dispute.” Los Angeles Times, July 10. https://www.latimes.com/local/ lanow/la-me-ln-selleck-water-complaint-20150709-story.html. Homer-Dixon, Thomas F. 1999. Environment, Scarcity, and Violence. Princeton: Princeton University Press.

28  I. M. CASTELLANO Kenney, Joan, et al. 2009. “Estimating Use of Water in the U.S. in 2005.” USGS Circular 1344. Los Angeles Times. 2014. “Sao Paulo, Brazil, Officials Downplay Water Crisis as Residents Suffer.” December 13. http://www.latimes.com/world/brazil/ la-fg-ff-brazil-water-crisis-20141213-story.html. Mapes, Lynda. 2016. “Scientists Now Link Massive Starfish Die-Off, Warming Ocean.” Seattle Times, February 21. https://www.seattletimes.com/ seattle-news/environment/scientists-now-link-massive-starfish-die-offwarming-ocean. Marshall, Allison. 2014. “Development of a Hydrologic Model to Explore Impacts of Climate Change on Water Resources in the Big Wood Basin, Idaho.” http://ir.library.oregonstate.edu/xmlui/bitstream/handle/1957/52601/ InouyeAllisonM2014.pdf?sequence=1. Maupin, Molly, et al. 2014. “Estimating Use of Water in the U.S. in 2010.” USGS Circular 1405. Medellin-Azuara, Josue, Duncan MacEwan, Richard Howitt, Daniel A. Sumner, and Jay R. Lund. 2016. “Economic Impacts of the 2016 California Drought for Agriculture.” Center for Watershed Sciences UC Davis. Mote, P. W., and D. Sharp. 2016. Update to data originally published in: Mote, P. W., A. F. Hamlet, M. P. Clark, and D. P. Lettenmaier. 2005. “Declining Mountain Snowpack in Western North America.” American Meteorological Society 86 (1): 39–49. National Research Council. 1992. Water Transfers in the West. Washington, DC: The National Academies Press. Nier, Gitonga. 2012. “Water Shortages Driving Growing Thefts, Conflicts in Kenya.” Thomson Reuters Foundation, Monday August 6. http://www. trust.org/item/?map=water-shortages-driving-growing-thefts-conflicts-inkenya. Patrick, Aron, Adam Blandford, and Leonard K. Peters. 2015. “The Vulnerability of the U.S. Economy to Electricity Prices Increases.” Energy and Environmental Cabinet, Commonwealth of Kentucky, March 2015. Accessed November 22, 2017 http://energy.ky.gov/Programs/Data%20 Analysis%20%20Electricity%20Model/Vulnerability_to_Electricity_Prices.pdf. Rogers, Ellen, and Edward P. Weber. 2010. “Thinking Harder About Outcomes for Collaborative Governance Arrangements.” The American Review of Public Administration 40 (5): 546–567. Sahling, Leonard, and Dan Kowalski. 2017. “California Drought and Its Economic Impact on Agriculture in 2016.” Accessed November 1, 2017. Sethi, Aman. 2015. “At the Mercy of the Water Mafia.” Foreign Policy, July 17. http://foreignpolicy.com/2015/07/17/at-the-mercy-of-the-water-mafiaindia-delhi-tanker-gang-scarcity/.

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Sharf, Samantha. 2017. “Full List: America’s Fastest Growing Cites 2017.” Forbes, February 10. Accessed October 11, 2017. https://www.forbes.com/ sites/samanthasharf/2017/02/10/full-list-americas-fastest-growing-cities2017/#7e7f53093a36. State of Idaho Department of Water Resources. Preliminary Order Approving Permit Upon Conditions. Permit 63-34348. March 2, 2016. https://www. idwr.idaho.gov/files/legal/orders/20160229-Preliminary-Order-Creating-WD161-Mountain-Home-Area.pdf. State of Oregon Water Resource Department. 2016. “State of Oregon 2015 Field Regulations and Enforcement Activities.” Report, 2016. Taylor, Garth, Steve Hines, and Joel Packham. 2015. “Water in the Idaho Economy.” Idaho Water Users Association Seminar, November 19. U.S. Census Bureau Quickfacts: United States. 2016. https://www.census.gov/ quickfacts/fact/table/US/PST045218. U.S. Department of Agriculture. Farm Census 2012. United States Department of Agriculture. https://www.nass.usda.gov/AgCensus/Report_Form_and_ Instructions/2012_Report_Form/index.php. U.S. Energy Information Administration. 2017. “Electric Power Monthly.” Report, August. Accessed November 22, 2017. https://www.eia.gov/electricity/monthly/epm_table_grapher.php?t=epmt_1_1. U.S. Environmental Protection Agency. 2016. “Climate Change Impacts.” Accessed March 17, 2017. https://www.epa.gov/climate-impacts. U.S. Global Change Research Program. 2014. “National Climate Assessment.” Accessed November 22, 2017. http://nca2014.globalchange.gov/ highlights/overview/overview. Walt, Stephen M. 1991. “The Renaissance of Security Studies.” International Studies Quarterly 35 (2): 211–235. Walthall, C. L., et al. 2012. “Climate Change and Agriculture in the U.S.: Effects and Adaption.” USDA Technical Bulletin 1935, Washington, DC. Whittlesey, N., and R. Huffaker. 1995. “Water Policy Issues for the Twenty-First Century.” American Journal of Agricultural Economics 77 (5): 1199–1203.

CHAPTER 2

Water in the American West, Water Policy and Management, and the Role of Environmental Security

Introduction The literature on water policy is substantial, as there are numerous dimensions, divisions, and sub-topics from a variety of contributors. The literature germane to a discussion of water in the American West can be divided into three groups. The first body of work examines the particular dynamics of western U.S. water issues, and includes authors that come from a journalism or activist background, as well as traditional scholarship from a diverse set of academic fields such as geoscience, economics, sociology, public policy and political science, as well as anthropology. The second portion of the literature is a broader set of contributions that examine water policy and management more broadly. This group covers many issues of water management and policy that extends beyond the American West and are typically drawn from the public policy literature, covering topics such as collaborative agreements, agricultural water issues, pollution control, and institutional or regulatory reform. The third group of literature is from the emerging sub-field of environmental security. Originally, the domain of political science, environmental security has grown to include a wide range of scholarly fields including geography, sociology, economics, and others. The field of environmental security argues that scarcity will serve as a “threat multiplier” in weak institutional contexts, helping to spark violent conflict at the community, state, and international level (Hough 2014).

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This chapter draws the conclusion that, while the relevant literature covers an exceedingly large number of topics related to water in the American West, a large lacuna exists on the enforcement of water rights. The very detailed and layered contributions on water management, for example, which would be the most likely place to see unauthorized water use examined, do not really have any significant scholarly work detailing the response of western states to water right violations. Virtually no work has examined the institutional capacity and legal arrangements for backend water rights, that is, what actual enforcement mechanisms exist, how they work, and, most importantly, how successful they are. This gap in the literature is not all that surprising since, as I discuss in greater detail in Chapter 3, the decentralized nature of water right enforcement makes systematic examination difficult (and to be clear, while this study advances the field’s understanding of water right enforcement in the American West, it raises more questions than it answers). In this decentralized system, numerous agreements and legal restrictions govern water use in the region, confounding the desire of many individuals to violate water right law. Particularly for agricultural water users, the investment in preparing plots, planting, and related work undermines the desire to violate their water governance, as you wouldn’t want to make the front end investment, if you weren’t sure you could deliver the back end, in this case water. But, as I argue throughout the book, times have changed in the American West as the impact of climate change has registered even with those most susceptible to denial. More and more people who once resisted the evidence that climate change was related to human behavior, are at least acknowledging that it’s getting worse and humans might have something to do with it, but it certainly remains a hotly contested issue. Moreover, as is detailed in Chapter 4, the threat and reality of water accountability makes understanding the institutional capacity of water right enforcement a vital topic for water users. As the reader will see, there are numerous pieces to the puzzle of water in the American West.

There Is a Water Crisis in the West Many researchers, scholars, and activists have produced media articles, books, documentaries, and other popular work that have focused on water scarcity in the American West. Their work functions in the background of water law and the prior appropriation system which serves as the legal foundation to the entire region. Before a look at this

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region-specific work, it is important to offer a primer the legal dynamics of water law. This water law, combined with federal funding for agriculture’s diversion of water from the region’s many rivers, created the economic, political, and social foundation of American Western life. Codified in law, water distribution schemes established 100 years ago continue to dominate water distribution decisions and thus the legal, economic, political, and social converge around the system as it stands. The making of the modern West was dependent on the utilization of prior appropriation. But a byproduct of the geography of the West is the fact that many agricultural communities, like Mountain Home, Idaho are places that have water running through them or under them, but not over them, in the form of rain. The conquering of the once inhospitable desert ground of the American West, created a legal system governing surface water, the water that flows in river and streams, but it offered nearly nothing to govern the groundwater supplies. The prior appropriation system dictates that water claims are honored by who had them first, a “first in time, first in right” system. The dynamics of water law, and especially the prior appropriation system, inform the nature of state management of resources in profound and important ways. Works that examine the legal ins and outs are worthy starting places for new readers to the topic of water. Craig et al.’s Water Law (2017) and others work to clarify the issues surrounding the prior appropriation system and its influence on the distribution of water based on legal standing, as opposed to need.1 Critical to the analysis here are the details of the prior appropriation system and the long-standing case law that has solidified the legal framework for water distribution. These works often feature a critique, repeated in this book, that water often does not get to the most beneficial use under the prior appropriation system. The great irrigation projects of the twentieth century would not have been possible under the riparian system, which prioritizes the proximity of user to water source. The prior appropriation system grants access to water users far from the source, as the system allows water rights to be sold like any other property (Craig et al. 2017). Such flexibility gave rise to much of the irrigation infrastructure visible across the western landscape, and thus has led to great contributions in agricultural production in what was arid, unusable land. But issues remain as to how clearly prior appropriation is administered across the western U.S. Benson (2012) argues convincingly that Idaho,

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among other states, has failed to uphold the basic principles of prior appropriation across time. For example, it took a significant legal battle for the state’s water agency to adhere to conjunctive use management practices, that acknowledge the linkages between surface and ground water, something critical when considering how to protect water rights in the long term (Benson 2012). But others remain critical of the prior appropriation enforcement, such as Tarlock (2001, in Benson 2012), who argues that strict enforcement would undermine the efficient use of water in many jurisdictions. Such problems remain across the region, where often junior users can be more productive than senior water right holders, causing economic and subsequently political problems for state officials (Benson 2012). Such barrier to enforcement pertain directly to the topic of this book, as states, as documented in Chapters 3 and 4, appropriate small amounts of money to investigate unauthorized water use across the region. With this foundation in the basics of water distribution, it is now possible to view the plethora of literature on this dynamic. An important place to start is Marc Reisner’s Cadillac Desert (1986), one of the most wellknown contributions that outlines the water crisis in the American West. The main contribution of the book is its direct examination of the emergence of water law and policy upon which current and future water use rests. Starting with the Mormon settlement of what became Salt Lake City, Reisner (1986) tells the story of the taming of a great landscape that needed irrigation to make it inhabitable. Reisner identifies 1902 as a critical year in which the Bureau of Reclamation was established and the massive, federally funded remaking of the American West began in earnest. Desert land across the region, was remade into “the most ambitious desert civilization the world has ever seen” (Reisner 1986). The American West still has that can-do, individualistic mentality, the very kind of political and cultural order that undermines support for collective action, government projects, and oversight. While happy to take the funds to create the dams, many western water users remain resistant to federal intervention, and most certainly to environmentalists, who make up a sizable portion of the polity actors. To overcome perceptions of themselves as outsiders, environmentalists’ efforts frequently highlight conservation’s connection to hunting, fishing, and related recreation, and employ narratives by authors, activists, and political leaders who have long ties to the region.2 Awareness of the role of outsiders is acute among many and permeates policy narratives, especially from the Intermountain

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West’s agricultural political elite and coastal states’ water users who often point out the outsider influence in peddling environmentally concerned initiatives that interfere with agricultural interests in water management policy making. The deep nature of water use conflicts in the region helps entrench views and establish narratives that are difficult to moderate. Consider Doremus and Tarlock’s (2008) examination of the Klamath Basin, where they map the political environment in which the Endangered Species Act is viewed as “a totalitarian weapon used by urban environmentalists to cleanse the rural landscape of all human imprint” (Doremus and Tarlock 2008). Yet not all out-of-state influence is reviled: It’s the federally funded reservoir and dam system that allows for both season-long irrigation and flood control that has made the American West so inhabitable for over a century, an effect that is well-documented in the literature.3 Doremus and Tarlock (2008), writing about the political dynamics of the Klamath Basin, make the case that the area has its own unique dynamics, but that they are similar to other basins across the region. Other work takes on specific region or basin focuses and attempts to generalize about the political dynamics that play out in common ways given the similarity in legal frameworks governing the region. Following in the footsteps of Reisner (1986), David Owen, a New Yorker staff writer from the East Coast, ventures out west to make sense of the Colorado River. While he reports the basics of water law accurately, he muses on the “Law of the River,” the collection of legal and legislative actions that allocate water, and is surprised to learn of the over-appropriation of many basins in the West (Owen 2017). In such he is not referring to Colorado Compact of 1922 or the 1964 U.S. Supreme Court decision Arizona vs. California, but rather the arcane, overlapping, and confusing combination of legal decisions, legislation, and precedent that oversees water distribution in the region. Others such as Powell (2008) embark on similar narratives, outlining the problems facing the West’s Colorado Basin, with a particular focus on climate change (Powel 2008). Powell (2008) argues that population growth and climate change in the western U.S., particularly in the major desert cities, such as Las Vegas, Los Angeles, and Phoenix, will mean the region will face significant barriers to acquiring needed water. He concludes his work with an emphasis on the changes that will need to occur across the region in order to meet this challenge. Pearce (2006) stands out as another contributor who, while only partially focusing on the American West, highlights some of the major questions addressed in this book, primarily questions

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of efficiency of water distribution. He questions the logic of pumping out aquifers throughout the region for agricultural production. The work of the Pacific Institute, and its longtime leader, Peter Gleick, are worth mentioning on this topic, given their role as a regional think tank dedicated to utilize science-based thought to inform water policy. Established in 1987, the organization has been a vocal advocate for sustainable practices and data-driven discourse on the water issues facing the region and beyond. Their publication The World’s Water, now in its ninth volume, details many of the world’s and the region’s water issues. Other works, such as their reoccurring series “Need to Know,” tackle important contemporary issues facing water within the region. A September 2014 paper, “Metering in California,” serves as a pertinent example of the kind of research the Pacific Institute has contributed to the debates surrounding water. In it, the Institute’s staff make the case that metering is a critical component to managing water supplies, as it both reduces use and helps identify leaks in the system. Metering all users can result in a 15–20% reduction in water use. Another work relevant to the topic at hand is their August 2015 paper “Impacts of California’s Ongoing Drought: Agriculture,” where, the authors detail the economic impact of water shortages on the agricultural sector, a critical point made in this book Cooley et al. (2015). As Cooley et al. (2015) point out, while the agricultural sector can be resilient through the utilization of irrigation strategies, planting new crops, and benefiting from higher prices, their margins remain low. Agriculture’s precarious position combined with its economic impact in communities across the West drives water management issues to the forefront of the political agenda. Likewise, other work, such as The National Research Council Water Transfers in the West (1992), highlighted early in the 1990s, some of the flexibility structures such as those found in water markets might be able to alleviate scarcity issues. Building on that line of inquiry, Stanford University’s Woods Institute for the Environment, established in 2010, represents one university’s investment in water policy research.4 Other efforts, such as the collaboration between the U.S. Army Corps of Engineers and the Consensus Building Institute, produced among other things, a detailed report examining many of the issues covered here, concluding that change and adaptation was constant across the region around water management issues (U.S. Army Corp of Engineers 2012). During President Obama’s tenure in the White House, he directed all federal agencies to produce climate change adaptation plans and

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assessments, and several examined the issue of water in the American West as a major problem, one that would require significant and coherent action to address. This large body of work has focused on a great number of the economic, political, and cultural factors that make up the American West context. Throughout the literature on the water problems of the American West, one finds a sense that the worst has yet to come in the region. Such work is exemplified by Pearce (2006) who, while only tenuously looking at the American West, paints a picture of a larger world facing similar problems. As discussed in more depth in the Environmental Security portion of this literature review, the outcomes for other places and peoples who have faced similar problems have not been good. Water problems are not the kind that are easily resolved.

Water Policy and Management By far, the water policy literature is the largest of the three subsets that pertain to the topic of this project. Water policy encompasses many topics, including urban water utilities, transboundary water systems both within and outside the U.S., public perceptions and preferences about water services, integrated water resources management, adaptation to water scarcity, water supply access and sanitation, agricultural water issues, pollution control, and institutional or regulatory reform (Chenoweth 2012). Of those, there are only a few that relate directly to the topic of unauthorized water use in the American West. While the works examining the American West deal with both surface and ground water, the division within the larger water policy literature is more complex. In addition, there are varying levels of analysis, including river basin, city or municipality, state or national, irrigation scheme, lake basin, and aquifer system (Gallego-Ayala 2013). The work on water management is well-developed with numerous contributions on a range of issues. One useful way to manage this wealth of research is to divide the work on water management into two categories, “hard path” and “soft path” (Wolff and Gleick 2002; Gleick 2002), with the “soft path” being more needs-based arrangements that take into consideration the wide social and economic impacts of water use rather than to simply supply water as encompassed by the “hard path.” The “soft path” approach has encompassed more of the focus of water scholars, and has help contribution to a very important portion of the

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literature that addresses the implementation of Integrated Water Resource Management (IWRM) schemes. While what IWRM encompasses is a topic of debate (Biswas 2004), the general consensus is that it is “a process which promotes the coordinated development and management of water, land and related resources, in order to maximize the resultant economic and social welfare in an equitable manner without compromising the sustainability of vital ecosystems.” IWRM is based on four principles that emerged from the International Conference on Water and the Environment held in Dublin in 1992 (Kasbohm et al. 2009). Such schemes are particularly useful in regions and time periods facing scarcity, and have been applied around the world. As IWRM applies to the American West, such processes have been put to use around the region and remain a staple policy tool. Such approaches work to unify basin management, as basins cross political boundaries and simply make more sense as a unit of organization to manage water supplies (Gerlak and Ingram 2018). Further, IWRM’s emphasis on integrating numerous aspects of water management and inclusion of multiple stakeholders sets it aside from previous efforts to manage water supplies. As Biswas (2004) points out, the problems associated with water supplies are too complicated and layered to be managed by one single institution, making IWRM a suitable response to such complexities in management (Biswas 2004). One clear finding from the literature is that not all IWRM policies are equal. Some researchers have found that there are specific regime characteristics that produce better outcomes than others (Pahl-Wostl et al. 2012). Pahl-Wostl et al. (2012) identifies a number of factors and sub-factors that determine the success of IWRM policies, including the formal institutional setting, regime architecture, water managers’ ability to integrate coordination, knowledge, and information management, and context characteristics such as the amount of water available. Polycentric governance, in which multiple levels of governance interact to create numerous checks on actor behavior, is a standard item of consideration in any resource management process (Ostrom 2005). Such systems, as Ostrom (1990) famously argued, can be self-maintaining where users have an incentive to watch out for cheaters and shirkers. And as Biswas (2004) asserts, there are no clear parameters as to what IWRM looks like in practice, as it is a classic example of variation of institutional arrangements. Transboundary issues remain an important component of IWRM, as the variation of water regulations across borders influences the

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downstream state’s management processes in particular. It was found, for example, that California water managers are more likely to enforce and receive reports of violations along the Klamath River given the compact they have with the state of Oregon, than other transboundary basins (Fowler and Castellano 2017). Other work has focused on international transboundary river systems, examining management approaches, levels of cooperation, and outcomes (Chenoweth 2012). Water policy literature, offers yet other water management and governance models, such as adaptive water governance (Moir and Block 2001), place-based management, and Weber’s (2003) work chronicles various citizen-led efforts to establish environmental management plans and address the issues of accountability that are central to the work here. The focus here is the issue of the public and back-end enforcement of water rights. Most work on this topic includes some assumption of compliance with either an amended agreement on water use practices or previously standing legal requirements of water users. Weber (2003), however, dives into the realm of accountability and the role of citizens in that process. This is a central issue in the analysis presented here because, as I argue later in the book, water accountability will drive states to enact additional policies to protect water rights. Weber (2003) makes the case that grassroots ecosystem management can produce collaborative outcomes—in this case, compliance with water rights and the distribution of water. But Weber (2003) and others tend to focus in on local units of analysis, that is, basins or portions of basins. The argument advanced here is that there is system wide pressure on state governments that force them to advance a more detailed and aggressive policy apparatus to protect water rights will create change within the system, and that change is observable in the status quo. A process that is already underway, and is expected to worsen. The notion that water scarcity issues are best solved by local, collaborative systems with stakeholder participation and decentralized decision-making is certainly one that has been advanced by many ecosystem resource experts. However, as the next section establishes, there are, worldwide, significant challenges to the management of critical environmental resources. Central to the environmental security literature is the focus on institutional capacity to maintain expected use or in the case of water in the American West, the ability of the state water agencies to protect water rights in a time of scarcity.

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Environmental Security An extensive literature examining the nexus of environmental scarcity, conflict, and cooperation has emerged in the past decades. This wealth of material has clearly established the connection between resource scarcity and conflict. This process is inevitable; a point this section will explore in more depth. The larger question is to what extent social capital, institutions, and collective action can step in to reduce the severity of conflicts. New conflicts or points of contention occur in a political environment that has preexisting political dynamics with long histories, multiple layers, and interacting systems of human organization that further complicate the simple question of who gets what water. While places like Syria, Kenya, Mali, Madagascar, and Myanmar are known for their conflicts exacerbated by super storms, hydrologic disruption, and drought, the American West is not too different: All face a decline of resources. The literature on environmental security has been driven by the combined threats of rising population growth and climate change (HomerDixon 1999). At the heart of the neo-Malthusian argument is the notion that destruction of environmental assets and disruptions to the hydrologic cycle undermine the structure of economic life. Such disruptions, if not addressed, can fester to create conditions where too many people are chasing too few resources. For the poorest countries, even small disruptions to the food supply can have devastating consequences for the general public. In the western U.S., this process has caused mostly localized political, social, and legal conflicts that rarely turn violent, but are still present. They are mediated through the past legal and legislative actions that make up water law, and through the norms and customs of water use across the region. The lower level of severity of the conflicts in the American West is what sets them apart from those cases in the developing world examined by Homer-Dixon (1999) and other environmental security. The severity is, at least in part, a result of the strength of state governments within the American West, an important factor to consider in the examination of the causal process examined here. It’s their specific weaknesses that make the difference in how resource scarcity conflicts play out. A focus on this cycle of scarcity and conflict is not new: As Hough (2014) points out, there is a long history of scientific ecology and political conservation that has led to the more recent scholarly examinations of the role of resource scarcity on conflict (Hough 2014). From

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the World Wildlife Fund and Rachel Carson in the early 1960s, to the United Nations Conference on the Environment and Development (Rio Earth Summit) and the International Framework Convention on Climate Change, both in 1992, international activism has become a global topic of interest to scholars (Hough 2014). The Copenhagen School helped set the field apart from mainstream conflict studies within international relations more broadly. The School and scholars such as Richard Falk (1995), helped contribute to a narrower focus on human security, moving away from the state as the central focus or referent object. To the dismay of some traditional realists (Walt 1991), this development has expanded the scope of study to the complex and multilayered dynamics of conflict processes, a burgeoning literature.5 The argument is that a focus on the daily human existence as both a dependent variable and as the referent object (Hough 2014), as opposed to a strictly state-based assessment, explains conflict outcomes with much more empirical and theoretical clarity. The focus on the state remains an important component to any examination of conflict, but it does not tell the whole story. The state is often dominated by a small subset of the larger population, and a focus on state-based outcomes, such as the presence of a civil war or inter-state war, does not capture the complete picture on the ground. The bargaining framework, from conflict studies within international relations, has helped clarify the political dynamics at play before violent conflict at either the international or intra-state level breaks out. Thus, understanding what the environmental security literature has to say about the onset of conflict and the relationship it shares with resource scarcity is quite important. There are components to the environmental security and conflict processes literature that need clarity. The first is the earlier mentioned argument that the neo-Malthusian literature does not single out scarcity as the only cause of conflict, rather, they argue that “[e]nvironmental scarcity is never a sole or sufficient cause of large migrations, poverty, or violence; it always joins with other economic, political, and social factors to produce its effects” (Homer-Dixon 1999). This means that the debate over whether scarcity is important is finished. What is unsettled is when and how. And the answers to those questions depend on the context, and specifically the institutional strength of whatever geographical and social dimension the conflict is being measured on (city, basin, region, country, etc.). The second is from the conflict literature, which has provided a much richer idea of the bounds of conflict, namely that before

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there is a violent conflict, there is a political one. That means that even if the American West is far from violent conflict over water policy decisions, there is a large political battle brewing, where violence remains in the background. This threat of violence can be seen already across the region, in isolated cases such as the physical damage of equipment on the Yakima Reservation in Washington State and the use of the state apparatus to enforce water rights such as what was witnessed in the Klamath conflict in 2001, where federal Marshalls were needed to enforce an order that turned off water to a number of agricultural irrigators. The confluence of these two concepts within the literature provides a strong framework for when and where institutional capacity matters and, more importantly, where the field of environmental security matters for discussions on water in the American West. The variety of cases makes for a wide range of issue configurations, as outlined by Lee (2018). While the American West has its own conflict, it is important to note there are many types of environmental conflict which the field of environmental security has examined. There are environmental dynamics to active military conflicts, such as the denial of strategic resources in war. In the Syrian Civil War for example, rebel-controlled neighborhoods in the greater Damascus area could expect to have their water turned off via controls in the government portion of the city (Hubbard 2017). There is also the destruction of environmental assets through the course of war, for example, Iraq’s forces destroying Kuwaiti oil wells in 1991, creating both air and water pollution. More germane to the topic at hand is the access and control of resources, two related but separate concepts. Access to resources, such as water, may occur without the recipient controlling their outcome. For example, junior water right holders may have access to water, but they are constrained by senior water right users; they do not control the distribution. Homer-Dixon’s (1999) work explains in great detail how the power imbalance relates to institutional dynamics on environmental cooperation. The preparedness and ability of state institutions to manage conflict and scarcity are critical components of outcomes from scarcity situations. Homer-Dixon (1999) examines the lack of coordination and failure in a couple of particular cases that work to illustrate this process. In the Philippines, for example, macroeconomic conditions facilitated the utilization of previously unfarmed land, typically on hillsides prone to landslides and other hazards for the surrounding communities. The lack of government response to this problem created harmful conditions that

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resulted in landslides and soil erosion—limiting agricultural production and ending in the death of numerous citizens from landslides (HomerDixon 1999). The lack of coordination and state capacity to manage this problem led to this negative outcome, an outcome that harmed the lowest rung of Filipino society. Central to the environmental security literature is a focus on what Homer-Dixon 1999 calls ingenuity (Homer-Dixon 1999). Ingenuity can come in many forms, but key among them is the creative institutional responses that states and governments can have to scarcity that can result in conflict. Homer-Dixon called these responses the “ideas applied to solve practical technical and social problems” (Homer-Dixon 1999). Many water management studies have explored how to respond to scarcity in the region with integrated water management proposals. Much of the literature on water policy in the western U.S. has worked to address and field test new approaches to water management, and many innovative policies have been put in place to do just that across the region.6 The ingenuity concept is a critical component within the environmental security literature, since it captures the institutional responses that all levels of government and community organization can employ to deal with the issue of scarcity. The prominence of Homer-Dixon’s (1999) work on the field was quickly followed by a major debate about the empirical link between scarcity and violent conflict. While most of this work has focused on the developing world, much of the theoretical contributions have direct bearing on the topic of water management in the American West. At the center of this literature is the question of causality: Does resource scarcity cause conflict? The long answer is complicated, but the short answer is clear: Scarcity and conflict share a deep relationship.7 Empirical research has typically utilized a range of variables to measure scarcity (temperature, rainfall, storms, El Niño weather system, Palmer Drought Severity Index) and other variables to capture conflict (violent crime, civil conflict, political instability, inter-group conflict, collapse) (Hsiang et al. 2013). As Hsiang et al. (2013) find in their examination of dozens of studies tracking the impact of scarcity on conflict, the consensus in the field is that the rise of scarcity often leads to a significant rise of conflict. But a major theoretical position, established by Homer-Dixon (1999) and further supported by later scholars, has found that not all scarcity is predetermined to cause conflict as institutions, social cohesion, and other factors mediate the salient issues that arise when the needs of

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communities are not met (Homer-Dixon 1999).8 The literature clearly finds that conflict can serve as a threat multiplier, exacerbating preexisting fault lines (Swain and Ojendal 2018). The literature on environmental security has worked to break into the field of security studies, which has been dominated by examinations of more typical military threats, such as a nuclear proliferation, defense spending, terrorism, and the like (Walt 1991). One of the best examples that illustrates the relationship between scarcity and conflict, is the Syrian civil war. In the years prior to the war, as Gleick (2014) points outs out, Syria faced a massive drought followed by the outbreak of the 2011 Arab Spring (Gleick 2014). Prior to the early 2000s, Syria faced a nearly two-decade increase in water scarcity and, what’s worse, relied on transboundary surface water from the Tigris, Euphrates, Orontes, and Jordan river systems, arrangements that often created tensions with neighbors, particularly Turkey and Jordan (Gleick 2014). This was overlaid with a series of shorter droughts, typically lasting only a year, during the 1900 to 2005 period (Gleick 2014). But as Gleick (2014) points out, the last drought lasted from 2006 to 2011, resulting in numerous agricultural failures and economic pressure (Gleick 2014).9 Between 2006 and 2009, some 1.5 million people moved from Syria’s rural areas into six major cities, often arriving without significant assets, job skills, or appropriate housing (Gleick 2014). The Syrian regime, led by Bashir Al Assad, had long been known for its undemocratic and authoritarian characteristics, which typically result in weak institutions unable to process social needs.10 The social pressure on the Syrian state was too great. Syria’s citizens took up peaceful protests that were quickly repressed and the country fell into a civil war. While such an event is far from occurring in the American West, the Syria case illustrates a major finding of the environmental security literature: Scarcity combined with weak institutions can lead to conflict. It is important to note that civil wars and other major conflicts often have significant second-order consequences. In the case of Syria, outward migration has produced a significant refugee crisis that has contributed to instability in neighboring countries (Reuveny 2007). Syrian refugees typically flow into neighboring, frequently poor, countries with few resources to sustain the displaced populations. Evidence from international relations scholars indicates that refugees can contribute to conflict in their host countries, although this is not predetermined (Salehyan

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and Gleditsch 2006). If the refugee camps are established in border areas, they can become new sites of the home nation’s conflict, recruitment zones for new fighters, and play additional roles. Further, the host countries, particularly in the developing world, face difficulty in managing such populations. While such a conflict is far from the current reality of the American West, the notion that such internal migration could not happen, principally because of climate change, overlooks the evidence to the contrary. Further, the already existent migration, of particularly former California residents, highlights the local nature of environmental refugees in the region. The biggest contribution that this literature makes, however, is to understand what is on the horizon of any state in the U.S. who cannot carry out their duties. The federal government stands poised to act, in the event states are unable to provide security, contain major law enforcement issues, or address systemic violations of constitutional rights. In the case of water, the failure of the state system to protect water rights, and therefore distribute water in accordance with property rights law, will result in the federal government stepping in. The only question is, what magnitude of crisis will the state (or states) in question have to be. The answer to that cannot be empirical evaluated, but the argument presented here, it is possible that the states will fail to get a handle on adapting to climate change, and thus the weak institutional capacity to respond to unauthorized water use, among other policies, will prompt federal securitization of water resources. In sum, the environmental security literature has a lot to offer an examination of the western U.S. First among them: The processes outlined in the literature are not contained to the developing world. The impact of climate change and water shortages on the communities across the American West are at the center of this book, and while the institutional arrangement varies significantly from a country like Syria in 2011, the conditions are oddly familiar.

Making Sense of the Water Literature The literature germane to water scarcity in the American West covers a wide range of issues, but it does not deal directly with the topic of unauthorized water use in the region. The work specific to the region has focused primarily on the overall context of water use, typically on a

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few of the most economically vital basins, such as the Colorado River or the Central Valley in California. While very complete and detailed in their totality, no writers or scholars dedicate significant effort to examine how well prepared the states are to manage the back-end enforcement of water rights in the region. The water management and policy literature, examining basins well beyond the American West, similarly does not engage the enforcement question either. They rely on front-end agreements and state coordination efforts to be done in good faith. While not completely unreasonable, it is not enough to just assume that verification of proper water use will become a political necessity, something that this book argues is already underway across the region. Lastly, environmental security research runs through both the work explicitly on the American West and the detailed water policy contributions. This sub-field has laid out both the empirical link between scarcity and conflict, but also the devastating impacts of a lack of institutional strength to manage such scarcity. This project is unique in that it takes the full weight of the theoretical power of this large body of work and applies it to the problem of unauthorized water use. Many have touched on this topic, but few if any, have offered a comprehensive examination of the back end of water rights enforcement. Environmental security scholars have examined other situations where institutions have failed to mediate the disputes of resource distribution. This project takes that knowledge and combines it with the institutional reviews specific to water policy and the work done on the cultural, political, and hydrologic context that the American West finds itself in. One of the reactions from scholars from this growing literature is a focus on the cooperative models that work to address the issues surrounding climate change and resource scarcity. As discussed above, many water policy experts have examined such processes and practices. The cooperation component of the literature is critical, as it underscores the proactive response to problems that oftentimes can be more efficient and effective. But, as this book will argue, not all people can be counted on to fulfill their commitments. More importantly, gaps in enforcement capacity will pose a major political problem for western states, in such a way that drastic federal action could be warranted, something, nearly no one in the region wants. To expand on this issue, we now turn our attention to the status quo dynamic facing the American West’s issues with unauthorized water use.

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Notes











1. See also, Welden, Fred W. 2003. “History of Water Law in Nevada and the Western States.” Background Paper 03-2. Legislative Council Bureau, Nevada State Legislature. 2. David Owen references his childhood summer camp experience coming as a resident in New England, a short period in the region yet gave Owen a connection to help contextualize his interest in the region. 3. Many scholarly and popular press works have examined this topic, including Owen, David. 2017. Where the Water Goes: Life and Death Along the Colorado River. New York: Riverhead Books; Reisner, Marc. 1986. Cadillac Desert: The American West and Its Disappearing Water. New York: Penguin Books; and Barnett, Cynthia. 2008. Blue Revolution: Unmaking America’s Water Crisis. Boston: Beacon Press. 4.  The center boasts numerous research staff and affiliated faculty from across the Stanford campus. See http://waterinthewest.stanford.edu. 5. One only needs to examine the plethora of conflict literature, from journals such as Journal of Conflict Resolution, Conflict Management and Peace Science, Journal of Peace Research, and publishers such as Sage, Lexington Books, Palgrave, and many others. 6. The Snake River Plain Aquifer plan in Idaho is exactly the kind of ingenuity Homer-Dixon (1999) and other scholars have followed. 7. Readers should review both (1) Hsiang, Solomon M., Burke, Marchsall, and Miguel, Edward. 2013. “Quantifying the Influence of Climate Change on Human Conflict.” Science 431 (September): 1212–1225, and (2) Salehyan, Idean. 2006. “From Climate Change to Conflict: No Consensus Yet.” Journal of Peace Research 45 (3): 315–326, to gain a better understanding of the broader trends in the literature. 8.  Readers are encouraged to read: Floyd, Rita and Matthews, Richard. 2013. “Environmental Security Studies: An Introduction.” In Environmental Security: Approaches and Issues, edited by Rita Floyd and Richard Matthews. New York: Routledge. 9. Gleick (2014) cites Worth, R. F. 2007. “Earth Is Parched Where Syrian Farms Thrived.” New York Times, October 13. New York edition. A1, insomuch as the article documents some on the ground reporting as to the impact of the drought on Syrian society. 10. There is a large body of literature highlighting the link between democracy and institutional strength and outcomes, particularly economic development. Robinson (2006) is an excellent place for those readers interested in knowing more. Robinson, James A. 2006. “Economic Development and Democracy.” Annual Review of Political Science 9: 503–527.

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References Benson, Reed D. 2012. “Alive but Irrelevant: The Prior Appropriation.” Today’s Western Water Law 83 (3): 676–711. Biswas, Asit K. 2004. “Integrated Water Resources Management: A Reassessment.” Water International 29 (2): 248–256. Chenoweth, Jonathan. 2012. “Key Issues and Trends in the Water Policy Literature.” Water Policy 14 (6): 1047–1059. Cooley, Heather, Kristina Donnelly, Rapichan Phurisamban, and Madhyama Subramanian. 2015. Impacts of California’s Ongoing Drought: Agriculture. Oakland: Pacific Institute. Craig, Robin Kundis, Robert W. Adler, and Noa D. Hall. 2017. Water Law. St. Paul, MN: Foundation Press. Doremus, Holly, and A. Dan Tarklock. 2008. Water War in the Klamath Basin. Washington: Island Press. Falk, Richard. 1995. On Humane Governance: Toward a New Global Politics. World Order Models Project Report. Fowler, Luke, and Isaac Castellano. 2017. “Creating Accountability with Interstate Cooperation: Unauthorized Use Enforcement on the Klamath River.” State and Local Government Review 49 (4): 234–250. Gallego-Ayala, Jordi. 2013. “Trends in Integrated Water Resources Management Research: A Literature Review.” Water Policy 15 (3): 628–647. Gerlak, Andrea K., and Helen Ingram. 2018. “De-Politicized Policy Analysis: How the Prevailing Frameworks of Analysis Slight Equity in Water Governance.” In Water Justice, edited by Rutgerd Boelens, Tom Perreault, and Jeroen Vos. Cambridge: Cambridge University Press. Gleick, Peter H. 2002. “Soft Water Paths.” Nature 418: 373. Gleick, Peter H. 2014. “Water, Drought, Climate Change, and Conflict in Syria.” Weather, Climate, and Society 6 (3) (July): 331–340. Homer-Dixon, Thomas F. 1999. Environment, Scarcity, and Violence. Princeton: Princeton University Press. Hough, Peter. 2014. Environmental Security: An Introduction. New York: Routledge. Hsiang, Solomon M., Marchsall Burke, and Edward Miguel. 2013. “Quantifying the Influence of Climate Change on Human Conflict.” Science 431 (September): 1212–1225. Hubbard, Ben. 2017. “A New Casualty of Syria’s War: Drinking Water in Damascus.” New York Times, January 4. Kasbohm, Joeron, et al. 2009. “Integrated Water Resources Management (IWRM): An Introduction.” Journal of Geology 33 (B): 3–14. Lee, James R. 2018. “Environment and Conflict.” In Routledge Handbook of Environmental Conflict and Peacebuilding, edited by Ashok Swain and Joakim Ojendal. Routledge: New York.

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Moir, W. H., and Block, W. M. 2001. “Adaptive Management on Public Lands in the United States: Commitment or Rhetoric?” Environmental Management 28 (2): 141–148. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press. Ostrom, Elinor. 2005. Understanding Institutional Diversity. Princeton: Princeton University Press. Owen, David. 2017. Where the Water Goes: Life and Death Along the Colorado River. New York: Riverhead Books. Pahl-Wostl, Claudia, Louis Lebel, Christian Knieper, and Elena Nikitina. 2012. “From Applying Panaceas to Mastering Complexity: Toward Adaptive Water Governance in River Basins.” Environmental Science and Policy 23 (1): 23–34. Pearce, Fred. 2006. When the Rivers Run Dry: Water—The Defining Crisis of the Twenty-First Century. Boston: Beacon Press. Powell, James Lawrence. 2008. Dead Pool: Lake Powell, Global Warming, and the Future of Water in the West. Berkeley: University of California Press. Reisner, Marc. 1986. Cadillac Desert: The American West and Its Disappearing Water. New York: Penguin Books. Reuveny, Rafael. 2007. “Climate Change-Induced Migration and Violent Conflict.” Political Geography 26 (6): 656–673. Robinson, James A. 2006. “Economic Development and Democracy.” Annual Review of Political Science 9: 503–527. Salehyan, Idean, and Kristian Skrede Gleditsch. 2006. “Refugees and the Spread of Civil War.” International Organization 60 (2): 335–366. Swain, Ashok, and Joakim Ojendal. 2018. “Environmental Conflict and Peacebuilding.” In Routledge Handbook of Environmental Conflict and Peacebuilding. London: Routledge (Raleigh, Jordan, and Salehyan 2008). Tarklock, A. Dan. 2001. “The Future of Prior Appropriation in the New West.” Natural Resource Journal 41 (4): 769–793. U.S. Army Corps of Engineers and Consensus Building Institute. 2012. “Water in the U.S. American West: 150 Years of Adaptive Strategies.” Policy Report for the 6th World Water Forum, March 2012. http://naturalresourcespolicy. org/docs/water-in-the-west.pdf. Walt, Stephen M. 1991. “The Renaissance of Security Studies.” International Studies Quarterly 35 (2): 211–235. Weber, Edward P. 2003. Bringing Society Back In: Grassroots Ecosystem Management, Accountability, and Sustainable Communities. Boston: MIT Press. Wolff, Gary, and Peter H. Gleick. 2002. “The Soft Path for Water.” In The World’s Water 2002–2003, vol. 3, edited by Peter H. Gleick, 1–32. Washington, DC: Island Press.

CHAPTER 3

American West and Unauthorized Water Use: An Examination of the Status Quo Protection of Water Rights

The crisis that hits the Wapato Irrigation Project (WIP) in central Washington in 2015 could happen to any agricultural community in the American West. The WIP is located in the Yakima Valley, long known for its rich agricultural production. Some 15,000 years ago, a flood triggered a break in a land dam, bringing rich Missoula glacier sediment into north central Washington. Since westward expansion by white homesteaders, the region has become a highly productive agricultural area growing apples, cherries, grapes, and now hops in great numbers. The Yakima Indian Tribes own over 800,000 acres within the Yakima River basin, which contains the WIP. WIP brings irrigation water to some 120,000 acres, and states its responsibility is to “promote economic opportunities and public safety through the sound management of the irrigation project on the Yakima Reservation” (WIP 2016). During the 2015 season, warm temperatures melted away much of the snowpack that feeds the basin early in the season. This early snowmelt was followed by a drought and extreme temperatures that ravaged the region, reducing production and undermining demand for workers (Meseck 2016). Along with this natural depression came the nefarious behavior that underscores the importance of studying unauthorized water use: desperate people willing to commit desperate acts to ensure their economic survival. As documented in a series of newspaper articles, two farmers reported a rash of suspicious activity around their farms (Bernton 2015a, b). The farmers found irrigation gates, a critical tool of water managers to ensure the correct amount of water flows to the © The Author(s) 2020 I. M. Castellano, Water Scarcity in the American West, https://doi.org/10.1007/978-3-030-23150-7_3

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rightful owner, open when they should have been closed, oftentimes damaged. Because of the water shortages, the irrigation managers had resorted to a rationing system, ensuring that each farmer received twothirds of their normal allotment. Complaints arose that irrigation managers were slow to respond to requests for amending the timing of gate shutoffs and, while some of the gates had locks, others did not. As it turns out, individual water users were suspected of removing locks or applying their own to prevent gates from being opened for neighboring properties. Irrigation managers were in a pitched battle, and with 120,000 acres to monitor, the task proved too tall. Several farmers lost up to 70% of their crop that year. While the WIP is a Bureau of Indian Affairs-managed irrigation district, not overseen by a state agency, the story of the 2015 season highlights where the scarcity of water and the lack of proper oversight can create dangerous conditions for water users’ livelihoods. While most irrigation districts do not face the same management issues that Wapato did in the 2015 season, the story does illustrate what can go wrong during times of scarcity, and when this vital resource is mismanaged. This chapter lays out the history and status of water in the American West, the legal dimensions of water law, and the role of unauthorized water use.

The Stakes of Water in the American West A trip through the Columbia River watershed would bring a person in proximity to rich farmland, from Washington’s Wenatchee Valley apple orchards to the banks of the Boise River in Canyon County, Idaho, now one of the largest hop-producing areas in the world. One would have to travel to six states, two Canadian provinces, and 60 major tributaries to see the entire basin. The east and south sides of the Cascade Mountain Range, the Idaho Sawtooths, and the western side of the Tetons all drain into Columbia and cover hundreds of miles of scenic countryside. Several salmon varieties have flourished in this river basin for centuries and make up an important component of inland ecosystems and economic arrangements in the western U.S. Eight million people live in the Columbia watershed, and its agricultural production, hydroelectricity, and related tourism are all dependent on water flows. The centrality of water to life in the American West cannot be understated. Because of this centrality, the politics and legal structures are complex and layered. Water in the American West has been the focus of a great many legal

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challenges, protests, and political campaigns. Even Hollywood has dabbled in the issue, with the successful 1974 film Chinatown capturing the power struggle over water rights in pre-war Los Angeles. Stakeholders come from diverse backgrounds and varying agendas. There are agricultural interests, environmental groups, Native American tribes, municipal users, industrial operations, and outdoor recreation outfits who all depend on water flows and use. The country’s present and growing partisan divide further complicates an issue such as water use, as factions in the water use debates, particularly the agricultural interests and environmental groups, tend to be radically different in their orientation and approach to resolving public problems. In the course of this study, I spoke with agricultural water users, many of whom blamed radical environmentalists for undermining their access to water flows (Telephone Interview-State of Idaho Water District #161). Moreover, the policy debate over water use has been going on for several decades, allowing the different sides to establish their positions and create caricatures of the opposition. Yet as this is being written, the water supplies of the American West are facing pressure from two directions, further complicating the ongoing policy debates around water distribution. On one hand, the region has seen a sustained and substantial population influx in the last five decades and, on the other, the ravaging effects of climate change have consistently reduced snowpack, which is the source of water for the region’s many river systems. These forces are in addition to other environmental impacts that threaten regional ecosystems (U.S. EPA 2016). These dual threats of population growth and climate change will worsen the already constrained supply-and-demand relationship for water in this region. As explained in Chapter 1, the central argument of this book is that these conditions will worsen the perception and occurrence of unauthorized water use in the region. This chapter walks the reader through the role and importance of water in the American West. I then examine the basic legal arrangement that governs water use in the region. This discussion prepares the reader for an examination of unauthorized water use with a focus on the projected causal relationship that climate change and increasing demand for water supplies by a range of actors and users in the region share with the perception and actual threat of unauthorized water use to water flows. At the end of the chapter, the reader will have a solid grasp on the economic, social, and political dimensions of water and the threat that unauthorized use poses.

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The Legal Dimensions of Water Before much of what this book covers can be understood, it is important to lay out the legal dynamics facing water management. One critical dynamic of water law is that it falls mainly to the states to manage, enforce, and adjudicate water rights. The State of Idaho, for example, explicitly states that all of the water within it belongs to the state, including streams, lakes, and natural springs. Rights to the water on any given property are separate and can be separated from landowners; however, the vast majority of water rights remain connected to a specific piece of land. The notion that water is a natural resource to be held in the commons for the public good is an old idea, having its roots in European ideals of shared resources and proper management. The need to properly manage such a resource goes without saying, but as the reader travels through this book, they may find how far we have come from the European position in the western U.S. The policy landscape around water rights in the American West is complicated by the unique physical management and infrastructure requirements of two different types of water, groundwater and surface water. Before that discussion can begin, a brief review of the basics of the water cycle is necessary. Groundwater is simply water that is drawn from the ground, typically by drilling a well and attaching a pump to it. Surface water is any water source on the surface of the ground, such as lakes, streams, rivers, and springs. Groundwater and surface water are connected, as withdrawals in either water source can affect the other, as groundwater pumping could undermine spring flows, and surface water use alters the state of underground aquifers. Overuse of groundwater can result in land subsidence, the drying out of wells, and water quality issues (Enion 2013). Several states in the western U.S. have adopted management policies, called conjunctive management, that recognize this interplay. Idaho, for example, includes analysis of how groundwater is impacted by surface water withdrawals in their water management decision-making process. This is a relatively new element of water management and, as research has demonstrated, application of conjunctive management varies across the western U.S. (Suggs et al. 2016). The scientific community has long understood the notion that ground and surface water are connected, but it has taken some additional time for the region’s governing institutions to institute this understanding into water management policy. Most water compliance agencies across the West

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investigate unauthorized water use in both surface and ground water supplies, but they have differing strategies for management. Surface water by its nature is open for viewing. An individual can visit various points of any river we know and assess the current level: Is it high like during the spring runoff, or is it low, as it is in the late summer months? How does it compare to previous years? and so on. Groundwater, on the other hand, requires a more involved assessment and management approach, as commonly held groundwater systems, such as large aquifers that might stretch across hundreds of miles and thousands of water right holders, are much more difficult to monitor. Water managers have several tools that they use to complete their jobs, such as well meters, new well permitting, restrictions/policies, and education. Metering, as is occurring in Water District 161 in Elmore County, Idaho, requires water users to make investments. For instance, they may have to purchase expensive equipment ($2000) to be in compliance with water law. In 2014, California state legislators passed the Sustainable Groundwater Management Act (SGMA), which placed new restrictions on wells. Other states such as Colorado make clear new ground well permits need to take into consideration senior water right holders and their interests, with some basins requiring meters. Most states do not require a permit if a well is to pump only for domestic purposes, or if they are designed for limited use. In Nevada, for example, a permit is not required if the well is designed to pump less than two acre feet per year, typical of single family homes. Wells that do require a permit go through an application process, such as in Nevada, where a Nevada state engineer can either approve a well permit as requested, or approve a well permit with conditions, including a monitoring plan, a reporting of actual withdrawals, a limitation on the depth of the well, or a reduction in the proposed rate of flow and total volume of water. They can also deny the application (Western State Response to Unauthorized Water Use-Nevada 2015). One important, problematic element of this groundwater dynamic is that wells are increasingly going dry. One in 30 wells between 2013 and 2015 in the American West went dry. These wells are concentrated in rural areas, with some rural regions seeing up to 20% of wells running dry on account of aquifer drawdown (Perrone and Jasechko 2017). California’s SGMA, as referenced above, is one major step forward in managing groundwater, but it has some clear limitations. It measures and meters groundwater use, but doesn’t mandate sustainability

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of water levels until 2042. States are under great pressure to manage groundwater, and have made permitting the first step in managing water levels. With the permitting process allowing new water withdrawals, it is unclear how well this system is working to manage aquifers. In Idaho, two examples illustrate the difficulty in managing groundwater supplies. In one instance, already discussed, Idaho established a new water district in Elmore County to manage the overdrawing of the aquifers. In the Eastern Snake Plain near the Teton Mountains, a coalition of users created the conditions for a plan to emerge that was codified into law by an act of the legislature. These mostly self-imposed new water regulations were designed to halt the steep decline in aquifer levels there, and became known as the Eastern Snake River Plain Aquifer Comprehensive Management Plan. The plan covers some 10,000 square miles of land, which according to the State of Idaho accounts for 20% of the state’s overall GDP (IDWR 2016). These types of management plans are becoming increasingly popular in the American West, and have helped stave off the immediate threats that scarcity has caused elsewhere. While most states have education programs on water scarcity and responsible water use, little research has covered the effectiveness of these programs. In fact, in their strategic plans many states, such as Oregon, name education as a central pillar of the state response to water scarcity, particularly as it concerns unauthorized water use. Nevada sends out instructions to its major water districts prior to each season, and works to maintain good relationships based on effective communication. Idaho has a similar process, and has in recent years begun to publish an annual report on the actions of their water right compliance team. However, little is known about how effective these efforts are. Regardless of the water source, all of the states under examination here use a system of water appropriation called the prior appropriation system.1 Commonly referred to as “first in time, first in right,” prior appropriation mandates that the first person to physically take water from a source and put it to beneficial use is the senior water right holder. Everyone after becomes junior to that senior person, provided everyone properly obtained a court decree verifying their status as property owner. Land is often sold with the water right attached, so that a person could inherit a farm from a grandparent who had in turn inherited from their grandparents who established the water right in 1870, and that new owner is the senior water right holder based on the history of the

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land. Many current water claims across the western U.S. date back over 100 years, and ultimately these water rights have become a commodity, as water users under pressure from dwindling surface supplies have used open markets to secure new rights. As property owners purchase new plots, they only need to update the water right paperwork with the proper agency. For example, in Montana, new property owners simply file a Water Right Ownership Update with the Department of Natural Resources and Conservation. The prior appropriation system can undermine the most efficient and productive use of water supply. For example, if there are four water users on a particular stream, each with a 0.01 cubic feet per second (cfs) allotment, and the stream only has 0.02 (cfs), then the two senior water right holders get their full allotment and the two junior water right holders get nothing. This system holds even if the junior water right holders are commercial farms that employ more people, or grow more important crops than the senior water right holders, who perhaps are growing something with less market value. The senior water right holder only has to prove beneficial use. For the state of Idaho, beneficial use includes irrigation, stock water, manufacturing, mining, hydropower, municipal use, aquaculture, recreation, and fish and wildlife—a definition similar to other states’. All states abide by a non-hierarchical interpretation of beneficial use, which means that all beneficial uses are considered equal and have no bearing on water right seniority. Those water users who do not use their right for beneficial use may lose their right after a five-year period. However, most state water managers reported that they work hard to ensure than non-use does not result in the loss of water rights and that the cancellation of a water right is a rare action undertaken by the state. Water banks, water markets, and other programs work to transfer usable water but either work to retain the right of the original right holder, or compensate them. The outright loss of a water right is therefore a rare event. The Idaho Department of Water Resources (IDWR) representatives I spoke with specifically mentioned the work they do to ensure that water users avoid losing their rights and access. Water banks, which essentially facilitate short-term water transfers, have long been a feature of this strategy, as Idaho and others have managed programs to satisfy concerns of right loss, while also maintain in flow levels. New water right applications need to adhere to the prior appropriation system, and thus much of the water administration efforts that western states engage in are built around protecting those senior water right

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holders. For example, Colorado has determined that a new water right application cannot obtain a surface or ground water right (e.g., drill a new well or pull water from a stream) without an augmentation plan that protects nearby senior water right holders. In practice, this means that it is easy to obtain a water right, but difficult to use it in any time of scarcity.2 The management of water rights can fall into two broad categories: (1) adjudication of water rights, and (2) enforcement. I briefly discuss adjudication here. Enforcement, which is the primary focus of this project, is introduced in more depth in the next section. Adjudication refers to the legal process in which states determine which individuals have a valid water right, how much they can use, and who has the priority during periods of shortages. This is particularly important for groundwater users as it may be unclear who is pulling what amount of water as meters or other metrics may not be widely utilized, systematic, or well-controlled. Further, the priority of water right holders may be unclear, and thus may require involvement from state officials to manage any dispute. The process of adjudicating water rights is dependent on basin, and varies widely across the American West. For example, the final adjudication for the Yakima Basin in Washington state, known as the Acquavella Adjudication, wrapped up in late 2017 to meet an early 2018 deadline to finish a process that started in 1977 with a court order. Adjudication involves the finalizing of the water rights in the basin and determination of which right is senior. Property owners in many cases either do not know they own a water right, know they had a right but do not know where they stand in the order of junior to senior right holders, their name is not associated with the water right in government property documents, or it is unclear how much water they are entitled to. The finalization of water rights in the Yakima Basin included a range of actors such as tribal organizations, individual tribal member claims, municipalities, farmers, and homeowners across a basin that has become an important agricultural area for hops, wine, apples, pears, and cherries. Some 3000 claims in the basin have been researched since the order was first announced, and reviewed by courts and lawyers representing various water right holders (State of Washington 2017). In this case, the Washington State Department of Ecology was charged with community outreach and communication with property owners. The department held several public meetings, mailed information to suspected property

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owners, and called landowners. Deadlines were set, and water right holders were required to respond in writing about their water right claim by a certain date set by the court. Many of these rights were not systematically transferred from one owner to the next, as many remained family farms. The confusion and chaos of early water rights from westward expansion is the driving cause of confusion as to who is entitled to what now. As it stands, there are a number of other basins in adjudication across the region. In California alone, there are 431 separate groundwater basins and some 189,454 miles of river, all with varying degrees of adjudication.3 Some basins have been over-appropriated, meaning that there are more claims on the water than there is water, and no new rights are being granted. For example, Montana has 34 basins that are closed to certain types of new water right applications, and that does not include the dozens of basins that are closed that have some federal or tribal land in them.4 Nevada has 45 basins that are over-appropriated. California has some 21 groundwater basins, mostly in the central valley, that have critical conditions of overdraft, as poorly regulated extraction has created a crisis where even established water right holders are unable to secure their share (Western State Response to Unauthorized Water Use-Montana 2015). These conditions are the source of great consternation and crisis, and represent a major challenge facing water managers across the region: how to properly enforce the law when the economic consequences of doing so are so great. Another critical component to understanding water policy is how water use is classified. The USGS classifies the thousands of water users across the country by distinct categories including: public supply, irrigation, domestic, livestock, commercial, aquaculture, industrial, mining, thermoelectric power, hydroelectric power, and wastewater treatment. Data is not collected on commercial, hydroelectric, or wastewater. As discussed in more depth below, irrigation is by far the largest user of water, well beyond municipal use. Thus, it is important to note that water use compliance is mainly an issue focused on the irrigation sector of the economy, but that compliance applies to all users. There are a large number of water users across the American West and within individual western states. In Idaho alone, there are more than 300 irrigation districts, each serving dozens if not hundreds of customers. Individual right holders are in the thousands, and Idaho is a relatively small state by population. Similar numbers exist in the other states in the region. Some irrigation districts have hundreds of customers, such as

60  I. M. CASTELLANO

the Central California Irrigation District of Los Banos, California. While the sheer number of water users across the 11 states examined here is impressive and there are plenty of examples of water users misbehaving and needing the long arm of the law to enforce proper distribution, the basic rights of these water users have nevertheless been well-maintained with a high degree of success for the last 60 years. But the growth of conjunctive management, including the use of metering for ground wells, has increased the role of compliance agencies in the region. In prior decades, the West has not experienced this kind of oversight, particularly for surface water. This is mainly because dams in many basins create reservoirs that have allowed for a slow trickle of water throughout the irrigating season (Tarlock 2001). As this book argues, the period of fewer regulations is coming to an end. The next section examines the structure of water right enforcement.

The Distribution of Water Right Enforcement Authority As discussed above, states in the western U.S. maintain authority over water right management and adjudication. The federal government has little to no role in enforcing or adjudicating water rights. But within these states, the distribution of enforcement and management is more complicated, as there are numerous water districts, irrigation companies, and other entities that have a role in managing water. There are numerous water users, and likewise there are numerous water districts managing those water users below the state level. For example, there are over 300 water districts in Idaho, and 50 administrative basins across the state, with some aquifers falling under a special groundwater district governance structure, which changes the rate of distribution. California has over 1000 entities that handle everything from irrigation to reclamation to municipal water. The distribution of authority and the decentralized nature of the water management system across the American West greatly complicate the ability to apply uniform enforcement standards in the region. While water districts can always send their more difficult cases to the state, to do so will often increase challenges to maintaining trust and authority in the areas they manage. If water or irrigation district is reporting to the state numerous violations, it likely will not look good for the water master for that district as it indicates that there is a lack of

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front-end enforcement or education outreach to water users about their responsibilities. Each of the entities involved in water management have a water master who may do informal compliance work. There are also state agencies that manage compliance. Because there are fewer investigators than what is ultimately needed to ensure compliance, limiting the ground they can cover and overall ability to provide oversight. In Nevada, for example, there are 15 basin engineers who have a number of duties, including adjudicating compliance issues, so that those who are responsible for compliance are also responsible for a host of other tasks. In Montana, they do not have a stand alone compliance office. In summary, the legal dimensions of water use are complicated. The State of Idaho has a handy booklet outlining the basics of water law in the state; it runs some several hundred pages and it is only the tip of the iceberg (Fereday et al. 2019). What is clear from this discussion, and a point that will be covered later in this chapter when discussing the current policies across the 11 states of focus, is that water management is a decentralized system. There are state officials who are charged with proper management, but much of the decision-making happens by individual water users, and many of the opportunities to enforce water rights are handled at the local level. This distribution of authority and oversight, combined with the social and economic consequences of water use, sets up a major political minefield, which may become particularly problematic in times of crisis. The next section tackles some of these political dynamics and their role in the management of water rights in the American West.

The Role of Unauthorized Water Use Unauthorized water use is the consumption or transport of any amount of water without authorization from water system managers, be it private or public ownership.5 When accessing surface water, unauthorized water use can be conducted in three basic ways.6 The first is by using a tanker truck or other vehicle to haul away water from a source, much like Tom Selleck did. Sources of such water include a fire hydrant, river, steam, or canal.7 The second, and much more common, is for a water user with a legal right to withdrawal from a managed source to simply take more than their allotted share, such as when an agricultural user

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pumps more water from an irrigation canal or adjusts their canal gate to be open longer or at a higher level than what their right dictates. The third method involves pumping or extracting water from a proximate source without a water right; for example, when a land owner has access to an adjacent water source such as a river and pumps water directly from that source. These methods of unauthorized water use are not technically complicated and in many cases do not require more than one person to successfully complete. Detecting unauthorized water use is difficult because water inventory mechanisms are weak and incomplete. Few water governing agencies or organizations, whether at the local, state, or federal level, have clear and reliable measurements of water inventory that would be admissible in criminal courts. There is little infrastructure to assess and record water flows for individual water users, and general water flow predictions for individual basins have a high margin of error and are not considered reliable to the level where determinations of individual allotments could be calculated.8 These barriers to measurement make it difficult to know when, where, and how water is misappropriated, if at all. Unauthorized water users need to be caught in the act for authorities to know, with any precision, the magnitude of a violation. Raising awareness and alerting the authorities to a potential unauthorized water use problem often falls on senior water right holders who do not get their allotted water and then ask state officials to conduct a water call in order to correct the situation. Individuals who engage in unauthorized water use fall into two broad categories. The first are those who do not know they are violating water law. In these cases, the contact between the state and unauthorized water users becomes about education as opposed to criminal or civil proceedings. The other group of unauthorized water users are those who knowingly violate the law—typically repeat offenders and thus subject to cease and desist letters or civil proceedings. The motivation for these violators is clear, especially agricultural users for whom additional water can result in additional production and economic gain. Unauthorized water use is not limited to the American West, of course. In recent years New Delhi has faced a major drought; water shortages have created a black market run by organized gangs who pilfer water from the public water system and sell it to users whose regular water use is restricted on account of rationing (Sethi 2015). While New Delhi remains the extreme, a recent case in Nevada involved bribes which were allegedly paid so that the Southern Nevada Water Authority could acquire additional water rights

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(Jenkins 2015). These examples illustrate the financial incentive of acquiring water and the illegality some individuals will engage into do so (Jenkins 2015). What is clear is that unauthorized water users have ample motivation to violate the law given the low probability of facing civil or criminal proceedings. We can expect that motivation to increase across the states surveyed as water flows decrease.

Unauthorized Water Use Trends in the American West In order to address the question of how states are currently responding to unauthorized water use, I contacted the 11 state water agencies in the region in 2015.9 I requested information on what data they collect, how they manage that data, investigatory techniques, as well as budgetary and personnel allotments they make to manage their water right compliance strategy. It was clear from the beginning of this data-collection effort that the ability to compare unauthorized water use data across states is limited. First, some states do not have data to analyze. New Mexico and Colorado have not collected data; and Wyoming has no formal data collection procedure. For the six states that did have data, the range of available years varies widely, Idaho started collecting universally in 2013, Utah which started in 2000. Table 3.1 displays the number of available years of data from each state as of 2015. States were asked for the past ten years of data, and only two states (Utah and California) had 10 or more years of available data (13 and 10 years of data, respectively). On the other side of the spectrum, Idaho supplied only three years of data in 2015 (2013, 2014, and 2015), and while they had a database containing information from before 2013, that data is widely considered suspect on account of variance in reporting practices. Between 2015 and 2017, Table 3.1 Available years of unauthorized water use data in 2015

State California Idaho Montana Nevada Oregon Utah Washington

Years of data 10 5 7 7 7 15 8

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IDWR officials went back into the records and coded the complaint data by hand, with records dating back to 1994, which is a sign of the growing water accountability I discuss in greater detail in Chapter 4. The number of cases of unauthorized water use also varied across states providing data. Table 3.2 offers the average number of complaint cases for the available years of data up to 2015. California, not surprisingly, had the highest average with 44, followed closely by Montana (42), and Utah (39). The runners-up are somewhat surprising given that California is ranked first in agricultural production, but Montana and Utah are ranked 33 and 37, respectively (USDA 2012).10 We would expect California, with its large number of water users and history of water crisis, to have a much higher number of water complaints than Utah or Montana. On the other hand, despite being agriculturally abundant, Idaho had an average of 11 complaints per year; however, only two years of data were used to calculate the average. The variation in the number of cases can be caused by a range of factors discussed in more depth below, but clearly this is a difficult set of data to compare. It is still worthwhile to compare the data across states, as some interesting findings emerge. In general, the trend of water complaints cases has been increasing across the board, as Figs. 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6 indicate. California, Idaho, Nevada, and Washington have clear increases in caseloads, even with the 2015 data being incomplete for all states. Montana and Utah had wide variance in their caseloads, but a general decline in 2014 from previous years was visible. In 2015, Washington had the highest case number for a given year in the data set, with 321 cases. California similarly had a dramatic increase from 2013 to 2014, likely on account of the persistent drought. In general, the official numbers do not capture a large number of reported violations to local water managers, as only the worst cases are kicked up to the state level.11 Table 3.2 Average number of complaints for available years

State California Idaho Montana Nevada Utah Washington

Average 44 11 42 23 39 103

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Fig. 3.1  California complaint data 2008–2015

Fig. 3.2  Montana complaint data 2008–2015

Variation from one year to another is likely dependent on supplies, the other duties that water managers are tasked with and how much time and staff resources they require, food prices, and other factors. The question of variation in reported cases of unauthorized water use from year to year and state to state is beyond the scope of this project, but the argument here is that even these seemingly low numbers of cases does not prevent enforcement of water rights from remaining a policy issue. Primarily, as argued throughout, climate change and population growth are creating duel supply and demand pressures on water use. The core argument advanced in this project is that attention to water right compliance will be a political issue in its own right, as it becomes part of the response to scarcity and the subsequent outcomes. How

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Fig. 3.3  Idaho complaint data 2013–2015

Fig. 3.4  Nevada complaint data 2010–2015

centralized enforcement will be is hard to say, but the prediction made here is that it will remain an issue and the evidence reviewed in Chapter 5 demonstrates it has already become an issue that states have to address. Likewise, the contributing factors to the variation in unauthorized water use from year to year across all states, require additional research and attention by scholars. Factors that could be studied include the size of the state, the number of water users, water flow volume, the role of local water managers and any informal institutions they create, the capacity and reputation of the state water bureaucracy, and water user awareness of the state agencies in question.

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Fig. 3.5  Utah complaint data 2003–2015

Fig. 3.6  Washington complaint data 2010–2015

What Are the Implications of Unauthorized Water Use? There are a few cases where the clear repercussions of unauthorized water use were substantial.12 The unauthorized water use in the WIP in central Washington, for example, resulted in the loss of up to 50% of the normal yield for a handful of farmers. The breakdown in water compliance in India’s capital, New Delhi, briefly profiled in Chapter 1, serves as

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a worst-case example of what can happen without proper enforcement. However, in the American West, it is not clear what the implications have been thus far or how bad it may get. Subfields of political science, such as environmental security and natural resource management, have laid the groundwork to establish what can go wrong with improper management of critical and scarce resources. For instance, environmental security scholars have documented cases around the world (see Homer-Dixon 1999 for a primer) where poor management led to dangerous conditions and negative outcomes. The management of land in the Philippines is a widely cited example, illustrated by Homer-Dixon’s 1999 work. Natural resource management scholars have similarly found strong connections between poor management decisions and negative outcomes, such as the extensive work done on ocean fisheries.13 Botsford et al. (1997) lay out a strikingly similar story as what is being told here. The global fish supply is on the decline, as overfishing has decimated populations. The sociopolitical pressure to produce protein, has driven population collapse in poorly regulated and managed fisheries (Mora et al. 2009). The acknowledgment on the fishery problem, and the need for transnational cooperation have driven a range of innovative and somewhat successful management strategies (Mora et al. 2009; Worm et al. 2009). Building on this scholarship, we must consider the impact of unauthorized water use on the social, economic, and political dynamic in western states, which is likely given that it undermines the legal structures of property rights. At the same time, the legacy of prior appropriation and current distribution trends also pose critical challenges to the economic, social, and political landscape. There is of course the economic impact of reduced water levels in the region, but the fallout from that failure also challenges western state identity largely built on its history of agricultural production. Beyond that dynamic there is also the role of reduced water flows on fish, the actual industry, but also a favorite hobby of many resident of the region. The cultural impact from these challenges has the potential to remake the region’s identity. Digging deeper into the role of agriculture, it is important to consider the pattern of farming in the region. The capital-intensive investment and the low margins of return, along with the low levels of enforcement, create conditions where unauthorized water use appears an attractive option for junior water right holders attempting to stay in operation during dry years. Examining the evolutions and trends in the agricultural sector yields a pattern of slow changes over time. The implications are

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that a region might have a bad year, or two or three, and many water users may remain in the hopes of the situation improving. Other larger operations may reduce their overall production but not completely sell off land. There may also be situations where more rapid change occurs, such as a drought, which may cause an entire orchard to be forced to go without water and die off. Agricultural producers may have to adapt in other ways in order to deal with times of water scarcity. For instance, dairies and cattle ranchers may pay for feed in years where they cannot grow their own, and then resume when the situation of water scarcity abates. There is little overnight alteration, which makes tracking and managing cause and effect difficult, resulting in unclear policymaking. In short, there is much at stake with regard to water scarcity, and this will likely lead to an increase in unauthorized water use, which in turn will have its own set of consequences. External pressures on the supply of available water and increased demand by the growing population of the American West pose their own problems. How states manage them is beyond the scope of this book, although unauthorized water compliance institutions are a critical part of that story. This is all to say that unauthorized water use has the potential to pose a significant challenge to water availability in the coming decades across the American West.

The Use of Water in the American West Political Dynamics at Play Water users can be broken down into three general categories: Environmental, urban, and agricultural. Each water user group maintains its own political power and influence, and has differing levels of awareness of and connection to water issues, complicating the policy process and debate. These interests of this complex array of actors play out against the backdrop of existing legal dynamics. Political science as a field has long examined policymaking in the U.S., articulating which actors have influence, and who prevails and under what conditions. The field has come to think in units of political actors, such as corporations, interest groups, movements, political parties, voting blocs, nonprofit organizations, bureaucrats, and so forth. Different policy environments produce different sets of adversaries and alliances, all positioning for advantage in the policy outcome. These models weigh the material

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and ideational power varying actors possess, and how effective they are at bringing these resources to bear on the policy process and policy outcomes. The story of water in the American West has an enormous legal component to it which centers on how water was initially distributed during westward expansion. For the most part, this current water law structure is not likely to be substantially amended without a major crisis to drive change, a topic addressed in later chapters, as settlement of the area evolved and has been maintained under the prior appropriation system. The protection of this critical property right has been central to how agriculture firms have operated, how much cities spend on water, and other components of how the region has developed. An act of the legislature would certainly augment the law, but cooperation with the other branches of government would be necessary. Water law is not likely to see many adjustments or reforms in the foreseeable future without a major shift in the political power of those who benefit from the system, namely the senior water right holders, and decades of legal decisions declaring the prior appropriation system untouchable. The state-run system of prior appropriation in conjunction with federal subsidization of major water projects throughout the nineteenth and twentieth centuries created a law structure that protects agricultural interests. The entrenchment of agricultural actors in the political and legal structures of many western states has offset the growth of urban areas with competing interests in shaping water policy. The growth of the environmental movement, along with the increased political power of Native American nations throughout the West, has added new actors to the fold. For instance, increasing demands to protect fish, wild rivers, and other environmental assets has altered the political landscape. Water users and environmentalists have had numerous legislative and legal battles on a host of issues. Federal environmental law and the major declines in commercial fish stocks have brought other actors into the fray. The following section details the varying actors, their interest in and use of water, and what their political leverage is in water use policy. Agriculture The states of Oregon and Washington both maintain over 1.6 million acres of irrigated farmland; California maintains 7 million, and even water-scarce Utah has 1.1 million (USDA 2012). While taking up the

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largest amount of water among the users, agriculture as a share of GDP across the states is quite small. Even in California, agriculture only makes up 2% of the entire economy. The economic impact remains significant, however, as the 2012 USDA census calculated that agriculture production in the 11 study states combined totaled over $80 billion and employed over a million people. In some states, like Idaho, farming is a major driver of the state’s economy. On a per capita basis, Idaho generates the most money in agriculture out of all the western states, and in gross sales is only behind California and Washington (Barnhill 2017). In Idaho, the centrality of agriculture to the economy translates into influence in the political realm, where a non-professional legislature filled with many farmers and ranchers cements the priority of agriculture over other industries. The longstanding influence of agriculture in Idaho is offset slightly by diversifications of the economy. But unlike the tech sector or the biomedical industry, agriculture has been around a long time. This long history has made it a part of the culture, and has led to entrenched political power. As I discuss in more detail in Chapter 5, the prior appropriation system, if amended, might bring greater benefit to Idaho’s economy, but it would come at the cost to a sector of the economy that has learned to throw its limited weight around. It is not just the overall economic production, but the specifics of what is produced that make agriculture important, in Idaho and across the American West. For example, the 11 states in focus make up 70% of the orchard farmland in the U.S. (USDA 2012). Agriculture contributes to the trade balance, as the U.S. is a net exporter of agricultural products to the tune of $115 billion dollars (Cooke et al. 2016). For each billion dollars in agricultural trade export, some 15,811 jobs are created (Paggi et al. 2011) (Fig. 3.7). The cultural legacy of agriculture in the region also affords agriculture a strong position when making their case for being a primary water user. Idaho is a rural state that has long been dominated by agricultural interests, and there is a strong sense of agrarian idealism embedded into the social fabric of the state. The culture of the state is thus strongly tied to agriculture, and support of agriculture is considered highly important to its citizens. Thus, despite the fact that there has been incredible consolidation and globalization in agriculture, and that the ideal of the family farm has in reality largely disappeared, Idaho remains a state that is firmly attached to its agrarian identity. This current of support has undermined

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4,230

9,120

4,883

7,801

764

1,689

1816

7,780

42,627

3,732

2,550

Fig. 3.7  2012 Agricultural sales by state (billions) (Source USDA Farm Census)

and prevented other industries and stakeholders from supplanting agriculture in water management debates. Even in international relations, agriculture has been spared the pains of the global market, as the U.S. along with its European allies have held up the advancement of WTO negotiations over agriculture subsidies, reform of which would be politically impossible. More than the jobs and contributions to GDP, agriculture and the social influence it has make rural America what it is today. The issue of water management, and specifically unauthorized water use, warrants attention from policymakers and urban elites in part because the rural communities of America are part of the fabric of this society, and they may be particularly vulnerable to water scarcity under climate change. Making tough choices about how we organize ourselves and what is important, both economically and culturally, is part of adapting to climate change for a country like the U.S. In short, agriculture is a key

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Table 3.3  Agriculture productivity by state Agricultural sales Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming Total

$3,732,000,000 $42,627,472,000 $7,780,874,000 $7,801,446,000 $4,230,083,000 $764,144,000 $2,550,147,000 $4,883,674,000 $1,816,147,000 $9,120,749,000 $1,689,416,000 $86,996,152,000

Agricultural workforce 29,245 465,000 38,019 48,225 23,199 6984 21,981 99,305 17,927 256,036 10,472 1,016,393

Total land in farms (acres) 26,117,899 25,364,695 31,604,911 11,497,383 61,388,462 5,885,392 43,238,049 16,399,647 11,094,700 14,972,789 30,169,526 277,733,453

Source USDA 2012 Farm Census

element of economies and culture in the American West and, for the foreseeable future, it will continue to play a dominant role in shaping water use policy (Table 3.3). Urban Users One progressive outcome of water scarcity has been the innovations applied to relieving the stress of this problem. Many of the innovations around water scarcity have been focused on water conservation. However, for urban areas, the ability to institute water conservation programs comes with the challenge of having to educate thousands of residents about best practices. Western cities such as Las Vegas and Albuquerque have done just that, demonstrating that cultural practices can be changed and augmented. And despite the high amounts of water used by agriculture and other industries, home water users, particularly in California, have been some of the first to be asked to manage and limit their water use in times scarcity. Water conservation programs have been a mainstay among western states for decades. While westerners, on average, use more water than the national average (see Table 3.4), this fact does not often make it into the mainstream discussion of water use, at least in the West. Further, as water scarcity has gripped California, urban water users have not been able to

74  I. M. CASTELLANO Table 3.4 Average water use per day

State Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming National average

Average water use by state (gallons per person per day) 140 123 121 187 112 190 107 121 186 103 152 98

Source U.S. Geological Service

undo the influence of the prior appropriation system. Instead, when they have fallen short on water flow levels they have had to purchase water rights from farmers, which has led to discussion of installation of expensive pipeline. Alternatively, they have considered costly investment into desalination plants. In sum, thus far urban water users have not played a major role in shaping the debates over state water management policy. Citizens generally have not taken a keen interest in unauthorized water use, particularly any unauthorized use that occurs outside of their specific water districts. Citizens have not organized to lobby against the agricultural industry and propose alternatives to the status quo. As I argue in later chapters, this will likely change with time, as the cost of food combined with ongoing rationing and increased costs of water delivery are going to drive a wedge between the mythology of the family farm and the convenience and pocketbook of urban populations in the region. Rate payers in the large Californian cities of San Diego, San Jose, Los Angeles, and San Francisco endure the first, second, third, and sixth highest water bills in the country. Las Vegas and Atlanta pay the fourth and fifth most, respectively, while the western cities of Santa Fe, Phoenix, Tucson, Fresno, Seattle, Denver, and Salt Lake all hold spots among the top 30 most costly water bill cities in the country (Walton 2016). Those same cities have seen nearly consistent rate increases, due to infrastructure investments and population growth which require municipal water managers to

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purchase new water rights to serve more people. At the same time, these residents are being asked to ration in drought emergencies and actually face fines for violating water distribution rules such as watering on odd versus even days, likely at higher rates than agricultural users. There are other non-economic reasons for the emergence of unauthorized water use as a policy problem, primarily food security and food costs. Household food security is defined as having an adequate supply of food.14 The term “national food security” is used to capture “whether a country had access to enough food to meet dietary energy requirements” (Pinstrup-Andersen 2009). The federal government’s role in this policy area dates back for several decades, and can be most easily illustrated by looking to the Farm Bill. A key part of the Farm Bill, which is authorized every four to five years, authorizes payments from the federal government to farmers to ensure that they continue to plant and grow food within the U.S. Originally part of the New Deal (Som Castellano 2014), this domestic welfare program for farmers undercuts the logic of the market and is rather socialistic in nature, a surprising element given the overwhelming and bipartisan support for the bill. However, when considering the corporatization of agriculture and the emergence of horizontally and vertically integrated operations, it is not unlike many other markets within the U.S. (Som Castellano 2014). It is well-documented that the Farm Bill is inefficient with regard to a variety of desired outcomes such as nutrition (Som Castellano 2014). However, the bill makes a substantial investment in large-scale agriculture and the state will always have a vested interest in it, for national security and political calculations. In the context of climate change-induced food market disruptions, one can expect there to be awareness and political mobilization along this issue. The urban population’s interest in water accountability will be heightened by the rising cost of food. We can expect global markets to increase prices with climate change, making domestic food production more important, as the federal government will have an interest in stabilizing low food prices, as such prices are a clear political issue for consumers (Bates 1981). I do not expect that urban populations will continue to sit on the sidelines of water management policy debates, particularly if there is inaction on unauthorized water use. At some point it will come to light that urban residents are facing stiffer penalties and harsher action from their municipal water districts than agricultural users. The general public will begin to question why it is that agriculture not only uses 80–90%

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of freshwater withdrawals in the region, but also has limited government intervention and management of cheaters. In good years, urban users will weigh the benefits of lawns at parks, football fields made from real grass, the joy of running a sprinkler for a small child, among other delights brought to humankind by an abundance of water. In bad years, they will contend with rationing, shorter showers, and high costs. How and where urban populations will draw a line will determine the magnitude and timing of reforms brought about from water accountability. Environmental Movements Alongside urban users will be the environmental movement, which has spent the better part of the last 50 years trying to convince all who would listen that fish are dependent on water for survival. Sadly, dams, water diversions, and overfishing have all had their toll on migratory salmon, as well as other species, throughout the Pacific Northwest. Environmental justifications for water use have been mainstays in the policy disputes that have dominated water issues for decades. Environmental groups, along with Native American tribal governments, have led costly legal fights to protect fish species around the region. Federal environmental legislation, such as the Endangered Species Act, has informed the legal debates around water management in the West since the early 1970s, and the reemergence of Native American tribes as a political force has added weight to the policy fights that have ensued. An example of this can be found in the Klamath Basin, which has witnessed one of the more contentious battles between agriculture users and environmentalists and tribes working to maintain safe water levels for fish. Famously in 2001, the Bureau of Reclamation shut down water distribution on the upper Klamath. A major protest that required U.S. Marshals to be dispatched to the region prompted the Bush Administration the following year to resume diversions for agricultural users, resulting in a major salmon die-off. The die-off was big news in the region for those following water issues, but it did not make national headlines. As time has progressed, environmental movements have worked to bring several major issues with water management into the public’s consciousness. First, collective environmental action has raised public concerns that most river systems were developed without any consideration to their ecological function, leading to species extinction. Second,

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environmental movements have helped raise awareness about the issues with water allocation, as many rivers are over-allocated and groundwater depletion will result on a run on water elsewhere, depleting the available supplies that can be used to ecological purposes. Third, environmental movements have also raised awareness about the ways in which river and water system health has been compromised by runoff and pollution (Fort 2002). In addition to raising public awareness, environmental movements, particularly in the blue states of Washington, Oregon, and California, have played a major role in the policy-making process. In the red states of Idaho, Montana, Utah, Wyoming, and Arizona they have been less influential in the legislative processes, but they typically have been more active in litigation. It is fair to say that they will continue to play a major role in shaping the political fights around water management.

Status Quo Now that we have established some of the background on water use in the American West and the problem of unauthorized water use, I turn to the task of assessing the current capacity of western states to handle this problem. In particular, this chapter addresses the question of current responses of state governments to unauthorized water use. Unauthorized water use is not just about water; it is about how states create the institutional capacity to handle new types of policy problems associated with climate change. The effects of climate change are going to have substantial implications for the economic, social, and political dynamics throughout the region. States’ readiness to adjust to this new reality will determine not just the economic and social well-being of citizens, but also the political fortunes of the political elite. Thus, I focus not only on the capacity of states to address unauthorized water use and water right compliance, but on the larger question of how well prepared states are to address the effects of climate change, specifically as related to water scarcity. To address these questions about capacity to deal with unauthorized water use during a period of water scarcity, I contacted, in late 2015 and early 2016, the 11 state agencies in the region who handle water issues.15 I requested information on what data they collect on unauthorized water use, how they manage that data, investigatory techniques, and budgetary and personnel allotments they make to manage their water

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right compliance strategy. The budget information from each state is set against the number of irrigated acres that each state reported in the 2012 USDA Farm Census. From this data, I was able to answer several basic questions about how states respond to the current situation of unauthorized water use, and to provide an assessment of how well prepared each state is to handle unauthorized water use moving into the future. Before I examine the differences among the states on water right compliance, I first describe the status quo of unauthorized water use management. I offer some basic information about water management agencies, including a brief history and how they function. I then examine how unauthorized water use complaints come to the state agency, and some common examples of their origins. Western states have established agencies to both adjudicate and enforce water rights, tasks that include responding to unauthorized water use complaints. These agencies were created sometimes at the time of statehood to ensure proper management and adjudication of water rights. For example, the IDWR, has its roots in the Office of State Engineer, which was established in 1895. Likewise, Colorado’s Office of State Engineer was established in 1881. More recent developments of water management policy have altered the structure and mission of the agencies that handle water rights in some states. For example, in Idaho, the job of water management was passed between several different agencies until 1974, when the IDWR was established. In other states with more progressive histories, such as California, such agencies have been in existence for much longer (the California Department of Water Resources was established in 1956). In Oregon prior to 1909, water users defended their water rights on their own with informal methods, or went to court to protect them. In 1909, the state took control over the use of water with the first piece of legislation to unify the water law in the state. Like most other states, Oregon declared that all water in the state belonged to the government and required all water users to obtain a water right before using it. By 1927, Oregon had established a groundwater permitting system east of the Cascades, and then expanded that in 1955 to the western portion of the state. By the 1970s, the Office of the State Engineer was merged with the State Water Resources Board to create the Oregon Water Resources Department (OWRD). Nevada’s first regulation of water dates back to 1866 when right-of-way procedures were established. In 1903, the State Engineer’s Office was created to determine what water rights existed and how to define them. Further

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legislation in 1913 and 1939 more fully established the role of the office. All 11 states now have firmly established, state-level organizations tasked with the work of regulating the use of water. Table 3.5 lists these water management agencies. These agencies have evolved to the point where they address a range of issues, such as water right management, adjudication of water rights, water calls, and many other duties. The IDWR in Idaho, for example, is currently tasked with managing water resources, administering water rights, and financing various water projects. By managing water resources, they are the agency in charge of carrying out a number of statutes related to water rights across the state. They have to protect senior water right users from overuse and other threats to their allotted water, and promote and finance projects that will ensure the sustainability of water sources in the state for years to come. This is not a small order by any measure and is made more complicated by the changing nature of the state, population growth, and increased number of organizations and firms that utilize water as a central component of their operations. Like other similar organizations across the western U.S., the IDWR has to carry out their duties with limited resources, as they have to respond to changes in federal policy, litigation and court decisions, as well as political pressure and state legislative action. As water managers in recent decades have faced an increased demand for water, they have been required to pursue innovative ways to resolve water shortages. One such innovation is water banks. Water banks hold the allotment of water from the water user, and in turn frees up

Table 3.5 Water management agencies

State

Agency

Idaho Washington Oregon Nevada Arizona New Mexico California Utah Colorado Montana Wyoming

Department of Water Resources Department of Ecology Water Resources Department Division of Water Resources Department of Water Resources Office of State Engineer State Water Resources Control Board Division of Water Rights Division of Water Water Rights Bureau State Engineer’s Office

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that water for use by another water user, typically a fee administered for the user receiving the water. Water banks enable parties to negotiate the costs of water transfers in an institutionalized setting, allowing for fairness and equitable pricing for both parties involved (MacDonnell 1999). Thus, water banks offer solutions for agricultural producers who are weathering an economic or other setback that would limit the profitability of using their water right; such a transaction therefore may prevent an entity from shedding the water right from non-use, and in some instances forestall having to liquidate unproductive property. A number of states in the West have operated water banks for decades. Idaho, for example, has a statewide water bank that is administered by the IDWR, with the first known rental pool of water taking place in 1932 (IDWR 2016). The Idaho legislature formalized the program in 1979 and other states have followed, including Colorado and Washington. In addition to innovations such as water banks, state water management agencies also utilize the tool of water user education, primarily of large-scale water users. However, education programs are somewhat limited across the region of study for the simple reason that it is difficult to get the message across to the water users who need to hear it. As it goes, most of the unauthorized water use complaints that lead to formal enforcement involve a more structured education process for the suspected water users. For example, IDWR reports that in most instances in which they confront a suspected unauthorized water user, the conversation starts and ends with what the user is entitled to in terms of water use and how they can best go about using their water, as they tend to find that unauthorized water use often occurs unknowingly. That is, the agency often encounters individuals who think they know what is appropriate but in the end do not. This dynamic often complicates the process of education of water users. Large-scale public information campaigns are often not appropriate for the problem of unauthorized water use; a more pin-pointed campaign might serve better. However, such campaigns can also be problematic, as many or most water users currently understand what they are entitled to and how to go about it. Such a campaign in Idaho, for example, would likely be brushed off, followed by anger that taxpayer funds were used to “educate” farms and ranchers who very well know what they are entitled to in terms of their water use. With that said, it does appear that education is a widely utilized tool by state agencies.

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Aside from education, available flow data on surface water sources can help prevent a violation. Different from education efforts, real-time information on flows helps water users find out if they are cleared for utilizing their diversion, as some water users’ rights are conditioned on enough water being present. Making this information as accessible as possible helps increase the awareness of water users of the conditions of their diversions, and removes an excuse for noncompliance. For example, in Oregon, the state maintains real-time stream flow information that can determine if a water user is able to make a withdrawal from a surface water source. Oregon maintains this data for dozens of streams and rivers across the state. This information is critical for junior water right holders whose access to water is dependent on water flow levels. Moreover, this kind of information reduces the uncertainty of local measuring systems and thwarts those water users who otherwise would have plausible deniability about their own information concerning water levels. Furthermore, this kind of state organization of data establishes the capacity of the state to inject a technological solution to a complex problem of information sharing and access. As more water users possess the capacity to access online information, the abler they are to be in compliance. How Complaints Get to the State States vary in how complaints are initially recorded. In Idaho, there are several ways a complaint may reach the water managers at the state level. First, a complaint can originate internally. This can happen when IDWR staff working in the field notice that something is wrong or possibly problematic. For instance, an IDWR staffer could notice a diversion that does not appear on water right records. IDWR staff are trained, particularly when they are working in a problem area, to spot situations that do not meet standards for water withdrawals or otherwise raise questions as to who is drawing water out from a surface source. For the most part, these internally generated complaints of unauthorized water use pertain to surface water sources as opposed to groundwater. People outside of these state agencies also file complaints. Several states, such as Utah, have a water use complaint form, where individuals can detail the suspected unauthorized water use. These forms require the complainant to provide specific information about the suspected unauthorized water use, such as who the alleged violator is and how long

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the alleged violation has been occurring. On both Utah and Montana’s forms, there is a place for the complainant to sign, indicating that the forms are not anonymous. For rural residents this may pose a dilemma, as reporting unauthorized water use may result in some form of retribution in a tight-knit community. Reporting unauthorized water use using the Montana and Utah forms also requires the time and motivation to file a complaint, access to a computer with internet, and a working printer. In addition, the completed form has to be mailed to the state offices, making filing a complaint a multi-step process. Thus, someone who is willing to stand by their claim of unauthorized water use would have to generate a record of the complaint and be motivated to follow up with the appropriate authorities. In addition, western states have not allotted an abundance of resources to address these complaints,16 so it is likely that agencies are more inclined to allocate substantial investigative resources only to anonymous complaints of a serious nature or to those connected to a previous case. Thus, I believe that many cases are reported first to local managers such as irrigation district managers, and that the more serious cases are then reported to the state. Several state water managers confirmed this suspicion, but there is no accurate data on the practice. As mentioned in earlier chapters, and discussed in Chapter 6, a next step in this line of inquiry would be examining the informal or local-level water compliance management that occurs and the violations contained therein. The agencies tasked with water rights adjudication should have contact information readily available on the internet or in the phone book. In the state of Montana, for example, residents can call one of eight field offices or use the toll-free general state number to get to the Department of Water Resources. However, while this information may be available, individuals wishing to report unauthorized water use must either know who to call or have the patience to figure it out. It also requires a level of dissatisfaction with local water management officials. Further, none of the 11 western states examined here had a statewide hotline or a designated phone number specifically for water complaints. However, in light of the drought conditions in California, several counties, irrigation districts, and cities set up tip lines for unauthorized water use complaints in 2015.17 Among the states who maintain detailed records on complaints, none of them reported how the complaint was brought to the attention of the state (i.e., whether it was a phone call, a completed complaint form, letter, or other method).

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Water bank violations are another way that violation complaints make their way to the state. As discussed above, water banks are programs where water users can transfer their water allotment in a given year if they do not plan to use it. This prevents them from losing their water right from non-use, something that can happen after a five-year period of non-use in many states. While it is uncommon for most states to cancel individual water user’s rights, it is a procedure available to the states to encourage beneficial and efficient use of water supplies. Water masters from local districts and irrigation companies are also a source of complaints made to the state. In most cases, water masters work to resolve disputes and issues on their own before contacting state agencies. However, what is not clear is how many cases water masters adjudicate on their own. This is an important feature in the process of collecting data, as the number of violations is likely much higher than what is currently reported, a point discussed in more detail below. Ditch riders, who examine irrigation ditches and canals to misuse, damage, and other concerns may find themselves in difficult positions, as they may be mediating between neighbors, friends, and acquaintances as a majority of these situations occur in rural communities where people tend to know one another. These relationships may play a role in shaping the behavior of individuals in positions to adjudicate or report such violations. For these (and other) reasons, I suspect that all efforts are made to resolve cases before passing them onto the state. Several state representatives made a mention that they had received cases from water masters, but that the number was typically not a major source for complaints submitted to the state agencies. For example, from 1994 to 2016, 1% of Idaho violations come from local water masters (Western State Response to Unauthorized Water Use-Idaho Interview 2015). The rural nature of most of the cases in question may present a number of challenges related to reporting, as noted above. First, given the isolation of the rural West, the number of possible witnesses is inherently low. Second, those who do witness unauthorized water use face possible retribution for reporting a neighbor or community member to a state agency, which may render such reporting cost prohibitive. Third, water measurements for many rural users are limited, and many water users do not possess a meter on their ground or surface water pumps (it is unclear how many across the region are without meters). Visual inspection of water use—without the help of Geographic Information Systems (GIS), water right records, and aerial photography—is generally not

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conclusive in assessing if a violation has occurred. Fourth, it is likely in some cases that the violation is detected by a neighbor or an employee of an irrigation or water district and is then adjudicated between the two parties, or with a local irrigation district, without further outside involvement. Anecdotal evidence suggests that there is widespread use of informal institutions in the facilitation of water rights enforcement across the American West.18 Therefore, the assumption adopted here is that more unauthorized water use occurs than is reported to state governments. Some states acknowledge this. For example, the state of Montana water complaint form contains a section for filers to indicate if they have spoken with their local water appropriator in an attempt to resolve the complaint. In sum, these dynamics reduce the overall accuracy in terms of a total count of unauthorized water use incidents, that is provided by the states. Table 3.6 captures the breakdown of complaint sources for Idaho from 1994 to 2017. While not every state captures how complaints come to the water agency, Idaho does and from the duration of their data collection process, trends begin to emerge. The leading source is outside complaints (individual citizens who contact IDWR with information about unauthorized water use). This is followed by GIS discovery which, as discussed below, is an important investigation technique used by several states. The IDWR staff account for 14% of complaints, while water masters only contribute 1%; this supports the proposition that water masters are adjudicating a number of violations and not reporting them to the state. The role of informal institutions governing unauthorized water use remains a problem as states will continue to experience pressure to increase their capacity to manage compliance, and there is not a formal process for states to train, manage, or help adjudicate unauthorized water use cases that do not come directly to the state. Table 3.6  Source of violation complaints, Idaho, 1994–2017

Source IDWR field exam IDWR GIS discovery Outside complaint Water bank Water master referred Totals

Number 139 310 523 5 10 987

Percentage (%) 14.08 31.41 52.99 0.5 1 100

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A major issue in assessing how large the problem of unauthorized water use can be is the question of intentional versus unintentional violation. Because the current volume of unauthorized water use can often appear to be mainly unintentional, commonly due to misinformation, and solvable with targeted education, it may seem that this line of inquiry creates a problem where none exists. However, current experience does not foreclose the possibility that systemic cheaters will emerge to undermine the fair and equitable distribution of water as the West faces increasing water scarcity. This is certainly the case in other waterstrapped locations around the globe. Moreover, the perception that unauthorized water use is a problem is likely to be as much of factor in the overall economic and social impact of the current water use trends as actual illegal diversions and drawdowns. The aim of this work is to raise awareness and explain the current outcomes in state capacity to deliver water accountability. Future work may be in a better position to assess as the effects of climate change continue to impact decision-making on water policy across the region. State Investigations When the state receives a complaint of unauthorized water use, they have several investigatory techniques at their disposal, including: (1) conducting a field inspection, (2) reviewing satellite imagery, (3) interviewing water masters and/or members of the community, and (4) reviewing power records to establish pumping practices. Based on interviews and analysis of state data, these techniques appear to be very successful in assessing the complaints of unauthorized water use that come before states. While the techniques are not terribly complicated, there are some technological advancement that have made state agencies more agile and accurate in pinpointing if and where a violation has occurred. GIS and aerial photography have been key technological breakthroughs. GIS is able to assess water use and distribution, offering water compliance officers the capacity to see with standard measurement tools how and where water is being used, and determine if there is an overuse of water by a particular water user. Idaho, for example, combines GIS technology with aerial photographs from NASA’s ER-2 aircraft. NASA has two ER-2 aircrafts that operate under its Science Mission Directorate. The aircrafts are based in California, and regularly collect scientific data for a variety of projects on specific topics, including earth

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resources, celestial observations, and atmospheric measurements. The ER-2 planes are able to fly in the lower stratosphere, which allows for satellite like quality data. Using this source of data, Idaho is able to capture the use and misuse of water quite effectively. In Oregon, state water masters are all equipped with iPads with GIS systems installed, allowing them, while in the field, to bring up data as to the rights of specific users, their allotment and property boundaries, and other needed information. It is also common to get a sense of the activity on the ground by interviewing the local water master, if the issue originates in a non-state managed district. More rarely, state investigators may review power records, generally in more extreme cases. The most powerful investigational tool according to water agency representatives is talking directly to the water user in question; a majority of complaints, if proven valid, conclude with simple communication between the state and the suspected user.19 Interviews with state water agency representatives across the region of study yielded a similar response as to the importance of dialogue with water users. Framed in terms of education, state agencies view the dissemination of information about water rights and responsibilities as a key part of their work— much more important than acting as a law enforcement agency (Western State Response to Unauthorized Water Use-Oregon Interview 2015). Many state agencies believe that they are much more likely to achieve compliance with a soft, education-based approach, as opposed to coming down hard on water users for violations they may not be aware are violations. Oregon serves as an excellent example of this process. In 2013, of the 16,000 regulatory actions that occurred, only six went beyond the initial communication to a formal enforcement action, which essentially means a civil lawsuit was filed by the state. Other states have similar experiences, and find that there are few cases that reach the level of litigation. Thus, while litigation is always a background threat to any water user who does not comply with their regulatory responsibilities, the vast majority of water users enter into compliance after more informal communication with regulatory agencies. Most states maintain a uniform approach to processing unauthorized water use cases. For example, in Idaho, when investigation makes clear that unauthorized water use has occurred, an enforcement action (referred to as a Notice of Violation) is issued. The violator is notified to: (1) cease and desist, (2) pay a penalty, or (3) sign a consent agreement with the IDWR that confirms that the details recorded are accurate, and

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the matter was resolved. Most cases examined in the data were resolved through communication and education on proper use practices and the details of the user’s water right. In rare instances, civil action is undertaken by state officials. For example, in 2015 the State of California levied a $1.5 million fine against the Byron-Bethany Irrigation District, based in Byron, Calif., for unauthorized water use (Stevens and Moran 2015). The California State Water Resources Control Board (CSWRCB) alleged that the district diverted more than 670 million gallons (2056 acre feet). This irrigation district, which supplies some 160 growers and 15,000 residents in the Mountain House community, was accused by the CSWRCB of ignoring a curtailment order. The district claimed the compliance order was in retaliation for a lawsuit they filed against the board. Under California law, the CSWRCB has the capacity to fine water users up to $1000 a day and $2500 per acre feet when a violation occurs, which would have made the maximum penalty in this instance $5 million. The Byron-Bethany case was one of only two cases investigated by the CSWRCB in 2014 that resulted in civil action. Many state water agencies, such as the Water Resource Department in Oregon, work to engage in what they term a “proactive water management” approach, rather than relying heavily on complaint-driven system. The approach is based on the notion that water users are more likely to comply with water law when they know their rights and responsibilities. The process of water user education can be considered both formal and informal. Formal education takes many different forms, and states vary with regard to how robust their formal education efforts are. OWRD’s stands out for being one of the more advanced states in regard to the use of formal education. Their formal education methods include sending out press releases to local newspapers in the springtime, prior to the start of irrigation season. The press releases remind water users of their responsibilities and detail any major changes to water allotment or scheduling for that growing season. In other instances, the OWRD prints fliers and holds regional open houses to educate water users. Lastly, the state has a direct mailing program that reminds water users about their basic responsibilities and rights. Informal education is also utilized by state water agencies across the West. For instance, the OWRD’s 21 water masters and several assistant water masters live in the communities where they work, a consistent pattern across the western U.S. Oregon officials commented that their

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water masters often develop good and effective personal relationships with water users, and these relationships are utilized to deliver education in a more informal manner. For instance, a water master may bump into someone at the grocery store or a community event, further strengthening the ties and opening up lines of communication that may prove to be more effective at achieving compliance than other, more official, avenues. Such informality also may pose problems, as it could limit the capacity of water masters to enforce difficult decisions. Generally, however, it was reported to me that such occurrences are rare given the institutional weight of the work that water masters complete. While it is not possible to assess the effectiveness of formal versus informal education, in the case of Oregon, compliance rates are quite high (see Table 3.7). Compliance rates, as defined by OWRD, are simply the rate of compliance in water users after a violation, which can include illegal use (defined in Oregon as any water use without a right) or a water user drawing water on the wrong day (if rotating), and subsequent water master directive. As Table 3.7 indicates, data from OWRD show strong rates of compliance across the state. OWRD reports compliance over 21 water districts and five regions (Northwest, Southwest, South Central, North Central, East). Compliance rates in certain years are lower, such as 2009 when several districts out of 21 reported rates as low as 77%. Looking at the more condensed version of the data, there is a clear trajectory of improvement over the course of the 2009–2015 time periods. Perhaps not surprisingly, the district with the lowest rates Table 3.7  Oregon rate of water of compliance 2009–2016 Year 2009 2010 2011 2012 2013 2014 2015 2016

Average state compliance (%) 92.62 93.62 92.32 94.46 96.14 99.38 97.98 98.72

Source State of Oregon

High district compliance rate (%)

Low district compliance rate (%)

99.0 99.1 99.7 99.4 99.7 99.9 99.5 99.6

78.4 84.1 80.1 86.4 88.4 98.5 94.3 97.4

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of compliance is the South Central District, which includes the Klamath Basin, an area where water rights have been hotly contested in recent years.

Conclusion This chapter has examined the dynamics of water use in the American West, the legal dimensions of water distribution and management, the role of the states in that management, the political actors involved, the role of unauthorized water use in water management in the region, and has walked the reader through the history of water management agencies and discussed variation in their approaches. The chapter’s goal was to lay the foundation of understanding about the political and institutional dynamics at play when it comes to water management. I now turn my attention to building an argument to capture the variation in western state response and why they vary.

Notes







1. Several states in the subject group utilize a hybrid system, whereby early on in their statehood they utilized the Riparian rights common in the Midwest and eastern regions of the U.S., and then later switched to the prior appropriation system, these states include California, Oregon, and Washington. In principle, there are few of these riparian claims that factor into the assessment of unauthorized water use and responses assessed here. 2. Gaining a new water right is discussed further, as are the implications of surface and ground water management; the focus here is on the process of prior appropriation, a system that applies to both ground and surface water. 3. California passed the Sustainable Groundwater Management Act (SGMA) in 2015 which in part established a process for water masters or local agencies to report the status of adjudication along with up-to-date water level data. 4. See the State of Montana’s DNRC website for more information on which basins have been subjected to new water right applications: http://dnrc. mt.gov/divisions/water/water-rights/docs/new-appropriations/montana-basin-closures-and-controlled-groundwater-areas-2016.pdf.

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5. For most state agencies investigating unauthorized water use in an agricultural context, the water volume would have to be significant and ongoing. In a residential context, police may arrest someone who tampers with a fire hydrant, or uses a neighbor’s hose without authorization dependent on the context and willingness of the victim to press charges. In general, however, most of the unauthorized water use cases indicating that the cases that warranted state involvement were in the thousands of gallons as opposed to the hundreds of gallons. 6. While some of the data includes ground water, the focus of this paper is surface water. 7. A construction water truck was stolen in broad daylight alongside the freeway in Oakland with at least some speculation that the truck’s water and capacity to transport water was valuable enough to steal it (Nestel 2015). 8. There is a great deal of general water flow data for the American West, however, and most data has some margin of error, typically large enough to limit its credibility in a civil or criminal proceeding. 9. As discussed in more detail in Chapter 5, the year 2015 was utilized as a stopping point to analyze the pace of water accountability growth. 10. California ranked 7 in cattle production, Montana 14th, and Utah 33rd. 11. Discussed throughout, but in greatest detail in Chapter 7 in the section on research weaknesses and next steps, the decentralized nature of water enforcement and the subsequent data issues, makes for one of the larger drawbacks to this approach in studying unauthorized water use. 12. While this is true, few states have collected data that captures what the impact was. Further, the impact may be dispersed across stakeholders, where the impact may have been presented as caused by another source such as a drought, low water level, etc. 13. There is a lot of material on this, but here are a few places to start. Botsford, Louis W., Castilla, Juan Carlos, and Peterson, Charles H. 1997. “The Management of Fisheries and Marine Ecosystems.” Science 277 (5325): 509–515; Cicin-Sain, Biliana, Knecht, Robert W., Jang, Dosoo, and Fisk, Gregory. 1998. Integrated Coastal and Ocean Management: Concepts and Practice. Washington, DC: Island Press. 14. For a detailed examination of the concept, see Maxwell, Simon. 1996. “Food Security: A Post-modern Perspective.” Food Policy 21: 155–170; Mooney, Patrick H. and Scott A. Hunt. 2009. “Food Security: The Elaboration of Contested Claims to a Consensus Frame.” Rural Sociology 74: 469–497. 15. The interviews were conducted under Institutional Review at the author’s institution, entitled “Western State Response to Unauthorized Water Use.”

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16. The State of Idaho for example, allocated $12.1 million for the 2016 fiscal year for the entire Department of Water Resources, which in addition to complaints, permits, water rights, aquifer management, among other water-related tasks (Idaho State Budget, 473). 17.  Mendocino and Madera County California, the City of Glendale, California, and Turlock Irrigation District located in Turlock, California to name just a few. While other water management agencies have numbers to call to report unauthorized water use, these were specific to unauthorized water use, whereas other contact means are for all organizational business. 18. For example, in informal unauthorized water use with several irrigation district managers, the topic of farmers confronting other users over unauthorized use was brought up. The general idea was that it was not uncommon for users to confront one another concerning overuse or to bring in irrigation managers. Clearly such confrontations and resolutions occur, but to what extent and how much water is involved are unknown. 19. This is true, unless a portion of the water infrastructure such as a gate is damaged or vandalized and it is deemed a criminal act.

References Barnhill, Frankie. 2017. “Compared with Other Western States, Idaho’s Economy Still Driven by Farming.” Boise State Public Radio, September 13. Accessed December 19, 2017. http://boisestatepublicradio.org/post/compared-other-western-states-idaho-s-economy-still-driven-farming#stream/0. Bates, Robert H. 1981. Markets and States in Tropical Africa: The Political Basis of Agricultural Policies. Berkeley: University of California Press. Although Bates Focuses on African Nations, the Analysis Applies to the American Context. Bernton, Hal. 2015a. “Water Theft Is Symptom of Bigger Troubles in Wapato Irrigation Project.” Seattle Times, July 15. http://www.seattletimes.com/ seattle-news/environment/water-theft-is-symptom-of-bigger-troubles-inwapato-irrigation-project/. Bernton, Hal. 2015b. “Yakima Farmers Say Mismanaged Water Made Crop Losses Much Worse.” Seattle Times, September 8. Accessed December 8, 2017. https://www.seattletimes.com/seattle-news/environment/yakima-farmers-saywater-flow-or-lack-of-it-added-to-woes/. Botsford, Louis W., Juan Carlos Castilla, and Charles H. Peterson. 1997. “The Management of Fisheries and Marine Ecosystems.” Science 277 (5325): 509–515. Cooke, Bryce, Alex Melton, and Sean E. Ramos. 2016. “U.S. Agricultural Trade in 2016: Major Commodities and Trends.” United States Department

92  I. M. CASTELLANO of Agriculture, Economic Research Service. https://www.ers.usda.gov/ amber-waves/2017/may/us-agricultural-trade-in-2016-major-commoditiesand-trends/. Enion, M. Rhead. 2013. “Allocating Under Water: Reforming California’s Groundwater Adjudications.” Pritzker Briefs No. 4, September. Fereday, Jeffrey, Christopher Meyer, and Michael Creamer. 2019. “Idaho Water Law Handbook.” Givens Pursely. https://www.givenspursley.com/assets/ publications/handbooks/handbook-waterlaw.pdf. Fort, D. D. 2002. “Water and Population in the American West.” Yale: F&ES Bulletin 107: 17–24. Homer-Dixon, Thomas F. 1999. Environment, Scarcity, and Violence. Princeton: Princeton University Press. Jenkins, Matt. 2015. “Water Hustle: Did One of Nevada’s Top Water Regulators Try to Cash in on the Drought.” High Country News, November 23. http://www.hcn.org/issues/47.20/the-water-hustlers. MacDonnell, Lawrence, Charles W. Howe, Kathleen A. Miller, Teresa A. Rive, and Sarah F. Bates. 1999. Water Banks in the West. Natural Resource Law Center, University of Colorado School of Law. Meseck, Don. 2016. “Yakima County Profile.” Washington State Employment Security Department, September. Accessed December 8, 2017. https://fortress.wa.gov/esd/employmentdata/reports-publications/regional-reports/ county-profiles/yakima-county-profile. Mora, Camilo, et al. 2009. “Management Effectiveness of the World’s Marine Fisheries.” PLOS Biology 7 (6): 1–11. Nestel, M. L. 2015. “California’s Drought Is So Bad, Thieves Are Now Stealing Water.” Daily Beast, May 29. https://www.thedailybeast.com/ californias-drought-is-so-bad-thieves-are-now-stealing-water. Paggi, Mechel, et al. 2011. “National and Regional Impacts of U.S. Agricultural Exports.” Choices 26 (1): 1–5. Accessed August 29, 2017. Perrone, Debra, and Scott Jasechko. 2017. “Groundwater Wells in the Western United States.” Stanford Water in the West Research Brief. Pinstrup-Andersen, Per. 2009. “Food Security: Definition and Measurement.” Food Security 1: 5–7. Sethi, Aman. 2015. “At the Mercy of the Water Mafia.” Foreign Policy, July 17. http://foreignpolicy.com/2015/07/17/at-the-mercy-of-the-water-mafiaindia-delhi-tanker-gang-scarcity/. Som Castellano, R. L. 2014. “Creating Rupture Through Policy: Considering the Importance of Ideas in Agri-Food Change.” In The Neoliberal Regime in the AgriFood Sector, edited by Alessandro Bonanno and Steven Wolf, 112– 128. London, UK: Earthscan.

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State of Idaho Department of Water Resources. Preliminary Order Approving Permit Upon Conditions. Permit 63-34348. March 2, 2016. https://www. idwr.idaho.gov/files/legal/orders/20160229-Preliminary-Order-Creating-WD161-Mountain-Home-Area.pdf. State of Washington Department of Ecology. Accessed September 13, 2017. https://fortress.wa.gov/ecy/wrx/wrx/fsvr/ecylcyfsvrxfile/WaterRights/ wrwebpdf/acquavella-faq.pdf. Stevens, Matt, and Monte Moran. 2015. “State Proposes $1.5-Million Fine of Water District for Improper Diversions.” Los Angeles Times, July 20. Accessed December 8, 2017. http://www.latimes.com/local/lanow/la-me-ln-droughtenforcement-20150720-story.html. Suggs, Zachary P., Sonya Ziaja, Edella C. Schlager. 2016. “Conjunctive Groundwater Management as a Response to Socio-Ecological Disturbances: A Comparison of 4 Western U.S. States.” Texas Water Journal 7 (1): 1–24. Tarklock, A. Dan. 2001. “The Future of Prior Appropriation in the New West.” Natural Resource Journal 41 (4): 769–793. U.S. Department of Agriculture. Farm Census 2012. United States Department of Agriculture. https://www.nass.usda.gov/AgCensus/Report_Form_and_ Instructions/2012_Report_Form/index.php. U.S. Environmental Protection Agency. 2016. “Climate Change Impacts.” Accessed March 17, 2017. https://www.epa.gov/climate-impacts. Walton, Brett. 2016. “Infographic: Average U.S. Household Water Use and Bills, 2015–2016.” May 18, 2016. Accessed December 19, 2017. http://www.circleofblue.org/2016/water-management/pricing/ infographic-average-u-s-household-water-use-bills-2015-16/. Wapato Irrigation Project. 2016. Website. Accessed October 14, 2016. https:// www.bia.gov/regional-offices/northwest/wapato-irrigation-project. Western State Response to Unauthorized Water Use-Idaho [Telephone Interview] (2015, September 14). Western State Response to Unauthorized Water Use-Montana [Telephone Interview] (2015, September 24). Western State Response to Unauthorized Water Use-Nevada [Telephone Interview] (2015, September 29). Western State Response to Unauthorized Water Use-Oregon [Telephone Interview] (2015, September 30). Worm, Boris, et al. 2009. “Rebuilding Global Fisheries.” Science 325 (5940): 578–585.

CHAPTER 4

Water Accountability, Environmental Security, and “Adaptation Interactions”: Explaining Water Right Enforcement Capacity Among Western States This chapter provides my theoretical argument to explain the variation in capacity western states have developed in response to scarcity. I introduce my argument that water accountability, by which I mean a continuum of pressure on state agencies and sub-state agencies such as irrigation districts, to enforce water rights and take steps to protect those rights through a variety of means. The amount of demand for the protection of water rights varies across time and space, and is largely an outcome of the combined impact of “adaptation interactions” and the threat of securitization of water by the federal government. I advance an argument that explains the regulatory variations across the sample states in how they react to unauthorized water use. The core of this project is an evaluation of the institutions charged with enforcing water rights, and their capacity to deal with the water crisis across the American West—a crisis that has been well-documented, debated, and discussed for decades within the region. How well prepared states are to manage the various outcomes of this crisis is a critical concern for policymakers, interest groups, and scholars, given that the current water crisis is likely to worsen. I aim to evaluate and explain the variation in capacity to respond to water rights management and unauthorized water use. The project borrows from two different theoretical frameworks and combines them to explain the variation in western U.S. state capacity to protect water rights. By combining Brink and Wamsler’s (2018) “Adaptation Interactions” framework and Securitization Theory (Buzan et al. 1998), I explain the growth of stronger institutional capacity to © The Author(s) 2020 I. M. Castellano, Water Scarcity in the American West, https://doi.org/10.1007/978-3-030-23150-7_4

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enforce water rights among western U.S. states. Brink and Wamsler (2018) capture the process in which citizen groups successfully lobby government units to adopt climate change-related policies. While their work focuses on Sweden, the process by which primarily environmentally minded citizen groups, as well as some agricultural industry representatives, have pushed for adaptations functions as a major explanatory component of the outcomes across the western U.S. in terms of state capacity to protect water rights. The “adaptation interactions” framework captures one portion of the equation facing state agencies’ decision makers. The second theoretical framework is drawn from securitization theory. Securitization theory emerged from the Copenhagen School and group of security studies scholars within the broader field of international relations and political science. Securitization theory, as articulated by Buzan et al. (1998), captures the process by which a threat to a securitizing agent, mainly states but possibly other non-state organizations, groups, and entities, is removed from the democratic space and relocated into the security realm. In that realm, the normal rules of politics are broken and whatever must be done is done. These threats typically are existential, but in some instances may not rise to that level. Most importantly for Buzan et al. (1998), securitization theory moves beyond a static concept of security, to encapsulate threats regardless of actual damage or possible damage, and expands it to capture what is perceived to be a threat. In the context of western U.S. water rights, that threat is a federal intervention following a system failure. The steps that states can take now to prevent federal intervention together represent a precursor event. This project augments the core of securitization theory as described by Buzan et al. (1998) to focus on the precursor to the core securitization process. These combined explanatory forces, the threat of federal involvement and the citizen, and in this case, water user-driven demand for state action, explain the variation in state agency response to protecting water rights. The concept I use to capture this process is water accountability. Water accountability captures the continuum of pressure facing state agencies in particular. These agencies can take action that further distributions that pressure to sub-state actors such as irrigation districts or individual users. There is also a matched policy to each extension of the political pressure, state agencies experience, so that they can implement various policies to strength their claim that they can protect water rights in their state. As water accountability pressure is experienced at the state

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level, they can alleviate that pressure by being able to demonstrate they have successful protected water rights. A key component of this argument is that climate change and population growth will only exacerbate the conditions in which state agencies find themselves under pressure to successfully protect water rights. Where once only a small group of stakeholders, including agricultural users, environmental groups, tribal governments, and state agencies, were focused on water policy, the range of people concerned with water accountability will increase dramatically in the coming years, given that all residents of the western U.S. will be touched in some way by water scarcity. Water use and management issues will proliferate in the public consciousness, as water scarcity across the region grows into a major policy issue at the household level. Los Angeles residents will no longer be the only ones who have to alternate watering days, but those in currently water-rich environments will also be challenged to address their own water consumption. Water scarcity will also impact those beyond the region, as food costs will increase, and disruption caused by scarcity will have numerous other second- and third-order reactions that are difficult to predict. The political pressure on states to take action will be great. This political pressure will be related to the degree to which citizens are asked to reduce their water use. Thus, understanding where state agency capacity is now, and documenting the degree to which agencies have become pressurized, will serve as a baseline for later inquiry as this crisis unfolds. This chapter seeks to explain how well prepared states are to protect water rights, and sets the stage for testing the argument in Chapter 5. First, I examine the concept of “adaptation interactions” more closely, and explain the process by which change has occurred through the normal rules of politics. I then examine how the securitization theory can frame the role that a possible federal government intervention on water rights poses in the American West, which is a real possibility in the event of a failure of the water systems in the region. I then introduce and discuss the concept of water accountability.

Adaptation Interactions There is a developed literature examining the process by which institutions change over time and alter policy decisions. The “policy entrepreneurship” (Mintrom and Norman 2009), for example, used to explain the popular

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adoption of policy ideas, or the “attitude, behavior and choice framework” (Shove 2009) used to explain social changes around climate change, offer competitive frameworks to view policy adoption aimed at improving the protection of water rights in the western U.S. states.1 Adaptation interactions, the concept advanced by Brink and Wamsler (2018), is defined as “interactions between citizens and municipalities that further adaptation to and management of adverse climate effects. An interaction can anticipate or react to climate effects.” Brink and Wamsler (2018) go on to map the process of adaptation, with a focus on how learning generated by grassroots episodes “feeds into the mainstream,” resulting in a change of policy (Brink and Wamsler 2018). Brink and Wamsler (2018) contribute to a rich body of literature that has examined the relationship between society and state, and offer a sophisticated framework to explore how citizens work to inform state decisions around natural resource management in the era of climate change. These “adaptation interactions” focus on the changing nature of state reaction to the water scarcity problem facing the American West. The framework highlights the ways in which citizen actors, often starting at grassroots levels, merge into the mainstream and into the decision-making apparatus of the state. The variation in status, resources, skills, inclusion, and exclusion are all variables that inform the success of the citizens and the groups they form (Brink and Wamsler 2018). The assumption that citizens are actively involved in climate adaptation is relaxed in the application of the framework presented here. The nature of water scarcity in the American West has created a built-in mechanism for adapting to scarcity as the population and need for water has increased, and this overlays the policy environment.2 The additional factors of climate change and increased population in the region have shaped citizen views and ideas about the nature of the water scarcity issue and what needs to be done about it. The general feedback loop that connects states to citizens has played a major role in shaping state response to unauthorized water use. As an example of this, we can look to the spike in reports of unauthorized water use during 2014 in California.3 The response from the state was clear: The legislature passed and the governor signed legislation to monitor and restrict groundwater use. This was a direct response to scarcity caused by overuse, lack of aquifer recharge brought on by the drought, and the rising awareness of citizens and the various groups that emerged in the policy environment to call for change. The restriction of groundwater rights was a clear option to prevent the water scarcity crisis from growing further.4

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Adaptation interactions can result in legislative and executive branch actions. Brink and Wamsler (2018) map out the “recurrent issues, crucial for characterizing adaptation interactions” into four zones: (1) risk context, (2) actor involvement, (3) interaction process, and (4) outcomes and learning (Brink and Wamsler 2018). Risk content is the type of hazard, in this case, water scarcity. The actor involvement captures the degree to which actors are included and excluded from the policy-making process. Here, there are a range of actors that are having an impact on how state agencies protect water rights. The traditional actor matrix in the water policy realm includes agricultural users, the environmental movement that often had a coinciding agenda with many of the region’s Native American tribal governments, and urban users, including consumers. Third, Brink and Wamsler (2018) map out the interaction process between the government agency and citizens as either a top-down (government-driven) or bottom-up approach (citizen-driven) (Brink and Wamsler 2018). Here it is important to note that we relax the assumption that Brink and Wamsler (2018) integrate as a key portion of their framework, that of the advocacy for change based on a climate change rationalization and recognition that humans have something to do with it. Many political environments, including the Swedish municipalities Brink and Wamsler (2018) focus on, likely don’t face this problem, but in the American West, a certain portion of the population and political leadership do not acknowledge the progression of climate change or have a determination on the question of the Anthropocene.5 That being said, there is a longstanding recognition of the limitations of irrigated agricultural production. Adaptation interactions maps out the ways in which these citizen-based movements, both within and out of industry, result in support or advocacy for certain laws and changes. People are being driven in the direction of more regulation, as adaptation interactions is largely a process driven by water scarcity, something the region is facing. To Brink and Wamsler (2018), these interactions are typically within the normal policymaking process, and can be broken down into “hard” (enforcement and sanctions) or “soft” interactions (enabling community engagement). In our context, the state has numerous soft and hard engagements, actions that are driven from the top-down and others that have broad grassroots, bottom-up trajectories. A good example of the top-down approach, is the response detailed in the introduction and more deeply in the next chapter, is the response of the State of Idaho to

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the water scarcity issues facing Elmore County, Idaho. The establishment of Water District 161 represents the State’s bottom down hard measure, but the local response and adoption of the program is one of soft, as the community has engaged to take on the declining levels of the aquifer in a mostly amiable and active way. Further examples of soft approaches, are those collaborative agreements detailed in Chapter 2, and illustrated by the action taken by the coalition of environmentalists and water users that brokered the Snake River Plain Aquifer agreement.6 Lastly, Brink and Wamsler (2018) identify “Outcomes and Learning” as the fourth issue area. Here we see the inclusion of the various adaptations and, in reality, learning that occurs as climate change policy is implemented and reviews and empirical assessments challenge the effectiveness and demand the reform of institutionalized responses to climate change. For example, the State of Idaho’s decision to upgrade their unauthorized water use database was a decision that came from within the organization, but was prompted by a concern that a growing number of political actors would want to have access to such information (Western State Response to Unauthorized Water Use-Idaho Interview). Over time, the state learned that data-driven decision making—not just within the climate change issue area, but more generally—demanded that they will be able to deliver and provide assessment of their capacity to adapt. When interviewed, State of Idaho officials simply referenced the consensus in the agency that at some point people will ask for that kind of data and they should be prepared to provide it (Western State Response to Unauthorized Water Use-Idaho Interview). Brink and Wamsler (2018) identify citizen learning as an additional outcome to this process, which is critical to integrate into the discussion here, as citizen knowledge on climate change and water scarcity make a significant contribution to the overall willingness to implement adaptations throughout the region. In more liberal states, such as California and Washington, political leaders routinely make climate change response a portion of their platform, and have little difficulty communicating the importance of action.7 Relying on citizen awareness, or at least utilizing it for political gain, speaks to power of citizens’ input. Whereas in more conservative states in the region, such as Utah, Idaho, or Wyoming, the mere mention from a sitting Republican governor that climate change is real makes headlines.8 Brink and Wamsler’s (2018) articulation of adaptation interactions provides a framework to understand the normal policy processes and

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political rules of the process by which state agencies make change in their natural resource regulatory approach. But it also has a larger role in this theoretical argument, as it represents the totality of scarcity. As mentioned above, adaptation interactions have much deeper explanatory power beyond the response to climate change. As a concept, it also captures the totality of issues facing the communities as it pertains to water. Scarcity has only gotten worse with the region’s population growth. Adaptation interactions, as a theory, capture the climate and environmental change that occurred as populations moved into the region; in essence, it contains the population-induced scarcity that drove early water rights law and enforcement schemes. Elements of strategy and political processes have clearly changed, but the four-part breakdown of the adaptation interactions process dates back several decades. The status quo water scarcity policy environment in the American West is explained by the framework, and the moving parts of the process—the actors and their contact points while not explicitly defined— are inherent to the policy-making process of a democracy. As has been documented in the previous literature, particularly the contributions that focus on the American West, it is clear that state water agencies are boxed in by the demands of the various water users present in the policy environment. Adaptation interactions, as a concept, captures the state-level policy process, and it is buttressed by Buzan et al.’s (1998) securitization theory which captures the threat of federal government securitization. “Water accountability” brings these two theories together, engaging the interests of users, the environmental lobby, and the federal government in the face of climate change. The next section details the theoretical framework of securitization theory, and how it captures the looming presence of the federal government and the threat of intervention upon system failure that overshadows state decision making on water rights protection.

Securitization Theory On the horizon of any major state policy failure in the U.S. is the federal government. Whether that be road safety, reaction to crime waves, civil rights, or environmental policy, the federal government is there to step in. Clearly the domain of the states, water policy for the most part remains in their purview. The federal government, as detailed in Chapters 2 and 3, made significant investments and oversaw the

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expansion of irrigation and hydroelectric power development across the region, but does not interfere with the management of water rights. Few water right cases have fallen under federal jurisdiction, which helps explain why each state in the region has a few particular details of their water law. Yet the region is too politically and economically important for the federal government to have no role in managing water crises. As the security implications of climate change become more significant across the country, we can only expect there to be increased attention paid by the federal government to what states are doing. A key premise, contained in both frameworks employed here, is that there are a number of actions around water scarcity that are either direct or indirect responses to climate change, but the policy actors do not necessarily put the policy change in those terms. I argue that the mere threat of federal action, and of particularly drastic action, causes states to respond. There is little input from the federal government to date on how states manage water rights and it is not widely viewed as a major federal policy concern. Yet state water management has the potential to become a federal issue, and as argued throughout, the threat of federal action does inform how states address water rights. The use of emergency declaration powers by President Trump to declare a national emergency at the nation’s southern border could easily be utilized by a future president to take drastic action on climate change, including the criminalization of water-related crimes or an emergency takeover of state water authority. The federal government may choose to take less drastic action, such as creating federal laws on water right violations or the creation or redirection of an agency to manage water right or distribution enforcement. This project augments the core of securitization theory as offered by Buzan et al. (1998), to focus on the precursor to the core securitization process. Securitization theory originates in the field of international relations and focuses on the process by which states remove policy areas from the policy domain they inhabit to the realm of security. The process of securitization is that the security issue is removed from the public discourse and is no longer a debated issue within a democratic polity. Removed from public scrutiny, a security problem has to be worked out behind closed doors where policymakers can move without complications in order to protect the referent object, which is most often the state. Threats that countries face can come in strictly military form, such as rivalries or great power competition, but also in non-military ones.

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Environmental security threats, as detailed in Chapter 2, make up one of the many challenges states face. Buzan et al. (1998) state in their work that the theory applies to environmental issues. It is clear that there are a number of environmental threats that Buzan et al. (1998) would call an “existential threat” to the referent object. Consider the South Pacific island nation of Vanuatu. Climate change is causing the polar ice caps and glaciers around the world to melt, resulting in a significant sea-level rise that threatens life on the island nation. Such a situation clearly poses an existential threat. According to Buzan et al. (1998), various actors, but especially the state, can move any issue that represents an existential threat to the security realm. In the case of Vanuatu, that issue is the costly process of relocating the residents of the island and directing resources to advocate for the international community to take significant steps to address carbon emissions (Menon and Greenfield 2018). The process underway across the American West is what this project considers to be the precursor to a securitization event. This precursor is water accountability. The continuum of possible reactions, in the face of the requisite pressure, captures the structures and capacities of state agencies to enforce and protect water rights. As states vary widely, it is important to point out that none of the states examined here reach the far end of the water accountability continuum. I outline in Chapter 5 the breakdown of this continuum utilizing a typology based on how prepared states are to manage unauthorized water use (see Fig. 5.1). This process of state agencies adopting more sophisticated processes is linked to the combined pressure of possible securitization of water by the federal government and the adaptation interactions that pressure states to take more aggressive action toward protecting water rights. Few in the water policy community predict an imminent intervention at the federal level, but there is a long history of federal intervention in criminal justice and the research has established that there is always the possibility of federal intervention into states’ rights.9 The U.S. Supreme Court has routinely sided with the federalism argument,10 particularly when it pertains to system failure. In the case of the American South during the Civil Rights Movement, failure was a systemic violation of basic democratic principles. In the case of water scarcity in the American West, it’s the possibility that the systems on which most communities rely will not function as expected. As it stands now, unauthorized water use cases are only adjudicated in civil court, and water is one of the only things you can steal without

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being arrested. Even if the number of unauthorized water use cases is negligible compared to the totality of water consumed within a jurisdiction, the appearance of weak enforcement could easily be used by various actors who seek action on related water issues. In essence, water accountability is all of the possible policy actions that state water agencies can do before this issue area is taken over by the security state. As has been documented across the environmental security literature, critical resources become targets of military operations when they do not function to the satisfaction of a significant portion of the population, or become prized targets to either seize or destroy. As was outlined in Chapter 3, there are a range of steps states can take to respond to unauthorized water use. These include the management of case data, the investment in investigations, educational and outreach efforts, criminalization of unauthorized water use and other policies. There is also water accountability on the policy actors who occupy the policy environment, emerging from their constituents’ experiences with water scarcity. Residential homeowners with lawns are asked to alternate their water days based on their house number or other locational information (Ring 2018). Agricultural water users are asked to invest in expensive drip irrigation systems, costing thousands of dollars per acre.11 Environmental groups are asked to accept lower levels of river water, even if it means harm to the fish populations and other critical environmental features.12 Everyone is already making sacrifices. As the restrictions tighten, as they are expected to do, state agencies and the federal government can expect trouble if the problem becomes widespread and state agencies are not able to manage it. Affected users, from urban residents to agricultural producers, will scrutinize every facet of water policy and seek equality in the sacrifices being demanded. Just as the political and judicial institutions of the American South were not prepared to comply with contemporary interpretations of the U.S. Constitution after the Civil War given the racist ideology that dominated the region. Likewise, western states may not be able to comply with the political demands of water users across the region, or accept the nature of human-driven climate change, forcing the federal government to take action. While the threat of federal involvement is rarely discussed in the water literature, scholars are in agreement on the need for bold action to address the water scarcity crisis, which has arrived or is coming, depending on definitions. The wealth of literature on this topic speaks to its importance. Scholars, activists, political leaders, and community members have

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repeated the narrative that there is a water crisis in the region. This is the kind of speech act that, according to Buzan et al. (1998), can contribute to a narrative of severity that calls for bold action. Consider that Marc Reisner, whose opus, Cadillac Desert is widely cited in western water discourse, ends his book by saying inertia is the story of the West, and at some point the region will “go back to the future” to solve its issues (Reisner 1986). Barnett (2008) speaks to the “American illusion of water abundance” as a myth about to end, prompting shocks and a crisis. Doremus and Tarlock’s (2008) examination of the federal action in Klamath Basin in 2001 and 2002 illustrates a kind of water rights protection, albeit around differing allotment and not theft. At the center of that action was a rule-making decision on how to enforce environmental regulation of stream in-flows for fish population survival, demonstrating that the federal government is not absent across the regulatory environment. The federal government has, in fact, been responding to water scarcity for years. The USDA maintains agricultural disaster assistance programs, which cost $13.4 billion in fiscal year 2012 alone.13 There is of course the Farm Bill, another multi-billion effort to support the agricultural sector, in part for security reasons.14 The federal government has a significant stake in the outcome of this crisis. How, where, and under what conditions the federal government would take more direct action is unknown, but the crisis narrative that is emerging suggests that states will adjust their methods of management and enforce water rights within the region to avert intervention. The lack of uniform water policy across the region is a common refrain in the literature. A return to Reisner (1986) illustrates this, as does a look at the Pacific Institute’s research, which has repeatedly examined the difficulty, particularly in the intermountain West, of adopting more environmentally friendly regulations. These contributions highlight the untenable situation where a critical resource has jurisdictional boundaries that undermine the application of best practices across basins or regions where water users engage in similar processes of use. In these circumstances, a federal-level response to the problem of water rights protection may become attractive, especially in the face of system failure in water distribution. In sum, the nature of the state response to water issues, the history of federal involvement, and the critical nature of water scarcity to the social, political, and economic dimensions of life across the region make a federal response a possibility in a water scarcity crisis.

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Water Accountability, Adaptation Interactions, and Securitization The intersection of adaptation interactions and possible securitization by the federal government creates the conditions where concrete and specific actions are taken to secure the water rights of water users. These actions, such as building robust and driven decision making, make up water accountability, and include the improvements in capacity states make to more successfully secure property rights. A key consideration is that the perception and reality of policy are two different things, and that states will be pressured to adopt a variety of polices, not all of which will be successful. This project focuses on the state agencies, but it is clear that such pressure can be applied to a variety of water users. Individual water users can experience the impacts of water accountability, as can local water managers, industrial water users, and residential users are directed or encouraged by state water agencies to adopt various practices in line with state action on protecting water rights. Conservation efforts in particularly water scarce communities of Arizona and California represent how residential water users can be subjugated to the pressures of water accountability. Likewise, local water managers, such as irrigation districts, can also face similar pressure, particularly in dry years, to adhere to proper management of their water supplies, promptly resolve conflicts, and ensure that water users are following procedure on alternating watering days, allocations, and other guidelines. A core tenet of the argument advanced here is that water accountability can be institutionalized within state structures. How much of this has occurred and why is the core research question this project addresses. Water accountability can be institutionalized through any action, direct or indirect, that supports or protects water rights. A main state response of interest is in cases of cases of unauthorized water use, but there are other actions, such as requiring permits for groundwater, education efforts, and support for collaborative agreements. This section details the kinds of contemporary policy responses that make up water accountability. Water accountability is a moving target, in so much that the demands for change and the policy ideas that are generated from the various actors change over time. As detailed in Chapter 3, there are a number of tools and approaches states can use to protect water rights, including conjunctive use, groundwater permitting processes, metering, and collaborative agreements. As

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we have seen across the region, states can take additional and aggressive actions to address water scarcity that were not deemed necessary or critical to the management of water resources. For example, the State of Idaho is requiring Elmore County, Idaho water users to install meters for groundwater users. A primary focus of this project is the back-end enforcement of water rights, primarily to address unauthorized water use. But the concept of water accountability captures additional actions from the state, including actions on the front end of water distribution. This can include outreach and education, support for collaborative agreements, and resolutions to disputes. The judicial branch is clearly a major adjudicator of disagreements on water rights, however, the scope of this project is contained to the executive and legislative branches of state governments, primarily the actions state water agencies take, either via legislative directives, or from internal rule-making capacity. Chapter 3 detailed the various status quo responses to the protection of water rights across the 11 states examined here. This section builds on that content by demonstrating the growth of sophistication and capacity that can be illustrated by variations in policy response. I break down the policy options into several categories. The stronger the water accountability pressure, the more sophisticated and expansive a state’s efforts should be to protect water rights. Unauthorized Water Use Response It is clear that states apply a range of tools and financial resources to address reported incidents of unauthorized water use. To capture the variation, it is important to note that there is always more that can be done. Investigation and investigation tools can always be more sophisticated and detailed in their approach. Funding for additional staff can increase the investigative capacity. As Chapter 5 details, the range includes tools and strategies that have not yet been implemented by any state water agency in the American West. One option in front of states, is to criminalize unauthorized water theft. In that view, a parallel consideration, particularly when it comes to combating crime, is proper reporting and data collection procedures. As discussed in Chapter 3, states have a wide variety of approaches to the centralized collection of data. In the case of unauthorized water use, states aiming to increase their capacity should collect, in a uniform manner and a centralized location, the number of cases and relevant

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details about them. Of course, there is always more information that can be utilized in any investigation; data collection procedures that focus on gathering more would only aid in the sophistication of the state action on water rights protection. In conjunction with education and outreach efforts discussed below, making that data publicly available would further bolster their position. Conjunctive Management Much has been written about the importance of conjunctive management in the western U.S.15 The scientific community has made a critical contribution to water management with its emerging understanding of the ways in which ground and surface water are linked. For over a decade, the federal government has acknowledged the importance of conjunctive management in protecting water rights and has worked to facilitate long-term management plans based on the best science to date.16 States who recognize conjunctive management are more likely to have a strong scientific basis for their water rights protection schemes. Groundwater Protections We must consider the importance of groundwater and the nature of groundwater depletion, another geological issue that has become more understood in recent decades. Many states do not have sufficient protections for groundwater, either against depletion or contamination. Although this book does not address the pollution issue, one could easily argue that protections against contamination would be under the purview of this analysis. These protections range from required metering, as in Elmore County, Idaho, to a more sweeping regulatory approach such as California’s 2014 Sustainable Groundwater Management Act. Outreach and Education Some states reported that they conduct various types of outreach and education efforts in their pursuit of protecting water rights across their state, including notifying the public regarding the various processes surrounding water distribution. This could take the form of newspaper advertisements or even phone calls to water users, announcing use regulations that would be dependent from year to year on available supply,

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thus requiring annual outreach. Any outreach and education effort would also benefit from strong relationships with sub-state water managers, particularly canal companies and regional water masters not on the payroll of the state. An annual conference would be one possible way to coordinate information flow, establish and strength networks, and offer trainings in line with state policy on protecting water rights.17 As will be discussed in Chapter 5, the level of effort and sophistication of this outreach and education is a continuous variable with multiple dimensions. State Compacts State compacts on transboundary river basins is an additional tool state can use. This helps overcome the lack of uniform policy between states and further averts federal action, by demonstrating state-to-state cooperation and agreement on enforcement mechanisms. As Fowler and Castellano (2017) point out, California was found to have a higher rate of enforcement against unauthorized water use on the Klamath River than other basins in the region because of the influence of a longstanding agreement with the State of Oregon. These policy options all contribute to water accountability and drive state decision making in the face of political pressure and preexisting legal requirements. These preexisting legal requirements are often somewhat vague, typically in the form of legislation passed over decades or case law that has shaped the roles and methods of state water agencies over time. Water management questions have rarely been the focus of political campaigns in the American West, with a few exceptions.18 Rather, actors in the policy environment mainly use standard lobbying routes to direct information toward state policymakers, encouraging them to take action on water-related issues. In the case of IDWR’s action on Elmore County, the impetus was the preexisting legal order for IDWR to protect water ways in the state. Water accountability occupies the place between some level of action on the issue of scarcity and outright securitization. The level of water accountability varies significantly from state to state. The key factor in this variation is the degree to which scarcity has hit the state, and the level of adaptation interaction that has occurred. The level of scarcity, detailed in Chapter 5, is measured using the number of irrigated acres, drought data, and population trends within the state.

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The Future of Water Accountability Residents of the western U.S. will be touched in some way by water scarcity in the coming years. Where once only a small group of stakeholders (agricultural users, environmental groups, tribal governments, and state agencies) were focused on water policy, the range of people concerned with water accountability will increase dramatically. Water use and management issues will proliferate in the public consciousness, as water scarcity across the region grows into a major household policy issue. No longer will Los Angeles residents be alone in having to alternate watering days, but those in currently water-rich environments will also be challenged to address their own water consumption. Water scarcity will also impact those beyond the region, as food costs will increase, and disruption caused by scarcity will have numerous other second- and third-order reactions that are difficult to predict. The political pressure on states to take action will be great, and will be related to the degree to which citizens are asked to reduce their water use. For example, during the water rationing that occurred in California between 2015 and 2016, there was great outcry and increased attention paid to any cheaters in the system. Water use violations spiked in 2015 and many Californian counties set up hotlines to take water violation reports. Such experiences with water scarcity should influence regulatory response, as risk-adverse decision makers will need to ensure water use compliance in the future. Thus, water accountability will increase moving further into the twenty-first century. In some ways, we are already beginning to see what water accountability looks like. Consider water-rationing policies put in place in 2015 in California, which included $500 fines for watering residential lawns on the wrong day of the week and fines for restaurants who served water without patrons specifically asking for it. Such regulations represent water accountability, as water users, even residential ones, are under strict guidelines on how water can be used and face heavy fines when the rules are not followed; importantly, these fines are often greater than those experienced by violators in the agricultural sector. For residential water users, the violations can be captured easily given that water meters are closely monitored in most municipal systems. This again is different from what occurs in the agricultural sector, where metering is relatively uncommon and inconsistent, both across the region and within states. Given these dynamics, it is the contention of this book that the fear or

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threat of unauthorized water use will be such that various groups will want to see action to ensure fairness and protection of property rights. In other words, they will demand greater water accountability. This chapter lays out several scenarios for what that policy action might look like. The literature that has emerged in recent years on the securitization of water19 largely focuses on developing nations and management of shared waterways, and paints a picture that should be concerning for any water user anywhere. The unraveling of past practices and the disruption of the hydrologic cycle create the need for change across actors in a given basin. In the American West, this project argues, climate change and population growth are going to turn the public’s attention to the nature of enforcement, the state capacity to do so, the outcomes of these policies. These two trends underscore the importance of water scarcity in the American West and support the need to further consider the possibility of water securitization in this region. As discussed in previous chapters, current climate data and predictions of hydrologic trends support the notion that climate change will create greater water scarcity in the near future, generating major concern for the region’s stakeholders. Population growth is a particular concern for water distribution. The jump from 19.5 million people in 1950 to 72.1 million in 2013 has increased demand for water use, and expectations are for those numbers to rise (U.S. Census 2016).20 The book has laid out the case that water accountability will emerge as a major policy issue that states must address, as inaction will have significant political, economic, and social consequences. As noted in Chapter 3, an increase in water accountability requires a group of stakeholders to become concerned with unauthorized water use, which can influence the degree to which water scarcity and unauthorized water use are viewed as a policy concern. When something is viewed as a policy concern, it is much more likely to make it onto the policy agenda (Page and Shaprio 1983). The policy environments at both the state and federal levels are necessary to consider here. When considering the policies that currently exist to address water scarcity and ensure water accountability, it is important to acknowledge that states vary with regard to political environments, stakeholders, as well as water management policies. One key state to consider is California, where recent policy changes demonstrate an increased response from policymakers aiming to increase water accountability. For instance, California aimed to increase

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regulatory oversight on groundwater pumping through legislative action in 2015. The law does not impose restrictions on groundwater use for some 20 more years, but it does require metering and other oversight geared at ensuring that overdraws and unauthorized water use do not undermine the overall supply or the supply of water for senior water right holders. While viewed by many as a weak attempt to stem aquifer drawdown, the fact that legislation was passed at all is still significant. Other states, such as Colorado, have clear regulations in place which force new permit applications for groundwater to ensure that the proposed operations do not harm senior water right users. These are just a few examples of existing laws and regulations at the state level which help to ensure water accountability, particularly in times of water scarcity. We can also look to Idaho to understand current practices and policies related to water accountability at the state level, which may be initiated not only by politicians but by those working within water use agencies. Increased concern about managing unauthorized water use prompted the IDWR to produce an internal report to capture water compliance activities in the state. This was initiated by mid-level bureaucrats, rather than the legislature. The IDWR has also moved to upgrade their reporting system and the quality of the data they produce, including the format, an indication of their concern with compliance and enforcement. Their actions may also be motivated by a concern that they will be asked in the future to report on their progress on this issue, or to protect the agency from political retribution and citizen outcry. This reaction may also foreshadow increased pressure on these agencies in the near future. Such increased pressure for water accountability is likely to come from a multitude of sources. As is outlined in this chapter, federal government involvement will likely be motivated by macroeconomic concerns such as the role of water scarcity on increasing inflation and the consumer price index. At the state level, the first burst of pressure will likely not come from rural areas. Rural agriculture producers, many of which are large corporate entities, are not going to invite greater regulatory involvement. Likewise, small plot farmers are unlikely to initiate increased water accountability at the state level. I spoke with a number of small farmers in Elmore County, Idaho, who reported to me concerns over the increased cost of having to comply with meter requirements that had recently been implemented. They also feared that in 2019, many junior water right holders would be forced to reduce their draws from the aquifer.

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Agricultural users are likely to split along lines of seniority, as increased state resources for managing unauthorized water use will clearly benefit the more senior water right holders. These benefits will come at the expense of the junior water right holders, complicating any united front among the agricultural sector. Instead, the pressure for increased water accountability is likely to come from urban residents, who will face greater restrictions on water management based on the overall shortages in the systems that feed those urban areas. As has been seen in California, municipal or urban water systems suffer from the same shortages that rural areas do, but they often don’t have the same leeway or flexibility in reducing the flow of water. Whereas farmers can let fields lie fallow, city dwellers all still need to drink. These types of shortages increase prices for urban consumers, not to mention the fines for municipal water users violating rationing regulations. At the core of municipal water users’ concerns are the fairness and effectiveness of water right compliance. America’s approach to countering crime has cemented in the minds of many certain ideas about the capacity and responsibility of the state to address a particular problem, particularly if the issue can be framed in such a way as to demonize or isolate the cause. Certainly if everyone is being asked to conserve water, and it comes to the public’s attention that there are water users who are taking more than their share or who are not paying for it, people would expect accountability. While public opinion nationwide has soured on the “tough on crime” movement that helped spawn the war on drugs and subsequent rise in the number of incarcerated people in the U.S., an environmental crisis would pose a different kind of threat, one that, at least at the outset, would not have a social issue component that fuels, for example, racial justice-oriented anti-incarceration efforts.21 That said, water policy enforcement may, like drug enforcement, become complicated by issues of race and class. Urban water users will likely be joined by environmental groups in calling for greater water accountability at the state level. Many environmental groups have become concerned with reductions in water levels, particularly reductions in surface water levels, where withdrawals have a direct influence on the survival rate of various fish species. This is the case across the 11 states of concern in this research; several of these states have rivers and lakes which currently hold species considered endangered or threatened, and are likely to face greater challenges for survival in the

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long term. In sum, pressure to increase water accountability in the future will likely come largely from urban areas and environmental groups. In the next section, I consider additional policies that could be implemented at the state level that could increase water accountability in the American West. The threat of federal involvement is simply not the far-fetched outcome that many water policy experts seem to think it is, although I have received feedback on drafts of this project, both in journal article format as well as paper presentations at academic conferences, to that effect. The fact is, there is already significant federal government attention on this issue. Take the management of the Colorado Basin, for example. Lake Mead, the important reservoir on that system, has suffered significant drawdowns in recent years on account of the region’s drought, often attributed to climate change. A 2007 agreement between the states and the federal government stipulates that reservoir levels must not decline below 1075 feet above sea level. In early 2019, Brenda W. Burman, the Commissioner of the U.S. Bureau of Reclamation, indicated federal interest in intervention, saying that “without an agreement to deal with shortages in the basin,” the bureau would “take action to protect the river” (Schwartz 2019). The threat is real and remains in the backdrop of water scarcity responses in the west, including those around protecting water rights.

Conclusion This chapter has theorized the variation in state response to unauthorized water use and water rights protection. I have argued that adaptation interactions occurred due to the combination of political actors in the states and those adaptations are amplified by the possible federal intervention to protect water rights. Starting with a focus on unauthorized water use in the American West, this chapter has argued for the variation across western states and evaluated how prepared the states in this region are to address water right compliance during climate change adaptation. Chapter 3 established that states vary significantly from one another in terms of how prepared they are to implement climate change adaptation policies, and in particular deal with water scarcity. There is still a lack of clarity with regard to how large a problem of unauthorized water use will be in the future, as it is difficult to predict that multitude of factors that shape water use outcomes. I have argued that management of water rights violations has the potential to be a major problem for the

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American West in the twenty-first century. Evidence thus far suggests that it is not a significant drain on water supplies, with the exception of a few instances of major (Byron-Bethany Irrigation District) or systemic (Wapato Irrigation District) unauthorized water use violations. As is the case in Oregon, there are many instances where a high level of compliance among water users is the norm. However, there are, and will continue to be, enormous pressures on the water distribution system as climate change strains the supply and population growth increases the demand. These factors will likely pressure state agencies to take further action to ensure the viability and sustainability of water distribution.

Notes









1.  There are of course many other policy change theories, such as policy streams (Kingdon 1995) or advocacy coalitions (Sabatier 1988), as Minstrom and Norman (2009) cite. While these offer insights into the policy change process, the explanatory power of “adaptive interactions” is greater. 2. By this there are multiple policy actors well established politically and have built legal precedent that guides and manages water policy. As established in Chapter 2, there have been numerous challenges to prior appropriation for example, and the implications of that policy. 3. The data from the drought years of 2013 indicate a sharp increase in reported abuses to California’s Department of Water Resources Agency. 4. See the State of California Sustainable Groundwater Management Act. 5. It was front page news in Idaho when in early 2019, the new Governor of Idaho, Brad Little, acknowledged climate change is caused by human action. Ridler, Keith. January 16, 2019. “Idaho Governor: Climate Change Is Real, and It Must Be Reversed.” Idaho Statesman, A1. Print. 6. The agreement between surface and ground water users in the Eastern portion of the State of Idaho represents a strong case to where the grassroots movement forced the state to take control of mediating between two dueling coalitions, who otherwise would have engaged in costly and economically consequential litigation. The agreement was finalized in 2015. See O’Connell, John. “Idaho Aquifer Agreement Finalized”. July 2, 2015. Capitol Press. https://www.capitalpress.com/state/idaho/ idaho-aquifer-agreement-finalized/article_84495016-fd66-506f-a47a8aeb891d29fe.html. 7.  Consider the case of Washington Governor Jay Inslee. Mr. Inslee announced his decision to run for the Democratic Nominee for the President of the U.S. on March 1st, 2019 making climate change the defining issue of his candidacy. According to analysis by the New York

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Times, Mr. Inslee through the first month of campaign made a mention of climate change in 80% of his social media posts. His ability to speak as a credible actor on climate change was rooted in his years as the Washington State Governor committed to climate change. 8. In January 2019, the new Governor of Idaho, Brad Little, acknowledged climate change is real generated state and regional headlines. See Benson, Emily. January 18, 2019. “Idaho’s New Governor: ‘Climate Change Is Real.’” High Country News. https://www.hcn.org/articles/climate-changeidahos-new-governor-brad-little-recognizes-that-climate-change-is-real. 9. The issues of federalism date back to the drafting of the constitution, and make for a sizable body of literature within both political science and law. One prominent example, however, of the federal government intervening into state legal systems, because of their response (or lack thereof) to various civil and criminal cases, is the Civil Rights Movement across the U.S. This can be demonstrated in both the civil rights legislation and law enforcement action across the American South during the 1960s. 10. One can start with Marbury v. Madison, but decisions throughout the nation’s history have established the powers of the federal government are greater than those of the states. 11. While costs have come down for drip systems, the initial investment can be $1000–$2000. Previous years, however, the costs were more. See Wichelns, D., Houston, L., Cone, D., Zhu, Q., and Wilen, J. 1996. “Farmers Describe Irrigation Costs, Benefits: Labor Costs May Offset Water Savings of Sprinkler Systems.” California Agriculture 50: 11–18. 12. The recent application to divert water from the Gila River in New Mexico highlights the challenges and dynamics the various political actors are facing. See Paskus, Laura. November 6, 2015. “Will New Mexico Lose Its Last Wild River?” Audubon Society. https://www.audubon.org/news/ will-new-mexico-lose-its-last-wild-river. 13. For a detailed analysis of USDA agricultural disaster assistance, see Stubbs, Megan. July 27, 2017. “Agricultural Disaster Assistance.” Congressional Research Service. 7-5700. https://fas.org/sgp/crs/misc/RS21212.pdf. 14. There are many works on this, but a Heritage report from 1988 illustrates some of the political dynamics at play in the passage of the 1985 Food Security Act, which increased support for farmers to compete on global markets while still having domestic market access. Sutler, Robert G. 1988. “How to Wean the American Farmer from Washington.” Accessed April 16, 2019. https://www.heritage.org/node/21786/ print-displayEPORTAgriculture. 15. For a comprehensive look at conjunctive management, consult, Blomquist, William, Schlarger, Edella, and Heikkila, Tanya. 2010. Common Waters,

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Diverging Streams: Linking Institutions and Water Management in Arizona, California, and Colorado. New York: Routledge. 16.  Consider the testimony of Deputy Assistant Secretary for Water and Science, U.S. Department of Interior, Jason Peltier in front of the U.S. House of Representatives Committee on Government Reform, entitled, “Conjunctive Water Management: A Solution to the West’s Growing Water Demand?” In his testimony, Mr. Pelteir argued that conjunctive water management was a necessary response to prolonged ground water pumping, that was essentially undermining water rights and the ability of water districts to provide allocated water. He went on to acknowledge the state’s jurisdiction on the matter, but that it would be good if more states, and in particular water districts take steps to increase their utilization of this management technique. 17. The State of Oregon, for example, takes out notices in local papers at the beginning of the year announcing policy changes and flow levels that inform individual water users about their available use. 18. In Nevada, the curious case of Dennis Hof presents as a rare exception. A long-time Brothel owner turned candidate for the Nevada State Assembly in 2018, Mr. Hof passed away less than a month before the election. He won anyway, and a replacement was appointed per Nevada law. Prior to his death, his campaign highlighted the need to protect water rights. On his campaign website, he listed as one of his agenda items, that “I will work to ensure that domestic well use rights of individual well owners are not sacrificed to pave the way for large scale developments, water utilities, and commercial/industrial ventures to set up shop in District 36.” An indication of the kind of issues facing the district and state of Nevada. https://www.dennishof.com/issues/. 19. Turton (2003) is a great example of this literature. Turton, Anthony R. 2003. “Water as a Source of Conflict or Cooperation: The Case of South Africa and Its Transboundary Rivers.” CSIR Report No: ENV-P-CONF 2005-002. 20.  As a reminder, the western states examined here are as follows: Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Utah, Wyoming, Colorado, and New Mexico. 21. Gallup Poll data from 2016 indicates that Americans support of the U.S. Justice system handling of crime has been steadily declining. Those respondents who claim that the system is not tough enough have decline from 83% in 1992 at the height of the crack epidemic, to 45% in 2016 after the emergence of the Black Lives Matter movement. See McCarthy, Justin. October 20, 2016. “Americans’ Views Shift on Toughness of Justice System.” Accessed December 12, 2017. http://news.gallup. com/poll/196568/americans-views-shift-toughness-justice-system.aspx.

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References Barnett, Cynthia. 2008. Blue Revolution: Unmaking America’s Water Crisis. Boston: Beacon Press. Brink, E., and C. Wamsler. 2018. “Collaborative Governance for Climate Change Adaptation: Mapping Citizen–Municipality Interactions.” Environmental Policy and Governance 28 (1): 82–97. Buzan, Barry, Ole Waever, and Jaap Wilde. 1998. Security a New Framework for Analysis. Boulder: Lynne Rienner. Doremus, Holly, and A. Dan Tarklock. 2008. Water War in the Klamath Basin. Washington: Island Press. Fowler, Luke, and Isaac Castellano. 2017. “Creating Accountability with Interstate Cooperation: Unauthorized Use Enforcement on the Klamath River.” State and Local Government Review 49 (4): 234–250. Kingdon, John W. [1984] 1995. Agendas, Alternatives, and Public Policies. 2nd ed. Boston: Little, Brown & Company. Menon, Praveen, and Charlotte Greenfield. 2018. “‘Desperate’ Low-Lying Vanuatu Seeks to Sue Climate Change Culprits.” Reuters News Service, November 21. https://www.reuters.com/article/us-vanuatu-climatechange/ desperate-low-lying-vanuatu-seeks-to-sue-climate-change-culprits-idUSKCN1NR0EX. Mintrom, Michael, and Phillipa Norman. 2009. “Policy Entrepreneurship and Policy Change.” The Policy Studies Journal 37 (4): 649–667. Page, Benjamin I., and Robert Shapiro. 1983. “Effects of Public Opinion on Policy.” American Political Science Review 77 (1): 175–190. Reisner, Marc. 1986. Cadillac Desert: The American West and Its Disappearing Water. New York: Penguin Books. Ring, Edward. 2018. “Permanent Water Rationing Is Coming to California.” California Policy Center, January 17. https://californiapolicycenter.org/ permanent-water-rationing-coming-california/. Sabatier, Paul A. 1988. “An Advocacy Coalition Framework of Policy Change and the Role of Policy-Oriented Learning Therein.” Policy Sciences 21: 129–168. Schwartz, John. 2019. “Amid 19-Year Drought, States Sign Deal to Conserve Colorado River Water.” New York Times, March 19. Shove, Elizabeth. 2009. “Beyond the ABC: Climate Change Policy and Theories of Social Change.” Environment and Planning 42 (4): 1273–1285. U.S. Census Bureau Quickfacts: United States. 2016. https://www.census.gov/ quickfacts/fact/table/US/PST045218.

CHAPTER 5

Empirical Assessment of State Water Rights Protection Efforts

Methodology The analysis presented here develops a typology to examine the variation in state response to water scarcity. Typologies are a well-used tool in the social sciences to form and refine concepts, draw out underlying dimensions, create categories for classification and measurement, and sort cases, while also providing explanatory power.1 Conceptual or descriptive typologies can be defined as those that “explicate the meaning of a concept by mapping out its dimensions, which correspond to the rows and columns in the typology” (Collier et al. 2012). Descriptive typologies can be used to test explanatory claims. More commonly employed for testing hypotheses are explanatory typologies, “in which the rows and columns are explanatory variables, and the cells contain hypothesized outcomes” (Collier et al. 2012). Among a range of water policy choices and outcomes, this project has narrowed the focus to the specific reactions of the state around the enforcement of water rights. I use “pragmatic compression,” where “certain groups of combinations are contracted to one class in view of the research purpose” (Lazarfeld and Barton 1965, 174, quoted in Elman 2005). I combine this approach with “logical compression.” There are several distinct and credible critiques of the use of typologies.2 The growth of quantitative methods in the social sciences has increased an emphasis on large-n analysis. This approach most certainly could be used in the topic being examined here. However, such an © The Author(s) 2020 I. M. Castellano, Water Scarcity in the American West, https://doi.org/10.1007/978-3-030-23150-7_5

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examination would need to make some considerable reductions in the depth of the analysis provided. The protection of water rights, as elaborated in Chapter 4, entails a large number of activities and policies. And while a great effort has been made to capture the bulk of state agencies’ work to protect water rights within their jurisdictions, there simply are too many components and moving pieces to build an indexed variable that could be utilized as the dependent variable in this study. And while, as Collier et al. (2012) point out, statistical methods have been applied to nominal scales, the level of detail that would be lost in an effort to quantify the various components of the state response, would undermine the capacity to come to conclusions about the status of water accountability among the sample and what is driving it. The utilization of a typology, therefore, offers the analysis here a level of depth that provides an opportunity to examine the influence of water scarcity and the threat of federal intervention in the form of securitization, as well as the impact of “adaptation interactions.” The concept of water accountability is mapped out using a conceptual typology, through which I am able to break down the various outcomes observable across the 11 states examined here. I add an additional category, the next stages proposed in Chapter 6 as well as a parallel box, which includes the options available to the federal government in their effort to securitize the water in the region. The timeframe for this study is the year 2015. A single year was chosen because of the dimensions of the data collection and the stationary construction of the typology. The year 2015 was selected for a variety of reasons, data was collected in 2015 and 2016, the same moment in which climate change became a major political issue and the Obama Administration took a number of actions to address it.3 The single year also serves as a cut-off point at which to evaluate the causal relationship between the forces of adaptation interactions and securitization and the capacity of states to respond to water accountability. The cut-off year approach offers an opportunity to evaluate the changes among states and the multidimensional nature of the dependent variable, water accountability.

The Data Before the typology is introduced, it is important to catalogue the data used to build it. There is of course a wide range of policies states can employ to protect water rights. This study has narrowed down those

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policies to five specific actions states have taken (or not taken) to protect water rights, and therefore make up the dependent variable of water accountability: 1. Collect data on unauthorized water use 2. Make the data on unauthorized water use cases available to the public (publication on State website) 3. Fund field investigations (state spending per irrigated acre) 4. Publish annual report on unauthorized water use 5.  Implement a robust groundwater management plan built on accountability. This data was collected from a number of different sources, including interviews with staff from each of the state water agencies in the 11-state sample, as discussed in Chapter 3. Other data was collected from public records requests, accessed on state agency websites, and drawn from other publicly available reports. The data sources are detailed in the next section. Collect Data (Is There a Centralized Process to Collect Data?) The first criterion examined is the level of centralization of state data collection procedures. I asked the question of all 11 state water agencies detailed in Chapter 3, “Is there a central, standardized process in which reports of unauthorized water use come to your agency?” This is an important component because it demonstrates that the state government has taken steps to ensure continuity among state employees in how they handle such cases. These are large states divided in large sectors; it’s likely that coordination remains a challenge. Some states, including Colorado, Wyoming, and New Mexico, did not collect data at the state level in 2015 while the other states maintained a centralized system. Focusing in on the three states that did not collect any data, it is clear that much of the challenge in data collection is due to a lack of resources and capacity. The State of New Mexico responded to my inquiry via a written letter, which stated that the state does not retain reports or complaints of unauthorized water use. The State of Wyoming does not systematically collect data on complaints. Upon request, the Wyoming Deputy State Engineer asked the superintendents for each of the four regions to individually answer the

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question of how many complaints of unauthorized water use they had received. The responses I received suggest that Wyoming’s record keeping is limited to the institutional knowledge of the individual superintendents in the four regions, as the superintendents did not have a uniform process to manage unauthorized water cases. The state official I spoke with believed the state has handled cases of unauthorized water use appropriately, and there appeared to be little interest in formally detailing and cataloging the cases of unauthorized water use that had emerged. Colorado produces an annual report that discusses certain circumstances of water use noncompliance. For example, the Colorado Division of Water Resources (CDWR) 2016 Annual Report briefly mentions that 20 homeowners on the White River had not been in compliance with an order to install meters, and that “water administration in water year 2016 in Division 6 was limited to the typical calls (15)” (State of Colorado 2016). But as I was told by a CDWR spokesperson, the state does not uniformly collect compliance data. The states that did collect data on unauthorized water use provided it in two general forms, and with varying degrees of accessibility. Nevada officials, upon request, compiled their records and made them available to me; however, the data received was only the raw numbers of cases and none of the case details. Neither the detailed records nor the raw numbers are available on their website. Due to the sensitive nature of the data, the state has chosen not to make complaints or activity publicly available, but files are available for viewing in the Nevada Division of Water Resources (NDWR) office in Carson City. However, in 2009, the State Engineer established an Alleged Violation Case Program, indicating that there had been growth in the concern over unauthorized water use. The Nevada records in Carson City presumably contain information on the specific cases, the nature of the complaint, the violation in question, and the outcome of any investigation.4 Idaho recently established a new database, which was brought online in 2013. However, this database is not accessible to the public. When I inquired in 2015, I was told that data collected before 2013 existed but was considered unreliable by the state, as there apparently was no uniform procedure or widespread recording of complaint data by state officials prior to that time.5 When I contacted IDWR in 2017, they had initiated a new procedure to account for compliance violations, and had gone back into their data archives and recoded the cases back to 1994. In addition, in 2016, they created an annual report that detailed the

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number of compliance cases and several of the details of those cases. The creation of the report reflected concerns that compliance would become more of an issue, although the state official did not mention climate change, the implication was that scarcity was going to grow as a policy issue facing the state (Western State Response to Unauthorized Water Use-Idaho Interview 2015). While not publicly available on their website, state officials turned over the report on request. This development, as I discuss in more detail in Chapter 4, is an interesting one given the progressive nature of the report, and the unprogressive nature of the state political elite, who generally dismiss climate science and the difficulty of managing water supplies in the future. Additionally, there was variation in the level of detail in the standardized reporting system, also varied across states, indicating that there was a range of possible information collected by the states that may or may not influence their capacity to enforce water rights. I found that Washington, Arizona, and Montana had data that included case details. And while the data was not posted on their websites, state agency workers were quick to provide the data when it was requested. The most advanced states with regard to data collection and maintenance on unauthorized water use are California and Utah. They had data accessible on their websites along with the details of the cases. The type of details that were contained in the records varied. California case details included a case number, the date the complaint was received, the alleged injury, the course of the complaint, and county of origin and a status update of the investigation. Montana had similar fields and added the complainant’s identity, the water source, basin, and any related water right number(s). Utah’s data contained the same fields as California, and added the regulation action (e.g., measuring device/control structure, delinquent distribution assessment, unlawful use of water, etc.), and a list of related proceedings, such as if a particular entity/individual has had previous interactions with the Utah Division of Water Rights (UDWR); the type of proceeding (letter, cease and desist order, investigation, or informal resolution) and the status of those proceedings; any related submittals; and a comment’s section, which was often used to provide case background. The State of Washington’s reporting procedure was nearly identical to California’s. Complaints can come to state water agencies from a number of sources, but what information is collected influences the overall understanding of trends and activity throughout the state that might cause

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alarm among the various policy actors. Some states, for example, collected the name of offender, the name of reporter, and location, but not how much water was taken or if there were additional code violations. From individual incident reports, it is difficult to get a sense of what happened; thus the ability to understand patterns in behavior and how to counteract them is limited. Table 5.1 shows the breakdown for all of the states and variables examined here. The availability of this data is critical to the policymaking process, as states need to be able to understand the degree to which unauthorized water use is an issue—a potentially serious crime that may undermine the economic feasibility of various operations in their state, including agriculture. As with any other crime statistic, such as assault, murder, or theft, it is difficult to speak to a problem facing a community without having reliable data. States also need to be able to assess their ability to adjudicate cases of unauthorized water use, and need to have a uniform process to assess if there is a violation, the magnitude of that violation, and, most importantly, if that violation was resolved. Consider a state without a data collection system, where there may be institutional knowledge among the staff about how many complaints of unauthorized water use they get, how many times a particular water user was the source of a problem, and so on. New staff members to the organization would be Table 5.1  Data break down by state 2015 State

Collect data Data availa­ on unauthor­ ble online ized water use

Irrigated Annual acres per state report compliance staff member

Groundwater protection regime

Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming

Yes Yes No Yes Yes Yes No Yes Yes Yes No

110,076 314,478 139,821 124,640 118,938 34,389 48,594 38,803 110,425 81,678 179,463

No Yes No No No No No No No No No

No Yes n/a No No No n/a No Yes No n/a

No Yes Yes Yes Yes No No Yes Yes Yes No

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without any historical information to assess the significance of the problem, its temporal and spatial dynamics, and so on. For the purposes of the analysis here, states either collect data or they do not. As discussed above, this information was collected in public information requests in 2015 and 2017. Make the Data Available to the Public (Publication on the State Website) The second criterion is how accessible the data is. This is a critical component, because as the interviews with state agency staff revealed, education is a major component of their work, in their view. Oftentimes, in the case of reported unauthorized water use violations, the state agency educates the water user as to their right and how to remain in compliance. As mentioned in Chapter 3, the more difficult cases emerge from situations where water users refuse to adhere to the order and change their behavior. But states diverge in how readily available unauthorized water use data is. While some states post detailed data on unauthorized water use on their websites, making it readily available to the public, others do not collect data at all. Of the 11 states contacted in 2015, three states did not collect data (New Mexico, Wyoming, and Colorado), three had data from an internal report that was produced annually (Oregon, Idaho, and Nevada), two had internal spreadsheets of the data made available after a request (Arizona and Washington), and two maintained publicly available datasets on their websites (California and Utah). I operationalize the availability of data by considering where the violation data is located and how publicly accessible it is. Obviously, those states without data collection procedures do not have any data to make available. Those that do collect data are put into two categories: (1) those states that have internal reports that require public information requests, and (2) those states that make their data publicly available online. The second category is considered more advanced for two general reasons: First, the data is available to anyone with an internet connection and can be used by a number of decision makers, press outlets, or water users to assess the magnitude of the violations. In the case of the two states that place their data online, important details were also offered, such as the water users involved in the dispute. Second, public shaming or otherwise exposing culprits acts as a form of social control,

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potentially undermining the motivation and desire to commit the illegal act of unauthorized water use. In this way, the public nature of the data serves as an additional mechanism to facilitate compliance with water rights and regulations. Fund the Field (State Spending Per Irrigated Acre) The third data source is how much effort states put toward investigations. There were many ways to measure this and the route chosen— state spending per irrigated acre—has its own set of drawbacks. The upside, however, is that the measure is consistent across the cases examined. I capture this measure by dividing the amount of money the state water agencies spend on compliance by the number of acres irrigated in the state, a figure drawn from the 2012 USDA Farm Census. Irrigated acres are an important figure because agricultural irrigation is the largest draw of fresh water in these states. We can assess the spending versus the scope of possible violations, just as we would examine in a law enforcement context the number of uniformed officers in a police department given the population of the jurisdiction. I also include the number of water managers employed by the state agencies charged with carrying out compliance duties. This data is drawn from interviews with water managers across the 11 states. This helps get at the human resource side of the capacity of state agencies to gather data on water use, including data related to unauthorized water use and subsequent actions. This data can be used to create a value which captures the number of acres on average that each water manager is responsible for, providing a second measure to assess the amount of resources allocated to manage compliance issues. Clearly, there are some drawbacks to these measures. Most important among them is that these measures do not capture other individuals who have responsibility to facilitate compliance among water users but are not paid by the state, such as ditch riders for irrigation companies. The combination of data management practices and compliance spending tells us the amount of resources that the agencies have at their disposal to manage compliance. This is in addition to using my assessment of data management procedures as a proxy for the sophistication of the management strategy. There are of course other measurements that could be used to assess the sophistication and ability of individual water management agencies. However, many of these do not offer precise

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measurements of impact. For example, education efforts factor into the success of water agencies to ensure compliance. As discussed earlier in this chapter, the State of Oregon takes a progressive approach to education and puts it at the center of its compliance strategy (State of Oregon 2016). However, while the compliance numbers they include in their annual report on field regulations and enforcement activities are excellent, it is difficult to capture what makes their outreach and educational efforts different from Nevada, who reported a similar strategy. Further, compliance numbers would be another good measurement to compare among the states, but these numbers are not collected by every state. For these reasons, I utilize data management and budgetary figures as the key methods of assessment for this criterion. Table 3.4 shows the data for this criterion. As discussed above, Utah and California have the most advanced data management practices. I compiled the annual budget for fiscal year 2017 for each of the water management agencies across the 11 states examined here. I drew from the 2012 USDA Farm Census the number of irrigated acres in each state. I divided the total water management agency budget by the number of irrigated acres to get the spending per acre in each state. The average number of irrigated acres per enforcement employee is 118,300 across the states studied; however, California skews the data. The average comes down to 98,000 when excluding California. I contacted water management agencies directly, or examined their budgets to find the number of state-paid compliance personnel for each state. I then divided the number of irrigated acres by the number of compliance staff members. While California has a more robust data collection strategy, it puts great pressure on its staffers to manage compliance. The high number of irrigation and water districts with their own water masters obviously plays a role in California’s staffing numbers, but as I discuss in Chapter 4, informal institutions may also be playing a large role in managing compliance. Water accountability may require the state to take a more active role and increase the number of state-paid compliance personnel. In contrast, Nevada had the lowest staff-to-irrigated-acre ratio, at 34,389 acres per state staffer, but with its low population density it is likely that water compliance personnel are traveling over larger distances to manage their areas. As I discussed in Chapter 4, lowering these ratios is one action states can take to improve future conditions related to unauthorized water use and water scarcity.

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These numbers are complicated by the fact that the number of water managers employed by a given state not only addresses compliance; their job duties may include a range of other tasks. In an interview with Montana’s Water Rights Bureau (MWRB), it was reported that the agency does not have enough staff hours to manage all of the compliance issues that arise and that they are unable to respond to every complaint. Further, Montana does not have an outreach strategy to inform water users of the availability of compliance staff members because they would not be able to handle the potential caseload that could arise if more people knew of their existence. Publish an Annual Report on Unauthorized Water Use The fourth metric utilized in this typology is the presence of an annual report that captures the activities of the enforcement wing of the state agency responsible for water rights. For example, the Field Services Division of the Oregon Water Resources Department produces an annual report, as it has for several years, that captures the totality of the activities of the division, cases they have adjudicated or are currently working on, in addition to a general assessment of their enforcement activities. Producing reports for consumption by agency leadership or the general public is one of the great joys that bureaucrats across the world can indulge in, and remains a major tool of the government in advancing the message that they are taking a particular policy problem seriously. Any policy issue that is to get on the agenda or be the focal point for political actors will be accompanied by a wealth of research, reports, and public-facing documents that demonstrate the importance of addressing that particular policy question. The annual report that captures the efforts made by state agencies to address the water issues facing their communities demonstrates that work undertaken by the state to protect water rights is, in fact, a major duty of the state. The absence of such reporting, research, or other documentation demonstrating accountability to the general public communicates to the public that the state agency does not view the policy issue as a problem. Only a handful of states had an annual report that reviewed the cases and examined practices within the agency, or division of the agency, that had responsibility for protecting water rights. Oregon maintained one of the longer reporting histories, with reports dating back to 2009.

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California, on the other hand, publishes an annual report about the activities of the California Department of Water Resources, but it does not address enforcement of water rights and unauthorized water use issues.6 Other states, such as Wyoming, New Mexico, and Arizona, have no such reports on their websites or in archives for 2015. Implement a Robust Groundwater Management Plan Built on Accountability As discussed, groundwater withdrawals are a major issue facing the American West. A statewide framework for managing groundwater, such as embodied by California’s Sustainable Groundwater Management Act, is the metric used to capture groundwater management. The management and regulation of groundwater becomes central to the proper protection of water rights, as new wells and overuse undermine the rights of senior water right holders. If junior water right holders overuse, there is also long-term damage given the slow pace of aquifer recharge processes. Central to this monitoring is the use of meters and legal authority to require them. The Sustainable Groundwater Management Act in California delegates significant authority to state and sub-state actors to do just that, in a state that previously had little legal oversight of groundwater resources (Sax 2002). California, like most states, only recently acknowledged the importance of conjunctive management of surface and groundwater. This becomes a factor in the data collection process in that most, but not all, states combine ground and surface water violations. Requiring meter reporting to state officials is a rarely utilized mechanism to maintain oversight on water use. Some states have meter requirement for wells, if the water pumped exceeds a certain amount, while other states only require metering if a specific district, such as #161 in Elmore County, Idaho, does not meet some standard or goal for the aquifer, such as withdrawals exceeding recharge levels.7 No state requires metering on all wells. A great number of the contributors to the literature specific to the American West and water management and policy more generally speak to the need to limit use where appropriate. The capacity to do that can be achieved in a number of ways, particularly through collaborative agreements. But as this project has argued, the focus on enforcement uncovers a wide swath of the water-using community without third-party verification of their use patterns. This limitation in information undermines long-term protection of water rights,

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ground and surface alike, since there is no strict and defensible measure to demonstrate guilt on the part of the unauthorized user. The methods used by water agency investigators to uncover unauthorized water use can only do so much to prove additional groundwater is being pumped. The reason that meters were required of water users in Elmore County is because the state needs a strong source of evidence to demonstrate misuse and ensure compliance in a multi-part plan aimed at bringing the aquifer level up. While every state has a well-permitting process, few have created administrative districts to monitor wells and their use levels. California stands alone in its capacity to enforce water rights in the groundwater context. The data presented above in Table 5.1 illustrates the variation in water management strategies across states in the American West, as well as how these states are currently positioned to handle water scarcity. What becomes clear when viewing this data is that there is wide variety across states with regard to adaptation capacity to water scarcity under climate change, and that each state has their own challenges. While some states need to address their data collection issues, others are relying on large compliance-personnel-to-acre ratios, which raise questions about their capacity to provide oversight to such a large area. The data communicates that each state has room to grow, and while those states that do not have data collection strategies are the worst off in terms of managing water accountability, some of them have lower compliance-officer-to-irrigated-acre ratios, indicating a mixed result in determining which state is least prepared.

The Typology Now that the data has been explained and discussed, it is time to move onto the typology employed here. The typology consists of four possible outcomes of the dependent variable water accountability for states, and two for the federal government. As seen in Fig. 5.1, states can have the outcome of Slight, Moderate, Extensive, or Complete, and the federal government can have Extensive or Securitization. The federal government typology outcomes are discussed in Chapter 6, as these are predictive in nature and not rooted in empirical observation. Each category is informed by a series of actions or available policies that states can use to protect water rights, as theorized as the level of water accountability each state has reached, with the data sourcing these. As discussed in Chapter

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Fig. 5.1  Typology of water accountability levels

4, there are many different policies that states can employ to protect water rights. This section breaks down the different policies and where they fit within the categories within the typology. The federal government outcomes in the typology are predicated on the kind of failure, first discussed in Chapter 1, and discussed in more depth during the literature

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review in Chapter 2, of the water system in the West that would require a massive federal intervention. There is no evidence presented to claim such an act is imminent, yet, it serves as part of the theoretical story, offering explanatory power and conceptual clarity to the possibilities facing states as they respond to the pressure of water accountability.8 In the slight category, there is no significant action on behalf of the state to manage or protect water rights via back-end use enforcement. This means that there is a state agency to manage water rights, publication of water rights, and related matters, but that there is limited capacity to perform traditional enforcement duties. It is important to remind the reader that lower levels of water governance are also operating in the region. Local water managers resolve disputes, issue water calls, and confront violators. The focus on this project is not on the local dimensions of water management, however important, but what the state government is doing, or not doing, to protect water rights. In the slight category, then, there is little to see from the state government in terms of data collection, annual reports, or uniform unauthorized water use data collection procedures. This, of course, as with local-level water managers, does not preclude the judicial branch from managing water use disputes. Moderate states maintain a basic response to water rights issues in their jurisdictions and maintain a state water agency apparatus that collects data, but does so in a less-than-capable, non-uniform way. There may be an annual report or public-facing document that captures the activities of the water agency and their work to protect water rights, but neither this report nor case data on unauthorized water use is available on the website. These states do not have extensive groundwater protection policies or related actions. They maintain low numbers of state water masters relative to irrigated acres. Extensive states have a uniform data collection strategy, a web presence where that data can be found, an annual report, and an above-average level of spending on enforcement per irrigated acre, and a groundwater management structure. These states have taken significant steps to establish clear communication between the general public and the state. In this instance there is significant capacity for the state to monitor water use and has developed the knowledge, practices, and ability to pursue those who are not in compliance. Water management includes a conjunctive management approach, with a groundwater management capacity that ensures comprehensive communication with water users on the importance of compliance.

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Table 5.2 Typology outcome breakdown

133

Slight – State water agency, but – No uniform data collection procedure – No annual report – No online access to unauthorized water use cases – No groundwater protection Moderate – State water agency – Uniform data collection procedure – Annual report – Online access to unauthorized water user cases; but – No groundwater protection regiment Extensive – Meets moderate; and – Groundwater accountability plan Complete – Meets Extensive; and – Criminal code for unauthorized water use – Increased spending on investigations

Complete states include those who have met all of the requirements of extensive states, and criminalized unauthorized water use. As discussed further in Chapter 6, states facing greater pressure to protect water rights will be presented with demand for more significant punishments for unauthorized water use violations. A criminal code for unauthorized water use would elevate the significance of the violation and demonstrate that the state is willing to pursue criminal prosecution. These states also maintain all of the other standards inherent in the extensive states, including robust data collection, since once unauthorized water use is a crime, the state will face a greater standard of proof in their actions against violators. The online access to these violations will follow the contemporary publication of crime statistics that every law enforcement agency must do as mandated by federal law (Table 5.2).

Determining State Outcome Now that the data has been discussed and the typology explained, it can be determined which states meet which outcome. Table 5.3 breaks down the states. To start, we examine the slight states, which included New Mexico, Wyoming, and Colorado. Of the 11 states, these three states did

134  I. M. CASTELLANO Table 5.3 Designation of typology outcome by state for 2015

State

Typology outcome

Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming

Moderate Extensive Slight Moderate Moderate Moderate Slight Moderate Moderate Moderate Slight

not collect data and therefore did not have annual reports that were centrally compiled with data. These states did not collect data primarily for lack of resources and capacity. The State of New Mexico responded in a written letter stating that the state does not possess the reports or complaints of unauthorized water use, but that the district offices potentially possess such data. The State of Wyoming does not systematically collect data on complaints. Upon request, Wyoming’s Deputy State Engineer asked the superintendents for each of the four regions to individually answer the question of how many complaints of unauthorized water use they had received. What they reported back varied, but Wyoming’s record keeping can be characterized as limited to the institutional knowledge of the individual superintendents in the four regions, as it was clear the superintendents did not have a uniform process to managing unauthorized water cases. The state officials interviewed believed the state has handled the cases appropriately, although there is little interest in properly detailing and cataloging the cases. Colorado, on the other hand, produced an annual report, but it did not collect data on unauthorized water use in a uniform way. These states also ranked high in irrigated acres per state compliance staff member (Colorado 9th, Wyoming 10th), but New Mexico, with its relatively low number of irrigated acres ranked 3rd among the 11 states. The moderate states were Arizona, Idaho, Montana, Nevada, Oregon, Utah, and Washington. These states collected data and provided it in two general forms with varying degrees of accessibility. Idaho and Nevada provided simple counts of the cases they had. Nevada officials, upon request, compiled their records and then made them available; the data

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received was only the raw numbers of cases with no case details. Neither the detailed records nor the raw numbers are available on their website. Due to the sensitive nature of the data, the state has chosen to not make complaints or activity publicly available, although files are available for viewing in the Nevada Division of Water Resources office in Carson City. In 2009, the State Engineer established an Alleged Violation Case Program, indicating that there had been growth in the concern over unauthorized water use. Idaho, on the other hand, established a new database, which was brought online in 2013 but is not accessible to the public. Data collected before 2013 exists but is considered unreliable by the state, as there apparently was not a uniform procedure or widespread recording of complaint data by state officials.9 Idaho also maintains an annual report, but no online presence with the violation data. The Idaho database and the Nevada records in Carson City presumably contain information on the specific cases, the nature of the complaint, the violation in question, and the outcome of any investigation.10 Some of the moderate states were more advanced in their data collection procedures. Utah had data accessible on their websites along with the details of the cases. Washington, Arizona, Montana, and Oregon had data, which included case details. And while the data was not posted on their websites, state agency workers were quick to provide the data. These states varied with regard to the type of details that were contained in the records. California case details included a case number, the date the complaint was received, the alleged injury, the course of the complaint, county of origin, and a status update of the investigation. Montana had similar fields and added the complainant’s identity, the water source, basin, and any related water right number(s). Utah’s data contained the same fields as California, and added the regulation action (e.g., measuring device/control structure, delinquent distribution assessment, unlawful use of water, etc.), and a list of related proceedings, such as if a particular entity/individual has had previous interactions with the Utah Division of Water Rights (UDWR); the type of proceeding (letter, cease and desist order, investigation, or informal resolution) and the status of those proceedings; any related submittals; and a comments section, which was often used to provide case background. The State of Washington’s reporting procedure was nearly identical to California’s. California is the only extensive state in the sample, on account of the fact that the state meets the moderate criteria, but also maintains a groundwater management procedure. While it ranked the highest in

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irrigated acres per state compliance member, it scored high in all of the other categories. Further, the groundwater legislation is likely to bring down the rate of irrigated acres to staff members, as state-sanctioned and -funded local water agencies take on the job of more detailed enforcement of groundwater users in their area. The outcome of the analysis is that California is above and beyond the rest of the states in terms of water accountability.

Explaining the Pattern By bringing the typology and the data together, I have been able to paint a picture of the variation across the 11 states. Chapter 4 outlined the power of adaptation interactions, which captures the response from a variety of policy actors regarding action on climate change or the outcomes of climate change, and the threat of federal securitization in shaping the variation in water accountability observable across the sample. From this theoretical argument, we get the independent variables which are driving the outcomes observed in the previous section. To measure the role of securitization and adaptation interactions, we look at water scarcity levels in each state in the previous decade and a half leading up to 2015, as well as the level of political organization in each state around water issues (Fig. 5.2). The role of scarcity is easily measured, as drought indicators, well received and developed in the hydrology literature, are employed here. Data maintained by USDA indicates that California and several other states have experienced significant droughts in the recent decades. It’s no surprise that California took drastic and significant action on groundwater in particular in the years following a major drought. Figures 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11, 5.12, and 5.13 detail each state’s drought levels based on the USDA drought classification ranking. The categories range from D0 to D4, with D0 being abnormally dry, D1 being moderate drought, D2 severe drought, D3 extreme drought, and D4 exceptional drought. The data indicates that every state in the fifteen years leading up to 2015 experienced at least a D3 at some point, but that California was the state experiencing the worst conditions by far. It is the threat of system failure that prompts states to take action to advance their capacity to deliver water accountability. Colorado, New Mexico, and Arizona also had significant drought years, but surprisingly did not have the same level of water accountability as California. The other half of the equation

5  EMPIRICAL ASSESSMENT OF STATE WATER RIGHTS PROTECTION EFFORTS 

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Fig. 5.2  Drought classification (Source United States Drought Monitor)

Fig. 5.3  Arizona drought history 2000–2015 (Source United States Drought Monitor)

helps explain that. Adaptation interactions are measured by bringing together several contributing factors. The first is the size of the agricultural sector, discussed in Chapter 3, with productivity numbers displayed in Table 3.3. The second factor is the level of professionalism in the

138  I. M. CASTELLANO

Fig. 5.4  Colorado drought history 2000–2015 (Source United States Drought Monitor)

Fig. 5.5  California drought history 2000–2015 (Source United States Drought Monitor)

Fig. 5.6  Idaho drought history 2000–2015 (Source United States Drought Monitor)

legislature. The state legislature is the epicenter of power to expand the legal authority, funding, and political capital necessary to take on what is largely an agricultural sector issue. Several other policy actors, discussed in Chapter 3, are also likely to take an interest in the protection of water

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139

Fig. 5.7  Montana drought history 2000–2015 (Source United States Drought Monitor)

Fig. 5.8  Nevada drought history 2000–2015 (Source United States Drought Monitor)

Fig. 5.9  New Mexico drought history 2000–2015 (Source United States Drought Monitor)

rights in their states. The last component is how well organized the environmental movement is. The professionalism of the legislature is a commonly utilized variable in political science studies of state behavior. The National Conference of

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Fig. 5.10  Oregon drought history 2000–2015 (Source United States Drought Monitor)

Fig. 5.11  Utah drought history 2000–2015 (Source United States Drought Monitor)

Fig. 5.12  Washington drought Drought Monitor)

history 2000–2015 (Source United States

State Legislatures (NCSL) produces a typology breakdown of state legislatures. The professionalism of state legislatures is a critical determining factor in a number of policy and procedural outcomes for state governments (National Conference of State Legislatures 2014). For the focus

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Fig. 5.13  Wyoming drought history 2000–2015 (Source United States Drought Monitor)

here, we expect professional (or green) legislatures to be less influenced by rural voters—the natural opposition to greater oversight and regulatory power given the conservative nature of rural America. We also expect professional legislatures to have more staff and therefore time to dig more deeply into the complicated issues that surround water use (Table 5.4). But these professional legislatures also need to be accompanied by a robust counterbalance to the well-established agricultural sector. They need to have an environmental movement that is also advocating for change. To capture this outcome, I utilize the 2015 National Environmental Scorecard for U.S. House Seats, produced by the League of Conservation Voters displayed in Table 5.5, which measures the environmental record of U.S. House members by state. While not the state government, the measure gives a suitable picture of the ability of elected officials to vote favorably for environmental regulations and protections that are often associated with elements of water accountability policies, as discussed in Chapter 3. The combined data from the agricultural production, professionalization of the legislature, and the ability of pro-environmental candidates to win House races reveals great variation in adaptation interactions occurring throughout the region. The front and the back of the pack have clear causal processes. California, with its recent and significant history with droughts, its large and well-established agricultural sector, its professional legislature, and a robust environmental movement has produced the highest level of water accountability across the 11 states. Wyoming, Colorado, and New Mexico retain lower levels

142  I. M. CASTELLANO Table 5.4 Legislature professionalism

Table 5.5  League of conservation voters U.S. house seat scorecard

State

Typology outcome

Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming

Gray Green Gray Gold Gold Gray Gold Gray Gold Gray Gold

State

Range of favorability (%)

Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming

20–39 60–79 40–59 0–19 0–19 20–39 60–79 60–79 0–19 40–59 0–19

of water accountability. The odd cases are states like Utah, who have long maintained strong unauthorized water use regulations and data collection procedures, but also retain majorities of Republican and other state leaders who are opposed to environmental regulation. It is interesting to note that states like Washington also have advanced regulatory dynamics, but do not have a full-time legislature; several areas of the state often vote for Republican candidates who resist regulatory oversight, particularly of the agricultural sector. Likewise, there are occasional instances of water accountability in these seemingly conservative states with part-time or gold legislatures. Idaho serves as a prime example of this dynamic, and the following illustrative case study offers a closer look.

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Illustrative Case Study: The Story of Elmore County, Idaho This illustrative case study examines how the State of Idaho has responded to scarcity in groundwater management in Elmore County, Idaho.11 The actions the state has taken in the establishment of Water District 161 illustrate the power of adaptation interactions and securitization to create water accountability. This case serves to demonstrate how the advocacy of both irrigators and environmental activists for strong state management tools and oversight, combined with the significant economic impact of the county (and, more accurately, the watershed) can produce water accountability through processes theorized in Chapter 4. Elmore County is a rural county located 50 miles east of Boise and the Treasure Valley.12 It has a population of around 26,000, larger than many of the counties in the state. It is a home to the Mountain Home Air Force Base (MHAFB), which employs 3167 active duty personnel, in addition to 910 civilian employees, with a $342 million economic impact on the region annually (MHAFB 2016). Groundwater supplies the bulk of water to the county, and the aquifer the county relies on is estimated by the Idaho Department of Water Resources (IDWR) to have an annual groundwater deficit of approximately 30,000 acre feet per year (Mountain Home Working Group). Additionally, groundwater levels in the aquifer have declined as much as 70 feet in the last 35 years in the area surrounding Mountain Home, the MHAFB, and adjacent agricultural lands. As the domestic, commercial, municipal, and industrial (DCMI) water demand steadily increased, it became clear to the state that in order to save MHAFB from the Base Realignment and Closure Program, the state would have to shore up the water supply for the base. With approval from the governor and the legislature, the Idaho Water Resource Board (IWRB) is developing a pipeline and water treatment facility to deliver water from the Snake River to MHAFB as an alternate water supply to existing use of groundwater.13 But the pattern of aquifer reduction in the face of insufficient recharge also prompted the state to create Water District 161. The new district, which has created an advisory board and appointed a water master, has a mandate to evaluate groundwater use and to take steps to curtail use, if needed, after several years of measuring water use, water table stabilization, and recharge rate. One of the more critical components of the new district is the requirement that all groundwater users install meters on

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their wells. After three years of data collection, IDWR will begin to take action, including cutting off junior water right holders. Groundwater is not the only source of water in the county. While there are other irrigation districts in the county, the Mountain Home Irrigation District (MHID) serves the region of the county that District 161 incorporates. The MHID serves both small-scale and large-scale agricultural operations in the county, supplying surface water from two main reservoirs that sit between the town and plateau and the hills that rise to the north. This source of water has also been inconsistent in recent years. As Table 5.6 demonstrates, in the 10-year period between 2006 and 2016, the water flows from the MHID have been reduced by nearly two-thirds. This reduction in the number of acre-feet MHID has been able to deliver to its users prompted the county to explore the possibility of pulling flood water from the South Fork of the Boise River. The massive project included securing water rights from the state, over the objection of environmental groups concerned about the health of the river and its reputation as a fly fishing destination (Dent 2019). The water rights have been approved and the next step for the county is to build the large pumping station required to bring water out of the canyon carved out by the South Fork of the Boise River, and pump it into the MHID reservoirs outside Mountain Home. Driving these actions are the limitations that the county is facing from a lack of water. As of 2016, the decline in water access has resulted in a decrease of irrigated farmland.14 Other industries that could grow with increased water availability such as agricultural processing, would be ideally located in Elmore County, as it is close to transportation networks, a large workforce in the Treasure Valley, and affordable housing Table 5.6 MHID water flow, Elmore County, 2006–2016

Year

Acre feet

Cutoff date

2006 2007 2011 2012 2013 2014 2015 2016

10,538.40 12,282.87 11,794.56 12,957.84 4655.78 4642.88 4930.22 8728.00

– – 30-September 30-September 26-June 23-June 5-July 7-August

Source MHID

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in the Mountain Home area. Elmore County has been approached by several operations considering the county as a possible location. One such operation, named Project Falcon, came with a capital investment of $430 million and promised 450 full-time jobs.15 The building location and the needs for electricity, natural gas, transportation, telecommunications, and related infrastructure could all be satisfied. However, their water requirement of 3500 gpm, which amounts to over 5000 acre feet a year, was more than the city could provide (Western State Response to Unauthorized Water Use-Idaho Interview). Likewise, housing development in the county also presents an opportunity to facilitate growth and generate economic benefits, yet water remains a barrier for some developments. Several projects, including one involving 2000 housing units and another 5200 units, were abandoned because of water access (Collias 2006). Given the more affordable land in Elmore County, new homes would easily compete with similar homes in the Boise suburb of Meridian, where the median home price has skyrocketed in recent years. Elmore County could offer access to the Treasure Valley, manageable commutes on account of the 80 miles per hour zone that sits just beyond the Boise city limits, affordable housing, and a rural setting. At the center of the community however, are the 381 farms that dot the landscape, dependent on the dwindling surface and groundwater supplies. Together these operations put some 340,000 acres in operation, with revenue over $200 billion per year (University of Idaho Extension 2015). Crops of potatoes, sugar beets, alfalfa, and dairy and beef cows create a very productive agricultural county, ranking eighth in the state for total value of agricultural products sold and 220th in the U.S. While there are many factors that influence agricultural production, the reduction of the water supply has had an impact on the productivity of the county. The total irrigated acreage in Elmore County in 2012 was 89,940 acres, down from 97,857 in 2007 (USDA 2012). The harvested cropland for 2012 was slightly higher, at 95,241. The total cropland in the county is 117,855 acres (USDA 2012), which indicates that nearly a quarter of the land is not being utilized. While there are many reasons land lies fallow, a primary issue I encountered in my interviews with water users was a reported lack of water.16 USDA census data indicates a nearly 9000-acre decline in irrigated acres in the county between 2007 and 2012, and MHID data demonstrates that 2012 was the best water year in the 10-year period for overall water volume. This indicates

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the future figure for acreage farmed in the county could be much lower. The 2015 total market value of Elmore County agricultural production was $221.1 million (University of Idaho Extension 2015) compared to $350.5 million in 2012 (USDA 2012), $284 million in 2007 (USDA 2007), and $292 million in 2002 (USDA 2002). This drop is despite the growth of the dairy industry in the county.17 The county produced a Comprehensive Plan in 2014, a document required by state law that outlines expectations for future growth. The report predicts the population will rise to 40,897 by 2024, that the total acres of active agricultural operations will reach 400,000, and that cattle operations will grow to a total of 230,000 head (Elmore County, 2014). The data on water and use in the state offers at least some evidence to suggest that recent water resource scarcity has undermined the economic production of the county. The county has taken significant steps to secure current and future economic development by securing additional water rights on the South Fork of the Boise, establishing the water district, and pursuing the water pipeline project for MHAFB. The other side of the story of course, is the impact that adaptation interactions have had on the policy-making process. The State of Idaho has been lobbied by water users and environmentalists, and pressured by urban demand for years. Groups like the Idaho Water Users Association have advocated for agricultural water users, the Idaho Conservation League has advanced an environmentalist agenda, and city governments have weighed in on water use decisions at the state level (Weatherby and Stapilus 2005). The push for conjunctive management in the state and the power of collaborative agreements, such as the Eastern Snake River Plain Aquifer plan, highlight the kinds of developments in water policy and management that have happened in the state in recent years. These, while not centered on Elmore County, have conditioned the state to take serious and significant action in the threat of scarcity. This adaptation to climate change, and of course the increased demand on water supplies in the state, capture the response of water users to the crisis as they have in turn focused their attention on the state apparatus. Each major newspaper in the state has a reporter who has come to know the ins and outs of the water policy issues facing the region, such as Idaho Statesman’s Rocky Barker. Numerous lawsuits on water-related issues remain a major factor in management of water, also contributing to the pressure on the state.

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More importantly, the water users of the county have accepted the new water district, they have supported the county in pursuing the new water rights, and have applauded the action on MHAFB. These are forms of the adaptation interactions process as water users of various backgrounds urge the state to act, either to expand the amount of water available or to shore up protection of senior water right users. The establishment of the water district serves as an example of the state creating an instrument to ensure the protection of senior water right users. Water rights can transfer from user to user, creating a market in which the highest producing operation can secure rights of the others. Consolidation of the agricultural industry in the county might be an outcome, but the justification from the county commissioners has been that they are trying to protect everyone.18 Simply put, as water becomes more scarce, its price will increase and those operations with the most productive output will work to purchase those rights, while others will cease operations. The interviews conducted with water users in the region confirmed this viewpoint, and several respondents had indicated they expected things to go further in that direction (Water District #161 Interview n.d.). The establishment of Water District 161 highlights the process by which scarcity and the threats associated with it, combined with the active engagement of numerous political actors in the form of adaptation interactions, produced a significant and important outcome in the management of scarce water resources in the county. The focal point, and the process that has been illustrated by this case, is the action taken by the relevant authorities in the state. The establishment of the water district was a direct result of the greater community response to climate-induced scarcity and the threat of inaction to the economic viability of the county.

Conclusion This chapter has provided analysis to explain the variation in water accountability across 11 western states. Furthermore, it has provided an illustrative case study that has spelled out how this process works in a narrower and localized context. What the findings demonstrate is that states vary across the region in how well-positioned they are to reach higher levels of water accountability, and the typology employed here demonstrates these variations. I further explained why those variations exist, and demonstrated how the process works in the case of Elmore

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County, Idaho. I now turn my attention to a more detailed discussion of what states can do to bolster their water accountability, and examine the possible avenues of federal government intervention into western water management and policy.

Notes









1.  There are a number of contributions on this topic including: Collier, David, LaPorte, Jody, and Seawright, Jason. 2012. “Putting Typologies to Work: Concept Formation, Measurement, and Analytic Rigor.” Political Research Quarterly 65 (1): 217–232; Bennet, A., and Elman, C. 2006. “Qualitative Research: Recent Developments in Case Study Methods.” Annual Review of Political Science 9: 455–476; Elman, Colin. 2005. “Explanatory Typologies in Qualitative Studies of International Politics.” International Organization 59 (2): 293–326. McKinney, J. C. 1966. Constructive Typology and Social Theory. New York: Meredith Publishing; and Collier, David, and Mahon, James R. 1993. “Conceptual ‘Stretching’ Revisited: Adapting Categories in Comparative Analysis.” American Political Science Review 95 (2): 845–855. 2. Collier et al. (2012) cover the topic of typology critiques well in pages 218–220, and later address the concerns raised by said critiques. See Collier, David, LaPorte, Jody, and Seawright, Jason. 2012. “Putting Typologies to Work: Concept Formation, Measurement, and Analytic Rigor.” Political Research Quarterly 65 (1): 217–232. 3. The 2013 White House Climate Action Plan directed each agency in the federal government to take specific steps to address climate change. For more detail, see https://obamawhitehouse.archives.gov/sites/default/ files/image/president27sclimateactionplan.pdf. 4.  The Idaho water use complaint database is not accessible online. No request was made to view the detailed reports from the database. 5. This information was communicated to the author via a telephone conversation with a state official. 6. See the report for 2016 for more details, see https://water.ca.gov/-/ media/DWR-Website/Web-Pages/Programs/State-Water-Project/ Management/Cost-And-Revenue/Files/Bulletin-132-Management-ofthe-California-State-Water-Project-2016.pdf. 7. In the case of Mountain Home, Idaho and Water District #161, the state since 1981 had been engaged in some monitoring of the aquifer level. However, the standard of withdrawal to recharge, did not fall under any specific legislation, rather it was an act of the IDWR. Idaho code 42-604 grants IDWR the power to create districts, but provide the agency the ability to create criteria for when they are required. See https://idwr.idaho. gov/files/legal/orders/2016/20160229-Preliminary-Order-Creating-WD161-Mountain-Home-Area.pdf.

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8. Many of the policy options facing the states could be employed by the federal government, just simply on a larger scale and uniformity of the policy. The federal government “water accountability” outcomes are discussed in greater depth in Chapter 6, where I examine the possible policy options available to the federal government in the event of a securitization of water. It is worth noting here, however, that these two options serve as a buttress against the options before the states, and after a review of the empirical record, it is clear that there is reason to believe the federal government could simply scale up many of the policy tools employed currently by states. 9. This information was communicated to the author via a telephone conversation with a state official. 10.  The Idaho water use complaint database is not accessible online. No request was made to view the detailed reports from the database. 11.  This project aided by interviews conducted under IRB protocol at author’s institution for a related project. 12.  The Treasure Valley encompasses the metropolitan areas of Boise, Meridian, and Nampa. 13. The IDWR website details the state’s plan for a pipeline. https://idwr. idaho.gov/IWRB/projects/MHAFB/. 14. Western State Response to Unauthorized Water Use-Idaho [Telephone Interview] (2015, September 14). 15. Official proposal obtained by Elmore County officials by author. 16. This figure differs from the University of Idaho Extension Office, which reports over 300,000 acres of farmland in the county. 17. Support for this position comes from respondent comments on increased dairy operations in the county. In addition, between 2002 and 2012, there was a 13% in cattle located in the county. USDA Farm Census 2012. United States Department of Agriculture. https://www.nass.usda.gov/AgCensus/ Report_Form_and_Instructions/2012_Report_Form/index.php. 18.  See Dent (2019) where one of the Elmore County Commissioners describes the efforts the county is making in protecting water users. Dent, Steve. August 4, 2019. “Elmore County’s Water Rights Application Gets Approved with Conditions from the State.” KIVI Channel 6 News. https://www.kivitv.com/news/elmore-countys-water-rights-applicationgets-approved-with-conditions-from-the-state.

References Collias, Nicholas. 2006. “Nowhere No More: A Tiny, Historic Site in Elmore County Is About to Become the Next Big Thing. Boise Weekly, July 26. Collier, David, Jody LaPorte, and Jason Seawright. 2012. “Putting Typologies to Work: Concept Formation, Measurement, and Analytic Rigor.” Political Research Quarterly 65 (1): 217–232.

150  I. M. CASTELLANO Dent, Steve. 2019. “Elmore County’s Water Rights Application Gets Approved with Conditions from the State.” KIVI Channel 6 News, April 8. https:// www.kivitv.com/news/elmore-countys-water-rights-application-gets-approved-with-conditions-from-the-state. Elman, Colin. 2005. “Explanatory Typologies in Qualitative Studies of International Politics.” International Organization 59 (2): 293–326. Mountain Home Air Force Base FY 2016 Economic Impact Statement. 366th Comptroller Squadron. https://www.mountainhome.af.mil/Portals/102/ Documents/Economic%20Impact%20for%20FY%202016.pptx?ver=201709-13-122634-613. National Conference of State Legislatures. 2014. “Full-and Part-Time Legislatures.” National Conference of State Legislatures, June 1. http:// www.ncsl.org/research/about-state-legislatures/full-and-part-time-legislatures.aspx. Sax, Joseph L. 2002. “We Don’t Do Groundwater: A Morsel of California Legal History.” University of Denver Water Law Review 6: 269. State of Colorado Division of Water Resources 2016 Annual Report. Accessed December 19, 2017. http://dwrweblink.state.co.us/dwrweblink/0/ doc/3109651/Electronic.aspx?searchid=3721803c-6e54-44a1-ad1a67b56e246812. State of Idaho Water District #161 Water Users Perspectives on New Regulations [Telephone Interview] (n.d.). State of Oregon Water Resource Department. 2016. “State of Oregon 2015 Field Regulations and Enforcement Activities.” Report, 2016. University of Idaho Extension. 2015. “2015 Economic Impact of Agriculture in Elmore County.” University of Idaho Extension, Elmore County. U.S. Department of Agriculture. Farm Census 2002. United States Department of Agriculture. https://www.nass.usda.gov/AgCensus/Report_Form_and_ Instructions/2002_Report_Form/index.php. U.S. Department of Agriculture. Farm Census 2007. United States Department of Agriculture. https://www.nass.usda.gov/AgCensus/Report_Form_and_ Instructions/2007_Report_Form/index.php. U.S. Department of Agriculture. Farm Census 2012. United States Department of Agriculture. https://www.nass.usda.gov/AgCensus/Report_Form_and_ Instructions/2012_Report_Form/index.php. Weatherby, James B., and Randy Stapilus. 2005. Governing Idaho: Politics, People and Power. Lincoln, NE: Caxton Press. Western State Response to Unauthorized Water Use-Arizona [Telephone Interview] (2015, September 22).

CHAPTER 6

The State and Federal Response: Probing the Possibilities

This section switches gears away from an empirical assessment of the “water accountability” outcomes, and examines the various policy options both the state and federal governments have in protecting water rights. I first examine and recommend the specific actions the state government can take, and then turn my attention to the federal government’s outcomes along the typology outlined in Chapter 5. The basic features of the options before the states and the federal government, to ensure they meet the demand for water accountability, will be wildly unpopular, cost more money, and likely will have mixed effects on the actual problem of managing scarcity. The lack of impact is a topic for a later time, but the underlying argument here, is that the options being presented are not in fact good policy solutions to the water issues in the region, but just some of the likely responses that I believe can be expected as the region responds to water scarcity. Building a wall, for example, on the southern border does little to negate the impact of environmental, political, and economic factors driving Latin American citizens northward into the U.S., but it is a popular response all the same. For governments, and those trading in the currency of American politics, there is a lot that can be done on the political side of a problem, but simply does not have any traction with dealing the policy problem. Given the stakes of water scarcity and the related issues, I argue, that there will be greater attention paid to the issues of water policy. An area of the political environment, that only a few actors tend to pay attention to. New policy ideas will emerge from © The Author(s) 2020 I. M. Castellano, Water Scarcity in the American West, https://doi.org/10.1007/978-3-030-23150-7_6

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this new attention. This chapter details several of these policy options and some older ones that have been proposed previously, that states and federal government may have to choose from in the coming years and decade.

States Conjunctive Management The first and easiest thing the states can do is to equalize enforcement efforts for ground and surface water sources. As noted in Chapter 2, conjunctive management refers to managing water supplies with the understanding that surface and groundwater systems are interconnected. Idaho learned the importance of conjunctive management the hard way; after conservation measures were implemented in regions of eastern Idaho, particularly the switch from flood to drip irrigation, groundwater levels declined as less irrigated water was making a contribution to recharging the region’s aquifers. A conjunctive management approach would have taken the contribution of flood irrigation to the recharge of the aquifer into account when creating policy changes. Thus, in some regions conjunctive management is already being utilized, and in some states water management is approached with the understanding that surface and groundwater sources are linked together in a single system. Working to ensure that surface water and groundwater rights are equally enforced may mean putting compliance officers in the same unit within the state water management agency. Some states separate groundwater permitting, or water bank management, or other sources of unauthorized water use policing into different entities. A centralized agency may offer, at least on paper, a more efficient way to ensure that a unit had a clear responsibility for both surface and groundwater, and thus may have the incentive structure to ensure that they complete the task of water right management. Improvement of Record-Keeping Practices The second item that states need to address with regard to improving water accountability is their record-keeping practices. States cannot provide water accountability without accurate records on the prevalence of unauthorized water use and the specifics of individual cases. Police departments cannot claim a reduction of crime without showing the number of murders, assaults, thefts, etc., over time. Likewise, states cannot properly respond to claims that water supplies are subject to

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unauthorized water use without similar data. Thus, the state practice of recording the number of unauthorized water use complaints is a necessary step in improving water accountability. The prediction made here is that as water scarcity becomes more intense, states such as Colorado, New Mexico, and Wyoming, who have not institutionalized reporting practices, will initiate more robust accounting practices. Those states that already have robust reporting practices in place will be better positioned to criminalize unauthorized water use. In addition to improving the record keeping on unauthorized water use, states will also face increasing pressure to make this data transparent. Those states without any data collection practices should implement a data collection and management system immediately. At the very least, this offers states the capacity to say they recognize the problem of unauthorized water use, and have reliable data on it. States cannot evaluate their progress on addressing the issues of water scarcity and unauthorized water use if they do not know what the scope of the problem is. Oregon is well-positioned to handle the initial demands of water accountability because they have a long history of data collection. In addition to having the actual data, they can also speak to the level of oversight and strength of their enforcement actions in the last 10 or more years. Further, Oregon can point to their stellar record of compliance, which illustrates that the state has minimal problems with unauthorized water use. Oregon may be in a particularly good position to handle the increased pressure of water accountability in the region. States that do not have their unauthorized water use data online could make it publicly available and produce an annual report that includes their compliance efforts and number of cases. This information should also be produced in a way that makes it accessible for the general public. IDWR produces an annual report that is kept internally. While the report contains very valuable information that captures the efforts of the compliance team on an annual basis, it contains some industry. Editing it to ensure it is readable by the general population and promoting it among local media outlets would both increase the public’s awareness of what the agency does and provide useful information for the citizens of the state. While many people in the state capital of Boise might not know what the IDWR does, they likely understand the consequences of water scarcity. Improving citizen knowledge of the existence and tasks of this agency would be a step forward in facilitating the public’s cooperation on the important issue of water management during a

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crisis. In turn, this would also likely increase pressure on water accountability in the state. Publicly available data on unauthorized water use should also contain information that would help educate the population as to the magnitude of the problem. The publicly available data from California, for example, only contains the date the complaint was filed, the type of violation, the water source, the county, and the status of the case. Similarly, Idaho data has a case identification number, the status of the complaint, where the complaint originated, the type of violation, and the date the file was created. Some states, such as Utah, include the individual who submitted the complaint about the suspected unauthorized water use. After a case has been adjudicated, it may make sense to include the name of the violator in this publicly available data, in an effort to increase social control on this issue. Providing the name of violators could help to shame those who are unauthorized water users, and would also reveal repeat offenders. Clearly, this approach should be used with caution: such public shaming efforts have had negative consequences in the past, and the tenets of due process would have to be applied. In addition, it may be wise to also include how much water was suspected of being withdrawn. This would be critical in that it would share with the public not just the number of cases, but also the amount of water at stake. Rarely do we discuss cases of theft without identifying the value of the object stolen.1 It would also be beneficial to know the method of extraction; as discussed in earlier chapters, unauthorized water users can make illegal withdrawals in different ways, and knowing which techniques were used could provide valuable information to members of the public, who could help identify possible violations. An additional policy that could be implemented at the state level which could improve water accountability would be the passing of legislation that would require all water managers and irrigation district employees to report any observed or suspected unauthorized water use. At the very least, these water managers should be required to compile and submit data on violations in their jurisdictions. This would greatly improve knowledge of how prevalent unauthorized water use is, and may in turn increase the resources provided to engage in greater policing of unauthorized water use. It is important to note that states will need to add personnel to ensure the management of new reporting and data collection systems, as well as to enforce additional compliance requirements. Thus, more state resources would be necessary for many of these policy changes to occur.

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Increase Penalties for Unauthorized Water Use In most states, water is one of the few things you can steal and not be arrested. As discussed in Chapter 3, the penalties for unauthorized water use are typically minimal. Repeat offenders sometimes get fines, but enforcement actions around civil penalties are rare; most investigations end with communication and education as opposed to civil action. Criminal complaints only occur when violators damage property, never for the unauthorized use of water itself. Utah is an outlier in their use of fines for unauthorized water use. The Utah Department of Water Resources (UDWR) has a system to calculate the amount to fine violators. While many other states hesitate to issue fines to violators, Utah’s chronic water scarcity has created conditions which have increased water accountability, at least in some ways. Drawing from a UDWR internal presentation on the compliance program, fines for unauthorized water use are dependent on the size of the land that was irrigated, the length of time the water was used, if the water user was aware of the existence of a water right, if it was the first year of the violation, and if there was an unmeasured injury (i.e., if there was no reliable way to assess the injury to others). In the state’s presentation, they offered the example of a 23.5-acre alfalfa hay operation without a water right. Using data from local sources, they determined that hay growers in the area will typically harvest 4.5 tons per acre, with the market price in the area being $90 per ton. Using these numbers, as opposed to producer-reported production costs, the state estimates that the 23.5 acres, producing 4.5 tons per acre, at $90 per ton, yielded a direct economic benefit of $9517.50. They divided this by the 214 days of use, resulting in a daily economic benefit of $44.47. In this actual case, the violation was terminated 123 days into the season, therefore the base penalty was calculated as $44.47 × 123 = $5.469.81. That base penalty was then adjusted by the following: • Because the violator was not aware there was no right for the excess acres being irrigated, they assessed a 0.5 point for an “unknowing” violation. • In a large groundwater basin, there is no reliable way to assess the injury to others; therefore, they assessed a 0.5 reduction for an unmeasured injury.

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• This is the first year of the violation; therefore they assessed a 0.5 reduction. • Although the violator was advised of the problem at the outset of the season, there was minimal effort made to terminate until the Initial Order had been issued; thus, they assessed a 0.75 point increase. Thus, the total penalty multiplier was 2.25, and the total administrative penalty was calculated as $5469.81 × 2.25 = $12,307.07. In most cases, violators are required to also reimburse 100% of the enforcement costs, which are based on actual direct costs established by affidavits (hourly rates for personnel, vehicle expenses, postage, etc.). As in this case, violators often pay these fines in ways other than cash. The penalty multiplier, calculated above as $12,307.07, was combined with the enforcement costs, resulting in an order for the violator to idle 27 acres for one full season in which a valid right existed. So the penalty for this user was water, as opposed to a monetary fine. Other states could adopt the Utah approach, where they assess the financial gain that the unauthorized water use allowed, as well as the cost of managing the compliance. Injury to others should also be considered, however this often becomes difficult to capture. In many cases it may be unclear how others have been impacted. This is where fines become a bit complicated. In an ideal scenario, those who lost production because of unauthorized water use could be compensated in some way. Determining who has been injured is of course a challenge, and with each irrigation system being a bit different, there would be contextual information that would alter how fair such a process could be. Despite this difficulty, it is clear that in some systems there are losers when there is an unauthorized draw. This was illustrated in the Wapato case (highlighted in Chapter 3), in which some farmers lost production value during the 2015 season, while clearly others gained. On a larger river system, it may be even more difficult to determine an injury from unauthorized water use. For instance, if someone draws from the Snake River in the Pocatello region of Idaho and thereby contributes to lower water flows, this could theoretically impact other water users all the way to Astoria, Oregon, covering nearly 800 miles of river. Beyond distributing fine payments to victims of unauthorized water use, it would be worth exploring what the criminalization of unauthorized water use would mean. As stated earlier, few unauthorized water

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users are subject to criminal proceedings; civil action and fines are currently the most severe action most states take, and it is rare for states to react in this way, or with much intensity. However, increased pressure for water accountability in the near future will likely include the outright criminalization of unauthorized water use, which would replace the status quo of communication, education, and fines with criminal proceedings. This would transfer more of the burden of understanding water rights policy and law to the user, turning away from the current model which tends to give unauthorized water users a pass during the initial determination of unauthorized use. In the case of increased criminalization, the charge classification could vary from misdemeanor to felony, based on volume of water, previous offenses, and other criteria. Any new criminal standards would require more accurate assessments of water flows and use. Water flow modeling, such as determining how much water is flowing in a specific river or stream, has high levels of systemic error, which would make such estimates difficult to introduce as evidence in court proceedings, a substantial barrier to the criminalization process. The age of many canals, ditches, and other water distribution infrastructure, the lack of reliable measurements of water flows in agricultural systems, and the difficultly of assessing how much water was taken could all act as barriers to increased water accountability. Similarly, urban water distribution systems are characterized by system wide leakage, accounting for some 20% of overall water flow, and because many domestic water supply networks are privately owned or managed, the data is correspondingly proprietary. The outcome of these and other circumstances leads to increased reliance on metering as part of the process, a topic discussed in more depth below. If metering solves the accuracy issue, such data could be used to estimate the occurrence and magnitude of theft from many water systems where data is currently either nonexistent, of limited accuracy, or is proprietary and inaccessible. However, complicating matters is that water right arrangements in many instances are based on water volume. For example, allotments for junior right holders are theoretically only delivered after the senior right holders receive their share, something that fluctuates based on river volume. The absence of clear water volume measures undermines the real-time determination of who gets what, and makes it difficult to determine when and where a specific volume of water was removed from a water source. Current infrastructure to determine allotment volume in some instances is based on individual

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irrigation ditch gate levels, knowledge that is often restricted to individual water users. Criminal charges as a compliance tool would then be based on the severity of the violation, but also the damage that it caused to society. Public demand for water accountability is going to put pressure on policymakers to ensure that the punishment fits the crime. In the context of unauthorized water use, the severity of the crime can vary from year to year based on how scarce water is and, at a more micro level, what the outcome of the violation is. For instance, are critical crops for human consumption undermined by the violation, or simply some hay for horses? Statutes will likely need to take into consideration the complexities of the cases involved, the awareness of violators, and the amount of water improperly diverted or withdrawn. From my perspective, the lack of criminal statutes is a barrier to ensuring compliance. The ability to contest fines and bargain with the state to pay them off in other ways, combined with the difficulty of identifying violators, contributes to a weak enforcement regime that would not, as I argue here, stand up to the political pressures of water accountability. Moving forward there will need to be tough statutes put into play. Increase Investigation Budget and Staff From the assessment laid out in Chapter 3, it is clear that water enforcement and compliance bureaus across the region would benefit from additional resources, both human and financial. The data compiled capturing the ratio of irrigated acres to enforcement personnel illustrates this, and demonstrates that some states, such as Nevada, have a lower acre-to-personnel ratio than other states, such as California. While not all states collect data on the number of complaints that are generated from outside the agency, the indication from those who do, particularly Oregon, is that around half of the complaints that are reported to the state come from non-state employees. In addition to not having clear and consistent data about where violations stem from, the duration of violations prior to them coming to the attention of the state is also unclear. Assuming that a majority of violations continue unabated for a significant period of time, there is a cause to argue that increased investigatory powers and personnel would help reduce the magnitude of unauthorized water use. That being said, the tools of investigation, and the cost/benefit analysis would have to be determined by how productive such efforts were.

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It may be that more investigation resources would not reduce the number or magnitude of violations. At the same time, additional investigatory resources could help policymakers make the case that they are doing what they can, thus providing evidence of greater water accountability. This is a similar argument to the many “tough on crime” proponents who advocated for more cops on the beat to tamp down crime rates. The 1994 Crime Bill, for example, included resources for an additional 100,000 police officers to be hired around the U.S., on the promise that more personnel would help bring down the crime rate that had spiked following the crack epidemic. Whether this strategy was effective or not, it signaled to the public that this issue was being taken seriously, and that efforts were being put into place to address it. How much money would be needed to increase investigatory power is unclear. What was uncovered in the comparison between the spending on water management to irrigated acres is that some states, with seemingly lower levels of enforcement and data sophistication, also employ fewer compliance officers for their states. Increasing compliance would, in the very least, provide decision makers the capacity to speak to their commitment to using all the tools available to them to address unauthorized water use. Community Partnerships As noted in the previous chapter, water user education has long been a central component to water management strategies in the American West. Interviews with state officials indicated that education was often the main action taken when unauthorized water use violations are discovered. In many instances, simple communication and clarification of the water user’s rights and responsibilities resolved the situation. As personnel from both Nevada and Oregon reported, the start of irrigation season is often when they utilize direct mailings, newspaper ads, and other outreach efforts to prime water users for proper utilization of their water rights throughout the growing season. Oregon officials pointed to its high compliance rate as evidence that closing the gap on misuse is best done through the education and outreach among their water users. Nevada maintains a mailing list to irrigation districts and local water managers throughout the state, informing them of any changes, reminders for the season, and general information. There of course is always

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more that the states could do, if they had more resources, a response almost all water management agencies gave. Despite the reported effectiveness of these tactics, not all states reported having a strategy on education and outreach. It is unclear how many people are reached by these efforts, how effective these strategies are, and what information is necessary to change behavior and increase compliance rates. Further, in the event of a water crisis, it is unclear how much pressure would be put on education or if education would be considered useful in illuminating both violations and public demand for swift and effective policy action. Nevertheless, better communication and education may be the best policy in reducing the number of violations that occur. This approach is also relatively cheap to implement, as least in the forms utilized by states such as Oregon. Thus, one recommendation put forth here is for all states to increase their outreach and communication with water users, utilizing tools that Oregon and other states already use, as noted above. There are also other ways that states can improve education and communication with water users. For instance, each state has sophisticated and often times publicly available databases of water right holders on their websites. However, the software is often not user-friendly. Investing in a more user-friendly online interface would help the public access accurate information about a community’s water right distribution. Users could also use this tool to confirm their understanding of their allotments, and they could check on who in the area has the senior water right. In short, such a database could increase education, communication, and transparency. Further education outreach could involve state officials taking the time to talk to every water right holder, reminding them of their allotment and position in the hierarchy of senior to junior right holders. This would require knowledgeable state employees who could properly communicate water law, which is a complicated topic. There are not a lot of those people around, and such an effort would require 10–20 additional staff for a small state like Idaho, and much more for more highly populated states such as California. Such a heavy-handed approach would likely come with a high price tag, as 10 new employees would cost over a $1 million a year in salary and benefits, in addition to operational costs, such as office space, tech support, transportation, and other expenses. However, having more resources dedicated to education and interactions with water users would certainly increase water user information and understanding.

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Education and communication with citizens who are not considered heavy water users is another recommendation. Municipal water systems spend resources to educate the population on conservation and other best practices on water use. This is particularly true in areas where rationing has been implemented. For instance, in much of California, outreach and education with all water users has been a norm in recent years. These areas have to address their own capacity to carry out such efforts, in order to increase knowledge around water scarcity and water rights. Such efforts should be expanded to other parts of the American West, in order to broadly increase knowledge and accountability around water usage in the region. A start may be to make it a legal requirement for any water manager or person overseeing water distribution to report unauthorized water use to state officials. A key outcome of education about water rights and responsibilities may be the feedback provided by citizens on other individuals’ water use violations. As discussed previously, private citizens reported half of the violations between 1994 and 2016 in the state of Idaho. Water accountability may result in states increasing their efforts to utilize the reporting of the general public. Some evidence from California suggests that, at least at the county level, that is already happening. County officials are prioritizing the prosecution of unauthorized water use cases, and several have established hotlines to report unauthorized water use. In instances where municipal water districts were forced into rationing, there is also evidence to suggest that there is an increased participation in peer reporting, as members of the public become the source of reports. Kona, Hawaii, serves as a great example of a municipal water district that suffers from water shortages, and relies on residents to review their water use and report to authorities instances of misuse, making clear that they simply do not have the personnel to enforce water use restrictions (Dible 2017). These examples illustrate that the state and water managers have already utilized public reporting as a tool in water management. Increasing this capacity could occur through more robust education and public relations efforts, encouraging all citizens, particularly where there is rationing, to communicate violations directly to authorities. Governments have long utilized peer-reporting to control social behavior, a most sinister example being the Stasi (East German secret police force). The post-9/11 period included strong requests by the federal government to report suspicious behavior; for example, air travelers are reminded of their duty to report suspicious behavior to

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authorities through repeating messages on airport intercoms, and truckers, among others, were singled out as valuable sources of information for authorities. Beneficial Use Another change that could occur at the state level is the definition of what constitutes beneficial use. If a water crisis became a food crisis, states would have the capacity to implement a change in what constitutes beneficial use. As a refresher, water users are entitled to their water so long as it meets the requirements for beneficial use. States could alter this criterion, but this would be dependent on how severe the consequences of water scarcity were. It would certainly require some coordination between the states, but there could be a rollback on, for example, crops that have less nutritional value, or a lower calorie per gallon-to-ton ratio; or, if a water-intensive crop was in a water-scarce area, the state could require it to be changed to something else. For example, critics charge that California producers are utilizing groundwater at alarming rates to grow water-intensive crops in a dry climate, such as almonds, rice, and alfalfa (Heberger and Donnelly 2015). States in the American West may consider adopting policies that incentivize the growing of more nutritional and less water-intensive crops in the future. The details of such a change would be dependent on the context of the water crisis. Certainly, states would have the capacity to intervene in the market like that, but such policies would likely be very unpopular, particularly among free market advocates who would view any centralization of market decision making as problematic, arguing that the market may best solve such distribution issues. However, if there is a market for water-intensive crops, it may be willing to pay a premium for certain crops, and shortages or price issues in other commodity sectors may not be responsive enough to manage such a crisis. The reliance on the free market to manage water scarcity will not produce the desired results. Groundwater Management One of the major options available to states in terms of improving water accountability is the increased utilization of meters, particularly with groundwater resources. Meters are required for groundwater users under California’s Sustainable Groundwater Management Act of 2015, but

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that is the only statewide law that requires the installation of meters for groundwater use in the American West. As mentioned in earlier chapters, some groundwater districts do require meters, such as Idaho’s new Groundwater District #161, which required water users to install a meter on their groundwater pumps by 2019. Certain basins in Colorado also require metering. While such policies have not been enacted universally across all 11 states, this is something that likely should occur, given that metering offers an excellent and effective way for the states to monitor water use. A major component of combatting unauthorized water use would be a universal requirement that water users install a meter on any groundwater pump or surface-water diversion. An individual requirement for meters for all irrigators utilizing untreated water sources would match that of municipal water users, where meters are near universal across the region. The associated cost of a new meter combined with the intrusion into the water user’s privacy would be a clear political hurdle in implementing any criminalization reform. The groundwater district in Elmore County, Idaho (Water District #161), as mentioned above, requires all groundwater users to purchase a new meter that costs around $2000. Meters of course require someone to read them, and the water district is hiring a new water master, who will be required to read these meters and compile the data gathered from them. From a resource and state spending perspective, this is complicated by the need for additional personnel, either at the local or state level, to manage, inspect, and read such meters, either in response to a specific claim of unauthorized water use or on a routine basis. On the other hand, the status quo requires unauthorized water users to be caught in the act in order to face civil penalties, something that would have to be addressed by any criminalization process. Relative to the other policy options available to states, the meter is likely to be one of the more effective as it solves the problem of relying on other sources of information to detect unauthorized water use violations. It also minimizes the costs of implementing a new policy, as the state can have water users take on the majority of the costs involved. However, this would likely be unpopular with water users, as it has been in Elmore County, where interviews with water users within this water district produced responses that were overwhelmingly negative (Water District #161 Interview n.d.). Water users in the district, many of whom are small-scale farmers operating on fewer than 50 acres, were angered by the responsibility levied upon them to monitor their own water use.

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However, in a water crisis or where the pressure for water accountability is felt by decision makers, meters will likely become a reality for most water users.

The Federal Government Response As has been argued throughout, federal action on water security is in the background of all state policymaking. How the federal government can influence states to take a more aggressive stance on water right management and unauthorized water use is an important topic. As the last section outlined, states in the American West have a range of policy options to choose from that would help strengthen the perception they are tough on water management issues and are able to undermine unauthorized water use in their states. As most western states express clearly in their constitutions, states claim the right to manage water distribution. To date there has been little to no federal involvement in water disputes. Throughout the interviews I conducted with state authorities, it was reported that state authorities did not have to contend with federal regulations, intervention, or other influences (Water District #161 Interview n.d.). Federal intervention into state water policy is not currently a widely discussed issue. In fact, as I found in my conversations and interviews with water users, water managers, and state agencies, the idea of a federal intervention or involvement into state policy on water distribution is far from people’s minds. While most water management falls to the states, there are several contexts where the federal government does have a role as a water manager. Understanding the current regulatory infrastructure is critical in assessing the role of the federal government today, as well as the role it could have in the future. The federal government has been involved to date in water management through the Federal Reclamation Law, Native American reservations, water quality assurance, and protection of environmental assets including fish and other wildlife. There are nearly a dozen U.S. federal agencies or departments with a mandate involving water, including the Bureau of Reclamation (BOR), the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, and the Environmental Protection Agency (EPA). The history of this involvement starts with federal efforts to fund water management projects in the American West to encourage settlement. Federal policy was mainly designed to manage waterways and ensure their flow, as opposed

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to managing water rights. With that in mind, there is no water rights enforcement arm in the BOR, nor in other agencies. The EPA’s capacity for enforcement is more focused on water quality issues, and many agricultural operations are exempt from the Clean Water Act’s provisions, such as those concerning runoff. The U.S. Army Corps of Engineers manages the navigability of major river systems, and thus major diversions become an issue for this agency. Further, the federal government invested substantially in dams and the creation of reservoirs, as the Reclamation Act of 1902 created what become the BOR and increased the government’s role in managing and creating flood control and hydroelectric infrastructure. Likewise, the Clean Water Act of 1972 and the Endangered Species Act of 1973 provided more opportunity for the EPA and other agencies to become involved in water management in the American West. Despite these various forms of federal involvement in water in the region, there have been few major interventions by the federal government on issues of water distribution. One exception in recent years has been related to conflict around the Klamath Basin. In 2001, a substantial drought resulted in the BOR ordering the water shut off to the Klamath Irrigation Project, which serves 1400 farmers. The next year the Bush Administration reversed the order, and the diversions continued; the consequence was a substantial die-off of Chinook salmon. With that said, few if any of the agencies listed above retain expertise or capacity to take on a water right management role. In addition, there has been no public discussion from the Trump Administration of changing their interpretation of water management law, nor was it on the agenda during the eight years of the Obama Administration. As one water manager told me, “Water management is simply a state issue” (Water District #161 Interview n.d.). However, the belief that the prior appropriation doctrine will remain carved in stone for all time is hard to reconcile with the dire predictions on climate change that are likely to remake the region. The disruption that water scarcity is likely to have on the economic, social, and political dynamics of states in the American West are going to have serious ramifications, which, as discussed in Chapters 2 and 4, will bring about major political issues. The pace of change may catch states flatfooted if they do not have a workable climate change adaptation strategy that covers water distribution. The potential for water scarcity is quickly becoming a reality in places like Tulare County, California, where some 5433 residents are currently

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without drinking water. Long reliant on groundwater, the wells in the area are drying up and residents are moving out. The outcome that Tulare County residents are dealing with has long been part of the academic discussion on water management policies, as authors have predicted such crises.2 While some states have taken progressive steps toward managing water scarcity, such as implementing conjunctive management and well permitting processes, many states are only now beginning to restrict groundwater pumping and require meters. Increasingly across the Central Valley of California, the social impact of water scarcity is becoming evident. While it is difficult to quantify the exact impact, it is known that people have to relocate out of this region because of diminishing jobs. Another known impact in this region is the growth of respiratory problems associated with dust, as agricultural producers do not have surplus water to wet down roads (Khokha 2017). Another potential impact in the future for this region is the loss of the drinking water supply; this is particularly germane during a collective water crisis. These are all potential impacts of climate change generally, and water crises more specifically. In addition to social consequences, there are also economic consequences to consider. The predicted economic consequences of water crises can be substantial, and California’s drought conditions offer a window into this problem. Some 97% of California’s agricultural sector resides within the areas that experienced severe, extreme, or exceptional drought conditions, resulting in $3 billion in losses in 2015. Subsequently, hundreds of thousands of acres of farmland went unplanted, including 540,000 acres in 2015, and 250,000 in 2016 (Sahling and Kowalski 2016). In 2015, the entire U.S. lost an estimated $40 billion in agricultural production because of climate change-induced drought, including a $1.2 billion loss in Washington state. This was a bellwether moment for the country’s food producers, as it brought home in real terms what the economic costs of climate change could look like, and how unprepared growers and the state were to deal with the economic fallout (France 2015). This economic loss may be the tip of the iceberg, as future years will continue to undermine available water supplies for the agricultural sector. Expanding the issue of water scarcity for agriculture from an isolated industry problem to a society-wide one is the role of food prices. Water scarcity and food prices are closely linked, as water shortages cause two general problems. First, less water means less agricultural

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production, and thus the market can expect to see increased prices as supply declines. This, of course, assumes that demand stays the same, and while a sizeable portion of the food in the American West is exported, a lot of it is consumed in the country. In California, for example, some $20 billion in agricultural products are exported, while $25 billion are consumed domestically (CDFA 2017). Second, it is predicted that water will become increasingly market-based in the near future. While water markets already exist, potential reforms to water markets may facilitate the delivery of water to the most profitable operations, in addition to impacting the cost of water, and thus the downstream consumer costs. Again, the California drought of 2015 serves to foreshadow conditions all states in the American West are likely to face. The productive Central Valley produces a range of edible commodities, including almonds, olives, walnuts, grapes, strawberries, and tomatoes. In 2015, producers in this region saw significant production losses that resulted in higher prices for several commodities. While the timing was good, as overall food prices were at a seven-year low in 2015, this water scarcity still cost the state billions in dollars, not to mention the costs passed on to the consumers, as prices could have been lower. To be clear, the food prices Americans contend with do not happen strictly because of domestic production issues. Rather, global market forces shape food prices and determine the direction of food imports and exports. But this global market is also connected to the same climate system that is intensifying water scarcity in the American West, and those climate forces may result in drastic action being taken in other countries. In other words, food disruptions abroad may result in countries restricting their exports. For example, in 2008, Vietnam and India both banned the export of rice on account of drought-induced shortages. Such changes to the global food market may undermine the notion that the problems of water management in the American West, and associated food production, can be solved by trading on the open market. Further, open markets can prove to be disruptive. The same year Vietnam and India banned rice exports, global food prices experienced an 83% increase, resulting in rioting and civil violence in countries such as Haiti, Bangladesh, and Burkina Faso (Bush 2010). Political turmoil surrounding the then-Prime Minister Abdullah Ahmad Badawi of Malaysia was blamed on high food prices, a charge not lost on neighboring Indonesia, who revisited its budget during the crisis and increased food subsidies by nearly $280 million (Lacey 2008). Wheat prices

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doubled between June 2010 and January 2011, the eight months leading up to the downfall of Egyptian President Mubarak, the leader of a country that consumes over a third of their caloric intake from bread alone. Food shortages and related political turmoil may very well be the new normal, especially in poorer nations (Lagi et al. 2011). This is compounded by the fact that 90% of the world’s caloric intake is sustained by just 15 different crops (Johnson 2003). While government collapse is not on the horizon in the U.S., the thought that federal action will never occur in order to manage water resources is rooted in a belief in legal continuance and maintenance of tradition. However, we live at a time when such assumptions may not hold. As noted throughout this book, water is central to the economy and culture of the American West, and the radical changes that are predicted to come to the region undermine the belief that there will never be a major shift in how the governing forces approach the management of water resources. The financial cost of supporting agriculture in the region may also induce the federal government to become increasingly involved in water management. As noted in Table 6.1, millions of dollars each year are spent on securing and assisting producers so that they may remain in business across the region. Subsides for Elmore County, Idaho, between 1995 and 2016 totaled $57 million, including $2.6 million for barley production, a minor crop in the county.3 In addition to Farm Bill payouts, the USDA also maintains agricultural disaster assistance programs, which cost $13.4 billion in fiscal year 2012 alone.4 The fact that the federal government is so heavily involved financially in supporting agriculture in the American West may also increase the federal government’s willingness to involve itself in water management issues in the near future (Table 6.2). The federal government has a long history of intervening in policy arenas where the states have failed to lead, or where state action has undermined federal interpretation of constitutional protections. Most famously, during the 1950s and the 1960s, the federal government intervened in state policy on matters related to civil rights. The federal enforcement of Brown vs. Board of Education, for example, highlights the capacity and willingness of the federal government to intervene when it deems such action necessary. Likewise, federal authorities have intervened to create uniform guidelines on corporate charters to protect shareholders, undermining the natural competition for business investment facilitated by a federal system with diffusion of power

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Table 6.1 Farm payments among Western states

State

169

Farm Bill payout 2012

Arizona California Colorado Idaho Montana Nevada New Mexico Oregon Utah Washington Wyoming Total

$31,329,000 $146,919,000 $165,576,000 $99,789,000 $209,845,000 $3,253,000 $70,588,000 $85,840,000 $23,898,000 $159,269,000 $28,146,000 $1,024,452,000

Source USDA (2012)

Table 6.2  USDA agricultural disaster assistance program spending

Fiscal year 2012 2013

Spending $13,400,000,000 $9,600,000,000

Source Stubbs (2017)

(Bebchuck and Hamdani 2006). Interventions on speeding limits, drinking age, educational standards, and many others craft a story of federal dominance over the states in the last 70 years, where the federal government wants to be involved. It seems likely that concerns around water scarcity could be raised to such a level as to bring about federal involvement. Certainly, issues such as road deaths rose to a critical status, as would major disruptions in food production caused by water scarcity. Returning to the typology constructed in Chapter 5, I apply the outcomes to the federal government policy options. As just discussed, the federal government has a range of policy options if there was political will to intervene in the management of water rights. The set of policy options available to the federal government, as discussed in Chapter 5, are two outcomes, extensive and securitization. In extensive, the federal government takes on a range of policy options to bolster the ability of states to protect water rights in their jurisdiction. The second option, of securitization, captures a complete federal government takeover of water

170  I. M. CASTELLANO

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Fig. 6.1  Typology of water accountability levels

distribution systems, the management of rights, and decisions on allocation. A return to the typology as seen in Chapter 5, can refresh the reader’s memory on the distribution of options available to state and federal government entities (Fig. 6.1).

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Federal Government Outcome 1: Extensive There are a range of policy changes that could occur at the federal level under the typology of extensive. While I am not asserting that these options will be enacted, I am arguing that these are viable options that federal authorities could implement to improve conditions of water scarcity in the region. I have divided the policy options into two broad categories. The first are those that could be implemented with little opposition from states. There will certainly be opposition from various interests within society, but in general the political leadership of the states, under the conditions of water scarcity, will be looking for options and the federal government, given available resources, will be capable of advancing some of the politically more viable solutions to water management. The second are those policy options where the securitization forces take action. Underlying the premise of these policy options is a dismantling of the prior appropriation system or some restriction of rights. This could occur much like securitization of policy has occurred in other domains, such as the defense policies referenced above. Such policies could also occur through tools such as eminent domain, where a more public approach to generating acceptance of the policy is utilized. The policy options I present here range greatly, from assisting states financially with their duties to a radical takeover of water law and management practices. The current system of prior appropriation, while promoting stability, benefits a relatively small group of people.5 Under conditions of water scarcity there is clear rational for the federal government to amend current water management practices. While considering the range of policy options, it is important to understand the actors and interests involved, as well as resource allocation. Thus, I approach evaluating federal policy options by considering the interests and desires of the stakeholders discussed in Chapter 1. Critics of the prediction of policy options are likely to point out that the enshrined position of prior appropriation in state constitutions, decades of water law, political culture, and more would work to ensure that the status quo remains. I recognize and acknowledge this position, but when one examines the centrality of water in society, it is not hard to imagine the concerns that federal decision makers will have if water scarcity becomes the source of major economic, social, and/ or political disruptions. As many writers have noted, water is central to life in the American West and that at some point there will be a day of

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reckoning with water scarcity. I, along with others, suggest that that day is almost here. California’s Tulare County has 1000 newly abandoned acres of citrus trees; while these trees were healthy, owners didn’t have the funds to buy the extra water needed to maintain them (Castellon 2017). This poignant example illustrates the devastation water scarcity will have across not only California, but the American West more broadly. Enforcement Actions Under conditions of increasing water insecurity, the easiest and perhaps most affordable option before the federal government, both in terms of financial and political costs, would be to help states increase financial resources toward combating unauthorized water use. As outlined in Chapter 4, there are plenty of growth opportunities for increased investigatory and compliance actions. The most established and likely easiest way for the federal government to provide this type of assistance would be through block grants. The amount could be determined on a formula based on agricultural production, preexisting enforcement spending, irrigated acres, and so on. Assisting the states in this way could be politically advantageous, as the federal government could make the case that states know best how to enforce their own water rights, and that the federal government would simply be providing the financial support to pull it off. Thus, such an approach would avoid a lot of the political problems associated with federal overreach. The liability of this approach, however, would be that if states failed to manage the policy problems associated with unauthorized water use, then states and political actors affected by the water scarcity crisis may object, arguing that throwing money at the problem would not be a suitable response. One complication may be that there are significant differences in state spending on enforcement and in approaches to water management. This could be particularly complicated if variation in state water management practices on transboundary river systems causes some states to ask for federal involvement, while others shun it. The Columbia River basin is a particular concern, as it draws water from Montana, Idaho, Oregon, and Washington. Given the general austerity that most state budgets are under, especially those more conservative states in the inter-mountain

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region where low taxes and limited government regulations on industry have been the norm, there would be particular difficulty coordinating state behavior over a tricky and contested policy area. Major Water Infrastructure Federal involvement could also occur through the improvement of existing infrastructure, which could also help address water scarcity in the American West. Dams have been used as the primary water storage method in the region. There have been a number of proposals in recent years to either increase the capacity of water storage for existing dams, or to build new dams. However, new dam construction requires major capital investments. Moreover, the political environment in the West has shifted significantly on the presence of dams, and many have been advocating for the removal of dams across the region. The 2012 removal of the Elwha dam in Washington state, and the 2016 Klamath Hydroelectric Settlement Agreement, which removes four dams on the Klamath River in Oregon and California, provide momentum for those working to restore the natural flow of rivers in the West. At the same time, irrigators in states like Idaho are moving in the opposite direction. Arrowrock Dam, which sits on the outskirts of Boise, Idaho, has been holding back the Boise River since 1915. Recent efforts by Idaho’s Congressional delegation prompted a study by the U.S. Army Corps of Engineers to examine the feasibility of raising the dam level. Similarly, the Idaho state legislature is studying the possibility of a new dam on the middle fork of the Payette River. Both of these projects are being facilitated by concerns around population growth and climate change, which increase the potential of water scarcity in the near future. Such projects are enormous financial undertakings by states, and would benefit from federal involvement. Again, the same political issues arise in these types of infrastructure projects. Local opposition, mainly driven by environmental concerns, is going to be a factor. However, in a water scarcity crisis, such opposition will easily be outmaneuvered politically, as the fear and reality of resource scarcity will drive up the popularity of such undertakings. Unlike regulatory issues, few states are going to have an opposition to federal dollars flowing into dam projects. However, federal involvement may come with strings attached, particularly with regard to how the water is used.

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If the issue is framed as a water shortage that is undermining agricultural production and livability of urban areas, and the state has not taken extensive action to facilitate conservation and crack down on leaks in municipal water supplies, or to address concerns over unauthorized water use, that might prompt the federal government to create certain conditions that need to be met in order for the financial support for dam improvement or construction to proceed. Similar to dams, large-scale water supply conveyance pipelines have long been used in dry climates to transport water from one place to another. Los Angeles’ water supply is already dependent on these large-scale piping projects, and many have dreamed of alleviating the water scarcity of California with large pipelines coming in from the north. Most traditional cost/benefit analyses of these projects have concluded that they are expensive and unmanageable (Fort 2002). These projects require substantial initial capital investment and significant sums to maintain the pipelines, in addition to the pumping costs incurred. Further, one of the major issues facing long-distance pumping projects has been the lack of new water sources, given that most water is already appropriated. What remains for many basins is flood water, which is not dependable, and is certainly not worth constructing an expensive pipeline for. In the context of a crisis, however, the federal government could facilitate the construction of cross-basin pipeline projects, particularly for critical food production or municipal water systems that were unable to deliver supplies to large urban areas. This kind of political pressure would likely be enough, particularly if the choice was pipeline construction or relocation of a major city. While such a scenario is hard to imagine, it is already happening on a smaller scale, as groundwater-dependent cities across the world face the pressure of unregulated withdrawals drawing down aquifers to critical levels. New Delhi, India, serves as a poignant example of the future to come for cities dependent on a groundwater source that is either overused, under-regulated, or both. While the more prosperous segments of society can purchase their way out of the problem of water scarcity, the less fortunate carry the burden. A similar process can easily occur with water in the American West. Managing Crop and Water Access: The End of Prior Appropriation As discussed above, a crisis changes the federal government’s political calculations and ability to shape policy, and offers up new options that do not exist in a non-crisis situation. State agencies currently manage

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the distribution of water rights as well as the oversight of those rights, and states have experienced limited federal involvement in water issues for over a hundred years, with the exception of several pieces of environmental legislation. However, as noted above, under the constraints of water accountability and in the midst of a water crisis, the federal government could intervene in water right management. The concerns that would likely be raised in a water scarcity crisis are, I believe, rooted in the fact that food prices could be significantly affected by the water scarcity. While there is some evidence to suggest water markets can help smooth out inefficiency in production choice for agricultural products, there are reasons to believe the federal government would have options to control food prices. This intervention could take many forms, such as taking over the enforcement of water rights, or assisting the state in enforcement actions as discussed above. A more radical option the federal government could employ would be a complete dismantling of water rights as they currently stand, and a reorganization based on need and productivity. The end of the prior appropriation doctrine would be a radical move. And while the riparian rights system of the Eastern portion of the U.S. would be an option, a bad water crisis, which many think is on the horizon, would require a more intrusive and drastic option. The federal government could argue that more productive producers would have to purchase water rights from those who are less productive. Or, the federal government could rationalize the distribution of water rights based on other criteria, such as the logic of caloric value and production. In a situation where water scarcity was impacting food prices, for instance, the federal government would likely seek order and stability. Among other actions, such as direct food aid, redistribution of water to the most productive agricultural crops and operations would be logical. Such a centralization of decision making around water at the federal level would be wildly unpopular, and would only be politically feasible in a context of crisis. A smaller step in this direction would be changes in state policy around what constitutes beneficial use, as discussed in Chapter 4. As noted elsewhere in this book, in California, the agricultural sector consumes some 80% of available water supplies annually. Given that agriculture is the majority water consumer in this area, it is clear that any discussion of water distribution reform must address this sector of the economy. However, while 25% of the nation’s produce and nuts are

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produced in this state, it remains economically a small player, at only 2% of the GDP. At the same time, California is one of the most vulnerable states to water scarcity. Thus, the rising cost of reorganizing society based on water, as has been examined, raises interesting questions as to who should grow what agricultural products, where. Almonds, for instance, have increased the economic capacity of growers in California in recent years, as popularity in almond milk and related products has increased. Almonds, however, are frequently exported, and are often a water-intensive crop. In a food market with increased failure rates and instability in traditional supply chains, reorganizing domestic production may become a popular policy taken up at the federal level. Export Ban Another option available to the federal government is instituting export bans. As noted above, countries such as India and Vietnam have instituted export bans during times of drought, in order to secure national food supplies (Phoonphongphiphat and Mohanty 2008). Such bans can have far-reaching consequences, but so do the current patterns of agricultural exports. Virtual or embedded water flows capture the use of water resources in one country to support consumption in another. Currently the U.S. is a gross virtual water exporter, along with China, India, Brazil, and Canada. The largest gross virtual water importers are the Middle East, Europe, Japan, and South Korea (Mekonnen and Hoekstra 2011). Water-intensive agricultural products such as almonds, beef, and milk are often exported. One gallon of milk, for example, requires 1182 gallons of water to produce, which includes the water needed to produce the feed. Alfalfa is a major feed option for dairies, and this commodity has seen a marked increase in international demand; as countries such as China have increased their milk consumption, the capacity to produce alfalfa has not kept pace. In fact, China now imports some 645,000 tons of alfalfa each year from the U.S., taking with it 310,000 acre feet of water, the amount of water used by 800,000 American families annually.6 There are dozens of other examples of crops that act as a form of water exportation from the U.S., including nuts, wines, and citrus. Export bans would, in a water crisis, dramatically reshape what is financially feasible in terms of agricultural production in the U.S. One ramification of the ban would likely be reciprocal bans from other

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trading partners reliant on imports. For instance, if alfalfa was banned, China might respond with export bans of their own on manufactured goods or some other essential commodity, increasing both the financial cost of any export ban and the political ramifications for the federal government. High food prices or shortages would have a significant impact on the political calculations of the executive branch, making food distribution a priority over luxury or other goods. In short, there would certainly be unforeseen consequences of any export ban. On the other hand, if taxpayers are being asked to assist in public investment in agricultural infrastructure and half of the fruit of those operations is being exported, there will be a major political cost to bear. In sum, export restrictions, potentially combined with regulatory influence on crop choice, is one possible federal policy option if water conditions worsen. Farm Subsidies One additional policy option for the federal government would be to increase the amount of farm subsidies provided to agricultural producers. If subsidies are designed to stabilize food prices domestically, then they might have a positive impact on reducing exports or otherwise prioritizing low-water, high-calorie food products. The design of such a policy would require insight into both consumer and producer behavior, but helping farmers keep food domestic, affordable, and in step with the demands of the market would be a possible solution in dealing with a water crisis. Subsidies could also include help in conservation efforts, such as drip irrigation and other technology or strategies that would make agricultural producers more efficient, policies that the USDA already has in place. Expanding this partnership would still leave market forces mostly in place, albeit with some sleight of hand to influence the outcome of production efforts. The Farm Bill currently has opposition from small segments of the population, and it is a sticking point in World Trade Organization (WTO) negotiations, as the U.S. and European nations are unwilling to walk away from their subsidies as demanded by the many developing countries, many of whom have been crippled by structural adjustment policies and the box system of the WTO, which restricts their national agricultural systems. Generally speaking, however, it is hard to imagine significant opposition in the U.S. to a measure that would lower food prices and provide more stability in the country. Given the long history

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of the Farm Bill, its political support from both parties, and the national security justification for its existence, it is hard to see an increase in spending facing major resistance unless there are other more pressing spending priorities.

Federal Government Outcome 2: Securitization An additional reason why it is easy to dismiss those who believe the federal government will not intervene in state water management in the coming years is the history of securitization. Securitization theory, pioneered by Buzan et al. (1998), articulates a vision of policy processes that could be very relevant to the water crisis in the American West. In securitization theory, various actors, typically the state, securitize a policy area through speech acts, leading to the removal of the policy area from normal democratic discourse. In other words, when it comes to threats to the state, the state, even in democratic contexts, has the capacity to remove a contentious issue from the political realm, often dramatically reducing the voice of the opposition from political discussion. In such situations, national security issues, even ones with deep constitutional conflicts, become immune from debate. The process of securitization often occurs through legislation or presidential action, outside the sightlines of the general public. In Buzan et al. (1998), the securitization process is conducted through speech acts, while other scholarly work has advanced the notion that securitization can take many forms, including marshal law, gag orders, and cease and desist orders (Balzacq et al. 2016). Observers of the U.S. War on Terror have documented securitization in recent years. In the post-9/11 period, counterterrorism policies have been implemented, but this implementation has often been kept secret from the American public. The implementation of policies, such as extraordinary rendition, CIA black sites, torture, National Security Administration metadata collection, and others have raised serious questions about constitutional and democratic processes. Yet the U.S. government, across two very different administrations, operated under a cloak of secrecy justified by a security rationale. When news of these policies broke, often from anonymous sources or whistleblowers such as Edward Snowden, public backlash and anger was met with damage control policies and more forthright justifications for the policies, but little reform.

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Securitization occurred long before the War on Terror in the U.S., as the Department of Defense (DOD) has maintained a classified a portion of their budget for decades to pursue research and design projects and maintain intelligence operations. This classified information obscures how much the government spends on various elements of the national security state, with significant consequences for foreign policy and ulitmately decision making. The leaks made by Edward Snowden included a breakdown of how some of the DOD’s money is spent, particular as it relates to on data collection. For example, in FY2013, U.S. intelligence agencies spent a combined $25 billion on capturing the electronic communications of the world, a staggering sum considering that combined spending to run the Departments of the Interior and the Treasury cost less in 2013. For FY2017 procurement for the U.S. Air Force included $21.8 billion that was classified. As Buzan et al. (1998) argue, this spending represents a security practice that is not publicly legitimized, in that no one is able to have a public debate about how well spent that $21.8 billion for the Air Force is, or the legitimacy of using $25 billion for data collection. This is remarkable given the fact that there is often intense discussion over other forms of government spending, such as spending on the Supplemental Nutrition Assistance Program (SNAP), which offers food to those who would otherwise go hungry in the U.S. and costs less. Snowden’s release of this classified information sparked a heated debate within the U.S. over the nature of leaks, their legal or moral standing, and what should be done with those who break the rules set out by this securitization act by the state. The removal of certain information from the public discourse may be strategic, but it also undermines the basic principles of democracy in that citizens largely do not have knowledge of or a role in the decision making, and are not well-informed by their representatives. In this project I have used the concept of securitization policy to help us understand that the federal apparatus can and will continue to securitize policy areas, including those related to water management. Under securitization, if sufficient conditions are met, any law can be overturned, and precedent can be reversed; in the case of water in the American West, the federal takeover of the water management process is a real possibility. As I have argued throughout the book, the possibility of the impossible should be a central focus to our analysis of the future of water policy. Increased water accountability does not have to come through a securitization framework. Political science has established numerous

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examples of public concern prompting action that is undemocratic, perhaps unconstitutional, and breaks precedent. There are ways to enact unpopular policies in the midst of a crisis, which is the more likely event. Securitization can occur outside of a crisis, but flourishes in chaos such as the data collection practices of U.S. intelligence were implemented after 9/11. As it pertains to water, it may be that the best management of water scarcity is to increase flexibility in transferring water rights or moving water; such a policy change could occur as public opinion on the matter is swayed, or it could occur through the actions of political elites, without the consent of the public. Crises may motivate change in public opinion, but may also influence political elites to act outside of the wishes of the general public. And yet the security state may find that objectionable for some reason and pursue another, more inefficient model for addressing the policy issue. The perception is critical in understanding the capacity of the state to securitize a policy area, with the war on terror serving as an excellent example. There are many reasons why counterterrorism agencies get enormous sums of money and legal leeway, even if they are protecting us from a threat that is outpaced by car accidents, heart disease, or opioid-related deaths. The capacity of the federal government to take major action without seeking public approval in response to a threat is plausible under conditions of increased water scarcity in the American West. If the projections of water scarcity are correct, and the disruptions experienced in California during the recent drought are just the beginning of what water scarcity would mean, then the federal government will have a food security motivation to be involved in water management in the West. The linkages between water and agricultural production are clear. Rising food prices have destabilized governments before, and food prices remain a necessary stabilizing force for the political environment, even for the most industrialized countries. Democratic institutions are more responsive to food prices, and particularly famine, as Sen (1982) so famously outlined. Consumers have brought food price pressure to Congress, which responded quickly in the past, including renewing important disaster relief for farmers suffering from drought, cities that don’t have enough drinking water, or sewage treatment plans rendered non-functioning on account of scarcity. As it pertains to the water crisis in the American West, the federal government would have the legal capacity, authority, and willingness to take action that would otherwise not be under consideration currently,

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by utilizing a security rationale. By framing water crises in terms of security, the federal government could open up a range of policy options that would otherwise be impossible to implement in the current political environment. There are groups of people who already fear this exact process in the form of the Patriot Movement, concerns that may abate under the Trump Administration. As Andrew Bacevich (2010) has accurately argued, the U.S. is in a permanent national security crisis. While Bacevich is referring to foreign policy, the idea that the security state can be questioned in times of national emergency is a false one. Under heightened water scarcity in the region, there would be ample reason for the federal government to intervene and its security rationalization would be untouchable. The next section details the policy options available to the federal government under such a crisis.

Conclusion This chapter has outlined the various policy options state agencies have to improve their capacity to respond to water accountability in the coming years and decades. In addition, I have addressed the outcomes the typology predicts for the federal government and the possible policy options they could utilize in the event of a water system failure, or the perception of such a crisis. A critical component of this chapter has been to open the array of possible outcomes as it pertains to state and federal policy that could be enacted. There are of course other policy options not examined here, including inaction. It is uncertain how water scarcity will play out, and what the federal and states government will do in response, but the conversation on how to handle this policy problem will continue. Nevertheless, water scarcity is coming and for many it is already here. With it the politics of water accountability will emerge to play a prominent role in the era of climate change. How the states and the federal government deal with this crisis will be critical, as the lack of a comprehensive policy will further confuse and destabilize those dependent on the water supplies across the western U.S.

Notes 1. With the exception of bank robberies, where the estimated total loss is rarely disclosed to the public.

182  I. M. CASTELLANO 2. Fleck (2016) (Fleck, John. 2016. Water Is For Fighting Over. Washington, DC: Island Press) and Mulroy (2017) (Mulroy, Pat, ed. 2017. The Water Problem: Climate Change and Water Policy in the United States. Washington, DC: Brookings) are just two of the latest contributions to this literature. 3.  Environmental Working Group. Website. Accessed November 5, 2017. https://farm.ewg.org/index.php. 4. For a detailed analysis of USDA agricultural disaster assistance, see Stubbs, Megan. “Agricultural Disaster Assistance.” July 27, 2017. Congressional Research Service. 7-5700. https://fas.org/sgp/crs/misc/RS21212.pdf. 5. Prior appropriation, as discussed in earlier chapters is a policy that prioritizes senior water right needs over those of junior ones, irrespective of the productivity value the water contributes to. As water supplies decline fewer and fewer people get all of their allotted water, and many get cutoff so that senior water right holders can receive their entire allotment. 6. Data drawn from National Geographic based on Mekonnen and Hoekstra (2011). https://news.nationalgeographic.com/2015/04/150409-water-agriculture-cattle-dairy-conservation-ngfood/.

References Bacevich, Andrew. 2010. Washington Rules: America’s Path to Permanent War. New York: Macmillan. Balzacq, Thierry, Sarah Leonard, and Jan Ruzicka. 2016. “Securitization Revisited: Theory and Cases.” International Relations 30 (4) (January): 494–531. Bebchuck, Lucian A., and Assaf Hamdani. 2006. “Federal Corporate Law: Lessons from History.” Columbia Law Review 106: 1793–1839. Bush, Ray. 2010. “Food Riots: Poverty, Power and Protest.” Journal of Agrarian Change 10 (1): 119–129. Buzan, Barry, Ole Waever, and Jaap Wilde. 1998. Security a New Framework for Analysis. Boulder: Lynne Rienner. California Department of Food and Agriculture. 2017. “California Agricultural Exports 2015–2016.” Accessed November 5, 2017. https://www.cdfa. ca.gov/statistics/pdfs/AgExports2015-2016.pdf. Castellon, David. 2017. “Tulare County Sets Aside Cash to Clear Abandoned Citrus Groves.” The Business Journal, December 11. Accessed December 15, 2017.  https://thebusinessjournal.com/tulare-county-sets-aside-cash-clearabandoned-citrus-groves/. Dible, Max. 2017. “Overconsumption, Pump Issues Put North Kona on Verge of Water Rationing.” Hawaii Tribune-Herald, June 21. Accessed December 13, 2017. http://hawaiitribune-herald.com/news/local-news/ overconsumption-pump-issues-put-north-kona-verge-water-rationing.

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Fort, D. D. 2002. “Water and Population in the American West.” Yale: F&ES Bulletin 107: 17–24. France, Kevin. 2015. “Drought Hurts Agriculture, Cost West of $40 Billion.” May 31, 2015. Accessed December 11, 2017. https://www.accuweather. com/en/weather-news/drought-taking-a-big-hit-on-ag-1/47857167. Heberger, Matthew, and Kristina Donnelly. 2015. “Oil, Food, and Water: Challenges and Opportunities for California Agriculture.” December 6, 2015. Accessed December 17, 2017. http://pacinst.org/publication/ oil-food-and-water-challenges-and-opportunities-for-california-agriculture/. Johnson, Toni. 2003. “Food Price Volatility and Insecurity.” Council on Foreign Relations, January 16. Khokha, Sasha. 2015. “Drought Health Hazard: Not Enough Water to Keep Down Central Valley Dust.” KQED News, August 21. Accessed December 11, 2017. https://ww2.kqed.org/stateofhealth/2015/08/21/ another-drought-casualty-controlling-dust-with-water-in-the-central-valley/. Lacey, Marc. 2008. “Across Globe, Hunger Brings Rising Anger.” New York Times, April 18: A4. Lagi, Marco, Karla Z. Bertrand, and Yaneer Bar-Yam. 2011. “The Food Crises and Political Instability in North Africa and the Middle East.” New England Complex Systems Institute, August 2011. Also see Sternberg (2013). Mekonnen, M. M., and A. Y. Hoekstra. 2011. “National Water Footprint Accounts: The Green, Blue and Grey Water Footprint of Production and Consumption.” Value of Water Research Report Series No. UNESCO-IHE, Delft, Netherlands. Phoonphongphiphat, Apornrath, and Sambit Mohanty. 2008. “Thai Rice Stocks Improving, No Exports Ban.” Reuters News Service, May 1. Accessed December 18, 2017. https://www.reuters.com/article/us-thailand-rice/ thai-rice-stocks-improving-no-exports-ban-idUSSP24058020080501. Sahling, Leonard, and Dan Kowalski. 2017. “California Drought and Its Economic Impact on Agriculture in 2016.” Accessed November 1, 2017. Sen, Amartya. 1982. Poverty and Famines: An Essay on Entitlement and Deprivation. New Delhi: Oxford University Press. State of Idaho Water District #161 Water Users Perspectives on New Regulations [Telephone Interview] (n.d.). Stubbs, Megan. 2017. “Agricultural Disaster Assistance.” Congressional Research Service 7-5700, July 27. https://fas.org/sgp/crs/misc/RS21212.pdf. U.S. Department of Agriculture. Farm Census 2012. United States Department of Agriculture. https://www.nass.usda.gov/AgCensus/Report_Form_and_ Instructions/2012_Report_Form/index.php.

CHAPTER 7

Moving Forward: Policy Actors and Strategy

This book has made several arguments and conclusions about the capacity of western state governments to protect water rights, as the duel threat of increased demand on account of population growth, and decreased supply on account of climate change, create the conditions of water scarcity across the region. I have argued that water accountability has and will continue to be an issue facing states. Upon examining the level of water accountability of eleven western states three general arguments have been advanced. First, there is evidence to suggest that the response to unauthorized water use by state governments is and will continue to be a growing policy concern for a variety of political actors. Second, several states, primarily California, but others such as Utah, have experienced, and therefore created more advanced water accountability structures within their state water agency. Third, there are a variety of policies both the states and federal government can employ to strength their water accountability regimes. The outcome of this process, is that whatever the policy or combination of policies that gets enacted, or not enacted, there will be winners and losers in the political environment. These policy changes at both state and federal levels would face substantial political opposition. However, the implementation of increased water accountability has a number of advantages. First, policy-makers will have a set of laws and institutions, provided they are properly funded, with the explicit task of preventing the waste of a valuable resource. Such an effort, if properly managed, could address the vast majority of the concerns various stakeholders may have about water © The Author(s) 2020 I. M. Castellano, Water Scarcity in the American West, https://doi.org/10.1007/978-3-030-23150-7_7

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management policy, particularly agricultural water users. Moreover, strong and agile institutions will be critical for societies to mount successful resilience efforts in the face of changing population and climatic conditions (Homer-Dixon 1999). Criminalizing unauthorized water use, in the face of growing scarcity, may be one of the few tools states have to address the problem associated with reduced water flows. I dedicate the remainder of this book to discussing the cost of inaction, as well as the primary stakeholders involved in the water system, and their role in bringing about change. I close with a discussion of future research and weaknesses of the project.

The Cost of Inaction All of the policy options I have laid out will have significant issues and will likely face stiff opposition. There is no perfect solution to reorganizing a sector of the economy, such as the agricultural sector, which would likely have major negative consequences for a variety of political actors and segments of the population. However, as challenging as these options may be, the cost of inaction, particularly at the state level, is going to lead to major breakdowns in society. In some places, this is already occurring. These breakdowns will have to be dealt with first at the local level, and as argued, there may be considerably more attention paid to unauthorized water use and back-end regulation more generally. The focus on compliance with easily available metrics will become critical for states to demonstrate their capacity. The options before states and water users, in particular the agricultural sector, on how they respond to water scarcity and possible system breakdown, are numerous. Currently, most states lack credibility when it comes to enforcement and their ability to detected violations. As one water user in Elmore County, Idaho I interviewed claimed “People are always thinking the next guy is overusing,” in that context that lack of credible enforcement emerges as a political issue. Local fights tend to stay local, but system failure may bring more eyes and interest to the problem. A lack of state-led response to unauthorized use, and other threats to water rights, may result in local conflicts that water users respond to on their own. Private efforts to facilitate compliance, on either a peer-to peer-level may be combined with individual-level securitization where water users need to respond with their own security. Given the

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centrality of water to agricultural production, and an expected increase in its cost and decrease in its availability, water users and other actors may find unauthorized water use to be an attractive option. One bellwether for this was the rise in California of water tanker thefts in the state during the drought in 2013–2015. An increase in illegal diversions on the Wapato Irrigation Project in Washington state offers a second example. Such actions lead to confrontations without proper state intervention and robust enforcement efforts that satisfy all of the actors in the system. Such conflicts can lead to confrontations between private citizens, or at least a host of informal enforcement actions unsanctioned by a government agency, as stories from the Wild West have such episodes of farmers protecting their water by any means necessary. The investment of water management agencies help curtain this vigilante justice around water right compliance, not to mention the increase in confidence that state agencies can manage the impacts of climate change. Such conflicts can make for complicated social relations in hard-hit areas, and also can increase the production cost for producers, costs that would likely be passed on to consumers, compounding food price increases. A lot of that can be avoided with timely and thoughtful action on the part of the states and the federal government. How those policies get put in place, of course, will have substantial impacts on the stakeholders involved. The other great concern here, is that particularly with groundwater, there is overuse and depleted aquifers where recharge functions cannot keep up with demand. As mentioned and discussed at length in Chapter 2, the call for upcoming disaster has been a hallmark of the literature examining the region. In all of that work, the reoccurring theme is that these good times of growth and economic expansion in the region cannot last forever, given water scarcity. Clearly, the process is already underway with stories every day about the problems facing water users in the region. The folks of Elmore County will get their first compliance check in September 2019 to see if they purchased their meters for their wells, the first of many alterations to their use of water that has been prompted by water scarcity. More is surely to come, and how the region and the communities in it deal with the pressure is to be seen, but it is hard to think it won’t be very difficult and will have a significant influence on the lives of the people who call these states home.

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Political Actors and Policy Choices Thinking through the dynamics that the region is to face, we return to an analysis of the political actors that inhabit the region and their particular water interests. Who is set to gain and who could lose, with the various policy options available to state and federal agencies. As this project has argued, policy responses to water scarcity among states in the American West are likely to change in the coming decades. There are a number of avenues that states and the federal government can pursue as discussed in previous chapters. The public policy process has clear inputs, places where government institutions interact with the public they serve. Not everyone understands the process equally, or has the means to influence it, and there are many layered issues associated with water policy in the American West, with diverse stakeholders who stand to gain and lose based on the various policy options and their intended and unintended outcomes. The major stakeholders and possible strategies they can employ to advance their agendas with regard to future management in the space below. There are three major categories of water users, including (1) agricultural interests, (2) those advocating for environmental protections, and (3) urban users. Each of these stakeholders have much to lose and gain based on how effective and interventionist various state and federal actions will be in the coming decades around water policy. As the 2012 USDA report on climate change and adaptation states, “effective adaptive action across the multiple dimensions of the U.S. agricultural system offers potential to capitalize on emerging opportunities and minimize the costs associated with climate change” (Walthall et al. 2012). One of the emerging opportunities is to properly manage water supplies by building robust enforcement mechanisms for unauthorized water use reporting and response. However, such a system will not benefit all the actors. Using the best interests of these three major categories of actors, this section lays out the political environment and the possible policy options and strategies they may all pursue. Agriculture There are, as examined throughout this book, two types of agriculture producers in the scheme of water rights: those with senior water rights and those with junior water rights. Those holding junior water rights, in general, will benefit less from reform to the compliance strategies of state

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water management agencies, while those with senior rights will benefit more. Those with junior water rights in a scarcity context are more likely to lose their water allotments, based on the prior appropriation system which guarantees water to senior rights regardless of what kind of beneficial use requirements they meet. On the other hand, junior water rights are likely to benefit from water market reform and infrastructure investment that can facilitate such transactions, as are senior right holders as it will drive down demand for unauthorized withdrawals, and they can enter the market to sell off their positions. Junior water right holders are going to be hurt hard by policy changes around ground water, particularly where metering is concerned. The Elmore County, Idaho case illustrates just how hard-hit such junior water right holders are going to be. In that example, the new water district (Idaho Water District #161) imposes metering on all groundwater withdrawals starting in 2019. Data for several years will be collected, and then decisions will be made, dependent on aquifer levels which have been on the decline for 30 years. If there is little evidence to suggest that recharge has been resolved, decisions will need to be made on who gets to keep pumping water from the system. If the aquifer level is low enough, several junior right holders are going to be cut off from their groundwater supplies. Extrapolating from this example, a groundwater program for the whole state would likely result in a similar outcome. That is exactly what is contained in California’s 2015 Sustainable Groundwater Legislation; however, the legislation delays the cutoff of junior water right holders until the 2040s. This divide within the agricultural community prevents a universal policy suggestion or strategy. However, all arguably would benefit from keeping the municipal water users and general urban population out of any political decision-making on water management, particularly as it pertains to agriculture. As I have argued throughout this book, there is likely to come a day when there is political mobilization around “water accountability,” which could produce policies dominated by urban interests. Consider California, where legislative power from urban water users would demand some increased regulatory power to manage scarce water supplies and increase the punishment for unauthorized water use. Such a movement would undermine all agricultural interests, not just junior water right holders because it is hard to predict what the demands would be, or the outcome of the policy process. The point here is that even if the agricultural interests may not currently agree on a policy approach,

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agricultural actors may find that it is beneficial to offset the mobilization of urban interest with some kind of reform that would take the wind out of the sails of a movement that would impose water management regulations with urban interests in mind. In this regard, agricultural interests would be best advanced by some increase in the management of unauthorized water use, in order to address concerns with the current lack of criminal proceedings for cheaters and so forth. Agricultural actors could also likely come together to support federal action to help ensure food prices stability, such as amending the farm bill to account for drought or water scarcity. The perception remains among many agricultural interests that government intervention and regulation is something to be feared and opposed. The increased enforcement of unauthorized water use as proposed in Chapter 6, and any securitization of water by the federal government, will most certainly alter the day to day operation of farms across the region. However, agricultural interests should fully support modernization of unauthorized water use data collection and management, so that, if unauthorized water use rates are low, they can utilize data to advance the notion that criminalizing unauthorized water use is not productive or needed. Junior Water users with sizable economic contributions, are going to be the poster children for action on both water accountability, but also significant changes to water right law, and subsequently, water allocations. While water markets can help alleviate this dynamic, there is going to be an opportunity for junior water right holders to push their case for amending the legal arrangement, and in the very least increasing the enforcement of water rights given the what will continue to be asked of urban water users, including the use rationing schemes in dry years. Environmental Groups The environmental group with interests counter to that of the Mountain Home Irrigation District the surrounding water users, is the Idaho Conservation League, who is the most sophisticated and well-funded environmental organization in the state. Their recent efforts to block the water right claim by the Mountain Home Irrigation District for flood water on the South Boise River, is representational of the kind of policy and water use decisions that water users in the state are going to be asking for. As for the rest of the region, the various environmental groups are likely going to face major challenges in the coming decades over the

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management of water in the American west. Environmental groups, particularly those working to restore native fish species, including salmon runs in the northwest, are likely to face major pushback from both urban residents and the agricultural sector. With dwindling water supplies, river flows will be under consistent pressure from withdrawals, and federal guidelines on endangered species and other environmental legislation will be viewed as holding back progressive steps to delivering more affordable water to municipal users and help farms produce the crops people need to live. Such emphasis could be easily framed and turned into strong political attack ads, undermining support for fish varieties that no one knows about, such as the Big Spring Spinedace, a threatened species that is only found in a sliver of eastern Nevada.1 It is going to be hard to convince thirsty people that that is a good use of the limited supplies of fresh water in the streams, rivers, and lakes where the region’s fish flourish. Consider the 2001 standoff between the Bureau of Reclamation (BOR) and the users of the Klamath Irrigation Project in southern Oregon. A drought resulted in a shutoff order from the BOR, which then prompted a demonstration from water users who constructed a bucket brigade to divert water to irrigation canals. U.S. Marshals had to be called into enforce the order, and then the following year the Bush Administration resumed water deliveries, which then resulted in a substantial die off of Chinook salmon. Additionally, there will be, as I argued in Chapters 6, a push for increased storage as a solution to water scarcity and the problems related to unauthorized water use. This means more dams which have significant negative environmental impact such as disrupting migrating fish, trapping sediments that are central to the downstream habitats including the maintenance of deltas, floodplains, and coastal wetlands, the creation of slack water manmade lakes that result in changes to the water’s chemical composition, lower oxygen levels, and changing temperature, among other negative social and environmental outcomes. A strong movement to remove dams has emerged, particularly in the Pacific Northwest, where a decade’s long effort to remove the Elwa Dam in Washington state came to fruition in 2012, and where the historic Klamath Hydroelectric Settlement Agreement was made, which removes four dams on the Klamath River in Oregon and California starting in 2020. These stand out as successful efforts to restore rivers to their natural state, yet pressure to hold on to the increased rainfall as opposed to the current system based on snowpack, will likely reverse this momentum.

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As those efforts continue, the cost of doing so will increase as water scarcity increases. Environmentalists will face an uphill battle advocating for less storage; the issue of storage will become an issue of increasing importance given the prediction that climate change is likely to reduce snowpack, which serves as a natural regulator of down stream flows through the growing season. As precipitation shifts from less snow to more rain, large storage facilities (i.e., dams) will likely become ever more attractive to water managers working to distribute limited supplies. With limited support for protection of fish, and dwindling support for dam removal and growing support for more storage capacity, the environmental elements of water management will be outpaced by economic and social concerns associated with decreased water supply and agricultural production. Given these conditions, it can be anticipated that environmental groups might have to change their positions. In the short term, environmental groups naturally would support strengthening the compliance capacity of states on unauthorized water use, as the loser of any unauthorized withdrawal is fish and wildlife dependent on the natural flow of surface water sources. In that way, there is a natural alliance between environmental groups and senior water right holders, who both have legal claims to water allotments. Clearly, the environmental segment would be in opposition to major infrastructure projects, but perhaps if there was a way to solve the water scarcity issues other than building new storage or pipelines that would aid the interests of environmental groups. A dismantling of the prior appropriation system to better allocate water to more productive crops, and any ban or regulation to cut down on virtual water transfers, would also fit into an environmental agenda, as would any effort to increase the cost of meat production, which is one of the more environmentally damaging food products produced in the region. Regardless, moving forward environmental groups have one of the most difficult futures in achieving their agenda. Urban Users Urban water users have a lot to lose in the coming decades when it comes to changing water conditions. While they utilize a small portion of the overall fresh water withdrawals in the region, urban users are often the first to experience requests for conservation, rationing, and stiff penalties for violating water use regulations. I argued in previous chapters that urban water users will be the catalyst for calling attention

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to unauthorized water use. Urban water users will likely be most success with achieving their interests if they organize or encourage their utilities to organize opposition to the interests of agricultural users, and perhaps form an alliance with environmental groups to further advance an agenda of keeping agricultural users under pressure to increase their conservation and to bring violators into compliance. Few if any of the policy suggestions I have made are in opposition to the interests of urban water users, whose primary interest is cheaper and consistent supplies of water, in addition to affordable food prices. The issue of course is the problem of distributive costs, in that urban water users on an individual basis have little to gain from political mobilization on this issue, as their returns show up in somewhat smaller water and food bills. Thus, the greatest challenge for this group is forming effective political organizations in order to mobilize for their interests.

Research Weaknesses and Moving Forward To close, I discuss the short comings of this project, and explore future avenues of research. It is clear to any social scientist, that there are weaknesses to any approach in determining causality. In this project there are several distinct weaknesses that can be built on in future projects. First and foremost is addressing the greater enforcement system that is present in western water use. In particular, the behavior of local water masters and their role in protecting water rights is not part of the analysis here. As I have argued, there is reason to examine the variation in state behavior, but the state-level water agencies, as important as they are in shaping behavior and being the ultimate protector of water rights in the state, are only part of the enforcement system. This short coming can be addressed in a number of ways, but as discussed in Chapter 3, there are hundreds of local water managers across the 11 states. Surveying all of them, and examining their behavior on a sensitive issue, that is, are they doing their job correctly, is beyond the scope of this project, but also the financial and time budgets of most researchers. Work has addressed the nature of local water management, but on a limited scale and mostly with a small sample. A more uniform examination of the role of local water users and any informal institutions they create to enforce water regulations and protect water rights, would be a major contribution to this line of inquiry. The difficulty of knowing how many actual violations there were versus how many were reported,

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remains a major problem. Likewise, unreported crime is a well-documented phenomenon within the criminal justice literature, and as I have discussed throughout this book, there is likely more violations than what is reported to the states, as water managers may be able to solve distribution problems without the threat of civil action. Finding out how local and non-state water managers adjudicate such claims would illuminate the field’s understanding of both how many cases, but how water managers at the local level deal with the problem of unauthorized water use. Unless state policy is going to include managing irrigation districts at a micro level, policymakers will benefit from understanding the day-to-day operations of these water managers. While the sub-state level remains under examined, the federal role in water management must also be considered. Such work would largely have to be more speculative than empirical. The position of this book has been that water scarcity in the western U.S. will remain a major policy issue for the foreseeable future. If conditions continue to worsen to where food production, food prices, and water security become issues, it may prompt a more robust and interventionist federal response. This response may include criminalization policies utilizing federal resources to curtail unauthorized water use, intervention into water markets, and more. If the predictions for climate change and population growth in the region continue unabated, there will be shortages and a water crisis, and policymakers at both the state and federal level will be under significant pressure to intervene and at least demonstrate an attempt to elevate the negative outcomes of water scarcity. While criminalization may not yield significant results in undercutting unauthorized water use, political pressure associated with water accountability will create conditions where such policies may become attractive to federal and state authorities. Water is a complicated topic, yet its centrality to our lives is so simple. Without it we do not live. How we design the institutions to manage this precious resource is a critical part of how we flourish as a society. We as a society have a responsibility to explore how we will manage this resource.

Note 1. See https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=E04L for more details.

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References Homer-Dixon, Thomas F. 1999. Environment, Scarcity, and Violence. Princeton: Princeton University Press. State of Idaho Water District #161 Water Users Perspectives on New Regulations [Telephone Interview] (n.d.). Walthall, C. L., et al. 2012. “Climate Change and Agriculture in the U.S.: Effects and Adaption.” USDA Technical Bulletin 1935, Washington, DC.

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Index

A Adaptation interactions, 25, 95–101, 103, 106, 109, 114, 120, 136, 137, 141, 146, 147 Agricultural, 1, 3, 5–10, 18–20, 23, 25, 26, 31–33, 35–37, 42–44, 51–53, 58, 61, 62, 64, 68–72, 74–76, 80, 90, 96, 97, 99, 104, 105, 110, 113, 116, 126, 137, 138, 141–147, 157, 165–168, 172, 174–177, 180, 182, 186–193 American West, 4, 6–10, 12, 14, 16, 17, 21, 24–26, 31–35, 37–40, 42–46, 51–56, 58–63, 68–71, 73, 77, 84, 89, 90, 95, 97–99, 101, 103, 107, 109, 111, 114, 115, 129, 130, 159, 161–165, 167, 168, 171–174, 178–180, 188, 191 Aquifer recharge, 10, 98, 129 Aquifers, 1–5, 20, 23, 36, 37, 54–56, 60, 91, 100, 112, 129, 130, 143, 148, 152, 174, 187, 189

Arab Spring, 44 Arizona, 7, 14, 17, 26, 35, 77, 106, 117, 123–125, 129, 134–137, 142, 169 B Beneficial use, 3, 33, 56, 57, 162, 175, 189 Boise, Idaho, 14, 18, 173 Brink, E., 95, 96, 98–100 Buzan, Barry, 26, 95, 96, 101–103, 105, 178, 179 Byron-Bethany Irrigation District, 87, 115 C Calaveras County, 5 California, 5, 7, 8, 10, 16, 17, 19–21, 26, 35, 36, 39, 45, 55, 59, 60, 63–65, 70, 71, 73, 77, 78, 82, 85, 87, 89–91, 98, 100, 106, 109–111, 113, 115–117,

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG, part of Springer Nature 2020 I. M. Castellano, Water Scarcity in the American West, https://doi.org/10.1007/978-3-030-23150-7

209

210  Index 123–125, 127, 129, 130, 134–136, 138, 141, 142, 154, 158, 160–162, 165–167, 169, 172–176, 180, 185, 187, 189, 191 California’s Sustainable Groundwater Management Act of 2015, 162 Central Valley, California, 1, 46, 59, 166, 167 Climate change, 4, 6–10, 12, 21, 23, 24, 32, 35, 36, 40, 41, 45, 46, 53, 65, 72, 75, 77, 85, 97–104, 111, 114–116, 120, 123, 130, 136, 146, 148, 165, 166, 173, 185, 187, 188, 192, 194 Colorado, 7, 14, 17, 26, 35, 55, 58, 63, 78, 80, 112, 117, 121, 122, 124, 125, 133, 134, 136, 138, 141, 142, 153, 163, 169 Colorado Basin, 35, 114 Colorado River, 21, 35, 46 Conjunctive management, 54, 60, 108, 116, 129, 132, 146, 152, 166 Copenhagen School, 41, 96 Criminalization, 102, 104, 156, 157, 163, 194 D Drought, 10, 12, 19–21, 36, 40, 43, 44, 47, 51, 62, 64, 69, 75, 82, 90, 98, 109, 114, 115, 136–141, 165–167, 176, 180, 187, 190, 191 Drought Monitor, 131, 137–141 E Elmore County, Idaho, 1, 19, 55, 100, 107, 108, 112, 129, 143, 148, 163, 168, 186, 189

Environmental movement, 25, 70, 76, 77, 99, 139, 141 Environmental security, 8, 21, 22, 24, 31, 37, 39–47, 68, 103, 104 Export ban, 176, 177 F Farm Bill, 75, 105, 168, 169, 177, 178, 190 Federal government, 8, 18, 25, 26, 45, 60, 75, 95, 97, 101–106, 108, 112, 114, 116, 120, 130, 131, 148, 149, 151, 152, 161, 164, 165, 168–172, 174–178, 180, 181, 185, 187, 188, 190 G Geographic Information Systems (GIS), 5, 83–86 Gleick, Peter, 36, 37, 44, 47 Groundwater, 1–4, 20, 33, 34, 37, 54–56, 58–60, 77, 81, 98, 106–108, 112, 121, 124, 129, 130, 132, 135, 136, 143–145, 152, 155, 162, 163, 166, 174, 187, 189 H Homer Dixon, Thomas, 23, 44 Hydroelectric power, 12, 59, 102 I Idaho, 1–4, 6, 12, 16–18, 23, 26, 33, 47, 52–54, 56, 57, 59–61, 63, 64, 66, 71, 77–81, 83–86, 91, 99, 100, 107, 112, 115–117, 122, 124, 125, 134, 135, 142, 143, 146, 148, 149, 152, 154,

Index

156, 160, 161, 163, 169, 172, 173, 189, 190 Idaho Department of Water Resources (IDWR), 2–4, 56, 57, 63, 78–81, 84, 86, 109, 112, 122, 143, 144, 148, 149, 153 Integrated Water Resource Management (IWRM), 38 Irrigation district, 2, 7, 52, 59, 60, 82, 84, 87, 91, 95, 96, 106, 115, 144, 154, 159, 194 K Klamath Basin, 35, 76, 89, 105, 165 M Metering, 36, 55, 60, 106, 108, 110, 112, 129, 157, 163, 189 Montana, 5, 7, 16–18, 57, 59, 61, 63–65, 77, 82, 84, 123, 124, 128, 134, 135, 139, 142, 169, 172 Mountain Home, Idaho, 33 Mountain Home Air Force Base (MHAFB), 143, 146, 147 Mountain Home Irrigation District (MHID), 144, 145 N Nevada, 7, 14, 17–19, 26, 55, 56, 59, 61–64, 66, 78, 117, 122, 124, 125, 127, 134, 135, 139, 142, 158, 159, 169, 191 New Delhi, India, 4, 5, 20, 62, 67 New Mexico, 7, 16–18, 26, 63, 116, 117, 121, 124, 125, 129, 133, 134, 136, 139, 141, 142, 153, 169

  211

O Oregon, 7, 12, 14, 17, 20, 26, 39, 56, 63, 70, 77, 78, 81, 86–89, 109, 115, 117, 124, 125, 127, 128, 134, 135, 140, 142, 153, 156, 158–160, 169, 172, 173, 191 Over-appropriated, 6, 59 P Pacific Institute, 36, 105 Place based management, 22, 39 Policy strategy, 160, 189 Population growth, 4, 6, 7, 9, 14, 16, 19, 21, 23, 35, 40, 53, 65, 74, 79, 97, 101, 111, 115, 173, 185, 194 Prior appropriation, 6, 26, 32–34, 56, 57, 68, 70, 71, 74, 89, 115, 165, 171, 175, 182, 189, 192 S Securitization, 25, 45, 95, 96, 101–103, 106, 109, 111, 120, 130, 136, 143, 149, 169, 171, 178–180, 186, 190 Securitization theory, 95–97, 101, 102, 178 Security studies, 24, 26, 44, 96 Selleck, Tom, 5, 7, 61 Snake River Plain Aquifer agreement, 100 Snowpack, 6, 10–12, 51, 53, 191 Surface water, 2–4, 10, 18, 33, 44, 54, 55, 60, 61, 81, 83, 108, 113, 129, 144, 152, 192 Sustainable Groundwater Management Act, California, 55, 108, 129 Syria, 40, 44, 45

212  Index T Typology, 25, 103, 119, 120, 128, 130, 131, 133, 134, 136, 140, 147, 148, 151, 169–171, 181 U Urban water users, 73, 74, 113, 189, 190, 192, 193 US Department of Agriculture (USDA), 9, 71, 78, 105, 126, 127, 136, 145, 168, 169, 177, 188 Utah, 7, 16–18, 26, 63, 64, 67, 70, 77, 81, 82, 100, 117, 123–125, 127, 134, 135, 140, 142, 154–156, 169, 185 V Ventura County, 5 W Wamsler, C., 95, 96, 98–100 Wapato Irrigation Project (WIP), 5, 51, 67, 187

Washington, 5, 7, 12, 14, 17, 18, 24, 42, 51, 52, 58, 63, 64, 67, 70, 71, 77, 80, 100, 123–125, 134, 135, 140, 142, 166, 169, 172, 173, 187, 191 Water Accountability, 7–10, 12, 20, 22, 25, 32, 39, 64, 75, 76, 85, 90, 95–97, 101, 103, 104, 106, 107, 109–114, 120, 121, 127, 130–132, 136, 141–143, 147–149, 151–155, 157–159, 161, 162, 164, 170, 175, 179, 181, 185, 189, 190, 194 Water District 161, 2, 53, 55, 100, 143, 147, 148, 163, 189 Watermaster, 60, 84, 193 Water meter, 110 Wyoming, 7, 17, 26, 63, 77, 100, 117, 121, 122, 124, 125, 129, 133, 134, 141, 142, 153, 169 Y Yakima Nation, 5 Yakima Valley/Basin, 51, 58